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Ibrahim v. U.S. Department of Homeland Security

United States Court of Appeals, Ninth Circuit

January 2, 2019

Dr. Rahinah Ibrahim, an individual, Plaintiff-Appellant,
v.
U.S. Department of Homeland Security; Terrorist Screening Center; Federal Bureau of Investigation; Christopher A. Wray [*] , in his official capacity as Director of the Federal Bureau of Investigation; Kirstjen Nielsen, in her official capacity as Secretary of the Department of Homeland Security; Matthew G. Whitaker, in his official capacity as Acting Attorney General; Charles H. Kable IV, in his official capacity as Director of the Terrorist Screening Center; Jay S. Tabb, Jr., in his official capacity as Executive Assistant Director of the FBI's National Security Branch; National Counterterrorism Center; RUSSELL "RUSS" TRAVERS, in his official capacity as Director of the National Counterterrorism Center; DEPARTMENT OF STATE;MICHAEL R. POMPEO, in his official capacity as Secretary of State; UNITED STATES OF AMERICA, Defendants-Appellees.

          Argued and Submitted En Banc March 20, 2018

          Appeal from the United States District Court for the Northern District of California No. 3:06-cv-545-WHA William Alsup, District Judge, Presiding

          Marwa Elzankaly (argued), Jennifer Murakami, Ruby Kazi, Christine Peek, Elizabeth Pipkin, and James McManis, McManis Faulkner, San Jose, California, for Plaintiff-Appellant.

          Joshua Waldman (argued) and Sharon Swingle, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

          Chet A. Kronenberg and JoAnne S. Jennings, Simpson Thacher & Bartlett LLP, Los Angeles, California, for Amici Curiae American Civil Liberties Union of California, Asian Americans Advancing Justice-Asian Law Caucus, Asian Americans Advancing Justice-Los Angeles, Center for Constitutional Rights, Electronic Frontier Foundation, and National Immigration Law Center.

          Before: Sidney R. Thomas, Chief Judge, and M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Marsha S. Berzon, Consuelo M. Callahan, Milan D. Smith, Jr., N. Randy Smith, Morgan Christen, Jacqueline H. Nguyen, and Paul J. Watford, Circuit Judges.

         SUMMARY [**]

         Equal Access to Justice Act / Attorneys' Fees

         The en banc court reversed the district court, vacated the award of attorneys' fees under the Equal Access to Justice Act ("EAJA"), and remanded with instructions to recalculate the fees for the civil rights law firm that represented Dr. Rahinah Ibrahim in her successful challenge to her inclusion on the Transportation Security Administration's "No Fly" list.

         The en banc court held that when a district court awards complete relief on one claim, rendering it unnecessary to reach alternative claims, the alternative claims cannot be deemed unsuccessful for the purpose of calculating a fee award. The en banc court rejected the post hoc "mutual exclusivity" approach to determining whether "unsuccessful" claims were related to successful claims and reaffirmed that Hensley v. Eckerhart, 461 U.S. 424 (1983), sets forth the correct standard of "relatedness" for claims under EAJA. The en banc court reaffirmed that in evaluating whether the government's position is substantially justified, the court looks at whether the government's and the underlying agency's positions were justified as a whole and not at each stage of the litigation.

         Applying these standards, the en banc court held that the various stages at issue here were all part of one litigation in federal court where the case was never returned to an agency for further proceedings, and, therefore, Corbin v. Apfel, 149 F.3d 1051 (9th Cir. 1998) (holding that in exceedingly complex cases, a court may appropriately determine whether the government was substantially justified at each stage of the litigation and make a fee award apportioned to those separate determinations), did not apply. The en banc court held that the district court erred in its piecemeal approach to substantial justification, and concluded that neither the agency's conduct nor the government's litigation position was substantially justified.

