Ayman Latif v. Eric Holder, Jr. , 686 F.3d 1122 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AYMAN LATIF; MOHAMED SHEIKH 
ABDIRAHMAN KARIYE; RAYMOND
EARL KNAEBLE IV; NAGIB ALI
GHALEB; SAMIR MOHAMED AHMED
MOHAMED; ABDULLATIF MUTHANNA;
SALEH A. OMAR; FAISAL NABIN
KASHEM; ELIAS MUSTAFA
MOHAMED; ABDUL HAKEIM THABET
AHMED; IBRAHEIM Y. MASHAL;
SALAH ALI AHMED; AMIR MESHAL;
STEPHEN DURGA PERSAUD; STEVEN No. 11-35407
WILLIAM WASHBURN,
Plaintiffs-Appellants,  D.C. No.
3:10-cv-00750-BR
v. OPINION
ERIC H. HOLDER Jr., Attorney
General, in his official capacity as
Attorney General of the United
States; ROBERT S. MUELLER, III, in
his official capacity as Director of
the Federal Bureau of
Investigation; TIMOTHY J. HEALY,
in his official capacity as Director
of the Terrorist Screening Center,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
May 11, 2012—Portland, Oregon
8475
8476 LATIF v. HOLDER
Filed July 26, 2012
Before: Alex Kozinski, Chief Judge, A. Wallace Tashima
and Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
8478 LATIF v. HOLDER
COUNSEL
Nusrat J. Choudhury (argued) and Hina Shamsi, American
Civil Liberties Union Foundation, New York, New York;
Kevin Diaz, ACLU Foundation of Oregon, Inc., Portland,
Oregon; Julia Harumi Mass, ACLU Foundation of Northern
California, San Francisco, California; Jennifer Lee Pasqua-
rella, ACLU Foundation of Southern California, Los Angeles,
California; and Steven Wilker, Tonkon Torp, LLP, Portland,
Oregon, for the plaintiffs-appellants.
James Edward Cox, Jr., Assistant United States Attorney,
United States Attorney’s Office for the District of Oregon,
Portland, Oregon; and Joshua Paul Waldman (argued), Doug-
las Neal Letter, and Amy Elizabeth Powell, United States
Department of Justice, Washington, DC, for the defendants-
appellees.
OPINION
TALLMAN, Circuit Judge:
The Terrorist Screening Center (“TSC”), which is adminis-
tered by the Federal Bureau of Investigation (“FBI”), main-
LATIF v. HOLDER 8479
tains a list of known and suspected terrorists who are not per-
mitted to fly in United States airspace. Plaintiffs—all United
States citizens or legal permanent residents—have good rea-
son to believe that they are on the “No-Fly List” (“List”).
They initially submitted grievances through the redress pro-
gram run by the Transportation Security Administration
(“TSA”), but the government has refused to confirm or deny
their inclusion on the List, to disclose the bases for their
apparent inclusion, or to provide any assurances about future
travel.
Rather than continuing to pursue their administrative griev-
ances with TSA, Plaintiffs filed this action in the United
States District Court for the District of Oregon against the
Director of TSC, the Director of the FBI, and the Attorney
General. They demand that the government remove them
from the List or provide a more “meaningful” opportunity to
contest their apparent inclusion on the List.
The district court dismissed the case, holding that TSA is
a necessary party to the litigation because Plaintiffs challenge
the adequacy of TSA’s grievance procedures, see Fed. R. Civ.
P. 19, but that TSA could not feasibly be joined in the district
court due to 49 U.S.C. § 46110, which grants federal courts
of appeals exclusive jurisdiction to review TSA’s final orders.1
We reverse and remand.
1
49 U.S.C. § 46110(a) provides:
[A] person disclosing a substantial interest in an order issued by
the Secretary of Transportation (or the Under Secretary of Trans-
portation for Security . . . or the Administrator of the Federal
Aviation Administration . . .) in whole or in part under this part,
part B, or subsection (l) or (s) of section 114 may apply for
review of the order by filing a petition for review in the United
States Court of Appeals for the District of Columbia Circuit or
in the court of appeals of the United States for the circuit in
which the person resides or has its principal place of business.
