STUART F. DELERY MELINDA L. HAAG DIANE KELLEHERassets.fiercemarkets.net/public/sites/govit/ibrahimsummaryjudgment... · pursuant to Federal Rule of Civil Procedure 56. ... Boddie

Ibrahim v. DHS, et al., 3:06-cv-00545 (WHA) – DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

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STUART F. DELERY Assistant Attorney General MELINDA L. HAAG United States Attorney DIANE KELLEHER Assistant Branch Director PAUL G. FREEBORNE Senior Trial Counsel KAREN S. BLOOM LILY S. FAREL JOHN K. THEIS Trial Attorneys Civil Division, Federal Programs Branch U.S. Department of Justice P.O. Box 883 Washington, D.C. 20044 Telephone: (202) 353-0543 Facsimile: (202) 616-8460 E-mail: [email protected] Attorneys for Defendants

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

RAHINAH IBRAHIM,

Plaintiff,

v.

DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants.

No. 3:06-cv-0545 (WHA) DEFENDANTS’ NOTICE OF MOTION, MOTION FOR SUMMARY JUDGMENT, AND MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [REDACTED] Hearing: October 10, 2013, at 8:00 AM Courtroom: Courtroom 8

Case3:06-cv-00545-WHA Document534 Filed09/05/13 Page1 of 34


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PLEASE TAKE NOTICE THAT on October 10, 2013, or as soon thereafter as the matter

may be heard before the Honorable William H. Alsup, in the District Court for the Northern

District of California, in Courtroom 8—19th Floor, Defendants will and hereby do move for

summary judgment on the claims presented in Plaintiff’s Second Amended Complaint, Dkt. 161,

pursuant to Federal Rule of Civil Procedure 56. Defendants’ motion is based upon this notice

and motion, the accompanying memorandum of points and authorities, all accompanying

declarations and exhibits, and any other matter the Court may consider at oral argument or

otherwise. Dated: September 5, 2013 Respectfully submitted, STUART F. DELERY Assistant Attorney General DIANE KELLEHER Assistant Branch Director Federal Programs Branch /s/ Paul G. Freeborne PAUL G. FREEBORNE Senior Trial Counsel KAREN S. BLOOM LILY S. FAREL JOHN K. THEIS Trial Attorneys United States Department of Justice Civil Division Attorneys for the Defendants



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D. Plaintiff Fails To Support Her Equal Protection Claims .......................... 21

E. Summary Judgment Must be Granted to Defendants on Plaintiff’s APA Claim for the Same Reasons as Her Constitutional Claims................................................................................ 22

III. ALTERNATIVELY, THE EXCLUSION OF PROPERLY PRIVILEGED INFORMATION WOULD, IF NECESSARY, REQUIRE SUMMARY JUDGMENT FOR DEFENDANTS ..................................................................... 23

CONCLUSION ........................................................................................................................... 25


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TABLE OF AUTHORITIES

Cases Albright v. Oliver,

510 U.S. 266 (1994) ................................................................................................................... 20 Alpha Delta Chi-Delta Chapter v. Reed,

648 F.3d 790 (9th Cir. 2011) ..................................................................................................... 21 Bassiouni v. FBI,

436 F.3d 712 (7th Cir. 2006) ..................................................................................................... 22 Bennett v. Spear,

520 U.S. 154 (1997) ................................................................................................................... 22 Boddie v. Connecticut,

401 U.S. 371 (1971) ................................................................................................................... 14 Buckingham v. Sec'y of U.S. Dep't of Agric.,

603 F.3d 1073 (9th Cir. 2010) ................................................................................................... 14 Celotex Corp. v. Catrett,

477 U.S. 317 (1986) ..................................................................................................................... 9 City of Los Angeles v. Lyons,

461 U.S. 95 (1983) ..................................................................................................................... 11 Clark v. City of Lakewood,

259 F.3d 996 (9th Cir. 2001) ..................................................................................................... 10 Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532 (1985) ................................................................................................................... 14 Dalton v. Specter,

511 U.S. 462 (1994) ................................................................................................................... 22 Davis v. FEC,

554 U.S. 724 (2008) ..................................................................................................................... 9 Dep't of Navy v. Egan,

484 U.S. 518 (1988) ................................................................................................................... 22 Economic Equity v. Wilson,

122 F.3d 692 (9th Cir. 1997), .................................................................................................... 21


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Fontana v. Haskin, 262 F.3d 871 (9th Cir. 2001) ..................................................................................................... 20

Franklin v. Massachusetts,

505 U.S. 788 (1992) ................................................................................................................... 22 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,

528 U.S. 167 (2000) ................................................................................................................... 10 Gilbert v. Homar,

520 U.S. 924 (1997) ................................................................................................................... 14 Graham v. Connor,

490 U.S. 386 (1989) ................................................................................................................... 20 Green v. Transp. Sec. Admin.,

