Gilmore v. Gonzales , 435 F.3d 1125 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN GILMORE, 
Plaintiff-Appellant,
v.
ALBERTO R. GONZALES, in his
official capacity as Attorney
General of the United States;
ROBERT MUELLER, in his official
capacity as Director of the Federal
Bureau of Investigation; NORMAN
MINETA, in his official capacity as No. 04-15736
Secretary of Transportation;
MICHAEL CHERTOFF, in his official  D.C. No.
CV-02-03444-SI
capacity as Secretary of the
Department of Homeland Security; OPINION
UAL CORPORATION, aka United
Airlines; SOUTHWEST AIRLINES;
MARION C. BLAKELY, in her official
capacity as Administrator of the
Federal Aviation Administration;
KIP HAWLEY, in his official
capacity as Director of the
Transportation Security
Administration,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Susan Yvonne Illston, District Judge, Presiding
Argued and Submitted
December 8, 2005—San Francisco, California
1135
1136 GILMORE v. GONZALES
Filed January 26, 2006
Before: Stephen S. Trott, Thomas G. Nelson, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
GILMORE v. GONZALES 1139
COUNSEL
William M. Simpich, Oakland, California; James P. Harrison,
Sacramento, California, for the plaintiff-appellant.
James P. Rathvon, Piper Rudnick LLP, Washington, D.C.;
Jane H. Barrett, Piper Rudnick LLP, Los Angeles, California,
for the defendant-appellee Southwest Airlines Co.
1140 GILMORE v. GONZALES
Peter D. Keisler, Assistant Attorney General; Kevin V. Ryan,
United States Attorney; Douglas N. Letter and Joshua Wald-
man, Department of Justice, Washington, D.C., for
defendants-appellees Alberto R. Gonzales, Attorney General,
et al.
Lee Tien and Kurt Opsahl, San Francisco, California, for
amicus Electronic Frontier Foundation.
Marc Rotenberg and Marcia Hofmann, Washington, D.C., for
amicus Electronic Privacy Information Center.
Deborah Pierce and Linda Ackerman, San Francisco, Califor-
nia; Rachel Meeropol, New York, New York, for amici The
Center for Constitutional Rights and Privacy Activism.
Reginald T. Shuford and Catherine Y. Kim, New York, New
York; Aaron Caplan, Seattle, Washington; Michael E. Kip-
ling, Summit Law Group, Seattle, Washington, for amici
American Civil Liberties Union Foundation and American
Civil Liberties Union for Washington.
OPINION
PAEZ, Circuit Judge:
John Gilmore (“Gilmore”) sued Southwest Airlines and the
United States Attorney General, Alberto R. Gonzales, among
other defendants,1 alleging that the enactment and enforce-
1
Gilmore also named the following federal defendants: Robert Mueller,
in his official capacity as Director of the Federal Bureau of Investigation
(“FBI”); Norman Mineta, in his official capacity as Secretary of Transpor-
tation; Marion C. Blakely, in her official capacity as Administrator of the
Federal Aviation Administration (“FAA”); Kip Hawley, in his official
capacity as Director of the Transportation Security Administration
(“TSA”); and Michael Chertoff, in his official capacity as Secretary of the
GILMORE v. GONZALES 1141
ment of the Government’s civilian airline passenger identifi-
cation policy is unconstitutional. The identification policy
requires airline passengers to present identification to airline
personnel before boarding or be subjected to a search that is
more exacting than the routine search that passengers who
present identification encounter. Gilmore alleges that when he
refused to present identification or be subjected to a more
thorough search, he was not allowed to board his flights to
Washington, D.C. Gilmore asserts that because the Govern-
ment refuses to disclose the content of the identification pol-
icy, it is vague and uncertain and therefore violated his right
to due process. He also alleges that when he was not allowed
to board the airplanes, Defendants violated his right to travel,
right to be free from unreasonable searches and seizures, right
to freely associate, and right to petition the government for
redress of grievances.
Before we address the merits of Gilmore’s claims, we must
consider the jurisdictional and standing issues raised by
Defendants. The Government contends that the district court
lacked subject matter jurisdiction to entertain this action
because, under 49 U.S.C. § 46110(a), Gilmore’s claims can
only be raised by a petition for review in the courts of appeal.
