The decision last week by the 9th Circuit Court of Appeals in Arjmand v. DHS sets another challenge to a DHS “watchlist” on track toward a trial on the merits in Federal District Court, this time in Los Angeles.

Equally or more importantly, this decision reaffirms and extends the rejection by the Courts of Appeals, perhaps especially the 9th Circuit, of the government’s attempt to avoid a trial on the merits of “watchlisting” decisions or the Constitutionality of the system of extrajudicial administrative “watchlists” that includes the “no-fly” list.

The facts of the case are described in the unanimous opinion of a three-judge panel of the Court of Appeals:

[Raymond] Arjmand is an American citizen who was born in Iran. Shortly before boarding a flight to the United States from Canada, U.S. Customs and Border Protection officers detained Arjmand and his wife for two hours and searched their belongings. Roughly one year later, Arjmand was subject to another search and lengthy detention at Los Angeles International Airport after returning with his family from a vacation in Mexico. Arjmand has never been prohibited from boarding a flight. He has since ceased traveling abroad, fearing additional embarrassing delays.

Concerned that his name was mistakenly included on a government terrorism watchlist, Arjmand submitted a complaint through the DHS Traveler Redress Inquiry Program (DHS TRIP), which… is the federal government’s “clearinghouse” for grievances related to travel screening. Latif v. Holder, 686 F.3d 1122, 1125 (9th Cir. 2012). Arjmand’s complaint alleged that there was no basis for subjecting him to additional security screening, and stated his concern that he was subject to discrimination due to his race, religion, ethnicity, or national origin.

In response, DHS issued Arjmand a letter, stating that “DHS has researched and completed our review of your case” and “made any corrections to records that our inquiries determined were necessary.” The letter did not, however, disclose Arjmand’s watchlist status, did not explain why he was subjected to additional screening at the border, and stated that DHS “cannot ensure your travel will be delay-free.” The letter claimed that its conclusions were “reviewable by the United States Court of Appeals under 49 U.S.C. § 46110.”

Arjmand subsequently filed a petition for review in this court, seeking disclosure of his watchlist status, a meaningful opportunity to contest inclusion on any watchlist, and removal from all government watchlists.

While the claim of “state secrets” has been the government’s ultimate trump card in “no-fly” cases, 49 U.S.C. § 46110 has been the keystone of the DHS attempt to avoid a trial on the merits of a watchlisting or blacklisting decision.

This jurisdictional law is intended to minimize the possibility for meaningful review of the basis for TSA and DHS actions, while preserving the fiction of judicial review.  This law requires any challenge to a TSA “order” to be heard in the Court of Appeals, rather than in District (trial) Court, through a “petition for review” of the TSA’s decision.  (The law predates the creation of the TSA, and refers to orders of the Secretary of Transportation. But those functions were transferred to the TSA and DHS in 2002.)

The TSA interprets this law to mean that the Court of Appeals is limited to a review of the “administrative record” supporting the TSA’s actions, as submitted by the TSA itself.  The TSA could cherry-pick what evidence to submit to Court of Appeals. The victim/plaintiff might not be allowed to see all or parts of the “record” submitted by the TSA, including the secret “order” he or she is trying to challenge, and would have no opportunity to conduct discover, subpoena other TSA records, cross-examine TSA witnesses, or present any evidence to contradict or cast doubt on the factual claims made by the TSA in its self-serving selection of documents and declarations presented to the Court of Appeals as the definitive record of its actions.

In the first challenges to TSA and DHS actions to reach the courts, both District Courts and Courts of Appeals including the 9th Circuit accepted those agency’s claims about how the process should work.

This was perhaps most evident in Gilmore v. Gonzalez. After two airlines refused to allow him to board their flights unless he showed them government-issued ID credentials, and claimed they were doing so at the behest of the government, John Gilmore challenged this interference with his right to travel.

Neither the airlines nor the government ever showed Mr. Gilmore any government order barring the airlines from transporting him or from transporting people who don’t show government-issued ID. But they argued that 49 U.S.C. § 46110 precluded any trial, fact-finding, discovery, cross-examination, or evidentiary hearing as to why Mr. Gilmore was prevented from boarding the flights for which he had purchased tickets.

Both the District Court and the 9th Circuit Court of Appeals accepted the government’s arguments. The District Court dismissed the case. On appeal, the Circuit Court decided summarily against Mr. Gilmore on the basis of secret documents by the TSA and DHS as part of its “administrative record”. Neither Mr. Gilmore nor his lawyers were allowed to see the documents on which the 9th Circuit based its decision, but it is clear from the decision that these documents contained disputed factual claims about what had happened at the airport. There was never a trial, and Mr. Gilmore never had a chance to submit any contrary evidence.

Neither the 9th Circuit nor any other circuit court has explicitly overruled this badly-reasoned decision, but more recent opinions have greatly narrowed its negative impact on travelers’ rights.

Courts are reluctant to admit their own error. More often, courts contain the damage from their own decisions whose wisdom they come to doubt by limiting the factual situations to which those (ostensibly still valid) decisions apply, and by finding ways to “distinguish” the facts in new cases.

With respect to the right to travel, a series of subsequent decisions has distinguished “no-fly” orders from other TSA orders subject to 49 U.S.C. § 46110 on the grounds that, while the TSA sends no-fly messages to airlines (or, more accurately, has issued general orders to airlines setting the default to “no” and fails to issue permission or “clearance” orders with respect to certain would-be travelers, the TSA is only the messenger and the real no-fly “order” comes from the inter-agency Terrorist Screening Center nominally controlled by the FBI. Since 49 U.S.C. § 46110 doesn’t apply to the FBI, challenges to “no-fly” decisions can, and indeed must, be heard in the District Courts where adversarial, evidentiary fact-finding can be conducted.

Twice in Ibrahim v. DHS and once already in Latif v. Holder, the 9th Circuit has relied on thiss distinction to reject attempts by the government to use 49 U.S.C. § 46110 to get challenges to “no-fly” orders dismissed or removed from District (trial) Courts to Courts of Appeals.  The 4th Circuit has done likewise in Gulet Mohamed v. Holder, which appears likely to be the first trial of a disputed “no-fly” decision.

(The government evaded any review of the basis for the “no-fly” order in the Ibrahim v. DHS trial by conceding that Dr. Ibrahim should not have been placed on the no-fly list, but was prevented from flying because an FBI agent mistakenly checked the boxes on a negative-checkoff watchlist “nomination” form that he was supposed to uncheck, and unchecked the boxes he was supposed to check. The government has decided to limit its losses by not appealling the District Court’s verdict that Dr. Ibrahim’s Constitutional rights were violated. That opinion will finally be made public in full on April 15th.)

In the latest decision in Arjmand v. DHS, the 9th Circuit has extended this distinction to other “watchlist” decisions that result in interference with the right to travel and/or other interference with other rights, but that fall short of a complete bar to air travel.  Those decisions too, the 9th Circuit has now found, are decisions for which the FBI is responsible, and for which the DHS is only a conveyor belt to the airlines.

The 9th Circuit found that the DHS claim that its secret decision was “reviewable by the United States Court of Appeals under 49 U.S.C. § 46110” was wrong, and transferred his complaint to the District Court.

We continue to believe that the decision in Gilmore v. Gonzales was wrong and should eventually be explicitly reversed by the 9th Circuit or the Supreme Court. But in the meantime, we’re pleased that a growing range of violations of the right to travel are beginning to be subjected to more meaningful judicial review.