351 F. Supp. 2d 1119 (W.D. Wash. 2005) ................................................................................. 17 Holder v. Humanitarian Law Project,

130 S. Ct. 2705 (2010) ............................................................................................................... 18 Ibrahim v. DHS,,

669 F.3d 983 (9th Cir. 2012) .............................................................................................. passim Jifry v. FAA,

370 F.3d 1174 (D.C. Cir. 2004) ................................................................................................. 18 Kasza v. Browner,

133 F.3d 1159 (9th Cir. 1998) ............................................................................................. 23, 24 Kleindeinst v. Mandel,

408 U.S. 753 (1972) ................................................................................................................... 17 Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ......................................................................................................... 9, 11, 13 Mathews v. Eldridge,

424 U.S. 319 (1976) ........................................................................................................ 14, 16-17 McLean v. Crabtree,

173 F.3d 1176 (9th Cir. 1999) ................................................................................................... 21 Mohamed v. Jeppesen Dataplan, Inc.,

614 F.3d 1070 (9th Cir. 2010) ............................................................................................. 23, 24


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New Orleans v. Dukes, 427 U.S. 297 (1976) .................................................................................................................. 20

Newman-Green, Inc. v. Alfonzo-Larrain,

490 U.S. 826 (1989) .................................................................................................................. 10 O'Shea v. Littleton,

414 U.S. 488 (1974) ................................................................................................................... 11 Paul v. Davis,

424 U.S. 693 (1974) ................................................................................................................... 16 Raich v. Gonzales,

500 F.3d 850 (9th Cir. 2007) ..................................................................................................... 19 Righthaven LLC v. Newman,

838 F. Supp. 2d 1071 (D. Nev. 2011) ........................................................................................ 10 Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ................................................................................................................... 21 Sackett v. EPA,

132 S. Ct. 1367 (2012) ............................................................................................................... 22 Country Classic Dairies, Inc. v. Mont.,,

847 F.2d 593 (9th Cir. 1988) ................................................................................................ 19-20 Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ..................................................................................................................... 9 Taylor v. List,

880 F.2d 1040 (9th Cir. 1989) ................................................................................................... 22 U.S. v. Aukai,

497 F.3d 955 (9th Cir. 2007) ..................................................................................................... 17 Ulrich v. City & Cnty. of S.F.,

308 F.3d 968 (9th Cir. 2002) ..................................................................................................... 16 United States v. Flores-Montano,

541 U.S. 149 (2004) ................................................................................................................... 17 United States v. Lanier,

520 U.S. 259 (1997) ................................................................................................................... 20


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United States v. Ramsey, 431 U.S. 606 (1977) ................................................................................................................... 17

United States v. Vigil-Montanel,

753 F.2d 996 & n.4 (11th Cir. 1985) ......................................................................................... 17 Villegas v. City of Gilroy,

363 F. Supp. 2d 1207 (N.D. Cal. 2005) ..................................................................................... 21 Wash. State Republican Party v. Wash. State Grange,

676 F.3d 784 (9th Cir. 2012) ..................................................................................................... 21 Washington v. Glucksberg,

521 U.S. 702 (1997) ................................................................................................................... 19 Wedges/Ledges of Cal. v. City of Phoenix,

24 F.3d 56 (9th Cir. 1994) ......................................................................................................... 15 Wenger v. Monroe,

282 F.3d 1068 (9th Cir. 2002) ................................................................................................... 16 Zuckerbraun v. Gen. Dynamics Corp.,

935 F.2d 544 (2d Cir. 1991).................................................................................................. 24-25

Statutes 5 U.S.C. § 704 ............................................................................................................................... 22 5 U.S.C. § 706(2)(A)..................................................................................................................... 22 8 U.S.C. § 1104(a)(1) ...................................................................................................................... 6 8 U.S.C. § 1105 ......................................................................................................................... 3, 16 8 U.S.C. § 1182(a) .......................................................................................................................... 5 8 U.S.C. § 1182(a)(3)(B) ....................................................................................................... passim 8 U.S.C. § 1182(a)(7) ...................................................................................................................... 5 8 U.S.C. § 1187 ............................................................................................................................... 5 8 U.S.C. § 1201(a) .......................................................................................................................... 5

8 U.S.C. § 1201(g) ................................................................................................................ 6, 8, 13


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8 U.S.C. § 1201(i) ........................................................................................................................... 6

8 U.S.C. § 1202(c) .......................................................................................................................... 5

42 U.S.C. § 2000bb. ...................................................................................................................... 20 49 U.S.C. § 44926 ........................................................................................................................... 4

Rules Federal Rule of Civil Procedure 56 ............................................................................................ 1, 9

Regulations 8 C.F.R. § 212.1(a)-(b).................................................................................................................... 5 22 C.F.R. § 41.102-103 ................................................................................................................... 5 22 C.F.R. § 41.122(b) ..................................................................................................................... 6 49 C.F.R. §§ 1560.201-1560.207 .................................................................................................... 4



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INTRODUCTION

Plaintiff challenges her

contending that such is unconstitutional and in violation of law. She seeks

prospective injunctive relief, including the removal of her name from any watchlist, or in the

alternative, a “name-clearing hearing.” But even after extensive discovery, Plaintiff cannot

establish that a live case or controversy exists for the Court to adjudicate.