Defendants also contend that Gilmore lacks standing to chal-
lenge anything other than the identification policy, such as
the Consumer Assisted Passenger Prescreening System
(“CAPPS”) and so-called No-Fly and Selectee lists. The dis-
trict court determined that Gilmore had standing to challenge
Office of Homeland Security. Where necessary, the current federal defen-
dants have been substituted for the originally named defendants pursuant
to Fed. R. Civ. P. 25(d)(1). The federal defendants, including Alberto R.
Gonzales, are collectively referred to as “the Government.”
Southwest Airlines and the Government are collectively referred to as
“Defendants.” Gilmore also named United Airlines as a defendant. In dis-
missing this action against Defendants, the district court also dismissed the
complaint against United Airlines without prejudice. United Airlines has
not appeared in this court.
1142 GILMORE v. GONZALES
only the identification policy, and that it lacked jurisdiction to
hear Gilmore’s due process challenge.2 After reviewing the
sensitive security information materials that the Government
filed with this court ex parte and in camera, we agree with the
Government that the district court lacked jurisdiction and that
Gilmore had standing to challenge only the identification pol-
icy.
However, as explained below, we transfer Gilmore’s com-
plaint to this court pursuant to 28 U.S.C. § 1631 and treat it
as a petition for review. Accordingly, we address the merits
of each of Gilmore’s constitutional claims with respect to the
identification policy. We hold that neither the identification
policy nor its application to Gilmore violated Gilmore’s con-
stitutional rights, and therefore we deny the petition.
Background
On July 4, 2002, Gilmore, a California resident and United
States citizen, attempted to fly from Oakland International
Airport to Baltimore-Washington International Airport on a
Southwest Airlines flight. Gilmore intended to travel to
Washington, D.C. to “petition the government for redress of
grievances and to associate with others for that purpose.” He
was not allowed to fly, however, because he refused to pre-
sent identification to Southwest Airlines when asked to do so.
Gilmore approached the Southwest ticketing counter with
paper tickets that he already had purchased. When a South-
west ticketing clerk asked to see his identification, Gilmore
refused. Although the clerk informed Gilmore that identifica-
tion was required, he refused again. Gilmore asked whether
the requirement was a government or Southwest rule, and
whether there was any way that he could board the plane
2
The district court did not address the jurisdictional issue as it relates to
Gilmore’s remaining claims, and instead addressed only the merits of
these claims.
GILMORE v. GONZALES 1143
without presenting his identification. The clerk was unsure,
but posited that the rule was an “FAA security requirement.”
The clerk informed Gilmore that he could opt to be screened
at the gate in lieu of presenting the requisite identification.
The clerk then issued Gilmore a new boarding pass, which
indicated that he was to be searched before boarding the air-
plane. At the gate, Gilmore again refused to show identifica-
tion. In response to his question about the source of the
identification rule, a Southwest employee stated that it was a
government law. Gilmore then met with a Southwest cus-
tomer service supervisor, who told him that the identification
requirement was an airline policy. Gilmore left the airport,
without being searched at the gate.
That same day, Gilmore went to San Francisco Interna-
tional Airport and attempted to buy a ticket for a United Air-
lines flight to Washington, D.C. While at the ticket counter,
Gilmore saw a sign that read: “PASSENGERS MUST PRE-
SENT IDENTIFICATION UPON INITIAL CHECK-IN.”
Gilmore again refused to present identification when asked by
the ticketing agent. The agent told him that he had to show
identification at the ticket counter, security checkpoint, and
before boarding; and that there was no way to circumvent the
identification policy. A United Airlines Service Director told
Gilmore that a United traveler without identification is subject
to secondary screening, but did not disclose the source of the
identification policy. United’s Ground Security Chief reiter-
ated the need for identification, but also did not cite the source
of the policy. The Security Chief informed Gilmore that he
could fly without presenting identification by undergoing a
more intensive search, i.e. by being a “selectee.” A “selectee”
search includes walking through a magnetometer, being sub-
jected to a handheld magnetometer scan, having a light body
patdown, removing one’s shoes, and having one’s carry-on
baggage searched by hand and a CAT-scan machine. Gilmore
refused to allow his bag to be searched by hand and was
therefore barred from flying.