         The en banc court held that the district court erred in determining that Dr. Ibrahim was entitled to reasonable fees and expenses with respect to only her procedural due process claim and her related substantive due process and Administrative Procedure Act claims, and in disallowing counsel's reasonable fees and expenses on the unreached, and "unrelated," First Amendment and equal protection claims. The en banc court held that the district court clearly erred in holding that Dr. Ibrahim's unreached claims were unsuccessful. The en banc court held that all of Dr. Ibrahim's claim arose from a "common course of conduct" and were therefore related under Hensley. The en banc court further held that the district court erred in finding that Dr. Ibrahim had only "limited" success, and concluded that Dr. Ibrahim satisfied Hensley's second prong that the plaintiff achieve "a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award." Hensley, 461 U.S. at 434. The en banc court found that Dr. Ibrahim achieved excellent results and was entitled to reasonable fees consistent with that outcome.

         Although generally attorneys' fees are capped under EAJA at $125 per hour, where the government acts in bad faith, a court may assess fees and expenses to the extent a party would be liable under the common law. The en banc court concluded that the district court's ruling that the government did not act in bad faith was in error because it was incomplete where the district court did not consider the "totality" of the government's conduct, including conduct prelitigation and during trial.

         The en banc court remanded to allow the district court to make a bad faith determination under the correct legal standard in the first instance, and to re-determine the fee award.

         Judge Callahan, joined by Judges N.R. Smith and Nguyen, concurred in part and dissented in part. Judge Callahan agreed with the majority that Dr. Ibrahim was the prevailing party, and that the test for substantial justification is an inclusive one; and that Dr. Ibrahim's equal protection and First Amendment claims were sufficiently related to her other claims such that the district court's failure to reach those issues did not justify the district court's curtailment of attorneys' fees. Judge Callahan would hold that the majority exceeded its role as an appellate court by determining in the first instance that the government's position was not substantially justified; and dissented from the majority's setting aside of the district court's finding that the defendants did not proceed in bad faith. Judge Callahan would affirm the district court's limitation of Dr. Ibrahim's attorneys' fees to the statutory rate set by EAJA.

          OPINION

          WARDLAW, CIRCUIT JUDGE

         This appeal arises out of Dr. Rahinah Ibrahim's 2005 detention at the San Francisco International Airport (SFO) while en route to Malaysia with a stopover in Hawaii for a Stanford University conference. U.S. authorities detained Dr. Ibrahim because her name was on the Transportation Security Administration's (TSA) "No Fly" list (the No Fly list). After almost a decade of vigorous and fiercely contested litigation against our state and federal governments and their officials, including two appeals to our court and a weeklong trial, Dr. Ibrahim won a complete victory. In 2014, the federal government at last conceded that she poses no threat to our safety or national security, has never posed a threat to national security, and should never have been placed on the No Fly list. Through Dr. Ibrahim's persistent discovery efforts, which were met with stubborn opposition at every turn, she learned that she had been nominated to the No Fly list and the Interagency Border Inspection System (IBIS), which are stored within the national Terrorist Screening Database (TSDB)-the federal government's centralized watchlist of known and suspected terrorists-and which serve as a basis for selection for other counterterrorism sub-lists. From there, a Federal Bureau of Investigation (FBI) special agent so misread a nomination form that he accidentally nominated Dr. Ibrahim to the No Fly list, intending to do the opposite, as the No Fly list is supposed to be comprised of individuals who pose a threat to civil aviation.

         But Dr. Ibrahim did not accomplish this litigation victory on her own. Indeed, since she was finally allowed to travel to Malaysia in 2005, the United States government has never allowed her to return to the United States, not even to attend the trial that cleared her name. Throughout this hard-fought litigation, the civil rights law firm McManis Faulkner has represented her interests without pay, but with the understanding that if it prevailed on her behalf, it could recover reasonable attorneys' fees and expenses, in addition to costs, pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.

         The firm filed a motion for an award of attorneys' fees and expenses, supported by documentary evidence and declarations, which the government opposed. The motion was met with the "compliments" of the district court and drastic reductions in the claimed fees, by almost ninety percent. In reducing the claimed legal fees, the district court misapplied Commissioner, I.N.S. v. Jean, 496 U.S. 154 (1990), by taking a piecemeal approach to determining whether the government's position was "substantially justified," and so disallowing fees for particular stages of proceedings rather than examining the record as a whole and making a single finding. The district court further erred by treating alternative claims or theories for the same relief Dr. Ibrahim achieved-which the court, therefore, did not reach-as unsuccessful, and reducing fees for work pursuing those claims, contrary to Hensley v. Eckerhart, 461 U.S. 424 (1983). These errors were compounded by the now-withdrawn three-judge panel decision, which misapplied the Hensley standard for determining "relatedness," i.e., whether the claims arose from a "common course of conduct," to wrongly conclude that because the claims in the alternative were "mutually exclusive," they were not related. In point of fact, all of the legal theories pursued on behalf of Dr. Ibrahim challenged the same and only government action at the heart of this lawsuit: the government's placement of her name on the No Fly list without any basis for doing so. Finally, our prior precedent, which we now reaffirm, requires that when a district court analyzes whether the government acted in bad faith, it must consider the totality of the circumstances, including both the underlying agency action and the litigation in defense of that action.