Similarly, Plaintiff cannot carry her burden of establishing that Defendants violated her

constitutional rights. Plaintiff has failed to present evidence sufficient: (1) to show that she is

being deprived of any constitutional right that would support a violation of procedural or

substantive due process; or (2) to establish any genuine issue of material fact that would permit

her Equal Protection or First Amendment claims to proceed past summary judgment. At its core,

this case is about Plaintiff’s inability to travel to the United States,

. This does not confer Plaintiff standing

to continue or otherwise provide a basis for her lawsuit. Accordingly, the Court should grant

summary judgment to Defendants.

To the extent, however, that this Court finds triable issues of material fact

, summary judgment must still be entered for

Defendants. Absent dismissal on the grounds described above, any further adjudication of

Plaintiff’s claims would necessarily risk or require disclosure of the classified information that

has been excluded from this case pursuant to the assertion of the state secrets privilege. Because

neither party may rely on that information, summary judgment should be entered in favor of

Defendants.



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BACKGROUND

A. TSC and the Terrorist Screening Database

In 2003, as recommended by the 9/11 Commission Report,1 the President ordered the

establishment of a governmental organization, the Terrorist Screening Center (“TSC”), that

would “consolidate the Government’s approach to terrorism screening and provide for the

appropriate and lawful use of Terrorist Information in screening processes.” Ex. 12 (Homeland

Security Presidential Directive-6 (“HSPD-6”)) at TSC000818.3 TSC, in turn, oversees the

Terrorist Screening Database (“TSDB”), which contains identifying information about persons

known or reasonably suspected of being involved in terrorist activity. Ex. 3 (Statement of

Timothy J. Healy Before the Senate Homeland Sec. & Gov’t Affairs Comm. (Dec. 9, 2009)) at

TSC000934. To fulfill its mission of providing appropriate terrorist-related information in

screening processes, TSC shares TSDB information with front-line screening agencies, including

the Department of State (“State”), U.S. Customs and Border Protection (“CBP”), and the

Transportation Security Administration (“TSA”). Ex. 4 (Statement of Timothy J. Healy Before

Senate Comm. on Homeland Sec. & Gov’t Affairs Comm. (Mar. 10, 2010)) at TSC000943

(“Once a known or suspected terrorist is identified and included in the TSDB, TSC ensures the

timely dissemination of the terrorist identity data to our screening partners.”)

The substantive classified information supporting a TSDB nomination related to

international terrorism is contained in a separate database known as the Terrorist Identities

Datamart Environment (“TIDE”), maintained by the National Counterrorism Center (“NCTC”).

Ex. 5 (Statement of Timothy J. Healy Before House Jud. Comm. (Mar. 24, 2010)) at

1 See 9/11 Commission Report at 82-84, 385, 392-393, 416-419 (2004), available at www.9-11commission.gov/report/911Report.pdf. 2 All exhibit citations are to the exhibits attached to the Declaration of Paul Freeborne, filed in conjunction with this memorandum, unless otherwise indicated. 3 TSC is an interagency entity that was created through a Memorandum of Understanding entered into by the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of Central Intelligence in order to fulfill the requirements of HSPD-6. Ex. 2 at TSC000775. TSC is administered by the Department of Justice (through the FBI); it is staffed by officials from a variety of agencies, including the Department of Homeland Security (“DHS”). Id.




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Data Integrity Unit, NDIU . . . is the TSC unit that processes nominations and ensures quality

assurance of all TSDB records.”). Once a nomination is accepted into TSC, it undergoes further

review every time a screening or law enforcement agency encounters an individual in the TSDB,

for example, at the border or when seeking to travel by commercial aircraft. Ex. 9 at 23:5-8 (in a

review, TSC “would look at the information they have, look at the information in TSDB and in

TIDE and try to determine if it is that person”); Ex. 10 at 198:8-199:4 (same).

B. Redress Procedures for Travelers Denied Boarding

As part of the legislation implementing the recommendations of the 9/11 Commission,

Congress enacted 49 U.S.C. § 44926, which requires DHS, inter alia, to “establish a timely and

fair process for individuals who believe they have been delayed or prohibited from boarding a

commercial aircraft because they were wrongly identified as a threat under the [screening]

regimes utilized by [TSA, CBP], or any other office or component of [DHS].” Id. § 44926(a).

