Faisal Nabin Kashem v. William Barr ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FAISAL NABIN KASHEM; RAYMOND No. 17-35634
EARL KNAEBLE IV; AMIR MESHAL;
STEPHEN DURGA PERSAUD, D.C. No.
Plaintiffs-Appellants, 3:10-cv-00750-
BR
v.
WILLIAM P. BARR, Attorney General; OPINION
CHRISTOPHER A. WRAY; CHARLES H.
KABLE IV, Director,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted October 9, 2018
Portland, Oregon
Filed October 21, 2019
Before: Raymond C. Fisher and Consuelo M. Callahan,
Circuit Judges, and Cathy Ann Bencivengo,
District Judge. *
Opinion by Judge Fisher
*
The Honorable Cathy Ann Bencivengo, United States District
Judge for the Southern District of California, sitting by designation.
2 KASHEM V. BARR
SUMMARY **
No Fly List
The panel affirmed the district court’s summary
judgment in favor of the United States government in an
action alleging that plaintiffs’ inclusion on the No Fly List,
prohibiting them from boarding commercial aircraft flying
to, from or within the United States or through United States
airspace, violates their procedural and substantive due
process rights.
The panel held that the district court properly rejected
plaintiffs’ as-applied vagueness challenges. The panel
determined that the No Fly List criteria are not
impermissibly vague merely because they require a
prediction of future criminal conduct, or because they do not
delineate what factors are relevant to that determination.
The panel held that the criteria are “reasonably clear,” in
their application to the specific conduct alleged in this case,
which includes, for one or more plaintiffs, associating with
and financing terrorists, training with militant groups
overseas and advocating terrorist violence. Furthermore, the
criteria are not so standardless that they invite arbitrary
enforcement, at least as applied to plaintiffs. Because the
panel concluded the No Fly List criteria were not vague as
applied, it declined to reach plaintiffs’ facial vagueness
challenges.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
KASHEM V. BARR 3
The panel agreed with the district court’s disposition of
plaintiffs’ procedural due process claims. Applying
Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the panel
weighed plaintiffs’ private interests, the government’s
interests, the risk of erroneous deprivation through the
procedures provided, and the value of the additional
safeguards proposed by the plaintiffs, and concluded that the
procedures provided to plaintiffs were constitutionally
sufficient, or that any error was nonprejudicial. The panel
determined that given the national security concerns at issue,
and with the exceptions noted, the government had taken
reasonable measures to ensure basic fairness to the plaintiffs
and followed procedures reasonably designed to protect
against erroneous deprivation of plaintiffs’ liberty. Because
there was no prejudicial denial of basic fairness, the panel
did not decide whether, in a different case, less severe travel
restrictions might be required as an alternative to a complete
ban on air travel. Nor did the panel address whether the
procedures employed here would be adequate in a different
case.
The panel held that the district court properly dismissed
plaintiffs’ substantive due process claims for lack of
jurisdiction under 49 U.S.C. § 46110(a), which places
review of Transportation Security Administration orders in
the courts of appeals rather than the district court. The panel
noted that although this Court previously held that
substantive challenges to No Fly List determinations could
be pursued in district court, the 2015 revisions to the traveler
redress procedures altered that analysis. Under the new
procedures, the Transportation Security Administrator bears
sole responsibility for issuing a final order maintaining or
removing a traveler from the No Fly List and sole authority
to remove a traveler from the list. In light of this change, the
4 KASHEM V. BARR
statute grants the courts of appeals exclusive jurisdiction
over substantive challenges to No Fly List determinations.
COUNSEL
Hina Shamsi (argued) and Hugh Handeyside, American
Civil Liberties Union Foundation, New York, New York;
Ahilan T. Arulanantham, American Civil Liberties Union
Foundation of Southern California, Los Angeles, California;
Steven M. Wilker, Tonkon Torp LLP, Portland, Oregon;
Richard M. Steingard, Law Offices of Richard M. Steingard,
Los Angeles, California; Joel Leonard, Elliott Ostrander &
Preston PC, Portland, Oregon; for Plaintiffs-Appellants.
Joshua Waldman (argued) and Sharon Swingle, Appellate
Staff; Billy J. Williams, United States Attorney; Joseph H.
Hunt, Assistant Attorney General; Civil Division, United
States Department of Justice, Washington, D.C.; for
Defendants-Appellees.
OPINION
FISHER, Circuit Judge:
The plaintiffs are on the No Fly List, which prohibits
them from boarding commercial aircraft flying to, from or
within the United States or through United States airspace.
They challenge, under the Due Process Clause of the Fifth
Amendment to the United States Constitution, both their
inclusion on the No Fly List and the sufficiency of the
procedures available for contesting their inclusion on the list.
Specifically, the plaintiffs argue (1) the criteria for inclusion
on the No Fly List are unconstitutionally vague; (2) the
KASHEM V. BARR 5
procedures for challenging inclusion on the list fail to satisfy
procedural due process; and (3) their inclusion on the list
violates their substantive due process rights. The district
court granted summary judgment to the government on the
vagueness and procedural due process claims and dismissed
the substantive due process claims for lack of jurisdiction
under 49 U.S.C. § 46110. We affirm.
The district court properly rejected the plaintiffs’ as-
applied vagueness challenges. A law is unconstitutionally
vague when it “fails to give ordinary people fair notice of the
conduct it punishes.” Johnson v. United States, 135 S. Ct.
2551, 2556 (2015). Here, the No Fly List criteria are not
impermissibly vague merely because they require a
prediction of future criminal conduct, see id. at 2561; Schall
v. Martin, 467 U.S. 253, 278–79 (1984); Jurek v. Texas,
428 U.S. 262, 272–76 (1976) (plurality opinion), or because
they do not delineate what factors are relevant to that
determination, see Schall, 467 U.S. at 279. The criteria are
“reasonably clear,” Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 505 (1982), in their
application to the specific conduct alleged in this case, which
includes, for one or more plaintiffs, associating with and
financing terrorists, training with militant groups overseas
and advocating terrorist violence. 1 Furthermore, the criteria
are not “so standardless that [they] invite[] arbitrary
enforcement,” Johnson, 135 S. Ct. at 2556, at least as applied
to these plaintiffs. Because we conclude the No Fly List
1
We emphasize that these are allegations. The plaintiffs have not
been charged or convicted of a crime; the government’s allegations have
not been proven in a court of law; and the plaintiffs vigorously dispute
the government’s conclusion that they pose a threat of committing
terrorism. Additionally, although this opinion summarizes the
government’s allegations against the plaintiffs, it does not summarize the
plaintiffs’ responses and explanations.
6 KASHEM V. BARR
criteria are not vague as applied, we decline to reach the
plaintiffs’ facial vagueness challenges. See Hoffman
Estates, 455 U.S. at 495.
We also agree with the district court’s disposition of the
plaintiffs’ procedural due process claims. Applying
Mathews v. Eldridge, 424 U.S. 319, 335 (1976), we balance
three considerations: (1) the plaintiffs’ liberty interests;
(2) the risk of an erroneous liberty deprivation through the
current traveler redress procedures, and the probable value
of additional or substitute procedural safeguards; and (3) the
government’s interest in national security, including the
administrative burdens that additional procedural
requirements would entail. Even when national security
interests are at stake, moreover, the government must “take
reasonable measures to ensure basic fairness to the private
party and . . . follow procedures reasonably designed to
protect against erroneous deprivation of the private party’s
interests.” Al Haramain Islamic Found., Inc. v. U.S. Dep’t
of Treasury (Al Haramain II), 686 F.3d 965, 980 (9th Cir.
2012). Weighing the Mathews factors, we conclude the
procedures provided to the plaintiffs were constitutionally
sufficient in the case before us, or that any error was
nonprejudicial.
Finally, the district court properly dismissed the
plaintiffs’ substantive due process claims for lack of
jurisdiction under 49 U.S.C. § 46110(a), which places
review of Transportation Security Administration (TSA)
orders in the courts of appeals rather than the district court.
Although we previously held that substantive challenges to
No Fly List determinations could be pursued in district court,
the 2015 revisions to the traveler redress procedures alter our
analysis. Under the new procedures, the TSA Administrator
bears sole responsibility for issuing a final order maintaining
KASHEM V. BARR 7
or removing a traveler from the No Fly List and sole
authority to remove a traveler from the list. In light of this
change, the statute grants the courts of appeals exclusive
jurisdiction over substantive challenges to No Fly List
determinations.
I. BACKGROUND
A. Factual Background
1. The No Fly List
The No Fly List is a register of individuals who are
barred from boarding commercial aircraft flying to, from,
within or over the United States. It contains a subset of the
individuals appearing on the government’s more extensive
terrorist watchlist, formally known as the Terrorist
Screening Database (TSDB).
The TSDB is maintained by the Terrorist Screening
Center (TSC), which is administered by the Federal Bureau
of Investigation (FBI). An individual is placed on the TSDB
when there is “reasonable suspicion” that he or she is a
known or suspected terrorist – i.e., when there is “articulable
intelligence or information which, taken together with
rational inferences from those facts, reasonably warrant[s]
the determination that an individual is known or suspected
to be, or has been engaged in conduct constituting, in
preparation for, in aid of or related to, terrorism and terrorist
activities.”
The No Fly List is a subset of the TSDB. Federal
departments and agencies submit nominations for inclusion
on the No Fly List, and TSC decides which individuals to
include. TSC then provides the list to the Transportation
8 KASHEM V. BARR
Security Administration (TSA), which implements the list at
airports.
An individual is placed on the No Fly List when the TSC
has “reasonable suspicion” to believe that he or she
represents one of the following:
a. A threat of committing an act of international
terrorism (as defined in 18 U.S.C. § 2331(1)) or
an act of domestic terrorism (as defined in
18 U.S.C. § 2331(5)) with respect to an aircraft
(including a threat of air piracy, or threat to an
airline, passenger, or civil aviation security); or
b. A threat of committing an act of domestic
terrorism (as defined in 18 U.S.C. § 2331(5))
with respect to the homeland; or
c. A threat of committing an act of international
terrorism (as defined in 18 U.S.C. § 2331(1))
against any U.S. Government facility abroad and
associated or supporting personnel, including
U.S. embassies, consulates and missions,
military installations (as defined by 10 U.S.C.
§ 2801(c)(4)), U.S ships, U.S. aircraft, or other
auxiliary craft owned or leased by the U.S.
Government; or
d. A threat of engaging in or conducting a violent
act of terrorism and who is operationally capable
of doing so.
Each nominating agency is responsible for ensuring that
its No Fly List nominations satisfy one of these four criteria.
Additionally, nominating agencies are required by internal
policies known as the Watchlisting Guidance to conduct
KASHEM V. BARR 9
periodic reviews of nominations of U.S. citizens and lawful
permanent residents to the TSDB and to have internal
procedures that reduce and correct errors in the nomination
process.
2. The No Fly List Redress Procedures
Before 2015, an individual who was denied boarding at
an airport could challenge his or her apparent inclusion on
the No Fly List by submitting a complaint to the Department
of Homeland Security Traveler Redress Inquiry Program
(DHS TRIP). DHS TRIP would forward the complaint to
TSC, which would determine whether the complainant was
on the No Fly List and, if so, whether the complainant’s
continued inclusion on the list was justified. After TSC
made this determination, DHS TRIP would advise the
complainant by letter that the review was complete. These
letters neither confirmed nor denied the complainant’s status
on the No Fly List. Nor did they disclose the basis or bases
for the complainant’s possible inclusion on the list or
provide assurances about the complainant’s ability to
undertake future travel.