         We reheard this appeal en banc to clarify the standards applicable to awards of attorneys' fees under the EAJA. We now reverse, vacate the award of attorneys' fees, and remand with instructions to recalculate fees consistent with this opinion.[1]

         I.

         A. Dr. Ibrahim

         Dr. Ibrahim is a Muslim woman, scholar, wife, and mother of four children. She lived in the United States for thirteen years pursuing undergraduate and post-graduate studies. Here's what happened to Dr. Ibrahim, as the events that ultimately excluded her from this country unraveled:

         In early January 2005, Dr. Ibrahim planned to fly from San Francisco to Hawaii and then to Los Angeles and on to Kuala Lumpur. She intended to attend a conference in Hawaii sponsored by Stanford University from January 3 to January 6, at which she would present the results of her doctoral research. She was then working toward a Ph.D. in construction engineering and management at Stanford University under an F-1 student visa. On January 2, 2005, Dr. Ibrahim arrived at SFO with her daughter, Rafeah, then fourteen. At the time, Dr. Ibrahim was still recovering from a hysterectomy performed three months earlier and required wheelchair assistance.

         When Dr. Ibrahim arrived at the United Airlines counter, the airline staff discovered her name on the No Fly list and called the police. Dr. Ibrahim was handcuffed and arrested. She was escorted to a police car (while handcuffed) and transported to a holding cell by male police officers, where she was searched for weapons and held for approximately two hours. Paramedics were called to administer medication related to her surgery. No one explained to Dr. Ibrahim the reasons for her arrest and detention.

         Eventually, she was released and an aviation security inspector with the Department of Homeland Security (DHS) informed Dr. Ibrahim that her name had been removed from the No Fly list. The police were satisfied that there were insufficient grounds for making a criminal complaint against her. Dr. Ibrahim was told that she could fly to Hawaii the next day.

         The next day she returned to SFO where an unspecified person told her that she was again-or still-on the No Fly list. She was nonetheless allowed to fly, but was issued an unusual red boarding pass with the letters "SSSS," meaning Secondary Security Screening Selection, printed on it. Dr. Ibrahim flew to Hawaii and presented her doctoral findings at the Stanford conference. From there, she flew to Los Angeles and then on to Kuala Lumpur.

         Two months later, on March 10, 2005, Dr. Ibrahim was scheduled to return to Stanford University to complete her work on her Ph.D. and to meet with an individual who was one of her Stanford dissertation advisors and also her friend, Professor Boyd Paulson, who was very ill. But when she arrived at the Kuala Lumpur International Airport, she was not permitted to board the flight to the United States. She was told by one ticketing agent that she would have to wait for clearance from the U.S. Embassy, and by another that a note by her name indicated the police should be called to arrest her. Dr. Ibrahim has not been permitted to return to the United States to this day.

         On March 24, 2005, Dr. Ibrahim submitted a Passenger Identity Verification Form (PIVF) to TSA. Before 2007, individuals who claimed they were denied or delayed boarding a plane in or for, or entry to, the United States, or claimed they were repeatedly subjected to additional screening or inspection, could submit a PIVF to TSA. A PIVF prompted various agencies to review whether an individual was properly placed in the TSDB or in related watchlist databases.[2]