DHS TRIP—and prior to 2007, the Passenger Identity Verification Form (“PIVF”)—is the

central administrative redress process for individuals who claim they, for example, have been

denied or delayed airline boarding; denied or delayed entry into or exit from the United States at

a port of entry; or been repeatedly referred to additional (secondary) inspection. 49 C.F.R.

§§ 1560.201-1560.207; see also DHS TRIP Website, available at http://www.dhs.gov/dhs-trip.

If the applicable DHS component determines that the complainant is an exact or near match to an

identity in the TSDB, the matter is referred to the TSC Redress Unit. See Ex. 9 at 100:20-101:9.

The TSC Redress Unit reviews the available information to determine whether the individual’s

status should be modified. See Ex. 7 at 87:9-13. As part of this process, TSC conducts a “de

novo review” of the TSDB record. Id. at 87:11-13. TSC’s review includes contacting the

agency that originally nominated the individual for placement in the TSDB, see id. at 89:1-9, and

analyzing any derogatory information that supports the nomination as well as any information

from other sources, see id. at 88:7-12. The TSC Redress Unit then recommends to DHS any

modification or removal of the individual’s record. See Ex. 9 at 101:7-9. DHS subsequently

sends a determination letter to the complainant. See DHS TRIP Website, available at

http://www.dhs.gov/step-3-after-your-inquiry.



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C. Visa Adjudication and Revocation

In order to travel to the United States, an alien must obtain a nonimmigrant visa for

temporary stay or an immigrant visa for permanent residence, with limited exceptions. See e.g.,

8 U.S.C. § 1182(a)(7).6 An alien who wishes to apply for a nonimmigrant visa must submit an

application and may appear before a U.S. consular officer at a U.S. Embassy. 8 U.S.C. § 1202(c);

22 C.F.R. § 41.102-103. Once a visa application is submitted, the consular officer may issue a

nonimmigrant visa subject to the provisions of the INA, including the grounds of inadmissibility

found at 8 U.S.C. § 1182(a). See 8 U.S.C. § 1201(a). One tool available to consular officers to

inform visa adjudication is the Consular Lookout and Support System database (“CLASS”),

which consular officers use to perform name checks on visa applicants to identify individuals

who may be ineligible for issuance. Ex. 13 (Decl. of Andrew Kotval (Dkt. 63-3)) at ¶ 3.

When CLASS indicates that an applicant may match an identity included in the TSDB, or

when other information available to a consular officer indicates a possible association with

terrorism (including a previous determination by State that an individual is potentially ineligible

for a visa under the terrorism-related inadmissibility grounds of the INA), the consular officer

reviewing the application will request a Security Advisory Opinion (“SAO”). Ex. 14 (Dep. Tr.

of Sean Cooper (May 31, 2013)) at 81:17-82:2, 165:2-11; Ex. 15 (Decl. of Sean Cooper (Dkt.

373-4)) at ¶ 3. This request initiates a review of all information about the applicant available to

State, including information from other agencies, as well as classified intelligence, to determine

whether the alien is ineligible for a visa under 8 U.S.C. § 1182(a)(3)(B). Ex. 14 at 81:17-83:8;

165:2-11; 207:5-6; Ex. 15 at ¶ 3. Once the request for an SAO has been submitted, the fact that

an individual’s identity is included in the TSDB has no further relevance to the visa adjudication

process; indeed, aliens who are included in the TSDB are issued visas when a review of all

available information reveals that they are not in fact admissible under 8 U.S.C. § 1182(a)(3)(B).

Ex. 15 at ¶ 3; Ex. 14 at 254:21-24; Ex. 16 (GAO, Terrorist Watch List Screening (Oct. 2007)) at

6 Some aliens are permitted to enter the United States without a visa, such as visitors for business and pleasure from a country designated pursuant to the Visa Waiver Program, 8 U.S.C. § 1187, and some nonimmigrants who are citizens of Canada or Bermuda, as well as certain Caribbean residents, see 8 C.F.R. § 212.1(a)-(b).



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P006552 (noting inclusion in TSDB “does not automatically cause an alien to be . . . denied a

visa or deemed inadmissible to enter the United States when the person is identified by a

screening agency”); Ex. 7 at 144:3-7 (“[T]he purpose of the TSDB is to provide screeners with

information. . . [I]t does not provide someone the ability to deny a visa or [to] revoke a visa[.]”).

As a general matter, consular officers cannot issue a visa where it appears that an alien

may be ineligible to receive a visa. See 8 U.S.C. § 1104(a)(1) (reserving the authority to issue or

refuse a visa to consular officers); id. § 1201(g). A visa that has been issued may be revoked at

any time, id. § 1201(i), including when information arises subsequent to nonimmigrant visa

issuance that calls into question the visa bearer’s eligibility for a visa. 22 C.F.R. § 41.122(b). If

an alien wishes to travel to the United States and apply for admission after his or her

nonimmigrant visa has been revoked, the alien may apply for a new visa and appear before a

consular officer to establish his or her eligibility for the visa. Ex. 17 (Certificate of Visa

Revocation).

