In a preliminary ruling in a lawsuit brought by the ACLU three years ago on behalf of a group of people who have been prevented by the U.S. government from traveling by air, a Federal judge in Oregon has found (1) that international air travel is a Constitutional right, and (2) that a categorical ban by the government on the exercise of that right can only be issued in accordance with due process.

Those shouldn’t be surprising findings. But given that the U.S. government has never sought to follow normal legal procedures by asking a court to issue a no-fly injunction against an individual, and that none of the goverment’s extrajudicial administrative no-fly orders has ever been reviewed on its merits by any court, the latest ruling by District Judge Judge Anna Brown in the case of Latif et al. v. Holder is an important step toward bringing DHS controls on travel within the rule of law.

The ruling is the latest in a series of decisions which have finally begun to uphold the right of travelers to due process and juducial review of the restrictins on their movements. The decison in the Oregon no-fly case echoes similar findings in the past year by the 4th Circuit Court of Appeals in the case of Gulet Mohamed and by the 9th Circuit and the District Court for the Northern District of California in the case of Rahinah Ibrahim.

The government will neither confirm nor deny whether anyone is or has ever been on the government’s no-fly list.  But each of the plaintiffs in the Oregon lawsuit has been prevented from boarding international flights to and/or from the USA, or has been on a flight that was denied permission to land in the USA because they were on board.

The government first tried to claim that the court had no jursidiction to hear such a case at all. After that argument was rejected by the 9th Circuit on appeal, the government tried to get the complaint dismissed on the grounds that the plaintiffs’ rights hadn’t been violated, even if the government had forbidden airlines to transport them, they could have traveled by other means.

Judge Brown was quick to reject this argument, and to distinguish the difficulties faced by those seeking to travel internationally (many of the plaintiffs have families and/ort jobs overseas) from the  restrictions on domestic air travel that were at issue in Gilmore v. Gonzales:

Although Defendants do not dispute the United States Constitution affords procedural due-process protection to an individual’s liberty interest in travel, Defendants rely heavily on Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), and Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119 (W.D. Wash. 2005), to support their position that there is not a constitutional right to travel by airplane or to access the most convenient form of travel.

In Gilmore the plaintiff challenged the government’s airline passenger identification policy as unconstitutional, alleging the policy violated his right to travel because he could not travel by commercial airline without presenting identification. The Ninth Circuit rejected plaintiff’s argument because “the Constitution does not guarantee the right to travel by any particular form of transportation.” 435 F.3d at 1136. The court also found the “burden” imposed by the challenged identification policy was not unreasonable. at 1137. The plaintiffs in Green alleged they were innocent passengers without links to terrorist activity, but they had names similar or identical to names on the No Fly List and had been mistakenly identified by airport personnel as the individuals whose names appeared on that list. As a result, the plaintiffs were subjected to enhanced security screening. None of the plaintiffs ever missed a flight or were subjected to heightened screening for more than an hour. 351 F. Supp. 2d at 1122. The court denied the plaintiffs’ procedural due-process claim and held the plaintiffs did not have a right to travel throughout the United States “without any impediments whatsoever.” Id. at 1130.

The Court finds Green and Gilmore are distinguishable from this case for a number of reasons. These cases involve burdens on the right to interstate travel as opposed to international travel. Although there are perhaps viable alternatives to flying for domestic travel within the continental United States such as traveling by car or train, the Court disagrees with Defendants’ contention that international air travel is a mere convenience in light of the realities of our modern world. Such an argument ignores the numerous reasons an individual may have for wanting or needing to travel overseas quickly such as for the birth of a child, the death of a lovedone, a business opportunity, or a religious obligation. In Ibrahim v. Department of Homeland Security the Northern District of California recently rejected an argument similar to the one made by Defendants here:

“While the Constitution does not ordinarily guarantee the right to travel by any particular form of transportation, given that other forms of travel usually remain possible, the fact remains that for international travel, air transport in these modern times is practically the only form of transportation, travel by ship being prohibitively expensive. . . . . Decisions involving domestic air travel, such as the Gilmore case, are not on point.” No. C06–00545 WHA, 2012 WL 6652362, at *7 (N.D. Cal., Dec. 20, 2012). Other cases cited by Defendants on this issue are similarly distinguishable….

In addition, the burdens imposed by the restrictions on the plaintiffs in Green and Gilmore are far less than the alleged burdens at issue here. While the plaintiffs in Green and Gilmore faced obstacles before being able to board their flights, they were not completely banned from flying like Plaintiffs in this case. Having to show identification to board a commercial aircraft and undergoing enhanced security screening for less than an hour does not rise to the same level of deprivation as being denied boarding on any flight for the indefinite future. Although Plaintiffs concede the deprivation at issue in this matter may not be as great as that in cases such as DeNieva involving the seizure of one’s passport, the Court, nevertheless, finds passport-revocation cases more analogous and helpful to the Court’s analysis of Plaintiffs’ specific circumstances than those cases cited by Defendants in support of their position.

Finally, the bases of the claims asserted in Green and Gilmore are different than the claims at issue here. In Green and Gilmore the plaintiffs sought to invalidate the
challenged government restriction as per se unconstitutional. Here Plaintiffs do not contend the restriction is unconstitutional, but merely assert the burden imposed by the
challenged restriction requires a fairer process. Thus, the Court concludes to the extent that Defendants argue all modes of transportation must be foreclosed before an individual’s due-process rights are triggered, such an argument is unsupported. For example, in DeNieva the Ninth Circuit found the plaintiff had a protected liberty interest in her right to travel not because she was completely banned from traveling, but rather because “retention of DeNieva’s passport infringed upon her ability to travel internationally.” 966 F.2d. at 485. The court reasoned: “Without her passport, she could travel internationally only with great difficulty, if at all.” Id. (emphasis added)….

