Justice Dept responds to "No Fly" list challenge by Saadiq Long

7/25/2019 Justice Dept responds to "No Fly" list challenge by Saadiq Long

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION__________________________________________

)

SAADIQ LONG, et al., ))

Plaintiffs, )

)v. ) Case No. 1:15-CV-1642

)

LORETTA LYNCH, in her official capacity as )Attorney General of the United States, et al., )

)

Defendants. )_________________________________________ )

DEFENDANTS MEMORANDUM OF LAW IN OPPOSITION TO

PLAINTIFFS EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER

INTRODUCTION

Plaintiffs are United States citizens in the custody of the Government of Turkey. They

claim that that their detention in Turkey is the result of their alleged placement on the U.S.

Governments No Fly List, and they ask the Court to remedy their alleged involuntary exile

from the United States and the psychological stress of being in Turkish custody with a

temporary restraining order mandating that their alleged placement on the No Fly List be

reversed. But there is no basis for granting such extraordinary relief as a matter of fact or law.

As Plaintiffs allege in their Complaint, the United States has previously advised them that

they may fly to this country; indeed, prior travel plans for the family were arranged, and the U.S.

Government even has a program that would enable the family to borrow money to pay for their

plane tickets. In addition, as set forth below, Plaintiffs are being held by Turkish immigration

authorities pending their deportation from Turkey to the United States. Thus, their request for

emergency relief does not concern their ability to leave Turkey and return to the United States.

Case 1:15-cv-01642-LO-MSN Document 9 Filed 12/17/15 Page 1 of 25 PageID# 64


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Rather, Plaintiffs have apparently declined to return to the United States out of concern that they

will not be able to leave the country by plane due to their alleged placement on the No Fly List.

But apprehension about possible future travel difficulties is no justification for the emergency

relief being sought. Plaintiffs are free to challenge their alleged placement on the No Fly list,

while they are in Turkey or after they return to the United States. But there is no basis for

granting them, on an emergency injunctive basis, the ultimate relief on the merits removal from

their alleged placement on the No Fly List simply because they do not wish to return until that

issue is adjudicated.

As set forth further below, Plaintiffs motion should be denied because it does not satisfy

any of the stringent requirements for preliminary relief. First, Plaintiffs cannot show that they

will face irreparable harm in the absence of a temporary restraining order directing reversal of

their alleged placement on the No Fly List. Any harm arising from their ongoing detention is the

result of their refusal to return to the United States and not a proper basis for emergency relief.

Second, the emergency relief Plaintiffs request reversal of their alleged placement on

the No Fly List would be highly prejudicial to Defendants and harmful to the public interest.

There is an established administrative process for U.S. persons denied boarding to obtain

information about their status and, if they are on the No Fly List, reasons for any such placement,

to the extent consistent with national security. This process would form the basis of any

subsequent judicial review of a No Fly determination. Plaintiffs expressly opposeany

application of this process, instead calling for emergency injunctive relief that would bypass the

administrative stage and secure the final relief sought in the Complaint through de novojudicial

review. Moreover, Plaintiffs demand not only that the Court second-guess a national security

decision (their alleged placement on the No Fly List) without having the assistance of a proper



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agency record, but also that the Court do so immediately, without the benefit of full judicial

proceedings.

Finally, Plaintiffs have not established a likelihood of success on the merits, for multiple

reasons. As a threshold matter, there are serious questions about exhaustion and ripeness. In

addition, Plaintiffs themselves raise the question whether this Court would have jurisdiction to

review these claims, and Plaintiffs have failed to show a likelihood of success on the merits on

that question sufficient to support emergency injunctive relief. Nor have Plaintiffs provided a

basis for the Court to find that their alleged placement on the No Fly List is erroneous, let alone

that the Government lacks the constitutional authority to place them on the List in the first place.

Their memorandum focuses primarily on inapposite authority concerning the right of U.S.

citizens to return to the United States something that is not at issue where Plaintiffs concede

that the U.S. Government has indicated that it will allow Plaintiffs to fly to the United States.

For these reasons, and those set forth below, Plaintiffs motion for a temporary

restraining order should be denied.

BACKGROUND

I. Plaintiffs Allegations

Plaintiffs filed a Complaint and an accompanying Emergency Motion for a Temporary

Restraining Order on December 11, 2015. SeeCompl., ECF No. 1; Pls. Mot, ECF No. 2.

Plaintiffs claim that while living in Qatar in 2012, Mr. Long was denied the ability to board a

commercial airline to visit his mother in Oklahoma. Compl. 62. Plaintiffs further claim that

Mr. Long subsequently flew to Oklahoma, but when he attempted to return to Qatar several

months later, the FBI refused to allow him to board a plane[.] Id. 68. Plaintiffs assert that in



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March 2013, Mr. Long decided to take a bus to Mexico, and then fly from Mexico to Qatar via

an unnamed location in South America. Id. 69.

Plaintiffs allege that they traveled to Turkey in October 2015, and at the end of the

month, Turkish officials detained them because the United States had flagged their passports.

Id. 7071. Plaintiffs contend that their passports were flagged as a result of Defendants

placing their names on the No Fly List. Id. 73, 75. Plaintiffs state that the United States

Government has agreed to allow them to fly to the United States. Compl. 76. But plaintiffs

further allege that they cannot make a responsible decision about whether to return . . . without

knowing they will be able to later leave the United States by plane. Id. 78.