D. Plaintiff’s Travel, Visa Status, and

Plaintiff was issued an F-1 student visa in September 2000 that was valid until September

18, 2005. Ex. 18 at DOS000041.

Plaintiff was rebooked on a United Airlines flight to Kona, Hawaii

scheduled to depart the following day. Ex. 21 (Pl’s Dep. Tr. (July 6, 2013)) at 314:7-10. From

January 3-7, 2005, Plaintiff attended a conference in Kona, Hawaii, id. at 314:7-12, 14-16;

342:19-20, and she spoke on the last day of the conference, see Ex. 22. On January 7, 2005,

Plaintiff flew on a United Airlines flight to Los Angeles and then flew on a Malaysian Airlines

flight to Kuala Lumpur. Ex. 21 at 314:17-25. Plaintiff was not detained or arrested before or




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concern that Plaintiff was potentially inadmissible under 8 U.S.C. § 1182(a)(3)(B) based on the

prior revocation of her visa on those grounds, as reflected in CLASS, the consular officer refused

her visa application under 8 U.S.C. § 1201(g) and requested an SAO. Ex. 14 at 43:8-14; 29:16-

23.

Plaintiff’s visa application was subsequently denied after a review of all available information

regarding Plaintiff, , led to the consular officer’s conclusion that

she was inadmissible under 8 U.S.C. § 1182(a)(3)(B). Id. at 81:12-83:8; 165:17-166:6; 207:5-

17.

E. Plaintiff’s Employment

Over the past eight years, Plaintiff has continued her successful career in academia at the

University Putra Malaysia (“UPM”), where Plaintiff has been employed since her return to

Malaysia. Since 2005, she has been promoted from Lecturer to Senior Lecturer, to Associate

Professor, and finally to Professor. Ex. 21 at 260:9-25; 261:17-20; see also Ex. 32 (Plaintiff’s

C.V.) at P000781. The research grant funding that Plaintiff alone received at one time accounted

for 75% of the grant funding received for the entire faculty. Ex. 21 at 268:16-25. She has also

been selected for administrative promotions, starting as Deputy Dean in 2006 and achieving the

title of Dean for the Faculty of Design and Architecture in 2011. Id. at 263:6-264:10; see also

Ex. 32 at P000781. By her own admission, Plaintiff has been “incredibly successful” at UPM.

Ex. 21 at 265:7-9.



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ARGUMENT

Federal Rule of Civil Procedure 56 “mandates the entry of summary judgment . . . against

a party who fails to make a showing sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). Because Plaintiff has failed to meet her burden of showing

sufficient evidence to establish standing or a prima facie case, summary judgment should be

entered for Defendants.

I. THE CASE SHOULD BE RESOLVED ON JURISDICTIONAL GROUNDS

Discovery has shown that Plaintiff lacks standing to bring her claims. “‘[A] plaintiff

must demonstrate standing for each claim [s]he seeks to press’ and ‘for each form of relief’ that

is sought.” Davis v. FEC, 554 U.S. 724, 734 (2008) (citation omitted). At the summary

judgment stage, Plaintiff cannot rely on allegations from the complaint but rather “must ‘set

forth’ by affidavit or other evidence ‘specific facts’” establishing each element of

standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citation omitted). Where, as

here, “[Plaintiff] seeks only prospective relief against the federal defendants,” Ibrahim v. DHS,

669 F.3d 983, 992 (9th Cir. 2012) (“Ibrahim II”), she “must show that [she] is under threat of

suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and

imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of

the defendant; and it must be likely that a favorable judicial decision will prevent or redress the

injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citation omitted). Plaintiff

cannot satisfy her burden.

The Ninth Circuit found that Plaintiff had sufficiently alleged facts

suggesting the threat of injury, by contending that “she is on one or more government

watchlists,” id. at 992, and in particular, that she suffers various injuries “resulting from the

presence of her name on the No-Fly List,” id. at 993. The Ninth Circuit also found that Plaintiff

had alleged sufficient facts to show that a court order could redress the injuries associated with







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II. PLAINTIFF HAS FAILED TO PRESENT A GENUINE ISSUE OF MATERIAL

FACT THAT WOULD PERMIT HER CLAIMS TO PROCEED PAST SUMMARY JUDGMENT

Even if the Court had jurisdiction to proceed, Defendants are entitled to summary

judgment on the merits of Plaintiff’s claims. Though the Ninth Circuit found that Plaintiff had

“significant voluntary connection” sufficient to assert claims under the First and Fifth

Amendments, Ibrahim II, 669 F.3d at 997, the court “express[ed] no opinion on the validity of

the underlying constitutional claims.” Id. Summary judgment is thus now appropriate for this

additional reason.

