Ibrahim v. Department of Homeland Security , 538 F.3d 1250 ( 2008 )

N. RANDY SMITH, Circuit Judge,

dissenting:

Ibrahim’s claims against the Terrorist Screening Center constitute a challenge to an order of the Transportation Security Administration and are therefore subject to 49 U.S.C. § 46110(a), depriving the district court of jurisdiction over Ibrahim’s claims against that agency. At the very minimum, Ibrahim’s claims against the Terrorist Screening Center are “inescapably intertwined” with an order of the Transportation Security Administration and are thus still subject to § 46110(a). See Gilmore v. Gonzales, 435 F.3d 1125, 1133 n. 9 (9th Cir.2006); see also Crist v. Leippe, 138 F.3d 801, 803 (9th Cir.1998) (noting that district court retains jurisdiction to consider broad constitutional challenges but does not have jurisdiction to consider issues that are “ ‘inescapably intertwined with a review of the procedures and merits surrounding the FAA’s order’ ”) (quoting Mace v. Skinner, 34 F.3d 854, 858 (9th Cir.1994)). Therefore, I dissent from Part l.a of the majority opinion.

Congress squarely delegated the responsibility for promulgating regulations and directives relating to the No-Fly List to the Transportation Security Administration in 49 U.S.C. §§ 114(h)(3) and 44903(j). Specifically, § 44903(j)(2)(E)(iii) provides that “[t]he Secretary of Homeland Security, in consultation with the Terrorist Screening Center, shall design and review, as necessary, guidelines, policies, and operating procedures for the collection, removal, and updating of data maintained, or to be maintained, in the no fly and automatic selectee lists.” Id. § 4490B(j)(2)(E)(iii). Additionally, the Transportation Security Administration is charged with using information developed by other government agencies to “identify individuals on passenger lists who may be a threat to civil aviation or national security” and “if such an individual is identified, notify appropriate law enforcement agencies, prevent the individual from boarding an aircraft, or take other appropriate action with respect to that individual.” Id. § 114(h)(3).

Congress provided in § 46110(a) that “a person disclosing a substantial interest in an order issued by [Transportation Security Administration] ... may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business.” An agency’s decision is an order, and therefore subject to § 46110(a), if it “provides a ‘definitive’ statement of the agency’s position, has a ‘direct and immediate’ effect on the day-to-day business of the party asserting wrongdoing, and envisions ‘immediate compliance with its terms[.]’ ” Crist, 138 F.3d at 804 (quoting Mace, 34 F.3d at 857). Our precedent requires us to construe the term “order” broadly. See Gilmore, 435 F.3d at 1132. In light of the statutory language detailed above and our decisions construing the term “order,” Ibrahim’s claims against the Terrorist Screening Center for placement of her name on the No-Fly List constitute a challenge to an order of the Transportation Security Administration. The district court therefore has no jurisdiction over the claims.

Even if the statutory framework did not clearly establish that Ibrahim’s claims against the Terrorist Screening Center constitute challenges to an order of the Transportation Security Administration and are therefore subject to § 461110(a), the district court would still lack jurisdiction because Ibrahim’s claims against the Terrorist Screening Center are “inescapably intertwined” with the claims that are unquestionably subject to that statute. Our prior cases compel this result. In Mace, we held that the district court erred by dismissing a plaintiffs broad constitutional challenge to the FAA’s power to revoke his mechanic’s certificate. 34 F.3d at 858-60. We further held that the district court erred by dismissing the claims because they were not “inescapably intertwined” with an order that was subject to exclusive appellate review under the precursor statute to § 46110(a). Id. at 858. In Gilmore, we held that the plaintiffs due process challenge to the Transportation Security Administration’s identification policy fell within the jurisdictional reach of § 46110(a), because it was “ ‘inescapably intertwined’ with a review of the order[.]” Gilmore, 435 F.3d at 1133 n. 9. “[I]t squarely attacked] the orders issued by the TSA with respect to airport security.” Id.

The majority distinguishes Gilmore, arguing that Gilmore (1) involved a claim against the Transportation Security Administration instead of the Terrorist Screening Center, as is the case here; and (2) did not decide whether the No-Fly List constitutes an order. But those are distinctions without difference. It is irrelevant whether we decided in Gilmore that the No-Fly List constitutes an order of the Transportation Security Administration. It is also of little significance to our instant inquiry that there may be a sparse or nonexistent administrative record for an appellate court to review. What matters is that we follow the clear Congressional directive set forth in § 46110(a). As noted, the Transportation Security Administration is charged with developing — in consultation with the Terrorist Screening Center — the “necessary, guidelines, policies, and operating procedures for the collection, removal, and updating of data maintained, or to be maintained, in the no fly and automatic selectee lists.” 49 U.S.C. § 44903(j)(2)(E)(iii). Given our holdings in Gilmore and Mace, that district courts lack jurisdiction to consider claims that are “inescapably intertwined” with orders of the Transportation Security Administration, Ibrahim’s challenges against the Terrorist Screening Center for its role in placing Ibrahim’s name on the No-Fly List are subject to § 46110(a). Therefore the district court appropriately dismissed those claims for lack of jurisdiction.