In 2015, as a result of this litigation, the government
revised these redress procedures. Under the revised
procedures challenged here, an individual who has been
denied boarding at an airport may apply for redress through
DHS TRIP. If the complainant is on the No Fly List, DHS
TRIP advises the complainant by letter that he or she is on
the list and provides instructions for requesting further
information. If the complainant requests further
information, DHS TRIP provides a second, more detailed
letter identifying the specific criterion under which the
complainant has been included on the list. The second letter
may also provide an unclassified summary of information
supporting the complainant’s inclusion on the list, although
10 KASHEM V. BARR
whether such a summary is provided – and the amount and
type of information included – depends on the national
security and law enforcement interests at stake. The second
letter also notifies the complainant of the option to seek
further review of his or her inclusion on the No Fly List and
invites the complainant to submit any information he or she
believes is relevant to that determination.
If the complainant requests further review, DHS TRIP
forwards that request to TSC, along with any supporting
information submitted by the complainant. After reviewing
the materials, TSC provides DHS TRIP with a
recommendation as to whether the complainant should be
removed from the No Fly List. This recommendation, along
with the complainant’s complete DHS TRIP file, is provided
to the TSA Administrator, who is the final decisionmaker.
After reviewing these materials, the TSA Administrator may
either remand the case to TSC with a request for additional
information or issue a final order, a copy of which is
provided to the complainant. If the final order maintains the
complainant on the list, it will state the basis for that decision
to the extent permitted by national security and law
enforcement interests. The final order also informs the
complainant of the right to seek judicial review.
B. Procedural History
In 2010, 10 individuals filed this action after they were
prevented from boarding commercial flights to or within the
United States. The district court dismissed the entire action
for lack of subject matter jurisdiction, holding that the
plaintiffs’ claims challenged TSA orders and thus fell within
the exclusive jurisdiction of the federal appellate courts
under 49 U.S.C. § 46110(a). See Latif v. Holder (Latif I),
KASHEM V. BARR 11
No. 3:10-cv-00750-BR, 2011 WL 1667471, at *6 (D. Or.
May 3, 2011). 2 In relevant part, § 46110(a) states:
[A] person disclosing a substantial interest in
an order issued by . . . the Administrator of
the Transportation Security Administration
with respect to security duties and powers
designated to be carried out by the
Administrator of the Transportation Security
Administration . . . 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.
49 U.S.C. § 46110(a).
We vacated and remanded, reasoning that under the pre-
2015 redress procedures, it was TSC – not TSA – that
compiled the No Fly List, decided whether to remove an
individual from the list and bore sole authority to grant relief.
See Latif v. Holder (Latif II), 686 F.3d 1122, 1127–29 (9th
Cir. 2012). Because § 46110(a) does not apply to TSC, we
held the statute did not strip the district court of jurisdiction
over the plaintiffs’ claims. See id. at 1129–30.
On remand, the district court held the pre-2015
procedures for seeking removal from the No Fly List
2
Originally, the lead parties in this case were plaintiff Ayman Latif
and defendant Attorney General Eric Holder. At present, the lead parties
are plaintiff Faisal Nabin Kashem and defendant Attorney General
William Barr. Accordingly, citations to the Latif line of cases are
references to previous decisions in this litigation.
12 KASHEM V. BARR
violated both procedural due process and the Administrative
Procedure Act. See Latif v. Holder (Latif III), 28 F. Supp.
3d 1134, 1161–63 (D. Or. 2014). In response to that ruling,
the government adopted the revised redress procedures at
issue here, and it informed several plaintiffs that they were
not on the No Fly List. The court dismissed those plaintiffs’
claims, as well as the claims of a deceased plaintiff.
As to the remaining four plaintiffs, all of whom are
United States citizens, the government reevaluated their
statuses under the revised DHS TRIP procedures. 3 At the
conclusion of this review, each received a notification letter
informing him of his continued inclusion on the No Fly List,
identifying the criterion on which the government relied,
providing a statement – sometimes incomplete – of the
reasons for his inclusion on the list, and providing an
unclassified summary of the evidence upon which the
government relied in making its determination. 4 The
unclassified summaries are paraphrased below. We again
emphasize that these summaries are based on the
government’s allegations as to the plaintiffs’ conduct.
Whether the allegations are true has not been decided in this
litigation, and, given their sensitive nature, nothing we say
in this opinion should suggest otherwise.
One plaintiff was included on the No Fly List based in
part on statements he allegedly made about his support of
3
The district court also addressed the claims of a fifth plaintiff. In
June 2019, however, we granted the fifth plaintiff’s motion to be
dismissed from this appeal under Federal Rule of Appellate Procedure
42(b). Accordingly, we do not address this plaintiff’s claims.
4
The government did not redact any of the DHS TRIP letters it sent
the plaintiffs. At the plaintiffs’ request, however, the district court sealed
those materials and redacted certain portions from the public record.
KASHEM V. BARR 13
violent terrorism and his willingness to fight in Iraq against
the United States. According to the government, this
plaintiff was interviewed in July 2010 by FBI agents, with
counsel present. During that interview, the plaintiff
allegedly acknowledged purchasing and distributing lectures
by Anwar Al-Aulaqi, emailing Al-Aulaqi on one occasion
and authoring posts on Al-Aulaqi’s website advocating the
bombing of Jewish settlements. Al-Aulaqi, an American
Muslim cleric and specially designated global terrorist, was
killed in a U.S. drone strike in 2011.
A second plaintiff was included on the No Fly List based
on statements he allegedly made to FBI agents after his arrest
by the Kenyan military in 2007. According to the
government, this plaintiff admitted engaging in militant
activities in Somalia. The government alleged the plaintiff
admitted receiving weapons training at a camp in Somalia;
fighting in Somalia with a group of armed militants that
probably included members of al-Qaeda; and being hosted
in Somalia by individuals associated with the Council of
Islamic Courts, the military wing of which – al-Shabaab – is
a designated foreign terrorist organization (FTO).
A third plaintiff was included on the No Fly List based
in part on his alleged travel to Somalia to train for and
engage in jihad. According to the government, this plaintiff
was interviewed by the FBI on 12 occasions. The plaintiff
allegedly acknowledged traveling to Somalia and joining
and receiving weapons training from the Islamic Courts
Union, which is associated with al-Shabaab.
In contrast to the relatively detailed letters provided to
the other plaintiffs, a fourth plaintiff’s notification letter
provided only the following unclassified statement of
reasons for his inclusion on the No Fly List: “The
Government has concerns about the nature and purpose of
14 KASHEM V. BARR
[plaintiff’s] travel to Yemen in 2010.” The government
expanded on the reasons for this plaintiff’s inclusion on the
No Fly List in classified information filed ex parte and in
camera in district court.
The letters stated the government could not provide
additional disclosures because of national security concerns,
privileges or other legal limitations, and they notified the
plaintiffs of their opportunity both to respond to the
government’s allegations and to submit relevant evidence or
information on their behalf.
Each plaintiff responded to his notification letter,
contesting the reasons for his inclusion on the No Fly List
and requesting further information and procedures. None of
the plaintiffs submitted evidence in support of his response,
however.
DHS TRIP forwarded the plaintiffs’ responses to TSC
for review. After completing its reviews, TSC provided
DHS TRIP with recommendations for the TSA
Administrator as to whether each plaintiff should remain on
the No Fly List. DHS TRIP forwarded these
recommendations to the Acting TSA Administrator, who
issued final orders maintaining each plaintiff on the list.
The plaintiffs then returned to the district court,
challenging the vagueness of the No Fly List criteria, the
adequacy of the revised DHS TRIP procedures and their
inclusion on the list. The court held the criteria were not
unconstitutionally vague. See Latif v. Lynch (Latif IV), No.
3:10-cv-00750-BR, 2016 WL 1239925, at *11–12 (D. Or.
Mar. 28, 2016). As to the procedural and substantive due
process claims, the court initially concluded the record was
not adequate to resolve those claims because the government
had not identified the information it had withheld from the
KASHEM V. BARR 15
plaintiffs’ notification letters or the reasons for withholding
that information. See id. at *2, 14–20. The court directed
the government to supplement the record with a summary of
the material information it had withheld from the notification
letters, together with a justification for that withholding. See
id. at *20. The government did so, submitting classified
materials in an ex parte filing. After reviewing those
materials in camera, the district court granted summary
judgment to the government on the plaintiffs’ procedural due
process claims. See Order at 5–6, Latif v. Lynch (Latif V),
No. 3:10-cv-00750-BR (D. Or. Oct. 6, 2016). The court
thereafter dismissed the plaintiffs’ substantive due process
claims for lack of subject matter jurisdiction, holding the
claims challenged TSA orders and thus fell within the
exclusive jurisdiction of the courts of appeals under § 46110.
See Latif v. Sessions (Latif VI), No. 3:10-cv-00750-BR, 2017
WL 1434648, at *9 (D. Or. Apr. 21, 2017).
The plaintiffs appeal the grant of summary judgment on
their vagueness and procedural due process claims and the
dismissal of their substantive due process claims for lack of
subject matter jurisdiction.
II. STANDARD OF REVIEW
We have appellate jurisdiction under 28 U.S.C. § 1291.
“We review de novo a district court’s grant or denial of
summary judgment,” Lopez-Valenzuela v. Arpaio, 770 F.3d
772, 777 (9th Cir. 2014) (en banc), and a district court’s
dismissal for lack of subject matter jurisdiction, see Young
v. United States, 769 F.3d 1047, 1052 (9th Cir. 2014).
16 KASHEM V. BARR
III. ANALYSIS
A. Vagueness
We first examine whether the criteria for inclusion on the
No Fly List are unconstitutionally vague under the Due
Process Clause of the Fifth Amendment. 5 “The void-for-
vagueness doctrine . . . guarantees that ordinary people have
‘fair notice’ of the conduct a statute proscribes.” Sessions v.
Dimaya, 138 S. Ct. 1204, 1212 (2018) (quoting
Papachristou v. City of Jacksonville, 405 U.S. 156, 162
(1972)); see United States v. Williams, 553 U.S. 285, 304
(2008); Grayned v. City of Rockford, 408 U.S. 104, 108
(1972). Additionally, “the doctrine guards against arbitrary
or discriminatory law enforcement by insisting that a statute
provide standards to govern the actions of police officers,
prosecutors, juries, and judges.” Dimaya, 138 S. Ct. at 1212;
see Williams, 553 U.S. at 304; Kolender v. Lawson, 461 U.S.
352, 357–58 (1983); Grayned, 408 U.S. at 108–09. Here,
the plaintiffs invoke each of these theories – fair notice and
arbitrary enforcement – and they raise both as-applied and
facial challenges.
5
As the district court observed, it is unclear whether the plaintiffs
raised a distinct claim that the No Fly List criteria are void for vagueness,
or whether they instead contended the vagueness of the criteria amounted
to inadequate notice for the purpose of procedural due process. See Latif
IV, 2016 WL 1239925, at *11. The third amended complaint states
procedural due process, substantive due process and Administrative
Procedure Act claims, but makes no mention of vagueness. Because the
district court reached the vagueness issue in granting summary judgment
to the government, and because both parties treat vagueness as an
independent challenge under the Due Process Clause, we approach it as
a distinct claim.