8480 LATIF v. HOLDER
I
A
The Bush administration established TSC in order to con-
solidate the government’s approach to terrorism screening in
response to concerns about the lack of intelligence-sharing
among federal agencies following the attacks of September
11, 2001. TSC develops and maintains the List. The National
Counterterrorism Center and the FBI submit nominations of
known and suspected terrorists, and TSC then decides who to
include on the List based on classified intelligence.2 TSC sub-
sequently provides the List—which contains only sensitive,
unclassified identity information, not the underlying classified
intelligence information—to TSA, which in turn implements
the List at the airport.3
2
The List is a subset of a terrorist screening database maintained by
TSC. To be included in the database, a nomination must (1) contain suffi-
cient identifying data so that a person being screened can be matched to
or disassociated from the record, and (2) satisfy minimum substantive
derogatory criteria. Generally, nominations must be based on reasonable
suspicion derived from the totality of available information that the indi-
vidual is a known or suspected terrorist. Reasonable suspicion in this con-
text requires “ ‘articulable’ facts which, taken together with rational
inferences, reasonably warrant a determination that an individual is known
or suspected to be, or has been engaged in conduct constituting, in prepa-
ration for, in aid of or related to, terrorism and terrorist activities.” The
List has its own minimum substantive derogatory criteria, which the gov-
ernment has not disclosed.
3
Congress tasked TSA with establishing procedures for notifying “air-
port and airline security officers of the identity of individuals known to
pose or suspected of posing, a risk of . . . terrorism or a threat to airline
or passenger safety.” 49 U.S.C. § 114(h)(2). Through the “Secure Flight”
program, aircraft operators provide TSA with data about each passenger.
See 49 C.F.R. § 1560.101. TSA compares that passenger data with the List
and provides the results to aircraft operators. Aircraft operators must
obtain clearance from TSA before issuing a boarding pass or allowing a
traveler to enter the sterile area of the airport or board an aircraft. See 49
C.F.R. § 1560.105(b).
LATIF v. HOLDER 8481
TSC does not accept complaints directly from travelers
who believe they have been wrongly included on the List.
Instead, pursuant to statutory directive, TSA has established
the DHS Traveler Redress Inquiry Program (“DHS TRIP”).
See 49 U.S.C. § 44903(j)(2)(G)(i) (“[TSA] shall establish a
timely and fair process for individuals identified as a threat
under [the advanced airline passenger prescreening system] to
appeal to [TSA] the determination and correct any erroneous
information.”); § 44926(a) (“The Secretary of Homeland
Security shall establish a timely and fair process for individu-
als who believe they have been delayed or prohibited from
boarding a commercial aircraft because they were wrongly
identified as a threat under the regimes utilized by [TSA].
. . .”).
DHS TRIP is essentially a clearinghouse for traveler griev-
ances. The complainant initiates administrative review by
submitting a grievance, see 49 C.F.R. § 1560.205(b), which
TSA reviews. If the traveler was misidentified (i.e., the trav-
eler is not on the List but has been misidentified as someone
who is), then TSA addresses the problem by updating or cor-
recting information in the traveler’s record or taking other
appropriate action. If the traveler is an exact or near match to
someone on the List, TSA forwards the grievance to TSC’s
redress unit.
Upon receipt, TSC reviews all available information to
determine whether the traveler is actually on the List. If the
traveler has been misidentified, TSC informs TSA, which
then takes corrective action. If the traveler is an exact match,
TSC coordinates with the original nominating agency to
determine whether the traveler should remain on the List.
TSC is “the final arbiter” of whether the traveler stays on the
List, and informs TSA of the final determination.
TSA sends a determination letter to the traveler when
review is complete. The letter tells the traveler that review of
his DHS TRIP grievance is complete, but does not confirm or
8482 LATIF v. HOLDER
deny whether the traveler is (or ever was) on the List or pro-
vide any assurances about future travel. In some cases, the let-
ter informs the traveler about the availability of an
administrative appeal within TSA and/or judicial review in
the United States Courts of Appeals under § 46110.
B
Plaintiffs are fifteen United States citizens and lawful per-
manent residents who allege that they were prevented from
boarding domestic and international commercial flights in the
United States and overseas due to their apparent inclusion on
the List.4 They submitted DHS TRIP grievances but, before
most received any response, filed this lawsuit challenging
their apparent inclusion on the List and claiming that the gov-
ernment’s alleged failure to afford them a meaningful oppor-
tunity to contest their apparent inclusion violates their Fifth
Amendment right to due process, and constitutes unlawful
agency action in violation of the Administrative Procedure
Act, 5 U.S.C. §§ 702, 706. They seek an injunction directing
the government to either remove them from the List or pro-
vide “a legal mechanism that affords them notice of the rea-
sons and bases for their placement on the No Fly List and a
meaningful opportunity to contest their continued inclusion
on the No Fly List.”
