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Civil Procedure Fall 2014

The No-Fly List Problem

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Consider how the Matthews test would apply to the following fact pattern:

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Background

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The No Fly List

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The Terrorist Screening Center (TSC), administered by the Federal Bureau of Investigation (FBI), develops and maintains the federal government's consolidated Terrorist Screening Database (TSDB). The No Fly List is a subset of that list.

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TSC provides the No Fly List to TSA, a component of the Department of Homeland Security (DHS), for use in pre-screening airline passengers. TSC accepts nominations for inclusion in the TSDB, which are generally accepted by TSC because of a “reasonable suspicion” that the individuals are known or suspected terrorists based on the totality of the information reviewed. The federal government does not release its minimum, substantive, derogatory criteria for placement on the No Fly List nor the “Watchlisting Guidance” created for internal use by intelligence and law-enforcement communities.

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DHS TRIP Redress Process

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DHS TRIP is the mechanism available for individuals to seek redress for any travel-related screening issues experienced at airports or while crossing United States borders; i.e., denial of or delayed airline boarding, denial of or delayed entry into or exit from the United States, or continuous referral for additional (secondary) screening.

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DHS TRIP allows travelers who have faced such difficulties to submit a “Traveler Inquiry Form” online, by email, or by regular mail. The form prompts travelers to describe their complaint, to produce documentation relating to the issue, and to provide identification and their contact information.

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If the traveler is an exact or near match to an identity within the TDSB, DHS TRIP deems the complaint to be TSDB-related and the traveler's complaint is forwarded to TSC Redress for further review. Upon receipt of the complaint, TSC Redress reviews the available information, including the information and documentation provided by the traveler, and determines (1) whether the traveler is an exact match to an identity in the TSDB and (2) if an exact match, whether the traveler should continue to be in the TSDB. In making this determination, TSC coordinates with the agency that originally nominated the individual to be included in the TSDB.

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If the traveler is not an exact match to an identity in the TSDB but has been misidentified as someone who is, TSC Redress informs DHS of the misidentification. DHS, in conjunction with any other relevant agency, then addresses the misidentification by correcting information in the traveler's records or taking other appropriate action.

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When the review is completed DHS TRIP then sends a determination letter to the traveler advising that DHS TRIP has completed its review. A DHS TRIP determination letter neither confirms nor denies that the complainant is in the TSDB or on the No Fly List and does not provide any further details about why the complainant may or may not be in the TSDB or on the No Fly List. In some cases a DHS TRIP determination provides that the recipient can pursue an administrative appeal of the determination letter with TSA or can seek judicial review in a United States court of appeals pursuant to 49 U.S.C. § 46110.

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Determination letters, however, do not provide assurances about the complainant's ability to undertake future travel. In fact, at no point in the available administrative process is a complainant told whether he or she is in the TSDB or a subset of the TSDB or given any explanation for his or her inclusion on such a list. Accordingly, there is also not any opportunity for a complainant to contest or to offer corrections to the record on which any such determination may be based.

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This Situation

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Thirteen United States citizens who were denied boarding on flights over United States air space after January 1, 2009. They believe they are on the United States government's No Fly List. Some Plaintiffs (claim that they) were actually told by airline representatives, FBI agents, or other government officials that they are on the No Fly List. As a result:

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  • One Plaintiff was unable to attend his veteran’s benefits hearing and was stripped of benefits.
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  • One Plaintiff had a job offer rescinded because he was unable to enter the US and receive medical clearance.
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  • One Plaintiff was unable to receive prenatal care available only in the United States.
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  • Several Plaintiffs have been separated from their families. One Plaintiff has been separated from his wife since February 2010 since she cannot obtain a visa to enter the United States and he cannot travel abroad to where she lives.
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  • One Plaintiff was denied boarding and during interrogation was told that he would be allowed to fly “if he agreed to tell them who the 'bad guys' were in Yemen and San Francisco and to provide names of people from his mosque and community.”
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  • One Plaintiff was interrogated and told his name would be removed from the No Fly List and he would receive compensation if he helped the FBI by serving as an informant. When the Plaintiff asked to have his attorney present before answering questions, agents ended the meeting.
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  • Several Plaintiffs are unable to continue their studies abroad and/or are unable to participate in the hajj pilgrimage.
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  • Several Plaintiffs were offered "one time waivers" by the Government which some of them took and others did not.
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    Each Plaintiff filed DHS TRIP complaints after being denied boarding and received a determination letter. None of the determination letters that Plaintiffs received confirm or deny the existence of any terrorist watch list that includes them nor do any of the letters provide a reason for including the individual in the TDSB or on the No Fly List. Despite Plaintiffs' requests to officials and agencies for explanations as to why they were not permitted to board flights, none has been provided and Plaintiffs do not know whether they will be permitted to fly in the future.

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    Many of these Plaintiffs cannot travel overseas by any way other than air because such journeys by boat or by land would be cost-prohibitive, would be time-consuming to a degree that Plaintiffs could not take the necessary time off from work, or would put the Plaintiffs at risk of interrogation and detention by foreign authorities. In addition, some Plaintiffs are not physically well enough to endure such infeasible modes of travel.