KASHEM V. BARR 17
1. The Strictness of Our Review
Before reaching those questions, we consider the parties’
contentions regarding the strictness of our review. The
degree of vagueness the Due Process Clause will tolerate
“depends in part on the nature of the enactment.” Hoffman
Estates, 455 U.S. at 498. Relevant factors include whether
the challenged provision involves only economic regulation,
imposes civil rather than criminal penalties, contains a
scienter requirement and threatens constitutionally protected
rights. See id. at 498–99; Hanlester Network v. Shalala,
51 F.3d 1390, 1398 (9th Cir. 1995). A provision that
nominally imposes only civil penalties but nonetheless
carries a “prohibitory and stigmatizing effect” may warrant
a “relatively strict test.” Hoffman Estates, 455 U.S. at 499.
The plaintiffs ask us to apply an exacting vagueness
standard because the No Fly List criteria penalize First
Amendment-protected speech and association and impose a
punishment – an indefinite bar on air travel – of comparable
severity to deportation. See Dimaya, 138 S. Ct. at 1213(applying “the most exacting vagueness standard” in
removal cases “‘in view of the grave nature of deportation’”
(quoting Jordan v. De George, 341 U.S. 223, 231 (1951));
Hoffman Estates, 455 U.S. at 499 (“If . . . the law interferes
with the right of free speech or of association, a more
stringent vagueness test should apply.”).
The government counters that because the No Fly List
criteria impose civil rather than criminal penalties and “the
consequences of imprecision are qualitatively less severe,”
we should “express[] greater tolerance.” Hoffman Estates,
455 U.S. at 498–99; see also Gilmore v. Gonzales, 435 F.3d
1125, 1135 (9th Cir. 2006) (distinguishing the vagueness
standard applied to penal statutes from a challenge to the
government’s airline passenger identification policy on the
18 KASHEM V. BARR
ground that the latter “simply prevent[ed] [passengers] from
boarding commercial flights” and did not “impose any
criminal sanctions, or threats of prosecution, on those who
do not comply”). The government points out, moreover, that
“perfect clarity and precise guidance have never been
required even of regulations that restrict expressive activity.”
Holder v. Humanitarian Law Project, 561 U.S. 1, 19 (2010)
(quoting Williams, 553 U.S. at 304); see, e.g., Grayned,
408 U.S. at 108–14 (rejecting a vagueness challenge to a
criminal law that implicated First Amendment activities);
Scales v. United States, 367 U.S. 203, 223 (1961) (same).
Under the No Fly List policy, “nominations must not be
based solely on the individual’s race, ethnicity, national
origin, religious affiliation, or activities protected by the
First Amendment as free speech, the exercise of religion,
freedom of the press, freedom of peaceful assembly, and
petitioning the government for redress of grievances.”
Ultimately, we need not decide whether this case calls
for the most exacting vagueness standard. Even assuming
for purposes of our analysis that a strict standard applies, the
plaintiffs’ vagueness challenges to the No Fly List criteria
fail.
2. The As-Applied Vagueness Challenges
As noted, the plaintiffs’ as-applied vagueness challenges
assert both that the No Fly List criteria fail to give ordinary
people fair notice of the conduct it punishes and that the
criteria are so standardless that they invite arbitrary
enforcement. We address these contentions in turn.
a. Fair Notice
Whether a provision is vague for lack of fair notice is an
objective inquiry. See Williams, 553 U.S. at 304–05;
KASHEM V. BARR 19
Grayned, 408 U.S. at 108. We ask whether the law gives “a
person of ordinary intelligence fair notice of what is
prohibited,” Williams, 553 U.S. at 304, not whether a
particular plaintiff actually received a warning that alerted
him or her to the danger of being held accountable for the
behavior in question. See Maynard v. Cartwright, 486 U.S.
356, 361 (1988); cf. Grayned, 408 U.S. at 108. The question,
therefore, is whether a reasonable person would have known
that the plaintiffs’ alleged conduct fell within the No Fly List
criteria. See Humanitarian Law Project, 561 U.S. at 18;
Maynard, 486 U.S. at 361; United States v. Kim, 449 F.3d
933, 941–42 (9th Cir. 2006).
The plaintiffs argue the No Fly List criteria are
unconstitutionally vague because they provide no notice of
what specific conduct they proscribe, leaving an ordinary
person to guess what behavior might lead the government to
determine that someone represents a threat of committing an
act of terrorism; permit a threat finding based on conduct that
is not unlawful, let alone clearly so; fail to specify the degree
of risk inherent in the concept of a “threat”; and are based on
predictive judgments about future criminal behavior that are
inherently unreliable and error-prone. The plaintiffs contend
the government has identified no behavioral indicators that
can accurately predict whether someone will engage in
terrorist activity.
We are not persuaded that the criteria are vague merely
because they are based on a threat assessment involving a
prediction of future criminal conduct. In Schall v. Martin,
467 U.S. 253, 278–79 (1984), the Supreme Court rejected
the argument that a provision was “fatally vague” because it
authorized pretrial detention of juveniles deemed a “serious
risk” of committing a crime before their next court
appearance. Similarly, in Jurek v. Texas, 428 U.S. 262, 272–
20 KASHEM V. BARR
76 (1976) (plurality opinion), the Court rejected the
argument that a capital sentencing scheme was “so vague as
to be meaningless” because it required the jury to find
whether the defendant posed a “continuing threat to society.”
As the Court explained in Schall:
[F]rom a legal point of view there is nothing
inherently unattainable about a prediction of
future criminal conduct. Such a judgment
forms an important element in many
decisions, and we have specifically rejected
the contention . . . ‘that it is impossible to
predict future behavior and that the question
is so vague as to be meaningless.’
467 U.S. at 278–79 (footnote omitted) (quoting Jurek,
428 U.S. at 274). 6
We are not persuaded, moreover, that the criteria are
vague simply because they fail to delineate a set of factors
6
The plaintiffs seek to distinguish Schall and Jurek on three
grounds. First, they contend the risk assessments at issue in Schall and
Jurek required a prior judicial determination of at least probable cause to
believe the individual had already engaged in clearly proscribed conduct.
See Schall, 467 U.S. at 258–60 (judicial probable cause finding within
days after detention began); Jurek 428 U.S. at 267 (defendant had been
convicted of a capital offense). Second, they argue Schall and Jurek
involved procedural protections – including the right to counsel,
disclosure of evidence and adversarial hearings – designed to reduce the
possibility of error inherent in a risk assessment. Third, the plaintiffs
contend predictions of future dangerousness in pretrial and sentencing
contexts rest on “decades of judicial practice,” whereas here, the
government has not identified any indicators that can reliably assess the
likelihood that a given person will commit a terrorist offense. These
concerns speak more to the plaintiffs’ procedural and substantive due
process challenges than to vagueness.
KASHEM V. BARR 21
relevant to a threat assessment. As the Court explained in
Schall, “a prediction of future criminal conduct is ‘an
experienced prediction based on a host of variables’ which
cannot be readily codified.” 467 U.S. at 279 (quoting
Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 16 (1979)).
Furthermore, a conduct-based threat assessment is not
vague merely because it takes lawful conduct into account.
The pretrial detention decision in Schall was “based on as
much information as can reasonably be obtained,” including
a range of factors that did not amount to unlawful, let alone
clearly unlawful, conduct. Id. (listing, by way of example,
relevant factors such as lack of parental control and the
child’s “school situation”). Likewise, Jurek observed that
the jury must be able to consider “all possible relevant
information” in deciding whether a person convicted of
capital murder was likely to commit “criminal acts of
violence” that would constitute a “continuing threat to
society” – terms that the statute left undefined. Jurek,
428 U.S. at 272, 276.
Nor are the criteria vague merely because they fail to
specify the “degree of risk inherent in the concept of a
‘threat.’” The plaintiffs are correct that the Supreme Court
emphasized this factor in striking down the statutory
provisions at issue in Johnson and Dimaya. The Court
struck down those provisions in part because they “left
unclear what threshold level of risk” was required. See
Dimaya, 138 S. Ct. at 1214 (citing Johnson, 135 S. Ct. at
2558). 7 In both cases, however, the Court “emphasized that
7
Johnson struck down the residual clause of the Armed Career
Criminal Act, which defined the term “violent felony” to include any
felony that “involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B) (emphasis added).
22 KASHEM V. BARR
this feature alone would not have violated the void-for-
vagueness doctrine: Many perfectly constitutional statutes
use imprecise terms like ‘serious potential risk’ . . . or
‘substantial risk’ . . . .” Id. The indeterminate risk standard
rendered the provisions vague only because it was combined
with a second factor – the categorical approach – that
required the court to imagine the kind of conduct involved
in the “ordinary case” of a crime and then decide whether
that abstract scenario presented the requisite risk of physical
injury or physical force. See United States v. Davis, 139
S. Ct. 2319, 2326 (2019) (“Johnson and Dimaya . . . . teach
that the imposition of criminal punishment can’t be made to
depend on a judge’s estimation of the degree of risk posed
by a crime’s imagined ‘ordinary case.’”); Dimaya, 138 S. Ct.
at 1213–14; Johnson, 135 S. Ct. at 2557–58. Here, by
contrast, the categorical approach does not apply, no
“ordinary case” inquiry is required and the threat assessment
required under the No Fly List criteria applies to real-world
conduct. Johnson and Dimaya, therefore, are
distinguishable. See Davis, 139 S. Ct. at 2327 (“[A] case-
specific approach would avoid the vagueness problems that
doomed the statutes in Johnson and Dimaya. In those cases,
we recognized that there would be no vagueness problem
with asking a jury to decide whether a defendant’s ‘real-
world conduct’ created a substantial risk of physical
violence.”); Johnson, 135 S. Ct. at 2561 (“As a general
matter, we do not doubt the constitutionality of laws that call
Dimaya invalidated the residual clause of the Immigration and
Nationality Act, which defined the term “crime of violence” to include
“any other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.” Id.§ 16(b) (emphasis added).
KASHEM V. BARR 23
for the application of a qualitative standard such as
‘substantial risk’ to real-world conduct . . . .”).
Perhaps most significantly, the plaintiffs emphasize that
the criteria are silent as to the kinds of specific conduct that
may lead to inclusion on the No Fly List. The criteria do not,
for example, delineate the types of associations, foreign
travel or online activities in which an individual can safely
engage or, alternatively, that would raise suspicion. This is
a valid concern. Although “a prediction of future criminal
conduct is ‘an experienced prediction based on a host of
variables’ which cannot be readily codified,” Schall,
467 U.S. at 279 (quoting Greenholtz, 442 U.S. at 16), and
“due process does not require ‘impossible standards’ of
clarity,” Kolender, 461 U.S. at 361 (quoting United States v.