A. Plaintiff Fails to Present Facts Sufficient to Establish Her Procedural Due

Process Claim

Plaintiff fails to establish any facts that would suggest that she has been deprived of any

liberty or property interest that would trigger procedural due process. “[D]ue process . . . is not a

technical conception with a fixed content unrelated to time, place and circumstances.” Gilbert v.

Homar, 520 U.S. 924, 930 (1997) (internal citation omitted). Instead, due process procedures

may vary “depending upon the importance of the interests involved and the nature of the

subsequent proceedings.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985)

(quoting Boddie v. Connecticut, 401 U.S. 371, 378 (1971)). At bottom, the due process

evaluation “is flexible and calls for such procedural protections as the particular situation

demands.” Buckingham v. Sec’y of U.S. Dep’t of Agric., 603 F.3d 1073, 1083 (9th Cir. 2010)

(quoting Mathews v. Eldridge, 424 U.S. 319, 334 (1976). In evaluating whether the Government

has provided sufficient due process, the Court should consider three factors: (1) “the private

interest that will be affected by the official action”; (2) “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 (3) “the Government’s interest.” Gilbert, 520 U.S. at 931-

32 (quoting Mathews, 424 U.S. at 335). Because Plaintiff has not established the deprivation of

any liberty interest, the risk of erroneous deprivation is low, and the Government interest is high,

summary judgment should be granted to Defendants.




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Nor has Plaintiff been stigmatized. Procedural due process protections apply to

reputational harm only when a Plaintiff can establish (1) “the public disclosure of a stigmatizing

statement by the government, the accuracy of which is contested,” plus (2) “the denial of ‘some

more tangible interest[] such as employment’ or the alteration of a right or status recognized by

state law.” Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 982 (9th Cir. 2002) (citing Paul v.

Davis, 424 U.S. 693, 701 (1974)). For the first factor, Plaintiff has adduced no evidence

suggesting that the Government has made any “public disclosure of a stigmatizing statement.”

Defendants have never publicly disclosed Plaintiff’s watchlist status outside of the context of this

litigation. Any dissemination of Plaintiff’s travel difficulties have been published by the Plaintiff

herself, either by written communications to the Malaysian government, Ex. 34, to her

colleagues, Ex. 35, or through her pleadings in this lawsuit. Summary judgment should thus be

granted because there is no evidence indicating Defendants have stigmatized Plaintiff. See

Wenger v. Monroe, 282 F.3d 1068, 1074-75 (9th Cir. 2002) (stigma-plus claim meritless without

a public disclosure). Moreover, Plaintiff has not been denied any tangible interest, such as

employment or otherwise, as a result of any public acknowledgement

.13 In short, the record does not establish that Defendants deprived Plaintiff

of any purported liberty or property interest.

b. Plaintiff Does Not Have a Liberty Interest in Being Free from Screening

8 U.S.C. § 1105

13 This case stands in stark contrast to the recent decision in Latif v. Holder, No. 10-750, slip. op. at 20-27 (D. Or. Aug. 28, 2013), where the court found that the plaintiffs, who are all US citizens, had shown the existence of a liberty interest in international travel by commercial aircraft. The Latif court, however, deferred ruling on the remaining Mathews v. Eldridge factors pending further proceedings; the court’s conclusion was based on the alleged inability of the U.S. citizen plaintiffs to engage in international travel as well as the alleged harm to their reputations. Here, discovery has shown that Plaintiff has suffered no such harms.




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travel difficulties as a result of inclusion in the TSDB and wishes to complain, she can file a

complaint with DHS TRIP, which then triggers a subsequent review of the individual’s status.

Ex. 7 at 87:9-13; 89:1-9. If the individual who has been delayed or denied boarding is

unsatisfied with the result, she may file an appropriate legal challenge. Id.

This

process affords more than adequate protections to address the risk of erroneous deprivation of the

interests that Plaintiff asserts.

3. Protecting Watchlisting Status and Any Underlying Derogatory Information is Central to the Government’s Counterterrorism Efforts

These two processes, TSC’s internal quality controls and the DHS TRIP/PIVF process,

satisfy due process by balancing the public’s desire to avoid misidentification and travel delays

with the Government’s paramount interest in ensuring that can be broadly

shared across the Government to maximize the nation’s security. The remedy that Plaintiff

seeks—including a “name clearing hearing,”

—is both

unnecessary given and strongly outweighed by the

Government’s interests in protecting such information. See Jifry v. FAA, 370 F.3d 1174, 1183-

84 (D.C. Cir. 2004) (in determining whether plaintiffs posed threats to civil aviation, “substitute

procedural safeguards may be impracticable [in those cases] and, in any event, are unnecessary”

because of “the governmental interests at stake and the sensitive security information” involved;

as a result, due process did not require that plaintiffs be given the “specific evidence” upon

which the determinations are based). Due process does not require the government to put

national security at risk by providing the process that Plaintiff demands. See Holder v.