         Next, on April 14, 2005, the U.S. Embassy in Kuala Lumpur wrote to inform Dr. Ibrahim that the Department of State had revoked her F-1 student visa on January 31, 2005, which seemed to explain why she had not been allowed to fly in March, but gave her no further information regarding her status. The April 14 letter cited Dr. Ibrahim's possible ineligibility "under Section 212(a)(3)(B) of the Immigration and Nationality Act [(INA)]," codified at 8 U.S.C § 1182(a)(3)(B), to explain the revocation. That section prohibits entry into the U.S. by any person who engaged in terrorist activity, was reasonably believed to be engaged in or likely to be engaged in terrorist activity, or who has incited terrorist activity, among other things. 8 U.S.C. § 1182(a)(3)(B). However, the letter also told her that the revocation did "not necessarily indicate that [she would be] ineligible to receive a U.S. visa in [the] future." Not having heard back from TSA, Dr. Ibrahim retained McManis Faulkner. And on January 27, 2006, she filed the underlying action to challenge her placement on the No Fly list, as well as the federal and state governments' administration of the list and their treatment of her with respect to it.

         In a letter dated March 1, 2006, Dr. Ibrahim received a response to her PIVF. That letter stated that TSA had "conducted a review of any applicable records in consultation with other federal agencies, as appropriate," and continued, "[w]here it has been determined that a correction to records is warranted, these records have been modified to address any delay or denial of boarding that you may have experienced as a result of the watchlist screening process." The letter did not indicate Dr. Ibrahim's status with respect to the No Fly list or any other federal watchlist.

         In 2009, Dr. Ibrahim applied for a visa to attend proceedings in this action. The U.S. Embassy in Kuala Lumpur interviewed her on September 29, 2009. On December 14, 2009, a consular officer of the U.S. Department of State sent a letter to Dr. Ibrahim notifying her of her visa application's denial. The consular officer wrote the word "(Terrorist)" next to the checked box for INA § 212(a)(3)(B) on an accompanying form to explain why Dr. Ibrahim was deemed inadmissible.

         In September 2013, Dr. Ibrahim submitted a visa application so that she could attend the trial in her case. She went to a consular officer interview in October 2013. At the interview, the consular officer asked her to provide supplemental information via e-mail, which Dr. Ibrahim duly provided. Trial in this action began on December 2 and ended on December 6. While she did not receive a response to her visa application before trial, at trial, government counsel stated that the visa had been denied. Dr. Ibrahim's counsel said that they had not been aware of the denial and that Dr. Ibrahim had not been notified.

         B. United States Government

         While Dr. Ibrahim stood in limbo, unaware of her status on any list and unable to return to the United States, even to attend the trial of her own case, the government was well aware that her placement on the No Fly list was a mistake from the get-go.[3]

         Here it is helpful to understand, as much as we can on this record, how the U.S. "government maintains and operates a web of interlocking watchlists, all now centered on the [TSDB]," as described in the district court's post-trial order.[4] The FBI, DHS, the Department of State, and other agencies administer an organization called the Terrorist Screening Center (TSC), which manages the TSDB. Both the TSC and TSDB were created in response to the terrorist attacks on September 11, 2001, in order to centralize information about known and suspected terrorists. That information is then exported as appropriate to various "customer databases," i.e., government watchlists, operated by other agencies and government entities. In this way, "the dots could be connected." While the TSDB does not contain classified information, the government stores classified "derogatory" information in a closely allied and separate database called the Terrorist Identities Datamart Environment (TIDE), which is operated by the National Counterterrorism Center (NCTC) branch of the Office of the Director of National Intelligence. These terrorist watchlists, and others, provide information to the United States intelligence community, a coalition of seventeen agencies and organizations within the executive branch, and also provide information to certain foreign governments.

         Today, individuals are generally nominated to the TSDB using a "reasonable suspicion standard," meaning "articulable facts which, taken together with rational inferences, reasonably warrant the determination that an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities." This standard was created by executive branch policy and practice and was not promulgated by Congress or the judicial branch. However, from 2004 to 2007, the executive branch and its agencies employed no uniform standard for TSDB nominations, allowing each agency to use its own nominating procedures for inclusion in the TSDB based on each agency's interpretation of homeland security presidential directives and the memorandum of opinion that established the TSC. These directives provided little instruction. For example, one such directive was Homeland Security Presidential Directive 6 (HSPD-6), which stated, "[t]his directive shall be implemented in a manner consistent with the provisions of the Constitution and applicable laws, including those protecting the rights of all Americans."