Petrillo, 332 U.S. 1, 7 (1947)), further precision may be
required where possible and practical, see id.Ultimately, this case does not require us to address
whether further precision was required in the abstract. Even
if the criteria might be vague as applied to others – a question
we do not reach – this is an as-applied challenge, and we are
persuaded that each of these plaintiffs had fair notice that his
conduct would raise suspicion under the criteria. It was
reasonably clear to one of the plaintiffs, for example, that a
person would fall within the criteria if he traveled to Somalia
“to fight jihad and to train for jihad,” received weapons
training at a camp associated with a foreign terrorist
organization (FTO) and fought with a group that likely
included members of al-Qaeda. A second plaintiff had fair
notice that the criteria applied to a person who traveled to
Somalia to join a group associated with a foreign terrorist
organization, received weapons training from that group and
served as a medic near the front line of combat. It was
reasonably clear to someone in a third plaintiff’s position
24 KASHEM V. BARR
that the criteria applied to a person who appears to have
endorsed a specially designated global terrorist’s message by
distributing that terrorist’s lectures and communicating with
the terrorist, wrote posts on the terrorist’s website
advocating bombing members of another religious group
and made statements about his willingness to fight in Iraq
against the United States. 8 Finally, although a fourth
plaintiff’s notification letter stated only that he was included
on the No Fly List based on “concerns about the nature and
purpose of [his] travel to Yemen in 2010,” the classified
information filed by the government satisfies us that
someone in this plaintiff’s position had fair notice that his
conduct fell under the second of the No Fly List criteria.
Thus, notwithstanding their lack of specificity, the criteria
provided fair notice to these plaintiffs.
The plaintiffs also point out that the government did not
disclose the four criteria “until well after Plaintiffs filed this
lawsuit.” “Thus,” in their view, “even if Plaintiffs and the
Court could discern what conduct the criteria proscribe
now[,] . . . Plaintiffs did not have any notice, let alone ‘fair
notice,’ that their . . . conduct could have led to placement
on the No Fly List when it occurred.” The operative
question, however, is whether the plaintiffs had fair notice
of the No Fly List policy at the time of their conduct, not
whether they had notice of the written criteria summarizing
that policy. See Gilmore, 435 F.3d at 1135–36 (“Although
Gilmore was not given the text of the identification policy
. . . , he was nonetheless accorded adequate notice given that
he was informed of the policy and how to comply.”). Here,
8
Three of the plaintiffs were included on the No Fly List based on
the fourth No Fly List criterion – i.e., TSC determined they represented
“[a] threat of engaging in or conducting a violent act of terrorism and
[were] operationally capable of doing so.”
KASHEM V. BARR 25
the written criteria say only that inclusion on the No Fly List
turns on whether an individual poses a threat of committing
(a) aviation-related terrorism, (b) domestic terrorism against
the U.S. homeland, (c) international terrorism against U.S.
interests abroad or (d) an act of terrorism that the individual
is operationally capable of carrying out. The plaintiffs have
not shown they lacked fair notice of this policy before the
written criteria were disclosed.
b. Arbitrary Enforcement
The plaintiffs alternatively argue the No Fly List criteria
are unconstitutionally vague because they vest the
government with unbridled enforcement discretion. See
Dimaya, 138 S. Ct. at 1212 (“The void-for-vagueness
doctrine . . . guards against arbitrary or discriminatory law
enforcement by insisting that a statute provide standards to
govern the actions of police officers, prosecutors, juries, and
judges.”); Williams, 553 U.S. at 304; Kolender, 461 U.S.
at 358. “[I]f arbitrary and discriminatory enforcement is to
be prevented, laws must provide explicit standards for those
who apply them.” Grayned, 408 U.S. at 108.
Upon review of the government’s public and classified
filings, we are satisfied that the No Fly List criteria are
governed by constitutionally sufficient standards, at least as
applied to these plaintiffs. Rules governing the No Fly List
require a nominating agency to provide a summary of the
underlying substantive information demonstrating that a
nominee meets the criteria for inclusion on the list. This
information is then assessed according to the interagency
Watchlisting Guidance to determine whether there is
reasonable suspicion that the individual represents a threat
of committing a terrorist act. The nominator must rely on
articulable intelligence to meet the reasonable suspicion
standard; mere guesses or “hunches” are insufficient.
26 KASHEM V. BARR
It is not the case that the No Fly List criteria lack “any
ascertainable standard for inclusion and exclusion,” Smith v.
Goguen, 415 U.S. 566, 578 (1974), nor do they contain “no
guidelines, such that the authorities can arbitrarily prosecute
one class of [persons] instead of another,” Kim, 449 F.3d
at 943. Rather, application of the criteria turns on whether –
based on articulable, concrete intelligence, assessed
according to the Watchlisting Guidance – there is a
reasonable suspicion the nominee represents a threat of
committing an act of terrorism. The reasonable suspicion
standard, moreover, “ensures the existence of ‘neutral
limitations on the conduct of individual [law enforcement]
officers.’” Kolender, 461 U.S. at 360–61 (quoting Brown v.
Texas, 443 U.S. 47, 51 (1979)). Accordingly, we are not
persuaded, on the facts of this case, that the criteria raise
substantial concerns of arbitrary application.
3. The Facial Vagueness Challenges
“[V]agueness challenges to statutes that do not involve
First Amendment violations must be examined as applied to
the defendant.” Kim, 449 F.3d at 942; see Maynard,
486 U.S. at 361. “A plaintiff who engages in some conduct
that is clearly proscribed cannot complain of the vagueness
of the law as applied to the conduct of others.” Hoffman
Estates, 455 U.S. at 495. Thus, as a general matter, a
defendant who cannot sustain an as-applied vagueness
challenge to a statute cannot be the one to make a facial
vagueness challenge to the statute. 9
9
These requirements are relaxed in the First Amendment context.
Under the First Amendment overbreadth doctrine, “[l]itigants . . . are
permitted to challenge a statute not because their own rights of free
expression are violated, but because of a judicial prediction or
KASHEM V. BARR 27
We recognize that this rule is not absolute. In Johnson,
for example, the Supreme Court “looked past [the] as-
applied challenge directly to the petitioner’s facial
challenge.” Henry v. Spearman, 899 F.3d 703, 709 (9th Cir.
2018). Thus, the general rule that a litigant whose conduct
is clearly prohibited by a statute cannot be the one to make a
facial vagueness challenge is subject to exceptions.
We do not, however, agree with the plaintiffs’ argument
that the general rule has been altogether abolished. Rather
than arguing an exception applies here, the plaintiffs raise a
blanket challenge to the general rule. Exceptions aside, they
argue more broadly that it is no longer the case that a litigant
whose conduct is clearly prohibited by a statute cannot be
the one to make a facial vagueness challenge. They note
that, in Johnson and Dimaya, the Supreme Court squarely
rejected the proposition that a statute is void for vagueness
only if it is vague in all its applications. See Johnson, 135
S. Ct. at 2561; Guerrero v. Whitaker, 908 F.3d 541, 544 (9th
Cir. 2018). They maintain that the rule that a litigant whose
conduct is clearly prohibited by a statute cannot be the one
to make a facial vagueness challenge is nothing more than a
corollary to the now discarded rule that a facial challenge
requires a statute to be vague in all its applications. Thus, in
assumption that the statute’s very existence may cause others not before
the court to refrain from constitutionally protected speech or
expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); see also
Humanitarian Law Project, 561 U.S. at 20; Williams, 553 U.S. at 304.
Here, the plaintiffs have not asserted a First Amendment overbreadth
claim. Moreover, “[e]ven assuming that a heightened [vagueness]
standard applies because the [No Fly List criteria] potentially implicate[]
speech,” the rule that a plaintiff who engages in some conduct that is
clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others “makes no exception for conduct in the
form of speech.” Humanitarian Law Project, 561 U.S. at 20–21.
28 KASHEM V. BARR
their view, Johnson and Dimaya “plainly establish that
Plaintiffs may raise – and this Court may decide – their facial
vagueness challenge regardless of any question as to whether
their own alleged conduct might fall within the scope of the
No Fly List criteria.”
We disagree. The principle that a litigant whose conduct
is clearly prohibited by a statute cannot be the one to make a
facial vagueness challenge rests on an independent
foundation, apart from the vague-in-all-applications rule:
Embedded in the traditional rules governing
constitutional adjudication is the principle
that a person to whom a statute may
constitutionally be applied will not be heard
to challenge that statute on the ground that it
may conceivably be applied
unconstitutionally to others, in other
situations not before the Court. A closely
related principle is that constitutional rights
are personal and may not be asserted
vicariously. These principles rest on more
than the fussiness of judges. They reflect the
conviction that under our constitutional
system courts are not roving commissions
assigned to pass judgment on the validity of
the Nation’s laws. Constitutional judgments,
as Mr. Chief Justice Marshall recognized, are
justified only out of the necessity of
adjudicating rights in particular cases
between the litigants brought before the
Court . . . .
Broadrick, 413 U.S. 610–11 (citations omitted).
KASHEM V. BARR 29
Johnson and Dimaya did not explicitly question the rule
that a litigant whose conduct is clearly prohibited by a statute
cannot be the one to make a facial vagueness challenge. Nor
did they question the independent foundation for that rule
described in Broadrick. Accordingly, we conclude that
Johnson and Dimaya did not alter the general rule that a
defendant whose conduct is clearly prohibited cannot be the
one to make a facial vagueness challenge to a statute. Cf.
United States v. Cook, 914 F.3d 545, 554 (7th Cir. 2019),
cert. granted and judgment vacated on other grounds, 2019
WL 4921160 (U.S. Oct. 7, 2019).
This conclusion is not at odds with our recent decision in
Henry. There, we observed that the rule that “a statute must
be vague as applied to the person challenging it . . . may not
reflect the current state of the law.” 899 F.3d at 709. We
did not reach a conclusion on that question, however. The
only question we decided was whether the petitioner had
“made a prima facie showing that he has standing to
challenge California’s second-degree felony-murder rule as
unconstitutionally vague” – i.e., “‘a sufficient showing of
possible merit to warrant a fuller exploration by the district
court.’” Id. at 706, 708 (quoting Cooper v. Woodford,
358 F.3d 1117, 1119 (9th Cir. 2004)). We did not ultimately
decide whether Johnson or Dimaya abrogated the rule that a
litigant whose conduct is clearly prohibited by a statute
cannot bring a facial vagueness challenge.
In approaching this question, moreover, we are mindful
of the Supreme Court’s repeated admonitions that it is that
Court’s “prerogative alone to overrule one of its precedents.”
Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) (per curiam)
(quoting United States v. Hatter, 532 U.S. 557, 567 (2001));
see Hohn v. United States, 524 U.S. 236, 252–53 (1998)
(“Our decisions remain binding precedent until we see fit to
30 KASHEM V. BARR
reconsider them, regardless of whether subsequent cases
have raised doubts about their continuing vitality.”);
Agostini v. Felton, 521 U.S. 203, 237 (1997) (“[I]f a
precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of
overruling its own decisions.” (quoting Rodriguez de Quijas
v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989))).
In sum, we are not persuaded by plaintiffs’ contention
that we may cast aside the longstanding rule that a litigant
whose conduct is clearly prohibited by a statute cannot be
the one to make a facial vagueness challenge. The relevant
question, therefore, is simply whether this case, like Johnson
and Dimaya, warrants an exception to this rule. We
conclude that Johnson and Dimaya are distinguishable, and
thus that no departure from the rule is warranted.