Plaintiffs raise a constitutional due process claim under the Fifth Amendment, as well as

a statutory claim under the Administrative Procedure Act (APA). Id. 8092. Plaintiffs seek

a declaration from this Court that Defendants policies, practices, and customs violate the Fifth

Amendment. Id.at 23 (Prayer for Relief, 1). In the Complaint, Plaintiffs request an

injunction removing Plaintiffs from any watch list or database that burdens or prevents them

from flying or entering the United States[.] Id.(Prayer for Relief, 2). Plaintiffs motion for a

TRO likewise requests ordering Defendants to remove Plaintiffs from the No Fly List. Pls. Mot.

at 2.1

II. Information about Plaintiffs Detention in Turkey

In the short time since Plaintiffs filed their initial papers, the Government has been able

to ascertain the following pertinent facts. The FBI has been advised that, in early November,

the Turkish National Police (TNP) received a phone call regarding foreigners at an address in

1Further, although neither requested in the Complaints Prayer for Relief nor mentioned in the

Motion for Temporary Restraining Order, Plaintiffs state in their supporting memorandum that

they seek preliminary relief that would allow for their immediate release from Turkish

custody. Pls. Mem. 11.



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Gaziantep, Turkey. Declaration of John B. Phillips, III, Assistant Legal Attach for Ankara,

Turkey, International Operations Division, Federal Bureau of Investigation (Phillips Decl.)

(Exhibit 1) 7. The call was received via a hotline the TNP had established for reporting

suspicious behavior. Id. At that time, the TNP was conducting frequent detentions of

foreigners throughout Gaziantep as part of its investigation following the October 10, 2015

suicide bombings that had occurred in Ankara. Id. Gaziantep is in the Syria border region,

where the TNP has increased authority to detain and deport foreigners. Id.

The FBI understands that, based on that call, TNP officers located Plaintiffs and

determined that the three had neither legal residence nor legal employment in Turkey. Id. 8.

The Turkish Ministry of Foreign Affairs then informed the FBI that Turkey had not located a

record of Mr. Long and his family entering Turkey legally. Id. 9. Consequently, the FBI

understands that the Turkish Government intends to deport Mr. Long and his family to the

United States. Ex. 1, 10.

On November 3, 2015, the Turkish Government notified the U.S. Embassy in Ankara that

Plaintiffs had been detained. Declaration of Rachel Crawford, Citizens Services Specialist,

Bureau of Consular Affairs Office of Overseas Citizen Services, U.S. Department of State

(Crawford Decl.) (Exhibit 2) 2. Plaintiffs were transferred to immigration detention, where

they were visited by U.S. Embassy representatives on December 7, 2015. Id. 3. Turkish

officials at the deportation facility advised U.S. Embassy staff that Turkey deports individuals

detained under these circumstances only to their country of nationality. Id. 4. They also

advised that Plaintiffs had been informed that they would be deported to the United States. Id.

5.



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On December 3, 2015, a person who identified himself as a friend of the Plaintiffs

informed the U.S. Embassy that he had made reservations for Plaintiffs to travel to the United

States. Id. 6. The Embassy conveyed to that person that the U.S. Government had reviewed

the proposed travel plans and had no objection to those plans. Id. The Embassy was later

advised, however, that the family rejected the proposed travel because they did not want to go to

the United States. Ex. 2, 6.

Turkish government officials informed the Embassy and Plaintiffs that Plaintiffs will be

released to return to the United States, provided they pay for their own airplane tickets. Id. 7.

In accordance with 22 U.S.C 2671(b)(2)(B), if Mr. Long and his family are destitute and meet

other U.S. statutory requirements, the United States would be able to loan them money (at their

request and upon their application) to pay for airplane tickets back to the United States. Id. 8.

Also, as a matter of policy, the U.S. Government has processes available for U.S. persons who

experience travel difficulties in returning home from abroad, including in cases where such

difficulties may relate to the No Fly List.

III. Overview of Relevant Statutory Framework

Congress tasked the Transportation Security Administration (TSA) with establishing

policies and procedures to identify individuals who may be a threat to civil aviation or national

security, to prevent those individuals from boarding aircraft or take other appropriate actions

with regard to those individuals, and to provide redress for travelers who are delayed or denied

boarding as a result. See 49 U.S.C. 114(h)(3); 44903(j)(2)(C)(iii), 44926(a). Among other

things, TSA relies upon the No Fly List and the Selectee List, subsets of the consolidated

Terrorist Screening Database (TSDB) maintained by the Terrorist Screening Center (TSC),

to screen passengers attempting to fly on U.S. commercial aircraft, or any commercial flight to,



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from, or over the United States. The No Fly List is designed to prevent individuals on the List

from boarding aircraft flying to, from, or over the United States. See 49 C.F.R.

1560.105(b)(1); 73 Fed. Reg. at 64,026 (Oct. 28, 2008). Passengers on the Selectee List undergo

enhanced security screening prior to being permitted to board a commercial aircraft flying to,

from, or over the U.S. These lists are not public, for numerous security reasons. For individuals

delayed or denied boarding resulting from TSAs watchlist matching program, TSA has in place

a robust process that allows individuals to seek redress by filing an inquiry with the Department

of Homeland Securitys Traveler Redress Inquiry Program (DHS TRIP), with ultimate review

in federal court. Through this process, U.S. persons on the No Fly List may receive confirmation

of their status on the List and other information designed to provide them with a meaningful

opportunity to be heard in response.