After this case was initiated, Plaintiffs each received a DHS
TRIP determination letter. Some letters state that “DHS has
researched and completed our review of your case,” that “we
can neither confirm nor deny any information about you
which may be within federal watchlists,” and that “[t]his letter
constitutes our final agency decision, which is reviewable by
the United States Court of Appeals under 49 U.S.C. § 46110.”
The remaining letters state that “it has been determined that
4
A few of the plaintiffs were allegedly stranded abroad at the time this
lawsuit was originally filed, but all have now been granted “one-time
waivers” to return home.
LATIF v. HOLDER 8483
no changes or corrections are warranted at this time,” that
“you may file a request for administrative appeal with
[TSA],” and that “[t]his determination will become final 30
calendar days after you receive this letter unless you file a
timely administrative appeal. Final determinations are review-
able by the United States Court of Appeals pursuant to 49
U.S.C. § 46110.” Plaintiffs have not pursued further adminis-
trative review by TSA or filed a § 46110 petition in a court
of appeals.
Instead, Plaintiffs pursued their claims before the district
court, which ultimately dismissed the action. The court read
their complaint to raise only procedural claims regarding the
sufficiency of the grievance procedures available to contest
their apparent inclusion on the List. The court held that TSA
is a necessary party to the litigation, but that it could not be
joined in light of § 46110. See Fed. R. Civ. P. 19. Plaintiffs
timely appealed.
II
We review a district court’s decision regarding joinder for
abuse of discretion, but review legal conclusions underlying
that decision de novo. Lyon v. Gila River Indian Cmty., 626
F.3d 1059, 1067 (9th Cir. 2010). Construing the operative
complaint “generously,” Pegram v. Herdrich, 530 U.S. 211,
230 n.10 (2000), Plaintiffs have raised both a substantive
challenge to their own apparent inclusion on the List and a
procedural challenge to the adequacy of the redress proce-
dures available to challenge their apparent inclusion on the
List.
A
[1] The district court has jurisdiction over Plaintiffs’ sub-
stantive challenge.5 “Section 46110 grants exclusive jurisdic-
5
The operative complaint is far from a model pleading. On remand, the
district court may wish to direct Plaintiffs to amend their complaint to
state with greater specificity the legal basis for their substantive due pro-
cess challenge to their apparent inclusion on the List.
8484 LATIF v. HOLDER
tion to the federal courts of appeals to ‘review’ the ‘orders’
of a number of agencies,” including TSA, DHS, and the Fed-
eral Aviation Administration (“FAA”)—but not TSC or the
FBI. Ibrahim v. Dep’t of Homeland Security, 538 F.3d 1250,
1254 (9th Cir. 2008) (“Ibrahim I”) (alterations omitted) (quot-
ing Clark v. Busey, 959 F.2d 808, 811-12 (9th Cir. 1992)).
Because TSC “actually compiles the list of names ultimately
placed” on the List, § 46110 does not strip the district court
of federal question jurisdiction over substantive challenges to
the inclusion of one’s name on the List. Id. at 1255 (internal
quotation marks omitted).6 Accordingly, we must remand
Plaintiffs’ substantive challenge.
B
Unlike Plaintiffs’ substantive challenge, their procedural
due process challenge undoubtedly requires at least some
review of TSA’s orders, namely, the policies and procedures
implementing DHS TRIP. Indeed, Plaintiffs concede that
“[b]ecause DHS TRIP is the process by which the govern-
ment purports to offer ‘redress’ to aggrieved travelers, its
structural deficiencies will be central to the resolution of
Plaintiffs’ [procedural] claims.” Consequently, the district
court’s determination that TSA is a necessary party was not
an abuse of discretion. The district court, however, erred in
holding that joinder of TSA is infeasible in light of § 46110.
1
At the heart of this appeal is the parties’ dispute about the
reach of § 46110. The government argues that we have exclu-
6
With regard to the applicability of § 46110, there is no meaningful dif-
ference between the “initial placement” of a name on the List and “contin-
ued placement” or “removal.” Although the government does attempt to
draw this distinction in order to distinguish this case from Ibrahim I, it
concedes that TSC decides both whether travelers are placed on the List
and whether they stay on it.