First, both Johnson and Dimaya suggested the residual
clauses were plagued by such indeterminacy that they might
be vague even as applied to the challengers. See Johnson,
135 S. Ct. at 2559–60 (observing that application of the
residual clause to the defendant’s conviction for unlawful
possession of a short-barreled shotgun was not “so easy after
all”); Dimaya, 138 S. Ct. at 1214 n.3 (making the same
observation as to the petitioner’s conviction for completed
burglary). Second, although the Court did not say so
explicitly, the residual clauses did not lend themselves easily
to a traditional as-applied analysis. Both cases involved the
categorical approach, which “requires the judge to imagine
how the idealized ordinary case of the crime subsequently
plays out,” Johnson, 135 S. Ct. at 2557–58, instead of
considering the conduct underlying the convictions. This
limited the extent to which the Court could examine the
KASHEM V. BARR 31
vagueness challenges “in light of the facts of the case at
hand,” Maynard, 486 U.S. at 361, as is required in an as-
applied challenge. See Cook, 914 F.3d at 553 (“It is not clear
how much Johnson – and the Court’s follow-on decision last
term in Sessions v. Dimaya . . . – actually expand the
universe of litigants who may mount a facial challenge to a
statute they believe is vague [because] so much of the
Court’s analysis in Johnson deals with a statute that is in key
respects sui generis.”). Thus, to the extent Johnson and
Dimaya bypassed as-applied challenges and proceeded
directly to facial vagueness, that approach appears to have
turned on the “exceptional circumstances” of the provisions
at issue. See Copeland v. Vance, 893 F.3d 101, 111 n.2 (2d
Cir. 2018). 10
This case does not present exceptional circumstances.
The plaintiffs raise a straightforward vagueness challenge to
the No Fly List criteria, which are applied using a risk
determination based on real-world conduct. Because there
is no reason to depart from the traditional rule that a person
to whom a provision clearly applies cannot raise a facial
vagueness challenge, see Hoffman Estates, 455 U.S. at 495,
and because we conclude the criteria are not vague as applied
to the plaintiffs, we decline to reach the plaintiffs’ facial
vagueness claims.
B. Procedural Due Process
The plaintiffs argue that, despite the 2015 revisions, the
DHS TRIP redress procedures continue to violate procedural
10
Similar exceptional circumstances appear to have been present in
Henry. See Henry, 899 F.3d at 707–08 (discussing the petitioner’s
contention that the second-degree felony murder rule at issue presented
“the same two features of indeterminacy” as the residual clauses at issue
in Johnson and Dimaya).
32 KASHEM V. BARR
due process. We apply the Mathews v. Eldridge, 424 U.S.
319 (1976), balancing test. See Hamdi v. Rumsfeld, 542 U.S.
507, 528–29 (2004) (plurality opinion) (applying Mathews
balancing to a procedural due process claim by an American
citizen whom the government had classified and detained as
an enemy combatant); Al Haramain II, 686 F.3d at 979
(applying Mathews to a procedural due process claim by an
organization challenging its designation as a specially
designated global terrorist).
Mathews set forth a three-part inquiry to determine
whether administrative procedures provided to protect a
liberty or property interest are constitutionally sufficient:
First, the private interest that will be affected
by the official action; second, the risk of an
erroneous deprivation of such interest
through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and finally,
the Government’s interest, including the
function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.
Mathews, 424 U.S. at 335. “In ‘balancing’ the Mathews
factors, we are mindful that ‘the requirements of due process
are flexible and call for such procedural protections as the
particular situation demands.’” Vasquez v. Rackauckas,
734 F.3d 1025, 1044 (9th Cir. 2013) (quoting Wilkinson v.
Austin, 545 U.S. 209, 224–25 (2005)). We begin by
addressing the first and third factors and then turn to the
second.
KASHEM V. BARR 33
1. The Private Interest at Stake
The plaintiffs undoubtedly have a strong liberty interest
in domestic and international travel. See Kent v. Dulles,
357 U.S. 116, 125–26 (1958) (“The right to travel is a part
of the ‘liberty’ of which the citizen cannot be deprived
without the due process of law under the Fifth
Amendment. . . . Freedom of movement across frontiers in
either direction, and inside frontiers as well . . . is basic in
our scheme of values.”); Gilmore, 435 F.3d at 1136–37
(noting “the fundamental right to interstate travel”). The
plaintiffs may not “possess a fundamental right to travel by
airplane,” Gilmore, 435 F.3d at 1137 (emphasis added), but
in many instances air travel constitutes the only practical
means of traveling across great distances, especially
internationally. As the district court noted, “the realistic
implications of being on the No Fly List are potentially far-
reaching.” Latif III, 28 F. Supp. 3d at 1149.
Plaintiffs have suffered significantly[,]
including long-term separation from spouses
and children; the inability to access desired
medical and prenatal care; the inability to
pursue an education of their choosing; the
inability to participate in important religious
rites; loss of employment opportunities; loss
of government entitlements; the inability to
visit family; and the inability to attend
important personal and family events such as
graduations, weddings, and funerals. The
Court concludes international travel is not a
mere convenience or luxury in this modern
world. Indeed, for many international travel
is a necessary aspect of liberties sacred to
members of a free society.
34 KASHEM V. BARR
Id. at 1149–50. The plaintiffs’ liberty interest in air travel,
therefore, is substantial.
We note, however, that “the freedom to travel abroad . . .
is subordinate to national security and foreign policy
considerations; as such, it is subject to reasonable
government regulation.” Haig v. Agee, 453 U.S. 280, 306
(1981). Furthermore, “[a]lthough the freedom to travel
internationally is a liberty interest recognized by the Fifth
Amendment,” we have said that it is “not accorded the same
stature as the freedom to travel among the states.” Freedom
to Travel Campaign v. Newcomb, 82 F.3d 1431, 1438–39
(9th Cir. 1996).
2. The Government’s Interest
On the other side of the scale, the government asserts
interests of the highest order in combatting terrorism and
withholding national security information from
unauthorized persons. “[N]ational security is a compelling
government interest,” In re Nat’l Sec. Letter, 863 F.3d 1110,
1123 (9th Cir. 2017), and combatting terrorism is “an urgent
objective of the highest order,” Humanitarian Law Project,
561 U.S. at 28. Likewise, “keeping sensitive information
confidential in order to protect national security is a
compelling government interest.” In re Nat’l Sec. Letter,
863 F.3d at 1123; see also Dep’t of the Navy v. Egan,
484 U.S. 518, 527 (1988); Nat’l Council of Resistance of
Iran v. Dep’t of State, 251 F.3d 192, 207 (D.C. Cir. 2001).
The government has presented persuasive evidence
describing the potential harms posed by disclosure of
privileged information regarding an individual’s inclusion
on the No Fly List.
KASHEM V. BARR 35
3. The Risk of Erroneous Deprivation and the
Probable Value of Any Additional Procedural
Safeguards
Under the second Mathews factor, we examine whether
the DHS TRIP procedures provided to the plaintiffs risked
erroneous deprivation of their liberty interests, as well as the
value of any additional or substitute procedural safeguards.
See Mathews, 424 U.S. at 335. “As the Mathews balancing
test makes clear, we must carefully assess the precise
‘procedures used’ by the government, ‘the value of
additional safeguards,’ and ‘the burdens of additional
procedural requirements.’” Al Haramain II, 686 F.3d at 980
(quoting Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584,
589 (9th Cir. 1998)). “[T]he Constitution certainly does not
require that the government take actions that would endanger
national security; nor does it require the government to
undertake every possible effort to mitigate the risk of
erroneous deprivation and the potential harm to the private
party. But the Constitution does require that the government
take reasonable measures to ensure basic fairness to the
private party and that the government follow procedures
reasonably designed to protect against erroneous deprivation
of the private party’s interests.” Id.Under the revised DHS TRIP procedures, individuals
have a right to: (1) an administrative challenge to their
inclusion on the No Fly List; (2) a letter identifying the
criterion or criteria used to place them on the list; (3) an
unclassified summary of the information supporting their
inclusion on the list that identifies at least some of the
reasons for their placement on the list, subject to national
security concerns; (4) submit exculpatory information to the
government for reconsideration of their placement on the
list; (5) review by the TSA Administrator; and (6) judicial
36 KASHEM V. BARR
review of the TSA’s decision based on the administrative
record before the TSA Administrator.
The plaintiffs contend these procedures are
constitutionally inadequate because they pose a high risk of
error and sweep onto the No Fly List many individuals who
do not present a genuine terrorism threat. 11 They argue due
process requires additional procedures, including: (1) a
threat finding by “clear and convincing evidence” rather than
“reasonable suspicion”; (2) the right to be informed of all
reasons for their placement on the list; (3) access to the
evidence relied upon by the government to include them on
the list, not just a summary of that evidence; (4) access to
any exculpatory evidence in the government’s possession;
(5) a live hearing affording them the opportunity to cross-
examine the witnesses against them; and (6) the use of
procedures like those authorized in criminal cases under the
Classified Information Procedures Act (CIPA), such as
allowing a lawyer with security clearance to review the
classified information used to justify their inclusion on the
No Fly List. We address these additional procedures in turn
below.
In summary, we hold that the “reasonable suspicion”
standard satisfies due process. We hold that individuals
challenging their No Fly List designation are presumptively
entitled to a full statement of the reasons for their inclusion
on the list and to disclosure of the original evidence –
11
The plaintiffs submitted declarations by Dr. James Austin, a
correctional sociologist with expertise in risk assessment in the criminal
justice context, and Dr. Marc Sageman, an intelligence community
consultant and forensic psychiatrist. Both said they were unaware of any
methodological system that can reliably predict terrorist activity, and
both opined that the DHS TRIP procedures are not accurate enough to
guard against a high risk of error.
KASHEM V. BARR 37
inculpatory and exculpatory – upon which the government
relied in making the designation. This entitlement, however,
is qualified by national security concerns. Under the
framework we established in Al Haramain II, the
government may withhold classified information that truly
implicates national security so long as it undertakes
reasonable measures to mitigate the potential unfairness to
the affected traveler. The government may, for example,
provide an unclassified summary of the classified
information or permit a lawyer for the affected traveler to
view the information after receiving a security clearance and
pursuant to a protective order. The government may
altogether withhold classified information only when such
measures are not practical. Next, although we do not
foreclose the need for a hearing in another case, we hold
these plaintiffs were not entitled to a live hearing affording
them the opportunity to cross-examine witnesses. Finally,
we once again hold that CIPA-like procedures, such as
disclosure of classified information to cleared counsel, may
be employed where appropriate, although their use was not
required here. Applying these principles, we conclude the
procedures provided to the plaintiffs were constitutionally
sufficient, or that any error was harmless. Accordingly, we
hold the district court properly granted summary judgment
to the government on the plaintiffs’ procedural due process
claims.
a. Clear and Convincing Evidence Standard
Government policy requires a nomination to the No Fly
List to be supported by reasonable suspicion that the
individual represents a threat of committing an act of
terrorism. The plaintiffs argue due process requires a
standard higher than reasonable suspicion. They note that,
under a reasonable suspicion standard, an individual can be
38 KASHEM V. BARR
included on the No Fly List so long as the government
believes he or she might present a threat, even if it
determines he or she probably is not a threat. The plaintiffs
propose a clear and convincing evidence standard, which
applies in a range of civil proceedings involving substantial
deprivations of liberty. See, e.g., Foucha v. Louisiana,
504 U.S. 71, 80–81 (1992) (civil commitment); Santosky v.
Kramer, 455 U.S. 745, 769 (1982) (termination of parental
rights); Woodby v. INS, 385 U.S. 276, 286 (1966)
(deportation); Chaunt v. United States, 364 U.S. 350, 353
(1960) (denaturalization); Singh v. Holder, 638 F.3d 1196,
1203 (9th Cir. 2011) (detention pending a removal
determination).