ARGUMENT

I. Temporary Restraining Order Standard

A temporary restraining order is intended to preserve the status quo only until a

preliminary injunction hearing can be held. Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174

F.3d 411, 422 (4th Cir. 1999). The Supreme Court has made it clear that preliminary relief

whether through a temporary restraining order or a preliminary injunction is an extraordinary

and drastic remedy to be applied only in limited circumstances. See, e.g., Winter v. Nat. Res.

Defense Council, 555 U.S. 7, 24 (2008);Dewhurst v. Century. Aluminum Co., 649 F.3d 287, 290

(4th Cir. 2011). Indeed, a temporary restraining order should not be granted unless the movant,

by a clear showing, carries the burden of persuasion. Mazurek v. Armstrong, 520 U.S. 968, 972

(1997).



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The standard for granting either a TRO or a preliminary injunction is the same. Moore

v. Kempthorne, 464 F. Supp. 2d 519, 525 (E.D. Va. 2006). A movant must demonstrate that: (1)

he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of

preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the

public interest. Winter, 555 U.S. at 20; accordReal Truth About Obama, Inc. v. Fed. Election

Commn, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010),

reinstated in relevant part on remand, 607 F.3d 355 (4th Cir. 2010) (per curiam).

Relevant here, the courts have made a distinction in treatment between a motion for

preliminary injunctive relief to maintain thestatus quoand one to provide mandatory relief,

especially relief which in effect operates as deciding the case in favor of the movant. Tiffany v.

Forbes Custom Boats, Inc., 959 F.2d 232 (4th Cir. 1992). Mandatory preliminary injunctions

that do not preserve the status quo should be granted only in those circumstances when the

exigencies of the situation demand such relief. Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir.

1980). As set forth below, Plaintiffs have not satisfied this demanding standard.

II. There is No Likelihood of Irreparable Harm to Plaintiffs in the Absence of

Emergency Injunctive Relief.

To obtain a temporary restraining order, Plaintiffs must demonstrate specific

facts . . . [which] clearly show that immediate and irreparable injury, loss, or damage will result

to the movant before the adverse party can be heard in opposition. Fed. R. Civ. P. 65(b)(1)(A).

Plaintiffs must also show the alleged harm will directly result from the action they seek to

enjoin. Wis. Gas Co. v. FERC,758 F.2d 669, 674 (D.C. Cir.1985). The harm must be both

certain and great and actual and not theoretical, id., and it cannot arise from Plaintiffs own

actions,Pennsylvania v. New Jersey,426 U.S. 660, 664 (1976) (no irreparable harm where

litigant could avoid injury);PetroChem Processing, Inc. v. EPA,866 F.2d 433, 438 (D.C. Cir.



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1989) (self-inflicted injuries break the causal chain linking the defendants conduct to the

asserted injury).

In evaluating Plaintiffs assertions of irreparable harm, it bears repeating that Turkish

officials have advised the FBI that Plaintiffs arrest was the result of information the TNP

received while investigating suspected illegal activities in the Syria border region, and that

Turkey then confirmed that Plaintiffs have no lawful residence or employment in Turkey and

appear to be in the country illegally. Ex. 1, 8-9. Plaintiffs also have been advised by Turkish

authorities that they may return to the United States (but must pay for plane tickets). Ex. 2, 7.

Plaintiffs had an itinerary, arranged for by a friend of the family, to fly to the United States, and

the U.S. Government did not object to the proposed travel plans; it even has a program that

would enable Plaintiffs to borrow money to pay for tickets back to the United States if necessary.

Ex. 2, 6, 8. Under these circumstances,Plaintiffs cannot seriously contend that judicial

intervention is necessary to remove them from Turkish custody or remedy their involuntary

exile from the United States. Rather, any injuries arising from their continued detention in

Turkey would be the result of their own decisions. See Pennsylvania, 426 U.S. at 667 (holding

that litigant cannot be heard to complain about damage inflicted by its own hand); Safari Club

Intl v. Salazar,852 F. Supp. 2d 102, 123 (D.D.C. 2012).

The closest Plaintiffs come to asserting a cognizable injury is their claim that they

cannot make a responsible decision about whether to return to the United States by plane

without knowing that they will be able to later leave the United States by plane. See Compl.

78. In other words, Plaintiffs seek emergency relief to ensure that, in the event they do return to

the United States, they may do so secure in the knowledge that they may be able to one day leave

unimpeded. Such speculation about future injury does not constitute a harm that warrants



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injunctive relief, and even if it did, the harm would be neither irreparable nor grounds for an

emergency injunction granting the ultimate relief sought on the merits.

First, Plaintiffs have failed to identify harm that is certain and great, much less

irreparable. Plaintiffs claim of irreparable injury appears to be as follows: ifPlaintiffs return to

the United States (as they have acknowledged they would be permitted to do), and ifthey

thereafter wish to travel abroad, and ifthey encounter difficulties in attempting to do so, then

they mightface a cognizable harm.2 This kind of alleged injury based on a chain of contingent

future events does not support extraordinary injunctive relief. See Maersk Container Serv. Co. v.