1144 GILMORE v. GONZALES
The Security Chief told Gilmore that he did not know the
law or government regulation that required airlines to enforce
the identification policy. Another member of United’s secur-
ity force later told Gilmore that the policy was set out in gov-
ernment Security Directives, which he was not permitted to
disclose. He also told Gilmore that the Security Directives
were revised frequently, as often as weekly; were transmitted
orally; and differed according to airport. The airline security
personnel could not, according to the Government, disclose to
Gilmore the Security Directive that imposed the identification
policy because the Directive was classified as “sensitive
security information” (“SSI”).3 Gilmore left the airport and
has not flown since September 11, 2001 because he is unwill-
ing to show identification or be subjected to the “selectee”
screening process.
Gilmore filed a complaint against Defendants in the United
States District Court for the Northern District of California,
challenging the constitutionality of several security measures,
which he collectively referred to as “the Scheme,” including
the identification policy, CAPPS and CAPPS II, and No-Fly
and Selectee lists.4 Gilmore alleged that these government
3
Pursuant to 49 U.S.C. § 114(s)(1)(C) (2005), the Under Secretary of
the TSA “shall prescribe regulations prohibiting the disclosure of informa-
tion obtained or developed in carrying out security . . . if the Under Secre-
tary decides that disclosing the information would . . . be detrimental to
the security of transportation.” This information is called “sensitive secur-
ity information.” 49 C.F.R. § 1520.5(a) (2005). The Under Secretary clas-
sified as SSI “[a]ny security program or security contingency plan issued,
established, required, received, or approved by DOT [Department of
Transportation] or DHS [Department of Homeland Security], including
. . . [a]ny aircraft operator, airport operator, or fixed base operator security
program, or security contingency plan under this chapter” and “[a]ny
Security Directive or order . . . [i]ssued by TSA.” 49 C.F.R.
§ 1520.5(b)(1)(i), (b)(2)(i) (2005).
4
The No-Fly and Selectee lists are Security Directives. They were
issued by TSA pursuant to 49 U.S.C. § 114(l)(2)(A) (2005), which autho-
rizes the TSA Under Secretary to issue Security Directives without provid-
ing notice or an opportunity for comment in order to protect transportation
security.
GILMORE v. GONZALES 1145
security policies and provisions violated his right to due pro-
cess, right to travel, right to be free from unreasonable
searches and seizures, right to freely associate, and right to
petition the government for redress of grievances. Gilmore
also alleged that “similar requirements have been placed on
travelers who use government-regulated passenger trains, and
that similar requirements are being instituted for interstate bus
travel.” Defendants filed separate motions to dismiss for lack
of subject matter jurisdiction under Rule12(b)(1) of the Fed-
eral Rules of Civil Procedure and failure to state a claim upon
which relief can be granted under Rule 12(b)(6).
The district court dismissed Gilmore’s complaint against
Defendants with prejudice. Specifically, the district court dis-
missed Gilmore’s due process claim because it determined
that the court lacked jurisdiction to hear it. The district court,
however, did not assess whether it had jurisdiction to hear
Gilmore’s other claims. Instead, it reached the merits of those
claims and determined that each one failed. In granting
Defendants’ motions, the court, noting that the identification
policy had been classified as SSI, did not review any official
documentation of the identification policy. Rather, for pur-
poses of its jurisdictional ruling, the district court assumed, as
Gilmore alleged, that the identification policy was a Security
Directive issued by TSA. Gilmore timely appealed. Shortly
after oral argument in this case, we ordered the Government
to file under seal the relevant material pertaining to the identi-
fication policy so that we could conduct an in camera, ex
parte review.
Discussion
I. Jurisdiction & Standing
Jurisdiction
[1] The Government argues that the district court lacked
jurisdiction to hear any of Gilmore’s claims because 49
1146 GILMORE v. GONZALES
U.S.C. § 46110 divested the court of jurisdiction. The relevant
provisions of § 46110 state:
[A] person disclosing a substantial interest in an
order issued by the Secretary of Transportation (or
the Under Secretary of Transportation for Security
. . . or the Administrator of the Federal Aviation
Administration . . .) in whole or in part under this
part, part B, or subsection (l) or (s) of section 114
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 busi-
ness.
....
. . . When the petition is sent to the Secretary,
Under Secretary, or Administrator, the court has
exclusive jurisdiction to affirm, amend, modify, or
set aside any part of the order and may order the
Secretary, Under Secretary, or Administrator to con-
duct further proceedings.