“The function of a standard of proof, as that concept is
embodied in the Due Process Clause and in the realm of
factfinding, is to ‘instruct the factfinder concerning the
degree of confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of
adjudication.’” Addington v. Texas, 441 U.S. 418, 423
(1979) (quoting In re Winship, 397 U.S. 358, 370 (1970)
(Harlan, J., concurring)). “[I]n any given proceeding, the
minimum standard of proof tolerated by the due process
requirement reflects not only the weight of the private and
public interests affected, but also a societal judgment about
how the risk of error should be distributed between the
litigants.” Santosky, 455 U.S. at 755.
Although courts have required clear and convincing
evidence in other civil contexts, those cases have involved
greater deprivations of liberty than the prohibition against air
travel at issue here. The plaintiffs have not pointed to
precedent in which a clear and convincing standard was
deemed necessary to justify a liberty deprivation comparable
to a prohibition against air travel.
KASHEM V. BARR 39
On the other hand, the government has not identified
cases in which a reasonable suspicion standard has been
deemed sufficient to justify a deprivation of liberty as
serious as that at issue here. A reasonable suspicion standard
justifies a brief investigative stop or frisk by police officers,
an administrative investigation by a government employer
into an employee and a non-routine search or seizure at the
border. See Terry v. Ohio, 392 U.S. 1, 20–21 (1968)
(investigative stop); O’Connor v. Ortega, 480 U.S. 709, 724,
726 (1987) (plurality opinion) (administrative
investigation); United States v. Montoya de Hernandez,
473 U.S. 531, 541 (1985) (non-routine search or seizure at
the border). Those liberty deprivations are all temporary,
whereas the deprivation at issue here is indefinite. Nor has
the government identified any circumstances in which a
liberty deprivation has been justified by a reasonable
suspicion that a person poses a non-imminent threat of
harmful conduct. Cf. United States v. Sandoval, 390 F.3d
1077, 1080 (9th Cir. 2004) (holding that an investigative
stop is justified “if there is a reasonable suspicion that the
suspect is engaged in, or is about to engage in, criminal
activity” (emphasis added)).
We nonetheless conclude that the reasonable suspicion
standard satisfies procedural due process here. Congress has
mandated that TSA “identify individuals on passenger lists
who may be a threat to civil aviation or national security”
and prevent such individuals from boarding aircraft.
49 U.S.C. § 114(h)(3)(A) (emphasis added). By doing so,
Congress has made a reasonable “judgment about how the
risk of error should be distributed between litigants” in this
context, Santosky, 455 U.S. at 755, and the reasonable
suspicion standard reasonably implements that judgment.
Although the plaintiffs’ liberty interest is substantial, it must
be balanced against the government’s “urgent” interest in
40 KASHEM V. BARR
combatting terrorism, Humanitarian Law Project, 561 U.S.
at 28, and the public’s “manifest interest in aviation safety,”
Aeronautical Repair Station Ass’n v. FAA, 494 F.3d 161,
178 n.10 (D.C. Cir. 2007). The reasonable suspicion
standard therefore satisfies due process.
b. A Full Statement of Reasons
The plaintiffs argue procedural due process requires
individuals to be provided a statement of all reasons for their
inclusion on the No Fly List. Here, the notification letter
each plaintiff received from DHS TRIP supplied an
unclassified summary of reasons for his inclusion on the list,
but at least some of those letters failed to provide all such
reasons. The plaintiffs contend these summaries deprived
them of “adequate notice and a meaningful opportunity to
respond” to the DHS TRIP determinations. Al Haramain II,
686 F.3d at 984.
“Due process requires notice ‘reasonably calculated,
under all the circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to
present their objections.’” United Student Aid Funds, Inc. v.
Espinosa, 559 U.S. 260, 272 (2010) (quoting Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950));
see also Al Haramain II, 686 F.3d at 986 (holding due
process required the government to provide, “at a minimum,
a terse and complete statement of reasons for the
investigation,” and finding “no reason why [the government]
could not have given [such] notice in this particular case”);
see also Gete v. INS, 121 F.3d 1285, 1297 (9th Cir. 1997)
(holding that notice of an administrative forfeiture of a
vehicle under 8 U.S.C. § 1324(b) must include “the exact
reasons” for the adverse action). “[T]he opportunity to guess
at the factual and legal bases for a government action does
KASHEM V. BARR 41
not substitute for actual notice of the government’s
intentions.” Al Haramain II, 686 F.3d at 986–87.
Where national security concerns arise, however, an
exact statement of reasons “may not always be possible.” Id.
at 983. Under the framework we established in Al Haramain
II, the government may use classified information without
disclosure in “extraordinary circumstances” – i.e., “if that
information truly implicates national security.” Id. at 982 &
n.9. When this occurs, however, we have accepted the
proposition that the government must, if possible,
“undertake some reasonable measure to mitigate the
potential unfairness to” the affected private party. Id. at 982.
The government may, “for example, provide an unclassified
summary of the classified information or permit [the affected
party’s] lawyer to view the documents after receiving a
security clearance and pursuant to a protective order.” Id.
Even these mitigation measures, however, may not always
be possible. “[A]n unclassified summary may not be
possible because, in some cases, the subject matter itself may
be classified and cannot be revealed without implicating
national security.” Id. at 983. “Depending on the
circumstances, [the government] might have a legitimate
interest in shielding the materials even from someone with
the appropriate security clearance.” Id.; see Gen. Dynamics
Corp. v. United States, 563 U.S. 478, 482 (2011) (noting that
disclosure of sensitive information to a limited number of
lawyers led to “unauthorized disclosure of military secrets”).
Courts should adopt “a case-by-case approach” to
determining what disclosure of classified information is
required, considering, “at a minimum, the nature and extent
of the classified information, the nature and extent of the
threat to national security, and the possible avenues available
to allow the designated person to respond more effectively
to the charges.” Al Haramain II, 686 F.3d at 984.
42 KASHEM V. BARR
Applying the Al Haramain framework, we hold the
government may withhold a reason for a DHS TRIP
complainant’s inclusion on the No Fly List only if two
conditions are satisfied:
(1) the withheld reason is classified and truly
implicates national security; and
(2) reasonable mitigation measures are not
possible without unduly implicating
national security. Mitigation measures
may include, for example, disclosing the
classified evidence to cleared counsel
subject to a protective order or providing
the complainant an unclassified summary
of the information.
See id. at 982–84. Unless these conditions are satisfied, due
process requires a full statement of reasons. See id.; see also
Gete, 121 F.3d at 1297–98.
We emphasize that the government’s decision to limit
disclosures due to national security concerns must not be
taken lightly. Cf. Mohamed v. Jeppesen Dataplan, Inc.,
614 F.3d 1070, 1080 (9th Cir. 2010) (en banc) (applying the
state secrets doctrine); Al Haramain Islamic Found., Inc. v.
Bush (Al Haramain I), 507 F.3d 1190, 1203 (9th Cir. 2007)
(“Simply saying ‘military secret,’ ‘national security’ or
‘terrorist threat’ . . . is insufficient to support the [state
secrets] privilege.”). When the government withholds
information by citing national security, a reviewing court
should require the government to inform the court what
information it has withheld, why the information was
withheld and why less drastic alternatives were not
employed, as the district court did here. See, e.g., Latif IV,
2016 WL 1239925, at *14, 19–20. In responding to such an
KASHEM V. BARR 43
order, the government, through a competent witness with
personal knowledge, must describe the withheld information
in sufficient detail – and, if necessary, file the withheld
information with the court – to allow the court to decide
whether the two conditions we have identified are satisfied.
A court’s review of the government’s assertions, in turn,
should be thorough and critical. See Jeppesen, 614 F.3d
at 1082, 1086; Al Haramain I, 507 F.3d at 1203 (“The
process of in camera review . . . . places on the court a
special burden to assure itself that an appropriate balance is
struck between protecting national security matters and
preserving an open court system.”).
Here, based on our review of the government’s classified
filings, we conclude as follows. As to the first condition
under the Al Haramain framework, we are satisfied that the
reasons that were not disclosed to the plaintiffs were
classified and truly implicate national security. The
government has presented detailed evidence describing the
potential harms posed by disclosure of the classified
information at issue here.
As to the second condition, we are persuaded that an
unclassified summary of the undisclosed reasons was not
possible here. Although the plaintiffs contend the additional
reasons for their inclusion on the No Fly List should have
been disclosed to cleared counsel, the district court found
that “the record does not reflect whether any Plaintiff is
represented by counsel with an appropriate security
clearance,” and the plaintiffs have not challenged that
finding on appeal. See Latif IV, 2016 WL 1239925, at *18.
Furthermore, even assuming cleared counsel were
available to the plaintiffs and that it was error not to disclose
the additional reasons to such counsel, the plaintiffs have not
shown that they were prejudiced. See Al Haramain II,
44 KASHEM V. BARR
686 F.3d at 989. This is not a case in which the government
withheld the sole or predominant reason for including the
plaintiffs on the No Fly List. The government had numerous
reasons for designating these plaintiffs, and those reasons
generally were disclosed. Given the disclosed reasons, we
are not persuaded that the disclosure of additional reasons
would have enabled the plaintiffs to undermine their
designation on the list.
c. Disclosure of the Underlying Evidence
The plaintiffs seek disclosure of the evidence the
government relied upon in placing them on the No Fly List
– e.g., recordings of the plaintiffs’ conversations with third
parties, the plaintiffs’ own statements to investigators and
transcripts of the plaintiffs’ conversations with confidential
informants. The government did not disclose any original
evidence to the plaintiffs, whether classified or unclassified.
Rather, it supplied them with unclassified summaries of that
evidence. To the extent these summaries were based on
classified evidence, the plaintiffs argue the district court
should have required the government to identify and disclose
that evidence to cleared counsel. To the extent the
government relied on unclassified evidence, the plaintiffs
contend due process required its disclosure. The plaintiffs
assert, moreover, that the summaries did not encompass all
of the evidence.
i. Unclassified evidence
The Supreme Court has long recognized the
“immutable” principle that “where governmental action
seriously injures an individual, and the reasonableness of the
action depends on fact findings, the evidence used to prove
the Government’s case must be disclosed to the individual
so that he has an opportunity to show that it is untrue.”
KASHEM V. BARR 45
Greene v. McElroy, 360 U.S. 474, 496 (1959). Thus, as a
general rule, “due process requires, at the least, that an
affected party be informed of the official action, be given
access to the unclassified evidence on which the official
actor relied and be afforded an opportunity to rebut that
evidence.” Ralls Corp. v. Comm. on Foreign Inv. in the U.S.,
758 F.3d 296, 319 (D.C. Cir. 2014). “[A] substantial interest
in national security supports withholding only the classified
information but does not excuse the failure to provide notice
of, and access to, the unclassified information.” Id. at 320. 12
Accordingly, where a DHS TRIP complainant responds to
his or her initial notification letter and requests further
information, we hold the government must, as a general
matter, disclose all unclassified material evidence relating to
the complainant in its possession, not just summaries of that
evidence.