Jackson, 131 F.3d 135 (4th Cir. 1997) (no showing of irreparable harm where plaintiff did not

show that he suffered a legally cognizable harm).3

Second, and more fundamentally, even if Plaintiffs theory of harm were viable, the

injuries they describe are in no way irreparable. There is no irreparable harm if an adequate

remedy exists at law. Al-Abood v. El-Shamari, 71 F. Supp. 2d 511, 515 (E.D. Va. 1999). As

discussed infra, Section IV, if Plaintiffs continue to have concerns about No Fly List status upon

their return to the United States, and face travel difficulties as a result of their alleged placement

on the No Fly List, they can seek redress through DHS TRIP. If the redress process confirms

that each of them are on the No Fly List, then they will be informed of that and receive an

2Indeed, numerous suits have been filed in federal court challenging alleged status on

government watchlists. While some district courts have identified a protected liberty interest in

international (but not domestic) travel by air,see, e.g.,Mohamed v. Holder, 995 F. Supp. 2d 520

(E.D. Va. 2014);Latif v. Holder, 969 F. Supp. 2d 1293 (D. Or. 2013); Tarhuni v. Holder, 8 F.Supp. 3d 1253 (D. Or. 2014), in none of them has a preliminary injunction issued.

3 See also City of Los Angeles v. Lyons, 461 U.S. 95, 105-07 (1983) (prospective injunctive

relief is not available with respect to law enforcement activities based on prior alleged harmswithout a showing of actual present or imminent future harm); cf. Clapper v. Amnesty Intl USA,

133 S. Ct. 1138, 1151 (2013) (Article III standing cannot be based self-imposed actions based on

fear of possible future injury).



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opportunity to administratively challenge their placement on the List, and obtain unclassified

information explaining their placement (to the extent consistent with national security). Upon

completion of that process, Plaintiffs could also have the option of seeking review of their

alleged placement on the No Fly List, in addition to any related constitutional claims, in an

appropriate federal court. See Sampson v. Murray, 415 U.S. 61, 90 (1974) (The possibility that

corrective relief will be available in the normal course of litigation weighs heavily against a

claim of irreparable harm.). Moreover, if Plaintiffs want to challenge their alleged placement

on the No Fly List right now before they return to the United States for fear of being denied

boarding in the future they are free to do so while they remain in Turkey. If, on the other hand,

Plaintiffs wish to leave Turkey now, they can challenge their status upon returning to the United

States. Where Plaintiffs have an adequate remedy at law, their apparent preference to forego

DHS TRIP and remain in Turkey does not entitle them to emergency injunctive relief as to their

alleged placement on the No Fly List.

Any sense of urgency is further undercut by Plaintiffs delay in seeking a preliminary

injunction. If, as Plaintiffs allege, Mr. Long has been on the No Fly List since at least 2012,

and the U.S. Government prevented Mr. Long from returning to Qatar in March 2013,4Compl.

60-69, Mr. Long has had nearly three years to challenge his alleged placement on the List. Mr.

Longs delay in seeking relief from his alleged listing belies his contention that the Court must

act now to resolve his challenge. Prindable v. Assn of Apartment Owners of 2987Kalakaua, 304

F. Supp. 2d 1245, 1262 (D. Haw. 2003) (Such a lengthy delay, when there has been no change

in the relevant factual circumstances, cuts decidedly against a finding of harm or hardship

4The Complaint does not allege when Plaintiffs Juangjan Daves and Leshauna Daves were

supposedly placed on the No Fly List, or what basis those plaintiffs have for believing they have

been listed.



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irreparable or otherwise.);see alsoRuckelshausv.Monsanto Co., 463 U.S. 1315, 1318 (1983)

(delay tends to blunt [a] claim of urgency and counsels against the grant of a stay.). If

uncertainty about future travel from the United States called for emergency relief, Mr. Long

presumably would have taken action in 2013. Only now, when in the custody of a foreign

nation, and with the opportunity to return to the United States available, do Plaintiffs invoke their

alleged inability to return home without being subject to any No Fly List restriction. But

Plaintiffs have had the opportunity to avail themselves of administrative and judicial process to

address their alleged status for more than two years.

III. The Balance of Harms and the Public Interest Weigh Heavily in Favor of DenyingPlaintiffs Proposed Injunction.

While Plaintiffs fail to show that they would suffer irreparable harm absent the requested

relief, the preliminary relief they seek would be highly prejudicial to Defendants and adverse to

the public interest. Plaintiffs ask this Court to issue a preliminary order, with potentially severe

national security implications, without the benefit of the normal processes of administrative and

judicial review. Such an order would contravene basic principles of administrative law and mark

an unprecedented departure from judicial review of agency action in the sensitive area of national

security.

Plaintiffs seek an order requiring the Government to remove them from the No Fly List,

Pls. Mem. at 9-10, but concede that they have not challenged their alleged placement on the List

through the revised redress process, id.at 20-21. Not only is exhaustion of the administrative

process appropriate,see infraSection IV, but it is essential to creating an adequate record for

judicial review. SeeMohamed v. Holder, 995 F. Supp. 2d 520, 527 (E.D. Va. 2014) (Because

challenges to the No Fly List implicate the most compelling of governmental duties to protect

our country, they cannot be responsibly addressed without an informed, fact-based record.);



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Latif v. Holder, No. 10-cv-750, Dkt. No. 152 (D. Or. Oct. 3, 2014) (order requiring parties to

apply new No Fly List administrative procedures).5 Proceeding without initial agency review is

particularly unwarranted in the national security context, where the judiciary must proceed with

caution and due deference to the expertise of the Executive Branch. See, e.g., Holder v.