49 U.S.C. § 46110(a), (c) (2005).5 Accordingly, whether the
district court had jurisdiction over Gilmore’s claims turns on
5
In 2003, Congress amended § 46110 to authorize the courts of appeals
to review orders issued “in whole or in part under this part, part B, or sub-
section (l) or (s) of section 114.” 49 U.S.C. § 46110(a); Pub. L. No. 108-
176, § 228, 117 Stat. 2490, 2532 (2003). The prior version restricted the
scope of review to orders issued only “under this part.” As previously
mentioned, TSA can issue Security Directives pursuant to § 114(l)(2)(A)
“without providing notice or an opportunity for comment.” 49 U.S.C.
§ 114(l)(2)(A). Therefore, 49 U.S.C. § 46110(a) allows for courts of
appeals to review Security Directives absent prior adjudication. See,
Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119, 1125 (W.D. Wash.
2005).
GILMORE v. GONZALES 1147
whether the Security Directive that established the identifica-
tion policy is an “order” within the meaning of this statute.6
On the basis of Gilmore’s allegations, the district court
assumed that the identification policy was a Security Direc-
tive issued by TSA, and then determined that the Security
Directive is an “order.” To complete the jurisdictional inquiry,
we must also determine whether the Security Directive was
issued by an appropriate government official and under a
proper authority pursuant to § 46110(a).
“Courts have given a broad construction to the term ‘order’
in Section 1486(a) [46110’s predecessor].” Sierra Club v.
Skinner, 885 F.2d 591, 592 (9th Cir. 1989). This circuit’s case
law provides some guidance in defining an “order.” As we
have explained, finality is key:
“Order” carries a note of finality, and applies to any
agency decision which imposes an obligation, denies
a right, or fixes some legal relationship. In other
words, if the order provides a “definitive” statement
of the agency’s position, has a “direct and immedi-
ate” effect on the day-to-day business of the party
asserting wrongdoing, and envisions “immediate
compliance with its terms,” the order has sufficient
finality to warrant the appeal offered by section
[46110].
6
In the district court, the Government “assumed the truth of the content
of the identification policy as alleged in Gilmore’s complaint” and refused
to confirm or deny its existence. In its brief to this court, however, the
Government stated that “TSA has now confirmed the existence of an iden-
tification requirement — that ‘as part of its security rules, TSA requires
airlines to ask passengers for identification at check-in.’ Protection of Sen-
sitive Security Information, 69 Fed. Reg. 28066, 28070-28071 (May 18,
2004).” Moreover, at oral argument, the Government stated that it “ac-
cepts as true” that at “the center of this case is a Security Directive.”
Therefore, we refer to the security measure that imposed the identification
policy as a Security Directive, and analyze whether it is an “order” within
the meaning of § 46110(a).
1148 GILMORE v. GONZALES
Crist v. Leippe, 138 F.3d 801, 804 (9th Cir. 1998) (quoting
Mace v. Skinner, 34 F.3d 854, 857 (9th Cir. 1994)).
[2] Finality is usually demonstrated by an administrative
record and factual findings. “The existence of a reviewable
administrative record is the determinative element in defining
an FAA decision as an ‘order’ for purposes of Section
[46110].” Sierra Club, 885 F.2d at 593 (citation omitted). An
adequate record, however, may consist of “little more” than
a letter. San Diego Air Sports Ctr., Inc. v. FAA, 887 F.2d 966,
969 (9th Cir. 1989).7 As noted, we have reviewed in camera
the materials submitted by the Government under seal, and we
have determined that the TSA Security Directive is final
within the meaning of § 46110(a). The Security Directive
“imposes an obligation” by requiring airline passengers to
present identification or be a “selectee,” and by requiring air-
port security personnel to carry out the policy. The Security
Directive also provides a “definitive statement” of TSA’s
position by detailing the policy and the procedures by which
it must be effectuated. Because the Security Directive pre-
vents from air travel those who, like Gilmore, refuse to com-
ply with the identification policy, it has a “direct and
immediate” effect on the daily business of the party asserting
wrongdoing. Finally, the Security Directive “envisions imme-
diate compliance.” Pursuant to TSA regulations, aircraft oper-
ators that are required to maintain approved security programs
7
Prior to submitting the sealed materials for our review, the Government
argued that an administrative record is not required for § 46110 to apply.