Here, the district court concluded that providing
summaries of the unclassified evidence was adequate
because disclosure of the evidence itself would have
“raise[d] significant and likely insoluble practical
difficulties because, unlike the context of ordinary civil
litigation, separating unclassified information from
protected national security information is exceedingly
12
The D.C. Circuit has approved the disclosure of unclassified
evidence with respect to, for example, designation as a “significant
foreign narcotics trafficker, see Zevallos v. Obama, 793 F.3d 106, 117
(D.C. Cir. 2015), the FAA’s revocation of airmen certificates on security
grounds, see Jifry v. FAA, 370 F.3d 1174, 1178, 1184 (D.C. Cir. 2004),
designation as a foreign terrorist organization, see People’s Mojahedin
Org. of Iran v. Dep’t of State, 327 F.3d 1238, 1241–42 (D.C. Cir. 2003);
Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 209
(D.C. Cir. 2001), and designation as a specially designated global
terrorist, see Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d
156, 164 (D.C. Cir. 2003).
46 KASHEM V. BARR
complicated in the national security context.” Latif IV, 2016
WL 1239925, at *14. “For example, a report may contain
material, unclassified information regarding an individual
placed on the No-Fly List interspersed with classified
information that may or may not be material to the No-Fly
List determination.” Id. at *14 n.6.
The district court’s analysis reflects the valid concern
that “there will be occasions when, as a practical matter,
[classified] and [unclassified] information cannot be
separated.” Jeppesen, 614 F.3d at 1082. “In some cases,
therefore, ‘it is appropriate that the courts restrict the parties’
access not only to evidence which itself risks the disclosure
of [classified information], but also those pieces of evidence
or areas of questioning which press so closely upon highly
sensitive material that they create a high risk of inadvertent
or indirect disclosures.’” Id. (quoting Bareford v. Gen.
Dynamics Corp., 973 F.2d 1138, 1143–44 (5th Cir. 1992)).
There is, however, no general presumption that classified
information cannot be segregated from unclassified
information. To the extent the district court applied such a
presumption, any error was harmless. See Al Haramain II,
686 F.3d at 988–89. Having reviewed the government’s in
camera filings, we are not persuaded that, had the plaintiffs
been provided the unclassified evidence itself, rather than
summaries, they plausibly would have undermined their
designations on the No Fly List. See id. at 989–90.
ii. Classified evidence
As noted, the Al Haramain framework dictates that the
government must disclose evidence supporting a DHS TRIP
complainant’s inclusion on the No Fly List unless two
conditions are satisfied:
KASHEM V. BARR 47
(1) the evidence is classified and truly
implicates national security; and
(2) reasonable mitigation measures are not
possible without unduly implicating
national security. As noted, mitigation
measures may include disclosing the
classified evidence to cleared counsel
subject to a protective order or providing
the complainant an unclassified summary
of the classified evidence.
See Al Haramain II, 686 F.3d 982–84. 13
Here, the first condition is satisfied. Turning to the
second condition, the government provided the plaintiffs –
other than one of the plaintiffs, whose notification letter said
only that the government had concerns about the nature and
purpose of his travel to Yemen – with unclassified
summaries of the classified evidence. Cf. id. at 982–83. The
plaintiffs challenge these summaries on three grounds.
First, they complain that the summaries were incomplete
because they failed to summarize all of the evidence. One
of the plaintiffs, whose notification letter said only that the
government had concerns about his travel to Yemen,
received no summary of the evidence against him at all,
while the other plaintiffs argue the summaries they received
were incomplete. As the government concedes, the
notification letters “did not disclose all of the reasons or
13
As noted, where the government fails to disclose evidence on
national security grounds, a reviewing court should require the
government to explain what evidence it has withheld, why the evidence
was withheld and why less drastic alternatives were not employed. Cf.
Jeppesen, 614 F.3d at 1082, 1086; Al Haramain I, 507 F.3d at 1203.
48 KASHEM V. BARR
information that the government relied upon in determining
that the six Plaintiffs should remain on the No Fly List.”
With respect to the plaintiff whose notification letter
disclosed only that the government had concerns about the
nature and purpose of his travel to Yemen, we have reviewed
the materials filed in camera, and we conclude that
additional disclosure – even in the form of an unclassified
summary – was not possible without unduly implicating
national security. See id. at 983. In this plaintiff’s case, and
to the extent the other plaintiffs’ notification letters did not
fully encompass the classified evidence, such nondisclosure
was justified by the need to prevent inadvertent disclosure of
the names of cooperating witnesses and other highly
sensitive information contained in the original evidence. See
id.
Second, the plaintiffs argue that the unclassified
summaries provided too little detail to serve their purpose of
mitigating the unfairness that arises when the government
relies on undisclosed classified evidence. See id. at 982–84.
The notification letter for one of the plaintiffs referred to
certain statements he allegedly made while detained by the
FBI. The plaintiffs argue the letter withheld critical context,
thereby limiting his ability to show “bias and coercion” in
the case against him. As to two other plaintiffs, their
notification letters referred to statements they allegedly
made to FBI agents and unidentified third parties. Finally, a
fourth plaintiff’s notification letter included a one-sentence
disclosure but did not refer to any evidence against him. The
plaintiffs argue this prohibited this plaintiff from tailoring
his response to the government’s concerns. See Ralls,
758 F.3d at 320.
We conclude the summaries afforded the plaintiffs a
meaningful opportunity to tailor their responses to the
KASHEM V. BARR 49
subject matter of the government’s concerns. See Al
Haramain II, 686 F.3d at 982–83. In one case, for example,
the facts the plaintiff contends were omitted from his letter
were within his personal knowledge. As to two other
plaintiffs, the summaries they were provided identified the
subject matter of the government’s concerns such that they
were able to respond meaningfully to the allegations. See id.
As to the final plaintiff who was informed only that the
government had concerns about his travel to Yemen, we
reiterate that additional disclosure – even in the form of an
unclassified summary – was not possible without unduly
implicating national security.
Third, the plaintiffs argue due process required not only
these unclassified summaries but also the disclosure of
classified evidence itself to cleared counsel. As noted,
however, the district court found that “the record does not
reflect whether any Plaintiff is represented by counsel with
an appropriate security clearance.” Latif IV, 2016 WL
1239925, at *18. As we explained in Al Haramain II,
moreover, there is no general rule requiring both an
unclassified summary and disclosure to cleared counsel.
Although “the Constitution does require that the government
take reasonable measures to ensure basic fairness to the
private party,” it “does not require . . . the government to
undertake every possible effort to mitigate the risk of
erroneous deprivation and the potential harm to the private
party.” Al Haramain II, 686 F.3d at 980.
In sum, the government did not violate due process when
it provided unclassified summaries of the underlying
evidence and withheld from those summaries information
that could not be disclosed without jeopardizing national
security.
50 KASHEM V. BARR
d. Disclosure of Exculpatory Evidence
The plaintiffs argue the due process concerns underlying
Brady v. Maryland, 373 U.S. 83 (1963), require the
government to disclose material exculpatory evidence as
part of the DHS TRIP redress process. Brady requires the
prosecution in a criminal case to disclose “[material]
evidence favorable to an accused.” Id. at 87. “The purpose
of Brady is to ensure that criminal trials are fair, and that a
miscarriage of justice does not occur.” Amado v. Gonzalez,
758 F.3d 1119, 1133 (9th Cir. 2014) (citations and internal
quotation marks omitted). In the plaintiffs’ view, Brady’s
disclosure obligations should apply to the DHS TRIP review
process because access to material exculpatory evidence
would reduce the likelihood of error in No Fly List
determinations.
The extent to which Brady-like obligations extend to
civil cases is an open question. As the government
acknowledges, Brady has been applied in the civil context
when a substantial private interest is at stake, see Al Maqaleh
v. Hagel, 738 F.3d 312, 327 (D.C. Cir. 2013) (alleged enemy
combatants detained by the United States military), vacated
in part sub nom. al-Najar v. Carter, 135 S. Ct. 1581 (2015);
United States v. Edwards, 777 F. Supp. 2d 985, 991–92
(E.D.N.C. 2011) (civil commitment proceedings for
sexually dangerous persons); Dhiab v. Bush, No. 05-
1457(GK), 2008 WL 4905489, at *1–2 (D.D.C. Nov. 17,
2008) (habeas proceedings on behalf of alleged enemy
combatants detained at Guantanamo); cf. Bismullah v. Gates,
501 F.3d 178, 188 (D.C. Cir. 2007) (holding that, with
respect to “enemy combatant” designations, counsel for
Guantanamo Bay detainees had a right to access all
government information regarding their clients, subject to
national security concerns), vacated and remanded sub nom.
KASHEM V. BARR 51
Gates v. Bismullah, 554 U.S. 913 (2008), petitions
dismissed, Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir.
2009), or a civil matter is jointly investigated with a criminal
prosecution, see United States v. Gupta, 848 F. Supp. 2d 491,
495–97 (S.D.N.Y. 2012) (SEC enforcement action
investigated jointly with a criminal case).
“But courts have only in rare instances found Brady
applicable in civil proceedings,” Fox ex rel. Fox v. Elk Run
Coal Co., 739 F.3d 131, 138 (4th Cir. 2014), “such as when
a person’s liberty is at stake,” Brodie v. Dep’t of Health &
Human Servs., 951 F. Supp. 2d 108, 118 (D.D.C. 2013),
aff’d, 2014 WL 211222 (D.C. Cir. Jan. 10, 2014).
Here, the district court concluded the government’s
“obligation to disclose exculpatory information is the same
as [its] obligation to provide other material information; i.e.,
as long as disclosure of the information would not create an
undue risk to national security, [the government] must
provide sufficient material information, whether exculpatory
or inculpatory, to each Plaintiff in order to permit such
Plaintiff to respond meaningfully to the reasons he has been
placed on the No-Fly List.” Latif IV, 2016 WL 1239925,
at *16. To determine whether the government had complied
with this requirement, the court required the government to
submit for in camera review “(1) a summary of any material
information (including material exculpatory or inculpatory
information) that [it] withheld from the notice letters sent to
each Plaintiff and (2) an explanation of the justification for
withholding that information,” id. at *20, and, after
reviewing the government’s submissions, it concluded that
the government had “provided sufficient justifications for
withholding additional information.”
The plaintiffs challenge the district court’s handling of
the exculpatory evidence issue on the ground that the district
52 KASHEM V. BARR
court permitted the government to withhold information
based on a “undue risk to national security.” We are not
convinced, however, that the undue risk standard the district
court applied, see id. at *13–16, differs from the Al
Haramain framework we have adopted here. The district
court, moreover, did not “permit[] the government to
withhold information based on a unilateral and categorical
assertion of ‘undue risk to national security,’” as the
plaintiffs contend. It required the government to explain and
justify the information withheld, and it then independently
verified the government’s representations. We find no error
in the district court’s handling of this subject.
We agree, moreover, with the district court’s considered
judgment that the government was required to provide
“sufficient material information, whether exculpatory or
inculpatory, to each Plaintiff in order to permit such Plaintiff
to respond meaningfully to the reasons he has been placed
on the No-Fly List,” id. at *16, subject to the Al Haramain
framework governing the disclosure of classified evidence.
Where the information is classified, the government may use
unclassified summaries or disclose the information to
cleared counsel. Where even those measures would
compromise national security, the information may
altogether be withheld.
e. The Right to a Hearing
The plaintiffs argue due process requires a post-
deprivation hearing as part of the DHS TRIP process and the
opportunity to cross-examine government witnesses. 14 They
contend due process mandates a hearing as a matter of course
14
The plaintiffs do not challenge the government’s failure to provide
pre-deprivation notice of their inclusion on the No Fly List.