Humanitarian Law Project, 561 U.S. 1, 34 (2010) (explaining that when it comes to drawing

factual inferences in this area, the lack of competence on the part of the courts is marked, . . . and

respect for the Governments conclusions is appropriate);Al Haramain Islamic Found. Inc. v.

Dept of Treasury, 686 F.3d 965, 979 (9th Cir. 2011) (acknowledging extremely deferential

review in the national security and intelligence area).

Similarly, Plaintiffs attempt to obtain merits relief by bypassing the administrative

process and invoking truncated judicial proceedings is particularly unwarranted given the

compelling governmental and public interests at stake. As this Court has recognized, the

Government has a compelling interest in preventing the use [of] a commercial aircraft as an

instrument of mass murder. Mohamed, 995 F. Supp. 2d at 527. The purpose of the No Fly List

is to guard against this threat. If someone were on the No Fly List and removed, even for a short

period of time, without robust administrative and judicial review, that could render U.S. aviation

vulnerable. Such weighty determinations should be made on a factual record developed in the

normal course of administrative procedures not pursuant to a short-circuited preliminary

judicial process absent any proper basis for emergency relief. This is especially so where

Plaintiffs are in their present circumstances due to their own decision to travel to Turkey, where

5TheMohamedCourt ultimately concluded that it could not grant plaintiffs requested remedy

inter alia, removal from the No Fly Listwithout the benefit of the revised redress process. SeeMohamed v. Holder, No. 1:11-CV-50 AJT/MSN, 2015 WL 4394958, at *12 (E.D. Va. July 16,

2015).



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they may return to the United States, and where they have declined to avail themselves of an

available remedy.6

IV. Plaintiffs Have Not Demonstrated a Likelihood of Success on the Merits.

To justify the requested injunctive relief, Plaintiffs must make a clear showing that they

are likely to succeed on the merits. Dewhurst v. Century Aluminum Co., 649 F.3d 287, 293 (4th

Cir. 2011) (quoting Winter) (internal citations omitted). Further, where there are serious

questions as to the Courts jurisdiction, it is more unlikely that the plaintiff can establish a

likelihood of success on the merits. Munaf, 553 U.S. at 690.

A.

Plaintiffs Claims on the Merits Fail for Lack of Ripeness and for Failure ToExhaust Administrative Remedies.

As noted, Plaintiff Saadiq Long, who alleges he was denied boarding on a flight most

recently in 2013, has failed in the nearly three intervening years to challenge his assumed No Fly

List status in court.7 The redress process has been substantially revised since Mr. Longs alleged

6In addition, to the extent Plaintiffs ask this Court to relieve them from the custody of the

Turkish authorities,seePls. Mem. at 11, such an order would necessarily be directed at Turkey,

which is not a defendant, and would otherwise intrude on Turkeys sovereignty. SeeWilson v.Gerard, 354 U.S. 524, 529 (1957) (A sovereign nation has exclusive jurisdiction to punish

offenses against its laws committed within its borders, unless it expressly or impliedly consents

to surrender its jurisdiction.);Munaf v. Geren, 553 U.S. 674, 692 (2008) (order of release would

interfere with foreign states sovereign authority to punish offenses against its laws committedwithin its borders). Even if Plaintiffs were asking the Court to simply request their release from

the Turkish authorities, that request would intrude upon the Executive Branchs exclusive power

over foreign affairs. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936);KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner, 647 F. Supp. 2d 857,

878 (N.D. Ohio 2009).

7DHS TRIP is available to travelers who have been delayed or denied boarding of aircraft; have

been denied or delayed entry into the United States at a port of entry or border crossing; or who

have been repeatedly referred to additional (secondary) screening. While DHS TRIP is generallyavailable to travelers, the revised DHS TRIP process is available only for U.S. persons who have

been denied boarding. Because the other Plaintiffs do not allege that they have been denied

boarding, they are not eligible for (and have shown no need for) the revised redress process.



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administers before it is haled into federal court.).8 The Fourth Circuit has considered three

factors in determining whether to require administrative exhaustion:

(1) agency expertise makes agency consideration necessary to generate a

proper record and reach a proper decision;(2) relaxation of the requirement would encourage the deliberate bypass of

the administrative scheme; and

(3) administrative review is likely to allow the agency to correct its ownmistakes and to preclude the need for judicial review.

Garcia-Bonilla v. Ashcroft, 89 Fed. Appx. 846, 848 (4th Cir. 2004) (unpublished);see Noriega-

Lopez v. Ashcroft,335 F.3d 874, 881 (9th Cir. 2003) (same). Applying these principles, the

Sixth Circuit dismissed the claims of a traveler who failed to exhaust her remedies through DHS

TRIP. See Shearson v. Holder, 725 F.3d 588, 593-95 (6th Cir. 2013), 2013 WL 3968800, at *5-

7. The Sixth Circuit reasoned that an exhaustion requirement in this context promotes judicial

efficiency, encourages administrative accuracy, and creates an administrative record. See id. at

594-95.