The Government cites to Nevada Airlines, Inc. v. Bond, 622 F.2d 1017,
1020 (9th Cir. 1980) as support for this proposition. Unlike this case,
Nevada Airlines dealt with an FAA emergency revocation order, and
therefore was not “the ordinary case.” Id. at 1020. In justifying the narrow
scope of review employed in that case, we noted that “[t]his limited stan-
dard of judicial review has been consistently applied in evaluating the pro-
priety of emergency agency action under other statutory schemes relating
to the public safety and welfare.” Id. at 1020 n.6. (emphasis added).
Because we examined the available administrative record of the policy at
issue, however, this argument is moot.
GILMORE v. GONZALES 1149
“must comply with each Security Directive issued to the air-
craft operator by TSA, within the time prescribed in the
Security Directive for compliance.” 49 C.F.R. § 1544.305(b)
(2005).
[3] Therefore, having reviewed the TSA Security Directive
that requires airline operators to enforce the identification pol-
icy, we hold that it is an “order” within the meaning of
§ 46110(a). We also determine that the Security Directive was
issued by an appropriate government official and under proper
authority as required by § 46110(a).8 Accordingly, the district
court lacked jurisdiction to hear challenges to the identifica-
tion policy.9
[4] Although Gilmore should have brought his claims in the
court of appeals in the first instance, “Congress has provided
a jurisdiction-saving tool that permits us to transfer the case[ ]
to this court and consider the petition[ ] as though [it] had
never been filed in the district court.” Castro-Cortez v. INS,
239 F.3d 1037, 1046 (9th Cir. 2001). In an effort to cure juris-
dictional defects, 28 U.S.C. § 1631 allows for the transfer of
civil actions among federal courts. Section 1631 authorizes
8
We also determine that the Security Directive constitutes SSI pursuant
to 49 C.F.R. § 1520.5(b)(2)(i), and therefore it did not have to be disclosed
to Gilmore.
9
Although the Security Directive is an “order” within the meaning of 49
U.S.C. § 46110(a), the district court maintains jurisdiction to hear broad
constitutional challenges to Defendants’ actions. That is, the district court
is divested of jurisdiction only if the claims are “inescapably intertwined
with a review of the procedures and merits surrounding the . . . order.”
Mace, 34 F.3d at 858. Gilmore’s due process vagueness challenge is “ines-
capably intertwined” with a review of the order because it squarely attacks
the orders issued by the TSA with respect to airport security. Moreover,
Gilmore’s other claims are as-applied challenges as opposed to broad
facial challenges. Given that they arise out of the particular facts of Gil-
more’s encounter with Southwest Airlines, these claims must be brought
before the courts of appeals. See Tur v. FAA, 104 F.3d 290, 292 (9th Cir.
1997) (distinguishing between a “facial challenge to agency action” and
a “specific individual claim”); Mace, 34 F.3d at 859.
1150 GILMORE v. GONZALES
transfers to correct jurisdictional problems “only in cases that
are actually transferred or are at least transferable.” Clark v.
Busey, 959 F.2d 808, 812 (9th Cir. 1992). That is, we can
transfer a civil case to ourselves if “(1) we would have been
able to exercise jurisdiction on the date that [it was] filed in
the district court; (2) the district court lacked jurisdiction over
the case[ ]; and (3) the transfer is in the interests of justice.”
Castro-Cortez, 239 F.3d at 1046 (citing Kolek v. Engen, 869
F.2d 1281, 1284 (9th Cir. 1989)).
[5] All three of these conditions are met in this case. First,
§ 46110(a) expressly gives this court jurisdiction to hear Gil-
more’s claims, given that he is a resident of California and he
challenges an “order.” Second, as explained above, the district
court lacked jurisdiction to entertain Gilmore’s claims.
Finally, a transfer of this case to our court to cure the lack of
jurisdiction is in the interest of justice. Gilmore’s claims call
into question the propriety of the Government’s airline pas-
senger identification policy and implicate the rights of mil-
lions of travelers who are affected by the policy. In these
unique circumstances, it is of the utmost importance that we
resolve Gilmore’s claims without further delay. In sum, jus-
tice would best be served by transferring Gilmore’s district
court complaint to this court and treating it as a petition for
review under § 1631.