KASHEM V. BARR 53
in the DHS TRIP context, given the centrality of credibility
determinations and disputed facts to No Fly List
determinations and because hearings are required where
lesser liberty deprivations are at issue. See, e.g., Goldberg
v. Kelly, 397 U.S. 254, 269 (1970) (termination of welfare
benefits); Memphis Light, Gas & Water Div. v. Craft,
436 U.S. 1, 19–20 (1978) (cancellation of subsidized utility
services); Califano v. Yamasaki, 442 U.S. 682, 696 (1979)
(recovery of excess social security payments).
The plaintiffs argue, moreover, that the failure to afford
them individual hearings was particularly harmful because
their No Fly List determinations turned in large part on their
own credibility, the credibility of witnesses, contested facts
and hearsay evidence. They object to being denied removal
from the No Fly List based on adverse credibility findings
made on a written record. They contend that, had hearings
taken place, each plaintiff would have presented testimony
that he presents no threat to aviation security and refuted any
adverse evidence the government disclosed.
The plaintiffs’ request for a hearing focuses in part on
the need to cross-examine adverse witnesses. In their
response letters to DHS TRIP, the plaintiffs contested many
of the allegations against them, creating fact disputes that, in
their view, should have been tested at a live hearing. For
example, one plaintiff’s notification letter alleged he made
several inculpatory statements to FBI agents while detained
in Kenya and Ethiopia. This plaintiff apparently did not
deny making these statements, but instead argued they were
the result of coercion and unlawful interrogation. In his
response to DHS TRIP, the plaintiff denied key allegations
in the notification letter, including that he traveled to
Somalia to “fight jihad” or “train for jihad,” that he was
trained to participate in “militant activities,” and that he
54 KASHEM V. BARR
joined a group of “foreign fighters” that he knew to include
al-Qaeda members. The plaintiffs argue that, because they
were denied hearings, they had no opportunity to test the
credibility of the witnesses against them or the accuracy of
their accounts. In the plaintiffs’ view, the denial of a hearing
and the opportunity to cross-examine adverse witnesses
denied them due process.
The government points out that due process does not
require a live hearing in every instance. In the government’s
view, the unpredictable environment of a live, adversarial
hearing makes it particularly inappropriate in the DHS TRIP
context, given the risk of exposing protected national
security information.
“In almost every setting where important decisions turn
on questions of fact, due process requires an opportunity to
confront and cross-examine adverse witnesses.” Goldberg,
397 U.S. at 269. Due process does not always require a live
hearing, however. See Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 546 (1985) (“The opportunity to present
reasons, either in person or in writing, why proposed action
should not be taken is a fundamental due process
requirement.” (emphasis added)). Where the evidence at
issue in a case is documentary and a live hearing would
implicate national security interests, for example, a “written
hearing” may satisfy due process. See, e.g., Jifry, 370 F.3d
at 1183–84 (revocation of airmen certificates on security
grounds); Holy Land Found., 333 F.3d at 161–64 (specially
designated global terrorist designation); Nat’l Council of
Resistance of Iran, 251 F.3d at 209 (foreign terrorist
organization designation).
There may be No Fly List cases in which due process
would require some type of live hearing or some opportunity
to cross-examine witnesses. That determination will require
KASHEM V. BARR 55
weighing the potential value of a hearing to the DHS TRIP
complainant – considering the extent to which the No Fly
List determination turned on credibility assessments and
disputed facts – against the considerable burden on the
government, considering the nature and extent of the threat
to national security. See Al Haramain II, 686 F.3d at 982–
84. A case-by-case approach is proper. See id. at 984.
Having reviewed the government’s classified materials,
we conclude this is not a case in which due process required
live hearings. We recognize that the No Fly List
determinations in this case turned in part on credibility
assessments, contested facts and, in some cases, hearsay
evidence. On this record, however, we hold that the value of
providing these plaintiffs a live hearing was outweighed by
legitimate national security concerns. Affording adversarial
hearings with the opportunity to confront adverse witnesses
would have risked inadvertently exposing protected
information, such as the government’s use of foreign
sources, intelligence-gathering techniques and other
confidential material.
In reaching our conclusion, we take into consideration
the information that was disclosed to the plaintiffs in the
notification letters. We note, for example, that the
unclassified summary provided to one of the plaintiffs was
sufficiently specific that he was able to deny the key
allegations in his response letter. Likewise, the unclassified
summaries provided to two other plaintiffs were sufficiently
detailed as to afford them a meaningful opportunity to
respond to the government’s concerns in their written
responses. As to the final plaintiff, whose notification letter
said only that the government had concerns about his travel
to Yemen, we are persuaded after reviewing the classified
materials that national security concerns would have made a
56 KASHEM V. BARR
live hearing unduly burdensome. We conclude, in sum, that
the opportunity to provide written responses was sufficient
to satisfy due process in this case and live hearings were not
required.
f. CIPA Procedures
The plaintiffs argue the risks associated with an
adversarial hearing would be mitigated by use of the
procedures specified for handling classified information in
criminal cases under the Classified Information Procedures
Act (CIPA), 18 U.S.C. app. 3, §§ 1–16, which is designed
“to harmonize a defendant’s right to a fair trial with the
government’s right to protect classified information.”
United States v. Sedaghaty, 728 F.3d 855, 903 (9th Cir.
2013). The plaintiffs seek the disclosure of classified
material to counsel with appropriate security clearances,
subject to protective orders.
The government correctly points out that, by statute,
CIPA applies only in criminal cases. See, e.g., 18 U.S.C.
app. 3, §§ 3, 5; Sedaghaty, 728 F.3d at 903. Nevertheless,
we have looked to CIPA for guidance on handling classified
materials in civil cases. See Latif II, 686 F.3d at 1130; Al
Haramain II, 686 F.3d at 983. Where CIPA-like procedures
are appropriate, courts should not hesitate to employ them.15
We conclude, however, that due process did not require
the use of CIPA-like procedures here. First, as noted, “the
record does not reflect whether any Plaintiff is represented
by counsel with an appropriate security clearance.” Latif IV,
15
The utility of making classified disclosures to counsel with
security clearances may be limited where counsel are prohibited from
sharing that information with their clients, but “limited utility is very
different from no utility.” Al Haramain II, 686 F.3d at 983 n.10.
KASHEM V. BARR 57
2016 WL 1239925, at *18. Second, as discussed, where the
government undertook other “reasonable measures to ensure
basic fairness,” disclosures to cleared counsel were not
required. See Al Haramain II, 686 F.3d at 980.
***
In sum, weighing the plaintiffs’ private interests, the
government’s interests, the risk of erroneous deprivation
through the procedures provided, and the value of the
additional safeguards proposed by the plaintiffs, we
conclude the procedures provided to the plaintiffs were
constitutionally sufficient in the case before us, or that any
error was nonprejudicial. See Mathews, 424 U.S. at 335.
Given the national security concerns at issue, and with the
exceptions noted, the government has taken reasonable
measures to ensure basic fairness to the plaintiffs and
followed procedures reasonably designed to protect against
erroneous deprivation of the plaintiffs’ liberty. See Al
Haramain II, 686 F.3d at 980. Because there was no
prejudicial denial of basic fairness, we do not decide
whether, in a different case, less severe travel restrictions
might be required as an alternative to a complete ban on air
travel. Nor do we address whether the procedures employed
here would be adequate in a different case.
C. Jurisdiction
The district court dismissed the plaintiffs’ substantive
due process challenges to their inclusion on the No Fly List
under 49 U.S.C. § 46110. See Latif VI, 2017 WL 1434648,
at *9. Under § 46110(a), a person challenging “an order
issued by” the TSA must seek judicial review in the court of
appeals rather than the district court.
58 KASHEM V. BARR
Before the 2015 revisions to the DHS TRIP procedures,
we held that § 46110 does not bar district court review of a
No Fly List order. See Arjmand v. U.S. Dep’t of Homeland
Sec., 745 F.3d 1300, 1301–03 (9th Cir. 2014); Latif II,
686 F.3d at 1127–29; Ibrahim v. Dep’t. of Homeland Sec.,
538 F.3d 1250, 1255–56 (9th Cir. 2008). Two
considerations drove those holdings. First, it was TSC, not
TSA, that made the ultimate decision under the pre-2015
rules:
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.
Latif II, 686 F.3d at 1128. Second, any judicial remedy
would have required the involvement of “both TSA and
TSC,” given that TSC was “the sole entity with both the
classified intelligence information Plaintiffs want and the
authority to remove them from the List.” Id. at 1129. We
would have needed jurisdiction over TSC to effect relief, and
§ 46110 did not grant us that jurisdiction. See id.
Under the current procedures, however, the TSA
Administrator is solely responsible for issuing a final order
maintaining a traveler on the No Fly List. TSC submits a
recommendation, along with supporting materials, to the
TSA Administrator. If the TSA Administrator requires
additional information or clarification, he or she may remand
the case to TSC. But the TSA Administrator ultimately
KASHEM V. BARR 59
issues the final order either removing the complainant from
the No Fly List or maintaining him or her on the list. The
TSA Administrator also has full authority to order the
complainant removed from the list. It is no longer the case,
therefore, that any remedy must involve TSC. Cf. id. Thus,
we hold that § 46110 grants the courts of appeals, rather than
the district courts, exclusive jurisdiction over the plaintiffs’
substantive due process claims. 16
We recognize that vesting original jurisdiction in the
courts of appeals may present practical difficulties in some
cases. Judicial review of No Fly List orders may entail
factfinding and case management responsibilities that
district courts are best equipped to perform. See Ibrahim,
538 F.3d at 1256 (noting a district court’s “ability to take
evidence”). But we are bound by the plain language of the
statute. Furthermore, as a practical matter, the landscape has
changed since we decided Ibrahim. The current DHS TRIP
procedures generate an administrative record for a court to
review, cf. id., and that record includes the DHS TRIP
notification letter’s unclassified summary of the reasons for
the complainant’s inclusion on the No Fly List, the final TSA
order setting forth the unclassified reasons for the decision
to maintain the complainant on the list, the government’s in
camera filings, and any material the complainant chose to
submit in the administrative proceedings. There are,
moreover, options available to an appellate court that finds
the administrative record inadequate, including remanding
16
The parties appear to agree that original jurisdiction over the
plaintiffs’ procedural due process claims lies in the district court. Those
claims challenge the sufficiency of the revised DHS TRIP procedures
administered by the TSC, not the substantive decision in the final TSA
order.
60 KASHEM V. BARR
the case to the agency for supplementation of the record or
additional factfinding. See 49 U.S.C. § 46110(c).
In sum, the plaintiffs are free to assert their substantive
challenges to their inclusion on the No Fly List by filing a
petition for review in an appropriate court of appeals under
§ 46110. Although such claims must ordinarily be filed
within 60 days after issuance of the order being challenged,
a “court may allow the petition to be filed after the 60th day
if there are reasonable grounds” for doing so. Id. § 46110(a).
Here, the government acknowledges that the plaintiffs have
reasonable grounds for delay. Thus, the plaintiffs are free to
assert their substantive due process claims in an appropriate
court of appeals without fear of having their claims rejected
as untimely.
IV. CONCLUSION
The district court properly granted the government’s
motion for summary judgment on the plaintiffs’ vagueness
and procedural due process claims and properly dismissed
their substantive due process claims for lack of subject
matter jurisdiction. The judgment of the district court is
therefore affirmed.
AFFIRMED.