The same reasoning justifies requiring exhaustion here. Mr. Long seeks to challenge the

specific reasons for which he was allegedly placed on the No Fly List. DHS TRIP is intended to

address claims like Mr. Longs, and the redress process plainly would assist the Court and the

parties by disclosing his current status with respect to the No Fly List, and, if he is currently on

the No Fly List, the criteria for listing him and (where possible) an unclassified summary of the

reasons for doing so. See Mohamed, No. 1:11-CV-50 AJT/MSN, 2015 WL 4394958, at *13. In

the absence of a proper administrative challenge, the Government does not disclose a persons

8AlthoughDarby v. Cisneros, 509 U.S. 137 (1993) holds that courts may not impose exhaustion

as a discretionary prerequisite for an APA claim when plaintiffs challenge an agency action that

is otherwise final, the reasoning inDarbydoes not apply to the constitutional claims. See id. at153-54. Because this Court can order Plaintiff to exhaust administrative remedies before hearing

his constitutional claims, the APA claims can be stayed. Darbyalso does not affect the ripeness

or standing requirements. See, e.g., Howell v. INS, 72 F.3d 288 (2d Cir. 1995) (Walker, J.,concurring) (reasoning thatDarbydid not affect ripeness analysis).



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status with respect to the No Fly List or the reasons therefore, because disclosure of current

status, in and of itself, provides valuable operational information to those plotting terrorist

attacks. The case is therefore not presently fit for adjudication.

Moreover, if Mr. Long is on the No Fly List, DHS TRIP would afford him the

opportunity to respond to the Governments concerns, and the TSA Administrator would

consider his response before reaching an informed decision about whether he currently poses a

threat.9 This process would provide an expert administrative review of Plaintiffs claims and

reconsideration, if appropriate, of his purported placement on the No Fly List. It may even

preclude the need for judicial review by providing him with the relief he seeks removal from

the No Fly List. SeeAm. Fedn of Govt Emps. v. Nimmo, 711 F.2d 28, 31 (4th Cir. 1983)

([E]xhaustion is particularly appropriate when the administrative remedy may eliminate the

necessity to decide constitutional questions.). Requiring exhaustion here would thus resolve or

clarify the issues for judicial review and create a public record, while ensuring that individuals

seeking review of matters that could be resolved at the administrative level do not clog the

courts with unnecessary petitions. Kurfees v. INS, 275 F.3d 332, 336 (4th Cir. 2001).

Another court in this district recently concluded that a litigant must avail himself of the

revised DHS TRIP procedures before challenging them on constitutional grounds. Mohamed v.

Holder, No. 1:11-CV-50 AJT/MSN, 2015 WL 4394958, at *13 (E.D. Va. July 16, 2015).

Although theMohamed Court was initially inclined against requiring exhaustion,see Mohamed,

995 F. Supp. 2d at 535-36, it recognized that the revised redress procedures significantly

9This evaluation necessarily implicates the Executive Branchs expertise in national security and

intelligence matters. See CIA v. Sims, 471 U.S. 159, 178 (1985);El-Masri v. United States, 479F.3d 296, 305 (4th Cir.), cert. denied, 552 U.S. 947 (2007). The Supreme Court emphasized in

McCarthy, 503 U.S. at 145, that [e]xhaustion concerns apply with particular force when . . . the

agency proceedings in question allow the agency to apply its special expertise.



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changed the exhaustion calculus,Mohamed, No. 1:11-CV-50 AJT/MSN, at *13. Whereas under

the previous redress process the plaintiff would not receive any substantive information as to

whether he was, or ever had been, on the No Fly List, or the grounds for his potential inclusion

on the list,Mohamed, 995 F. Supp. 2d at 535-36, the revised DHS TRIP process would allow

for both a constitutionally adequate post-deprivation review and also a reviewing court to be

presented with an administrative record that allows a sufficient assessment concerning whether

[the plaintiff] was, in fact, given a constitutionally adequate opportunity to challenge any

placement on the No Fly List,Mohamed v. Holder, No. 1:11-CV-50 AJT/MSN, at *13. Other

courts have similarly required plaintiffs to engage in the revised DHS TRIP process for similar

reasons. SeeLatif, Dkt. No. 152;Fikre v. FBI, No. 13-cv-899, Dkt. No. 57 (D. Or. Jan. 15,

2015); Tarhuni v. Holder, No. 13-cv-001, Dkt. Nos. 79, 86 (D. Or. Oct. 3, 2014). This rationale

applies with equal force here.

B. Plaintiffs Claims Are Otherwise Unlikely to Succeed on the Merits.

Plaintiffs bring a due process claim and a claim under the Administrative Procedure Act.

According to Plaintiffs, the due process claim comprises a narrow as-applied substantive due

process claim based on facts specific to them, a broad as-applied substantive due process claim

not based on facts specific to them, and a facial challenge to the No Fly List. Compl. 81.

Although Plaintiffs have not described the scope of these various claims with any specificity, they

appear to be making two arguments: first, that the Governments alleged decision to place them

on the No Fly List violated their rights to substantive due process; and second, that the

Government violates substantive due process any time it places an individual on the No Fly List.

(The APA claim appears to be largely coextensive with the first of these arguments). In support

of these claims, Plaintiffs cite variously to decisions about the Citizenship Clause of the



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Fourteenth Amendment, the Due Process Clause, and domestic and international travel. But

none of these authorities provide support for Plaintiffs constitutional claims, which fail as a

matter of law because Plaintiffs have not alleged any cognizable violation of substantive due

process such as the deprivation of a fundamental right. Cnty. of Sacramento v. Lewis, 523

U.S. 833, 845 (1998);Huggins v. Prince Georges Cnty., Md., 683 F.3d 525, 535 (4th Cir. 2012);

Hawkins v. Freeman, 195 F.3d 732, 738 (4th Cir. 1999).