Standing
Next, we must address the Government’s challenge to Gil-
more’s standing. Gilmore’s claims are not limited to the iden-
tification policy. Rather, he challenges a host of practices,
which he collectively refers to as “the Scheme.” The facts of
Gilmore’s alleged injury are simple. Gilmore went to Oakland
International Airport and San Francisco International Airport
to board flights to the east coast. He refused to present identi-
fication or undergo a more exacting search, in contravention
of the policy, and therefore was not allowed to board his
GILMORE v. GONZALES 1151
flights. In light of these facts, Defendants argue that Gilmore
has standing only to challenge the identification policy.
[6] Although CAPPS and the No-Fly and Selectee lists are
predicated upon the results of the identification policy, i.e. the
identity of the passenger, Gilmore’s alleged injury stems from
the identification policy itself, and does not implicate other
security programs that depend upon passenger identification
information.
To establish standing, a plaintiff must demonstrate three
elements:
First, plaintiffs must clearly demonstrate that they
have suffered an “injury in fact”—an invasion of a
legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not con-
jectural or hypothetical. Second, there must be a
causal connection between the injury and the con-
duct complained of—the injury has to be fairly trace-
able to the challenged action of the defendant. Third,
it must be likely, as opposed to merely speculative,
that the injury will be redressed by a favorable deci-
sion.
Hemp Indus. Ass’n v. DEA, 333 F.3d 1082, 1086 (9th Cir.
2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
559 (1992)). Although Gilmore’s complaint describes various
airport security programs and policies, the only “injury in
fact” that Gilmore alleged was his inability to fly, which
clearly stemmed from the identification policy. The fact that
the identification policy relates to the other security programs
does not mean that Gilmore suffered an “injury in fact” due
to these additional programs. Standing, as the Supreme Court
stated, “is not dispensed in gross.” Lewis v. Casey, 518 U.S.
343, 358 n.6 (1996).
[7] Gilmore also challenges the alleged identification poli-
cies of other modes of travel, specifically the interstate bus
1152 GILMORE v. GONZALES
and train systems. Gilmore asserts in his brief to us that he has
standing to challenge the Government’s identification policies
as they relate to other forms of interstate travel because his
“right to travel by all modes has been chilled on an ongoing
basis—not just in two airports on July 4, 2002.” Once again,
however, Gilmore fails to establish standing. Gilmore’s chal-
lenge to the alleged identification systems of other modes of
travel is based on one sentence in his fifty-five paragraph
complaint. He did not allege that he attempted to board a bus
or train, but rather he alleged that he “is also informed and
believes and hereby alleges that similar requirements have
been placed on travelers who use passenger trains by the gov-
ernment defendants, and that similar requirements are being
instituted for interstate bus travel.” This sole allegation, how-
ever, is insufficient to establish standing. In fine, Gilmore
lacks standing to challenge all components of “the Scheme”
except the identification policy.
We next turn to the merits of each claim, examining only
whether the airline identification policy caused the alleged
constitutional violations.
II. Due Process
Gilmore alleges that he was penalized for failing to comply
with a law that he has never seen. He argues that the Govern-
ment’s failure to provide adequate notice of the law violates
his right to due process and renders the law unconstitutionally
vague. The district court did not reach the merits of Gilmore’s
due process claim because it dismissed the claim on jurisdic-
tional grounds.
[8] In support of his vagueness challenge, Gilmore relies
principally on Kolender v. Lawson, 461 U.S. 352 (1983), in
which the Supreme Court held that a California statute was
unconstitutionally vague because it did not clarify the require-
ment that a person who loiters or wanders on the street pro-
vide “credible and reliable” identification when requested by
GILMORE v. GONZALES 1153
a peace officer. Although the statute was struck down because
it was unconstitutionally vague, Kolender is easily distin-
guishable from the present case. The statute in Kolender, Cal-
ifornia Penal Code § 647(e), was penal in nature. In applying
the void-for-vagueness doctrine to the statute, the Supreme
Court stated that this doctrine “requires that a penal statute
define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and dis-
criminatory enforcement.” Kolender, 461 U.S. at 357 (empha-
sis added). Unlike the penal statute in Kolender, the
identification policy here does not impose any criminal sanc-
tions, or threats of prosecution, on those who do not comply.
Rather, it simply prevents them from boarding commercial
flights.
