“Would Winston Smith and Josef K. please return to the gate? Your flight is ready to depart.”
posted by Jeffrey Kahn
Yesterday the United States Court of Appeals for the Ninth Circuit released its opinion in Latif v. Holder. Ayman Latif is a U.S. Citizen and disabled Marine Corps veteran who lives in Egypt. Airport officials in Cairo prevented him from boarding a plane to return to the United States, where he needed to attend a scheduled disability evaluation. Latif sought help from the U.S. Embassy, but he alleges that months later, after lengthy FBI interviews and polygraph tests, American officials told him that he could fly to the United States only as a “one-time thing,” without any guarantee that he would be allowed to return to his wife and daughters in Egypt. He refused the offer and his benefits as a disabled veteran were cut.
Latif filed suit, along with other citizens and lawful permanent residents in the U.S. and abroad who alleged similar treatment. They all claimed that they were prevented from traveling because the United States Government placed them on its No Fly List. This unanimous court of appeals decision opens a door to judicial review that, until yesterday, the Government had succeeded in keeping tightly shut. After the break, I’ll provide a brief review of the current system and then analyze how the Ninth Circuit’s opinion presents a substantial opportunity for change.
(Full Disclosure: Readers might recall me as a past guest at Concurring Opinions. My bio is here and my interest in this case comes from my work on a book to be published in December by the University of Michigan Press called Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists.)
Imagine if George Orwell and Franz Kafka joined forces to create a list of persons whom the state wished to deny the right to travel. They’d start by creating an agency that kept its location secret, its officials anonymous, and its powers broad. The criteria for inclusion on the List would be strictly classified. The evidence behind the government’s suspicion of these people would also be kept secret.
A second agency, not privy to this evidence, would implement the first agency’s decision and receive any complaints about it. Complaints would be permitted only by filling out a form on a website, to be read by other anonymous officials. No hearing before these officials would be allowed, nor would the evidence they considered or the procedures and criteria they used to evaluate it be revealed. In fact, the officials at agency # 2 would do nothing more than confirm that the complainants were actually on the List devised by agency # 1 (and not stopped from traveling for some other reason). If the List were indeed involved, the division of authority would continue: agency # 1 would decide what to do about the complaint and agency # 2 would pass the news along to the stranded traveler, usually months later, in a letter announcing the “final agency action” of agency # 2. The letter would use appropriately Orwellian language: “Where it has been determined that a correction to records is warranted, these records have been modified to address any delay or denial of boarding that you may have experienced as a result of the watch list screening process.” (Not to give the game away, but this language is taken from a real letter from agency # 2. Read it again and see if you can determine exactly what action anybody took.)
As “final agency action,” of course, the confused would-be traveler could now seek the help of a federal judge. But a statute would provide that “a person disclosing a substantial interest in an order” of agency # 2 could only file a petition for review in the federal courts of appeal, not in the trial-level district courts. The appellate forum would limit the evidence judges could hear and the standard for their review. It would also shield the substantive decisions of agency # 1 behind the procedural script of agency # 2.
Orwell and Kafka had no part in designing the U.S. No Fly List or the process for complaining about it, but they’d recognize both. Agency # 1 is the Terrorist Screening Center (TSC), a component of the FBI. Agency # 2 is the Transportation Security Administration (TSA), which implements the TSC decisions and supports the Department of Homeland Security’s Traveler Redress Inquiry Program. Cleverly, the program’s acronym spells “TRIP” but leaves open whether the word is a noun synonymous with travel or a verb that means to trap, catch, or cause to stumble.
Separating and hiding the real decisionmaker (TSC) behind the recipient of complaints (TSA) worked a nice bureaucratic trick. No one had managed to reach the TSC with a successful lawsuit and anyone who threatened to come close was presented an offer for out-of-court settlement. The statute that cuts out the district courts, 49 U.S.C. § 46110, is a legacy of TSA’s origins as part of the Federal Aviation Administration. It made perfect sense for reviewing the agency’s record in a run-of-the-mill case of license revocation or permit denial. In a No Fly List case, however, the law has been used to deny the plaintiff access to the real decisionmaker and to deprive the plaintiff of access to a court that can actually remedy his injury.
District Court Judge Anna J. Brown dismissed Ayman Latif’s case because he had sued Attorney General Eric Holder, FBI Director Robert Mueller, and TSC Director Timothy Healy, but had resolutely refused to add the TSA as a defendant. That was clearly to avoid the strictures of § 46110. Judge Brown held that the TSA was a necessary party (reading the complaint to allege a procedural claim about the DHS TRIP process) and that the statute therefore deprived her of jurisdiction.
The Ninth Circuit’s unanimous opinion (written by Judge Richard C. Tallman and joined by Chief Judge Alex Kozinski and Judge A. Wallace Tashima) read the complaint more generously as containing both a substantive component (the plaintiff’s inclusion on the No Fly List) and a procedural component (the sufficiency of the process to review that substantive decision for error). As to the former, substantive issue, the Ninth Circuit refused to allow the Government to use the division of labors it had created between the TSC and the TSA to evade the jurisdiction of the district courts: “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.”
As to the procedural component, the Ninth Circuit held that the District Court correctly determined that the TSA was a necessary party (and therefore did not abuse its discretion) but erred in concluding that § 46110 made joinder infeasible. The key, again, was in rejecting the Government’s division of authority between TSC and TSA as a means of evading review. In that way, the opinion has an elegant irony to it: the very jurisdictional move that the Government has used to skip up to the court of appeals with its own administrative record lands the Government right back in the trial-level district court on the grounds that the appellate court lacks jurisdiction under the same statute to render an appropriate remedy.
Section 46110 indeed grants the court of appeals jurisdiction “to affirm, amend, modify, or set aside” a TSA order and to compel the TSA to “conduct further proceedings.” But the statute does not give the court of appeal jurisdiction to provide any other remedy. Omitting its citations but retaining the emphasis in the original, here is the key paragraph of the opinion:
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 consider 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 Plaintiff’s procedural challenge.
This is a big change but it leaves two questions unanswered. First, what is the nature of the substantive component of Latif’s claim? The Ninth Circuit observed in a footnote that “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 process challenge to their apparent inclusion on the List.” Substantive due process is certainly the most obvious way to proceed, but (as I’ve argued in the UCLA Law Review) not the only approach. Maybe the freedom to enter and leave the country, and travel within it like any other inhabitant of the twenty-first century, is part of what it means to be a citizen of a republic like ours, not the subject of some king or autocrat.
The second question is how the Government will react. “At oral argument,” the opinion concludes, “the government was stymied by what we considered a relatively straightfoward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No-Fly List?” I think history is a useful guide to predict the endgame now that the TSC has started to lose its comfortable bureaucratic isolation (as I’ve argued in the Connecticut Law Review). At some of the hottest periods of the Cold War, the Government asserted the same absolute control over travel, this time by controlling passports. Astonishingly, many of the same arguments used then have returned to defend the digitized veresion of this old paper-and-rubber stamp system. Once the light of judicial scrutiny finally shone through to reveal the man behind the curtain of agency secrecy (a remarkable woman, actually, named Ruth Shipley), the Government found it increasingly difficult to keep her secret decisionmaking process insulated from real judicial review.
Perhaps coincidentally, Mrs. Shipley retired just as the judicial blows began to rain down. To celebrate her retirement, Mrs. Shipley announced that she would take a long European vacation. No one doubted that she would obtain her passport without delay.