First, Plaintiffs have not adequately pled a violation of the Citizenship Clause. Count

One of the Complaint, which purports to plead a violation of the Fifth Amendment guarantee of

substantive due process, does not mention anywhere the Citizenship Clause of the Fourteenth

Amendment. CompareCompl. 80-88 withPls. Mem. at 11-13. The Citizenship Clause

provides that [a]ll persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the state wherein they reside. U.S.

Const. amend XIV, 1. The Citizenship Clause serves as a constitutional definition and grant

of citizenship. Afroyim v. Rusk,387 U.S. 253, 262 (1967). Although this clause provides the

constitutional basis for claims regarding an individuals legal status as a citizen, Plaintiffs have

not been deprived of citizenship or any of the rights alleged to be inherent in citizenship. As

they must admit, they have been told they may return to the United States in coordination with

Turkish and U.S. authorities, notwithstanding any alleged No Fly List status. Beyond this,

Plaintiffs do not cite any cases in which the Citizenship Clause has been interpreted to

encompass other particular rights. The only court to address the question found that allegations

of placement on the No Fly List did not invade any right protected by the Fourteenth

Amendment. Fikre v. F.B.I., 23 F. Supp. 3d 1268, 1280-81 (D. Or. 2014). In light of the



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absence of authority supporting Plaintiffs claims, they have not shown a likelihood of success

on the merits of their Citizenship Clause claim.

Second, Plaintiffs claim they have a right to return to the United States. Although there

have been very few occasions for courts to pass upon the contours of a citizens right to enter

and reside in the United States,see Nguyen v. INS, 533 U.S. 53 (2001), Plaintiffs have not been

denied any such right. By their own admission,seeCompl. 76, Plaintiffs may leave Turkish

custody and return to the United States, but apparently decline to do so. In such circumstances,

any right of return claim must fail. See Fikre, 23 F. Supp. 3dat 1282 (rejecting right-of-return

claim where individual had the ability to fly to the United States from abroad with the assistance

of the U.S. Government).

Plaintiffs allege that they would refuse to return to the United States until given assurances

that they can leave the United States again by airplane. But Plaintiffs do not identify any

constitutional right to such assurances, and insofar as they allege a burden on their future

international travel from the United States due to their alleged placement on the No Fly List, that

claim is not appropriate for any grant of an emergency injunction. The Supreme Court has

rejected the notion that international travel is a fundamental right, holding that the freedom to

travel outside the United States must be distinguished from the rightto travel within the United

States. Haig v. Agee, 453 U.S. 280, 306 (1981). [T]he freedom to travel abroad is

subordinate to national security and foreign policy considerations; as such, it is subject to

reasonable governmental regulation. Id.;see also Califano v. Aznavorian, 439 U.S. 170, 176-77

(1978) (governmental action said to infringe the freedom to travel abroad is not to be judged by

the same standard applied to laws that penalize the right of interstate travel).



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Moreover, even if Plaintiffs alleged placement on the No Fly list could burden a

substantive due process right to possible, future, international travel,see Tarhuni v. Holder, 8 F.

Supp. 3d 1253, 127072 (D. Or. 2014) (substantive due process challenge to No Fly list

placement found subject to some level of judicial scrutiny), Plaintiffs still have not shown a

likelihood of success on the merits with respect to their particular claims. Plaintiffs facial

challenge must fail because they have not even attempted to argue that the statutory program at

issue has no plainly legitimate sweep. See, e.g., Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 449 (2008); United States v. Moore, 666 F.3d 313, 318-319 (4th

Cir. 2012) (Under the well-recognized standard for assessing a facial challenge to the

constitutionality of a statute, the Supreme Court has long declared that a statute cannot be held

unconstitutional if it has constitutional application.). Plaintiffs cannot plausibly contend that

Congresss determination that some individuals pose too great a threat to civil aviation or

national security to board commercial aircraft has no constitutional application.

Plaintiffs as-applied challenge to their alleged placement on the No Fly List fails for

similar reasons. The Court has no basis to review, much less find a likelihood of success on the

merits, of such a claim at this preliminary stage. Absent application of current redress procedures

which could identify whether any of the Plaintiffs are on the No Fly List, and if so permit them

an opportunity to receive any unclassified reasons for that placement and respond there

presently is no record to review regarding this claim. Plaintiffs, without even knowing whether

they are on the No Fly List or the basis therefore, ask the Court to assume that the Government

acted unreasonably in allegedly assessing that one or more of them currently poses a threat to

national security. The ultimate review of such a claim would be deferential to national security

considerations, and Plaintiffs certainly have not shown they are likely to prevail. Humanitarian



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Law Project, 561 U.S. at 3435 (observing that, when it comes to collecting evidence and

drawing factual inferences in this area, the lack of competence on the part of the courts is

marked, and respect for the Governments conclusions is appropriate) (internal citation

omitted).10

Instead, Plaintiffs would have this Court, as a matter of preliminary relief, overrule

whatever national security determinations the Government may have made concerning Plaintiffs

and the No Fly List, absent any showing that they are entitled to such relief and, again, without

first undertaking the administrative redress process. Aside from the fact that the only alleged

harm not being able to return home to the United States without assurances that they could

again depart is not irreparable, Plaintiffs fall well short of demonstrating that they should be

entitled to emergency injunctive relief (let alone ongoing relief) from any existing No Fly List

determination. Humanitarian Law Project, 561 U.S. at 34 (deference to Executive Branch);Al

Haramain, 686 F.3d at 979 (same). Plaintiffs are no different than the numerous other parties

who have brought No Fly List claims, none of whom have even sought, much less obtained,

preliminary injunctive relief of the kind Plaintiffs seek here.