         As the centralized database, the TSDB is the repository for all watchlist nominations. Various government agents nominate individuals by filling out a physical form, which is later computerized and used by the TSDB to indicate on which watchlist each nominee should be included or excluded. There are several watchlists affected by the TSDB, namely[5]:

• the No Fly list (TSA);
• the Selectee list (TSA);
• Known and Suspected Terrorist File (KSTF, previously known as the Violent Gang and Terrorist Organizations File);
• Consular Lookout and Support System (CLASS, including CLASS-Visa, a Department of State database used for screening of visa applicants, and CLASS-Passport, a database that applies only to United States citizens who might be watchlisted) (Department of State);
• TECS (not an acronym, but the successor to the Treasury Enforcement Communications System) (DHS); • Interagency Border Inspection System (IBIS) (DHS);
• Tipoff United States-Canada (TUSCAN) (used to export information from the United States to Canada); and
• Tipoff Australia Counterterrorism Information Control System (TACTICS) (used to export information from the United States to Australia).

         These TSDB designations are then exported to the customer/government watchlists, which are each operated by various government entities and used in various ways. For example, TSDB nominations are transmitted to the Department of State for inclusion in CLASS-Visa or CLASS-Passport. In ruling on visa applications, consular officers review the CLASS database for information that may inform the visa application and adjudication process.

         In November 2004, shortly after Dr. Ibrahim's husband Mustafa Kamal Mohammed Zaini visited her from Malaysia to help her after her surgery, FBI Special Agent Kevin Michael Kelley (Agent Kelley), located in San Jose, California, unintentionally nominated Dr. Ibrahim, who was then a graduate student at Stanford University, to various federal watchlists using the FBI's National Crime Information Center (NCIC) Violent Gang and Terrorist Organizations (VGTO) File Gang Member Entry Form (VGTOF). VGTO was an office within NCIC. Agent Kelley misunderstood the directions on the form and erroneously nominated Dr. Ibrahim to the TSA's No Fly list and DHS's IBIS. He did not intend to do so.

         Agent Kelley testified at trial that he intended to nominate Dr. Ibrahim to the CLASS, the TSA Selectee list, TUSCAN (information exported to Canada), and TACTICS (information exported to Australia) lists. He checked the wrong boxes, filling out the form exactly contrary to the form's instructions. The form expressly indicated that he was to check the boxes for the databases into which the subject should NOT be placed. Here is a blank copy of the form:

         It is recommended that the subject NOT be entered into the following selected terrorist screening databases:

• Consular Lookout and Support System (CLASS)
• Interagency Border Information System (IBIS)
• TSA No Fly List
• TSA Selectee List
• TUSCAN
• TACTICS

         The case agent will also nominate any terrorist screening database into which the subject should not be entered. If no databases are selected, then the subject will be added by the TSC to all appropriate databases.

         In other words, Agent Kelley was instructed to check the boxes for the watchlists for which Dr. Ibrahim was NOT to be nominated. Here is the form as Agent Kelley completed it:

         (Image Omitted)

         Agent Kelley, by failing to check the boxes for the No Fly list and IBIS, placed Dr. Ibrahim on those watchlists (and by checking the boxes for CLASS, the TSA Selectee list, TUSCAN, and TACTICS, Agent Kelley did not place her on those lists).

         Agent Kelley's squad also was conducting a mosque outreach program. One purpose of the program was to provide a point of contact between law enforcement and mosques and Islamic associations. The outreach program included Muslim and Sikh communities and organizations in the San Francisco Bay Area. In December 2004, Agent Kelley and his colleague interviewed Dr. Ibrahim while she was still attending Stanford University.[6] He asked, among other things, about her plans to attend a conference in Hawaii, her dissertation work, her plans after graduation, her involvement in the Muslim community, her husband, her travel plans, and the organization Jemaah Islamiyah, a Department of State-designated terrorist organization that Dr. Ibrahim had heard of only on the news. She was not a member.[7] The Freedom of Information Act-produced version of Agent Kelley's interview notes with Dr. Ibrahim were designated by the FBI as "315," which denotes "International Terrorism Investigations."