Here it is undisputed that inclusion on the No Fly List completely bans listed persons from boarding commercial flights to or from the United States or over United States air space. Thus, Plaintiffs have shown their placement on the No Fly List has in the past and will in the future severely restrict Plaintiffs’ ability to travel internationally….

Accordingly, the Court concludes on this record that Plaintiffs have a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the No Fly List.

Rights cannot be restricted without due process. Once international air travel is recognized s a right, the question becomes whether the DHS “Traveler Redress Inquiry Program” (TRIP), and secret administrative no-fly decisions reviewable only by an appellate court (without a trial at any stage of the proceedings) satisfy the Constitutional requirements of due process. Judge Brown wasn’t yet ready to rule on that question (in part because no Court of Appeals has yet conducted such a review), but her description of the TRIP process and its deficiencies is damning:

Because Plaintiffs have protected liberty interests …, the issue becomes whether the current process available to Plaintiffs to contest placement on the No Fly List creates the risk of erroneous deprivation of those interests….

Plaintiffs argue the redress process available here is insufficient and does not provide the basic process that is due. Plaintiffs contend they are entitled to (1) a post-deprivation notice setting forth the government’s reasons for placing Plaintiffs on the No Fly List in sufficient detail to allow Plaintiffs to put forward a defense and (2) a post-deprivation hearing at which Plaintiffs can meaningfully contest their placement on the No Fly List.

It is undisputed that a DHS TRIP complainant is never informed of the specific reasons for inclusion on the No Fly List. In fact, Defendants acknowledge the government’s policy is never to confirm or to deny an individual’s placement on the No Fly List. It is also undisputed that the current process does not provide a hearing at which an individual can present evidence to contest his or her inclusion on the No Fly List.

Plaintiffs assert this process is constitutionally deficient and creates a high risk of “erroneous deprivation” of their constitutional rights because they cannot provide the evidence necessary to clear up any errors without knowing why they are on the No Fly List. Plaintiffs contend this risk is compounded by the fact that they are not permitted to have a hearing to confront and to rebut the bases for their inclusion on the No Fly List.
As noted, Defendants do not dispute the notice sought by Plaintiffs is neither given before an individual is placed on the No Fly List nor after the individual seeks redress through DHS TRIP. Defendants instead contend the DHS TRIP process is all that Plaintiffs are due…. Defendants argue they are not required to provide Plaintiffs with information about their alleged status on the No Fly List or an opportunity to contest that placement…. Defendants also assert they are not required to provide an opportunity for Plaintiffs to confront or to rebut the grounds for inclusion on the No Fly List….

Defendants contend the current redress process is a “suitable substitute” for an evidentiary hearing because DHS TRIP allows a complaint to be filed, the complaint to be reviewed, and judicial review by the court of appeals for those who are dissatisfied with the results.

At oral argument Defendants explained the government files an administrative record and other materials ex parte and in camera with the appellate court as part of the judicial-review process. This Court does not have any other information about the review process such as what specifically would be in the administrative record submitted to the appellate court, what other materials might be submitted, or the nature of the record or materials that deems them sensitive and/or classified so they cannot be revealed to anyone other than the appellate court.

At oral argument the Court requested Defendants to submit additional briefing as to whether any appellate courts have issued opinions on the merits of a challenge brought by a plaintiff who sought review of a final agency decision reached through the DHS TRIP process. Defendants advise “no appellate court has issued a decision on the merits of such a challenge,” but Defendants note there are currently three such cases pending in the Ninth Circuit and the District of Columbia Circuit: Arjmand v. TSA, No. 12-71748 (9th Cir.); Ege v. DHS, No. 13-1110 (D.C. Cir.); and Kadirov v. TSA, No. 10-1185 (D.C. Cir.).

As noted, the DHS TRIP process, at least through the determination-letter step, does not provide Plaintiffs with either post-deprivation notice nor a hearing. Plaintiffs have not been officially provided with any information about why they are not allowed to board commercial flights; they have not been officially informed whether they are on the No Fly List; if they are on the No Fly List, they have not been provided with an opportunity to contest their placement on the list; and they have not been provided with an in-person hearing. The question remains, however, whether, as Defendants contend, judicial review of the record on which the government acted as to each Plaintiff is sufficient to satisfy the requirements of due process and to avoid the risk of erroneous deprivation.

The Court concludes the current record in this case is not sufficiently developed as to the judicial-review process for the Court to resolve this question on the parties’ Cross-Motions or on this record.

The Court also directs the parties to confer and to submit a joint status report no later than September 9, 2013, setting out their recommendation as to the most effective process to better develop the record so that the Court may complete its consideration of the still-pending Motions.

It will be interesting to see how the DHS defends the “due process” provided by a system of “review” that nobody has yet succeeed in invoking. (And that few have tried to invoke, given the impossibility of rebutting unknown allegations by unknown accusers.)

We continue to believe that Gilmore v. Gonzales was wrongly decided. But by distinguishing international air travel from doemstic travel within the continental U.S. (and implicitly raising a question about question about travel to, from, and between Alaska and Hawaii), Judge Brown’s ruling significantly cuts back on the the damaging implications of the 9th Circuit’s decision in the Gilmore case.