Finally, whether this Court would have jurisdiction over the review of any substantive

determination with respect to placement on the No Fly List that emerges from the revised redress

process is unresolved at this stage. While Plaintiffs preemptively assert that this Court would

have jurisdiction,seePls Mem. at 19-20, Defendants note that the revised DHS TRIP process

10Preliminary relief at this stage would be inappropriate for the additional reason that

determinations concerning the No Fly List typically involve sensitive and often classified

national security information that generally is protected from disclosure. See Steinbach Decl.,

Latif v. Lynch, Dkt. No. 254 (D. Or.) at 23 (observing that derogatory information informingNo Fly determinations is often classified). Particularly in these circumstances, application of the

administrative redress process in an attempt to develop any unclassified record is important, and

further counsels against ruling on a final merits question in a preliminary proceeding.



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now available to Plaintiffs, which was substantially modified in the last year and which

culminates, for individuals on the No Fly List, in a final order by the TSA Administrator, raises an

issue of whether this Court would have jurisdiction to review the final TSA orders that emerge

from that revised redress process. SeeMohamed v. Holder, No. 1:11-CV-50 AJT/MSN, 2015 WL

4394958, at *13 n. 16 (E.D. Va. July 16, 2015) (noting that [s]ubstantial issues exist as to the

appropriate form of judicial review of decisions to place someone on the No Fly List and that the

issue should be decided in the first instance by the Fourth Circuit upon review of a DHS TRIP

decision); 49 U.S.C. 46110 (channeling review of orders in whole or in part by the TSA

administrator to the Courts of Appeals). This potential question of jurisdiction underscores the

tenuous basis of Plaintiffs claim for preliminary injunctive relief, and the prudence of requiring

Plaintiffs to engage in the appropriate administrative process, so that a complete, up-to-date

record can be presented and any jurisdictional questions can be addressed in the normal course of

litigation.

CONCLUSION

For the foregoing reasons, the Court should deny Plaintiffs motion for a temporary

restraining order.

Dated: December 17, 2015 Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

DANA J. BOENTE

United States Attorney

ANTHONY J. COPPOLINO

Deputy Director, Federal Programs Branch



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BRIGHAM BOWENAMY E. POWELL

SAMUEL M. SINGER

EMILY S. NEWTON

STEPHEN M. ELLIOTTAttorneys

U.S. Department of Justice

Civil Division, Federal Programs Branch20 Massachusetts Avenue, N.W.

Washington, D.C. 20001

Tel: (202)Fax: (202) 616-8460

E-Mail: [email protected]

_______________________________

R. JOSEPH SHERAssistant U.S. Attorney

Office of the U.S. AttorneyJustin W. Williams U.S. Attorneys Building

2100 Jamieson Ave.,

Alexandria, VA. 22314Tel: (703) 299-3747

Fax: (703) 299-3983

E-Mail: [email protected]

Attorneys for the Defendants



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CERTIFICATE OF SERVICE

I certify that on December 17, 2015, I electronically filed the foregoing with the Clerk of

Court using the CM/ECF system, which will send a notification of such filing to the following

counsel of record:

Gadeir AbbasCouncil on American Islamic Relations

453 New Jersey Avenue, SE

Washington, DC 20003Phone: 202-646-6034

Fax: 202-488-3305

Dated: December 17, 2015

/S/R. JOSEPH SHER

Assistant U.S. Attorney

Office of the U.S. AttorneyJustin W. Williams U.S. Attorneys Building

2100 Jamieson Ave.

Alexandria, VA. 22314



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)

SAADIQ LONG,et al.

, ))

Plaintiffs, )

)v. ) Case No. 1:15-CV-1642

)

LORETTA LYNCH, in her official capacity as )Attorney General of the United States, et al., )

)

Defendants. )_________________________________________ )

EXHIBIT 2

DECLARATION OF RACHEL CRAWFORD

CITIZENS SERVICES SPECIALIST,

BUREAU OF CONSULAR AFFAIRS OFFICE OF OVERSEAS

CITIZEN SERVICES,

U.S. DEPARTMENT OF STATE

Case 1:15-cv-01642-LO-MSN Document 9-1 Filed 12/17/15 Page 1 of 4 PageID# 89


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)

SAADIQ LONG,et al.

, ))Plaintiffs, )

)v. ) Case No. 1:15-CV-1642

)LORETTA LYNCH, in her official capacity as )Attorney General of the United States, et al., )

)Defendants. )

_________________________________________ )

EXHIBIT 1

DECLARATION OF JOHN B. PHILLIPS, III.ASSISTANT LEGAL ATTACH FOR ANKARA, TURKEY,

INTERNATIONAL OPERATIONS DIVISION,FEDERAL BUREAU OF INVESTIGATION



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Justice Dept responds to "No Fly" list challenge by Saadiq Long

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