Humanitarian Law Project, 130 S. Ct. 2705, 2727 (2010) (“[N]ational security and foreign

policy concerns arise in connection with efforts to confront evolving threats in an area where

information can be difficult to obtain and the impact of certain conduct difficult to assess.”).

Further, requiring disclosures of any and all information associated with

would harm national security,



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. The

TSC quality control processes, combined with DHS TRIP/PIVF, strike the appropriate balance

between the Government’s weighty interests in security screening and an individual’s interest in

travel.

B. Plaintiff Fails to Establish Her Substantive Due Process Claims

Summary judgment should similarly be granted to Defendants on Plaintiff’s substantive

due process claim, as Plaintiff fails to identify any fundamental right that would implicate

substantive due process protections. Substantive due process protects against the deprivation of

rights that are “‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept

of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’”

Raich v. Gonzales, 500 F.3d 850, 861-66 (9th Cir. 2007) (quoting Washington v. Glucksberg,

521 U.S. 702, 720-21 (1997)). Under Glucksberg, a court is obligated to “carefully formulat[e]”

a “narrow definition of the interest at stake,” instead of accepting a plaintiff’s broad rhetorical

flourishes, before deciding whether substantive due process protects that interest. Id. at 863. As

with Plaintiff’s procedural due process claim, it is not entirely clear what substantive due process

rights Plaintiff seeks to vindicate.

To the extent that Plaintiff argues that she has a substantive due process right to travel or

to pursue her chosen profession, Plaintiff has not been denied these rights, as discussed above.

See supra at Section II.A.1. Moreover, regarding Plaintiff’s alleged right to travel, substantive

due process requires a “careful description of the asserted fundamental liberty interest.”

Glucksberg, 521 U.S. at 721 (quotation and citations omitted). Here, Plaintiff does not simply

seek to travel to the United States.

Substantive due process does not confer such a fundamental right upon

Plaintiff. And regarding Plaintiff’s right to pursue her chosen occupation, the Supreme Court has

held that the right to pursue an occupation is not a fundamental right under the Constitution, and

as such, claims based on that right should not be afforded a heightened level of scrutiny. See



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Country Classic Dairies, Inc. v. Mont., 847 F.2d 593, 596 (9th Cir. 1988) (“The Supreme Court

has held that the right to pursue a calling is not a fundamental right for purposes of the Equal

Protection Clause.”) (citing New Orleans v. Dukes, 427 U.S. 297, 303-05 (1976) (per curiam)).

Accordingly, the Government’s interest in applying the Immigration and Nationality Act,

including the terrorism-related grounds of ineligibility and inadmissibility at 8 U.S.C. §

1182(a)(3)(B), provides more than a rational basis sufficient to counterbalance any deprivation

suffered by Plaintiff.

To the extent Plaintiff’s substantive due process claim is based upon a right to “free

association and free exercise of religion,” the First and Fourth Amendments protect these rights.

“Where a particular Amendment ‘provides an explicit textual source of constitutional protection’

against a particular sort of government behavior, ‘that Amendment, not the more generalized

notion of “substantive due process,” must be the guide for analyzing’ such a claim.” Albright v.

Oliver, 510 U.S. 266, 266 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).

Accordingly, “if a constitutional claim is covered by a specific constitutional provision, such as

the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to

that specific provision, not under the rubric of substantive due process.” United States v. Lanier,

520 U.S. 259, 272 n.7 (1997); Fontana v. Haskin, 262 F.3d 871, 882 (9th Cir. 2001) (finding that

a claim for wrongful arrest was properly analyzed as a Fourth Amendment claim and not under

the concept of substantive due process).

C. Plaintiff Fails To Establish a First Amendment Claim

Plaintiff has also failed to present facts that carry her burden of establishing that

substantially burdens any First Amendment rights she may

possess. The scope of Plaintiff’s First Amendment claim has never been clear, but she appears to

have alleged a First Amendment “expressive association” claim. Compare SAC ¶ 126 (alleging

that placing Plaintiff on the No Fly List “violated her First Amendment rights of freedom of

religion and freedom of association”); Ibrahim II, 669 F.3d at 994 (characterizing the claim as a

“freedom of association” claim); and Order (Dkt. 399) at 2:24-25 (same); with Pl’s Opp. to Def.

Mot. to Dismiss (Dkt. 382) at 21:10-18) (arguing that, in addition to an “association” claim,



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Plaintiff has also brought a claim under the Religious Freedom Restoration Act, 42 U.S.C. §

2000bb et seq. (“RFRA”)). The Supreme Court has recognized a right to associate for the

purpose of engaging in those activities protected by the First Amendment, including the exercise

of religion. Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984); see Villegas v. City of Gilroy,

363 F. Supp. 2d 1207, 1218 (N.D. Cal. 2005) (distinguishing freedom of association claims from

freedom of expression claims, and further distinguishing “intimate association” claims from

“expressive association” claims). Summary judgment should be granted to Defendants if

Plaintiff has failed to demonstrate any triable issue regarding her claim.