LATIF v. HOLDER 8485
sive jurisdiction because Plaintiffs’ procedural challenge
requires review of TSA’s existing redress program, and
§ 46110 applies to judicial review of TSA’s final orders.
Plaintiffs contend that § 46110 does not strip the district court
of jurisdiction because, at bottom, they challenge TSC’s deci-
sion to include or retain them on the List, and TSC is not an
agency listed in § 46110. We conclude that § 46110 does not
apply.
[2] Section 46110 “does not grant the court of appeals
direct and exclusive jurisdiction over every possible dispute”
involving TSA. Americopters, LLC v. FAA, 441 F.3d 726, 735
(9th Cir. 2006). “ ‘[T]he district court’s federal question juris-
diction is preempted by § 46110 as to those classes of claims
reviewable under § 46110.’ ” Id. at 736 (alterations omitted)
(quoting Mace v. Skinner, 34 F.3d 854, 859-60 (9th Cir.
1994)). The district court, therefore, may retain jurisdiction
over claims challenging TSA’s orders when “§ 46110 does
not explicitly allow us to hear them.” Id. at 735.
[3] Section 46110 grants us jurisdiction only “to affirm,
amend, modify, or set aside” any part of TSA’s orders, or to
order TSA to “conduct further proceedings.” 49 U.S.C.
§ 46110(c). “[W]e have no jurisdiction to grant other reme-
dies” under § 46110. Americopters, 441 F.3d at 735 (citing
Mace, 34 F.3d at 858).
In several prior cases, we allowed broad constitutional
claims for damages against the FAA to proceed in the district
court because, under § 46110, we lack jurisdiction to grant
damages. See, e.g., Crist v. Leippe, 138 F.3d 801, 802-05 (9th
Cir. 1998) (holding that the district court had jurisdiction over
a due process claim for damages based on the FAA’s alleged
spoliation of evidence while the plaintiff ’s FAA hearing was
pending); Foster v. Skinner, 70 F.3d 1084, 1086-88 (9th Cir.
1995) (holding that the district court had jurisdiction over
Fifth and Sixth Amendment Bivens claims); Mace, 34 F.3d at
856-60 (same). The district court’s jurisdiction over damages
8486 LATIF v. HOLDER
claims against § 46110 agencies (which include TSA, DHS,
and the FAA, but not TSC or the FBI) is not without limits.
The district court lacks jurisdiction to hear damages claims
that are “ ‘inescapably intertwined with a review of the proce-
dures and merits surrounding the [agency’s] order.’ ” Ameri-
copters, 441 F.3d at 736 (quoting Crist, 138 F.3d at 803). A
damages claim, however, is not “ ‘inescapably intertwined’ ”
if it “ ‘constitute[s] a broad challenge to the allegedly uncon-
stitutional actions of the [agency],’ and is not a claim merely
‘based on the merits of [an] individual situation.’ ” Id. (foot-
note and citation omitted) (quoting Mace, 34 F.3d at 858-59).
The “inescapably intertwined” doctrine “prevents plaintiffs
from crafting constitutional tort claims either as a means of
‘relitigat[ing] the merits of the previous administrative pro-
ceedings,’ or as a way of evading entirely established admin-
istrative procedures.” Id. (citation omitted) (quoting Tur v.
FAA, 104 F.3d 290, 292 (9th Cir. 1997)).
2
Plaintiffs’ procedural challenge is unlike any we have
addressed in the past. So far as we can discern, all of our prior
cases required review of orders issued either by an agency
explicitly included in § 46110 (e.g., TSA, DHS, or the FAA)
or by an agency excluded from that provision (e.g., TSC)—
not orders issued by both. See, e.g., Ibrahim I, 538 F.3d at
1254-57 (addressing separately challenges to TSC’s decision
to include the plaintiff on the List and challenges to TSA air-
port security policies); Gilmore v. Gonzales, 435 F.3d 1125,
1131-34 (9th Cir. 2006) (reviewing a TSA Security Direc-
tive); Crist, 138 F.3d at 802-05 (addressing challenges to
FAA orders); Foster, 70 F.3d at 1086-88 (same); Mace, 34
F.3d at 856 (same).
[4] Plaintiffs’ procedural challenge requires judicial review
of orders issued both by TSA, which is named in § 46110, and
by TSC, which is not. TSA’s implementation of DHS TRIP
is at issue, but TSA is merely a conduit for a traveler’s chal-
LATIF v. HOLDER 8487
lenge to inclusion on the List. TSA simply passes grievances
along to TSC and informs travelers when TSC has made a
final determination. TSC—not TSA—actually reviews the
classified intelligence information about travelers and decides
whether to remove them from the List. And it is TSC—not
TSA—that established the policies governing that stage of the
redress process.