         On January 2, 2005, when Dr. Ibrahim was detained at SFO on her way to Hawaii, a DHS aviation security inspector told her that her name had been removed from the list.

          Meanwhile, on January 3, 2005, in the visa office of the Department of State, one official was sitting on a stack of pending visa revocations that were based on the VGTO watchlist from which Agent Kelley had nominated Dr. Ibrahim to the No Fly list. That official e-mailed another visa official to report that although "[t]hese revocations contain virtually no derogatory information," he was going to revoke them. The official wrote, because "there is no practical way to determine the basis of the investigation . . . we will accept that the opening of an investigation itself is a prima facie indicator of potential ineligibility under [§ 212(a)(3)(B) of the INA, relating to terrorist activities]." One of the revocations in that stack was Dr. Ibrahim's student visa.

         Sure enough, on January 31, 2005, the Department of State revoked Dr. Ibrahim's F-1 student visa pursuant to § 212(a)(3)(B). In an e-mail conversation dated February 8, 2005 between the chief of the consular section at the U.S. Embassy in Kuala Lumpur and an official in the coordination division at the Department of State's visa office, designated "VO/L/C," the consular chief asked about a prudential visa revocation cable he had received concerning the events Dr. Ibrahim experienced in January 2005. The Department of State official replied,

I handle revocations in VO/L/C. The short version is that this person's visa was revoked because there is law enforcement interest in her as a potential terrorist. This is sufficient to prudentially revoke a visa but doesn't constitute a finding of ineligibility. The idea is to revoke first and resolve the issues later in the context of a new visa application . . . . My guess based on past experience is that she's probably issuable. However, there's no way to be sure without putting her through the interagency process.

         After Dr. Ibrahim's visa was revoked, the Department of State entered a record into CLASS that notified any consular official adjudicating a future visa application on her behalf that she may be inadmissible under § 212(a)(3)(B). In December 2005, Dr. Ibrahim was removed from the TSA's Selectee list. Around this time, however, she was added to TACTICS (exports to Australia) and TUSCAN (exports to Canada). The government has never explained this placement or the effect of Dr. Ibrahim's placement on TACTICS or TUSCAN.[8]

         Two weeks later, on January 27, 2006, Dr. Ibrahim filed the underlying action. On February 10, 2006, an unidentified government agent requested that Dr. Ibrahim be "Remove[d] From ALL Watchlisting Supported Systems (For terrorist subjects: due to closure of case AND no nexus to terrorism)." Answering the question "Is the individual qualified for placement on the no fly list?" the "No" box was checked. For the question, "If No, is the individual qualified for placement on the selectee list?" the "No" box was checked.

         On September 18, 2006, the government removed Dr. Ibrahim from the TSDB because she did not meet the "reasonable suspicion standard" for placement on it, which requires that the government believe "an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities." The record, however, does not indicate whether she was removed from all of the customer watchlists that subscribed to the TSDB.

         On March 2, 2007, Dr. Ibrahim was placed back on the TSDB. The record does not explain why she was relisted on the TSDB or which customer watchlists were to be notified. Two months later, however, on May 30, 2007, Dr. Ibrahim was again removed from the TSDB. The record does not show the extent to which Dr. Ibrahim's name was then removed from the other customer watchlists, nor the reason for the removal.

         Dr. Ibrahim's 2009 visa application to attend proceedings in this case was initially refused under § 221(g) o f the INA, 8 U.S.C. § 1201(g), because it was determined that there was insufficient information to make a final adjudication in the matter. The consular officer requested a Security Advisory Opinion from the Department of State. The consular official was concerned that Dr. Ibrahim was potentially inadmissible under § 212(a)(3)(B) of the INA, which provides nine classes of aliens ineligible for visas or admission into the United States based on terrorist activities. The Security Advisory Opinion from the Department of State, initially unavailable to Dr. Ibrahim but later produced in discovery, stated:

Information on this applicant surfaced during the SAO review that would support a 212(a)(3)(B) inadmissibility finding. Posts should refuse the case accordingly. Since the Department reports all visa refusals under INA Section 212(a)(3)(B) to Congress, post should notify [the Coordination Division within the Visa Office] when the visa refusal is affected [sic]. There has been no request for an INA section 212(d)(3)(A) waiver at this time.