As noted above, Plaintiff has not presented any evidence to suggest that Defendants have

impeded her right to associate freely with other Muslims. Plaintiff did not testify that she felt

any restraints on her ability to associate with the purpose of practicing her faith. Nor does any

discovery produced by Plaintiff suggest that Defendants have impeded her associative

rights. With the record devoid of any factual support for her First Amendment expressive

association claim, Defendants are entitled to summary judgment. See Wash. State Republican

Party v. Wash. State Grange, 676 F.3d 784, 793 (9th Cir. 2012) (granting summary judgment

where “the plaintiffs have not demonstrated a triable issue that the state’s implementation of I–

872 imposes a severe burden on their freedom of association”); Alpha Delta Chi-Delta Chapter

v. Reed, 648 F.3d 790, 805 (9th Cir. 2011) (finding that summary judgment was inappropriate

only where “the evidence raises a triable issue of fact”).

D. Plaintiff Fails To Support Her Equal Protection Claims

Plaintiff similarly cannot make out a prima facie case of discrimination in support of her

equal protection claim, SAC ¶ 126, that would permit such a claim to proceed past summary

judgment. To do so, Plaintiff must demonstrate that she is subject to a “classification that treats

individuals unequally,” Coal. for Economic Equity v. Wilson, 122 F.3d 692, 707 (9th Cir. 1997),

cert. denied, 522 U.S. 963 (1997). Unless there has been a threshold showing of some

discriminatory treatment of Plaintiff’s class, there can be no equal protection violation and

consequently the Court never need reach secondary questions such as discriminatory intent, or

the Government’s justification for the alleged discrimination. McLean v. Crabtree, 173 F.3d





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information that will be necessary to the claims or defenses—litigating the case to a judgment on

the merits would present an unacceptable risk of disclosing state secrets, Mohamed v. Jeppesen

Dataplan, Inc., 614 F.3d 1070, 1083 (9th Cir. 2010). Each of these considerations can be

reduced to an overarching question: would properly privileged information be at issue in any

attempt to litigate the merits or at risk of disclosure? That is unquestionably the case here

because the very nature of Plaintiff’s claims put directly at issue information covered by the state

secrets privilege and already excluded from this case.

The Court’s April 19 order upholding the Government’s assertion of the state secrets

privilege precludes the release of (among other things):

And even though Plaintiff does not directly challenge the

revocation and denial of her visa, to the extent either decision is relevant to a final adjudication

of this lawsuit,

. The effect of the

Government’s privilege assertion (and the Court’s April 19, 2013 ruling on that assertion) is that

such information covered by the privilege is removed from the case. Kasza, 133 F.3d at 1166

(“[B]y invoking the [state secrets] privilege over particular evidence, the evidence is completely

removed from the case.”); Jeppesen Dataplan, Inc., 614 F.3d at 1077. Thus, Plaintiff cannot

acquire this information through discovery to satisfy her burden of proof and, likewise,

Defendants could not defend against the pending claims without privileged information. For this

reason, any trial proceedings would risk or require the disclosure of information already

excluded from the case. See, e.g., Jeppesen, 614 F.3d at 1079 (holding that summary judgment

is required where it is apparent that “the case cannot proceed without privileged evidence, or that



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litigating the case to a judgment on the merits would present an unacceptable risk of disclosing

state secrets.”); Kasza, 133 F.3d 1168-69; see also Zuckerbraun v. Gen. Dynamics Corp., 935

F.2d 544, 549 (2d Cir. 1991) (ruling that case cannot proceed where central issues to be resolved

cannot proceed to resolution without evidence excluded by state secrets privilege).

Defendants do not seek summary judgment on this additional ground lightly. Mindful of

the Court’s prior rulings, and the statements made by both parties at the April 18, 2013 hearing,

Defendants have attempted to litigate this case so that the issues left open by the Ninth Circuit’s

ruling on the Court’s jurisdiction could be resolved without the need to consider the impact of

the information excluded by the state secrets privilege. The Government has raised threshold

alternative grounds for resolution of the case on summary judgment, after extensive discovery

proceedings. However, even if the Court does not grant summary judgment to Defendants based

on the arguments raised in Sections I and II above, summary judgment should nonetheless be

entered for Defendants based on the exclusion of properly privileged information.

CONCLUSION

For the reasons set forth herein, Defendants’ Motion for Summary Judgment should be

granted.

Dated: September 5, 2013 Respectfully submitted, STUART F. DELERY Assistant Attorney General DIANE KELLEHER Assistant Branch Director Federal Programs Branch /s/ Paul G. Freeborne PAUL G. FREEBORNE Senior Trial Counsel KAREN S. BLOOM LILY S. FAREL JOHN K. THEIS Trial Attorneys United States Department of Justice Civil Division Attorneys for the Defendants


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