[5] If Plaintiffs are entitled to judicial relief, any remedy
must involve both TSA and TSC. Here, Plaintiffs demand to
know why they are apparently included on the List and an
opportunity to advocate for their removal. Ordering TSA to
tell Plaintiffs why they were included on the List and to con-
sider their responses in deciding whether they should remain
on it, would be futile. Such relief must come from TSC—the
sole entity with both the classified intelligence information
Plaintiffs want and the authority to remove them from the
List. Thus, because we would not be able to provide relief by
simply amending, modifying, or setting aside TSA’s orders or
by directing TSA to conduct further proceedings, we lack
jurisdiction under § 46110 to address Plaintiffs’ procedural
challenge.
3
Having concluded that we lack jurisdiction under § 46110,
we must now consider whether the district court has jurisdic-
tion to hear Plaintiffs’ procedural challenge. “ ‘[W]here Con-
gress intends to preclude judicial review of constitutional
claims, its intent to do so must be clear.’ ” Elgin v. Dep’t of
the Treasury, 132 S. Ct. 2126, 2132 (2012) (alterations omit-
ted) (quoting Webster v. Doe, 486 U.S. 592, 603 (1988)). But
“where Congress simply channels judicial review of a consti-
tutional claim to a particular court,” we ask “only whether
Congress’ intent to preclude district court jurisdiction was
‘fairly discernible in the statutory scheme.’ ” Id. (quoting
Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984)).
8488 LATIF v. HOLDER
[6] Here, we need not determine which standard applies
because it is neither clear nor fairly discernible from the statu-
tory scheme that Congress intended to strip the district court
of jurisdiction over Plaintiffs’ constitutional claim. Section
46110 does not apply to TSC. And we have consistently held
that § 46110 is not an absolute bar to district court review of
TSA’s orders. See, e.g., Crist, 138 F.3d at 804-05; Foster, 70
F.3d at 1088; Mace, 34 F.3d at 860.
The considerations that have led us to limit a district court’s
jurisdiction to review claims against § 46110 agencies do not
apply here. See Americopters, 441 F.3d at 736 (explaining
that a claim for damages against a § 46110 agency is barred
where it is merely “a way of evading entirely established
administrative procedures” or an effort to relitigate the merits
of a previous administrative proceeding). Our lack of jurisdic-
tion under § 46110 to grant relief is not the result of artful
pleading or any deliberate attempt by Plaintiffs to evade
§ 46110. Rather, it arises from the unique relationship
between TSA and TSC in processing traveler grievances to
determine who should remain on the List.
[7] Plaintiffs raise broad constitutional claims that do not
require review of the merits of their individual DHS TRIP griev-
ances.7 DHS TRIP does not appear to provide any mechanism
for Plaintiffs to challenge the adequacy of the process itself,
and the record does not reveal whether their procedural chal-
lenge has been reviewed on the merits in any prior administra-
tive proceeding. Accordingly, we also remand Plaintiffs’
procedural challenge to the district court for such further pro-
ceedings as may be required to make an adequate record to
support consideration of their claims.
7
We do not address whether Plaintiffs’ failure to pursue their DHS
TRIP grievances precludes judicial review of their claims because the par-
ties have not briefed this issue, nor has the district court had an opportu-
nity to consider it.
LATIF v. HOLDER 8489
III
[8] At oral argument, the government was stymied by what
we considered a relatively straightforward question: what
should United States citizens and legal permanent residents do
if they believe they have been wrongly included on the No-
Fly List? In Ibrahim I, we held that district courts have origi-
nal jurisdiction over travelers’ substantive challenges to inclu-
sion on the List. Today, we take another step toward
providing an answer. We hold that the district court also has
original jurisdiction over Plaintiffs’ claim that the government
failed to afford them an adequate opportunity to contest their
apparent inclusion on the List. We leave it to the district court
to determine whether to require joinder of TSA on remand.
We hold only that § 46110 presents no barrier to adding TSA
as an indispensable party. We also leave to the sound judg-
ment of the district court how to handle discovery of what
may be sensitive intelligence information. See Classified
Information Procedures Act, 18 U.S.C. app. 3 §§ 1-16.
REVERSED and REMANDED.