         Based on the Security Advisory Opinion's finding, the consular officer denied her visa application, and wrote the word "(Terrorist)" on the form to explain the inadmissibility determination to Dr. Ibrahim.

         On October 20, 2009, Dr. Ibrahim was again nominated to the TSDB pursuant to a secret exception to the reasonable suspicion standard. The government claims that the nature of the exception and the reasons for the nomination are state secrets. In Dr. Ibrahim's circumstance, the effect of the nomination was that Dr. Ibrahim's information was exported from the TSDB database solely to the Department of State's CLASS database and DHS's TECS database.

         From October 2009 to the present, Dr. Ibrahim has been included on the TSDB, CLASS, and TECS watchlists. She has been off the No Fly and Selectee lists. She remains in the TSDB, even though she does not meet the "reasonable suspicion standard," pursuant to a classified and secret exception to that standard.

         Government counsel conceded at trial that Dr. Ibrahim was not a threat to the national security of the United States and that she never has been. She did not pose (and has not posed) a threat of committing an act of international or domestic terrorism with respect to an aircraft, a threat to airline passenger or civil aviation security, or a threat of domestic terrorism. Despite this assessment, Dr. Ibrahim has been unable to return to the United States to this day.

          II.

         On January 27, 2006, Dr. Ibrahim filed suit against DHS, TSA, the TSC, the FBI, the Federal Aviation Administration (FAA), and individuals associated with these entities (collectively, the federal defendants); the City and County of San Francisco, the San Francisco Police Department, SFO, the County of San Mateo, and individuals associated with these entities (collectively, the city defendants); and United Airlines, UAL Corporation, and individuals associated with these entities (collectively, the private defendants). Dr. Ibrahim asserted § 1983 claims and state-law tort claims arising out of her detention at SFO, as well as several constitutional claims based on the inclusion of her name on government terrorist watchlists. On August 16, 2006, the district court dismissed her claims against the federal defendants under 49 U.S.C. § 46110(a), which vests exclusive original jurisdiction in the courts of appeals over suits challenging security orders issued by TSA. The order also dismissed Dr. Ibrahim's claims against a TSA employee and the airline. Dr. Ibrahim appealed.

         We affirmed in part, reversed in part, and remanded. We reversed the district court's dismissal of the federal defendants, holding that § 46110(a) does not bar district court jurisdiction over Dr. Ibrahim's challenges to her placement on the government terrorist watchlists, including the No Fly list, because the lists are managed by the TSC rather than TSA. Ibrahim v. Dep't of Homeland Sec., 538 F.3d 1250, 1254-56 (9th Cir. 2008) (Ibrahim I). We affirmed the district court's conclusions that § 46110(a) requires all challenges to TSA policies and procedures implementing the No Fly and other lists to be filed directly in the courts of appeals, that the federal agency and airline actions were not state actions under § 1983, and that the tort claims against the federal officials in their official capacities and against the airline defendants were precluded. Id. at 1256-58. We further held that the district court had personal jurisdiction over the claims against the TSA employee, who was sued in his individual capacity.[9] Id. at 1258-59. We remanded the issue of standing to the district court to decide in the first instance. Id. at 1254-56, 1256 n.9.

         After we remanded the case, Dr. Ibrahim filed a Second Amended Complaint (SAC), alleging various Bivens, constitutional, § 1983, statutory, state tort, and Administrative Procedure Act (APA) claims against several federal agencies and federal officials in their official capacities (collectively, the Federal Defendants) and state and local government agencies, certain individuals in their individual capacities, and the U.S. Investigation Services, Inc. (collectively, the Non-Federal Defendants). Dr. Ibrahim requested an injunction that would require the federal government to take her name off its terrorist watchlists, including the No Fly list, or, in the alternative, to provide procedures under which she could challenge her inclusion on those lists, in addition to other non-monetary requests and damages. The SAC also sought limited relief relevant to Dr. Ibrahim's visa denial, but stopped short of attempting to force the government to issue her a visa.

         Both the Federal Defendants and Non-Federal Defendants filed motions to dismiss with respect to the majority of the claims. In an order dated July 27, 2009, the district court partially granted the Non-Federal Defendants' motions to dismiss. Thereafter, all ...


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