[9] Moreover, Gilmore had actual notice of the identifica-
tion policy. He alleged that several airline personnel asked
him for identification and informed him of the identification
policy. They told him that in order to board the aircraft, he
must either present identification or be subject to a “selectee”
search. He also saw a sign in front of United Airlines’ ticket-
ing counter that read “PASSENGERS MUST PRESENT
IDENTIFICATION UPON INITIAL CHECK-IN.” Although
Gilmore was not given the text of the identification policy due
to the Security Directive’s classification as SSI, he was none-
theless accorded adequate notice given that he was informed
of the policy and how to comply. See Forbes v. Napolitano,
236 F.3d 1009, 1011 (9th Cir. 2000) (“[I]ndividuals must be
given a reasonable opportunity to discern whether their con-
duct is proscribed so they can choose whether or not to com-
ply with the law.”).
[10] Gilmore also alleges that the Government violated his
due process rights because the identification policy vests air-
line security personnel with unbridled discretion. Upon
review of the TSA Security Directive, we hold that the Direc-
tive articulates clear standards. It notifies airline security per-
1154 GILMORE v. GONZALES
sonnel of the identification requirement and gives them
detailed instructions on how to implement the policy. More-
over, because all passengers must comply with the identifica-
tion policy, the policy does not raise concerns of arbitrary
application. For all these reasons, we reject Gilmore’s due
process arguments.
III. Right To Travel
[11] Gilmore alleges that the identification policy violates
his constitutional right to travel because he cannot travel by
commercial airlines without presenting identification, which
is an impermissible federal condition.10 We reject Gilmore’s
right to travel argument because the Constitution does not
guarantee the right to travel by any particular form of trans-
portation.
Because Gilmore lacks standing to challenge anything but
the identification policy’s impact on air travel, his sole argu-
ment is that “air travel is a necessity and not replaceable by
other forms of transportation.” Although we do not question
10
Gilmore argues that the identification policy functions as a prior
restraint on his ability to travel. Gilmore’s argument that we should apply
a First Amendment prior restraint analysis is not persuasive. Gilmore cites
Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997), for the proposi-
tion that a First Amendment prior restraint analysis applies to the right to
travel context. In Nunez, we held that a city juvenile curfew ordinance was
unconstitutionally vague and overbroad, violated equal protection, and
violated parents’ fundamental right to rear their children without undue
government interference. The opinion, in addressing a right to travel
claim, specifically separated the right to travel discussion from a First
Amendment overbreadth claim because “courts have articulated different
tests to examine burdens on First Amendment rights and on other funda-
mental rights.” Id. at 944 n.6. Moreover, we did not once mention prior
restraint in our analysis, but instead applied the overbreadth doctrine. We
expressly stated that we did not consider the First Amendment overbreadth
challenge based on the right to travel because the “Supreme Court has not
applied [the] overbreadth [doctrine] outside the limited context of the First
Amendment.” Id. at 949 n.11.
GILMORE v. GONZALES 1155
this allegation for purposes of this petition, it does not follow
that Defendants violated his right to travel, given that other
forms of travel remain possible.
This circuit’s decision in Miller v. Reed, 176 F.3d 1202
(9th Cir. 1999), is on point. In Miller, the plaintiff challenged
California’s requirement that applicants submit their social
security numbers to the DMV in order to obtain valid drivers
licenses. The plaintiff alleged that this policy violated his fun-
damental right to interstate travel and his right to freely exer-
cise his religion. In affirming the district court’s dismissal
pursuant to Rule 12(b)(6), we concluded that “by denying
Miller a single mode of transportation—in a car driven by
himself—the DMV did not unconstitutionally impede Miller’s
right to interstate travel.” Id. at 1204. Although we recognized
the fundamental right to interstate travel, we also acknowl-
edged that “burdens on a single mode of transportation do not
implicate the right to interstate travel.” Id. at 1205 (citing
Monarch Travel Servs., Inc. v. Associated Cultural Clubs,
Inc., 466 F.2d 552, 554 (9th Cir. 1972)).
[12] Like the plaintiff in Miller, Gilmore does not possess
a fundamental right to travel by airplane even though it is the
most convenient mode of travel for him. Moreover, the identi-
fication policy’s “burden” is not unreasonable. See Shapiro v.
Thompson, 394 U.S. 618, 629 (1969) (noting the right of all
citizens to be “free to travel throughout the length and breadth
of our land uninhibited by statutes, rules, or regulations which
unreasonably burden or restrict this movement”), overruled in
part on other grounds by Edelman v. Jordan, 415 U.S. 651,
670-71 (1974). The identification policy requires that airline
passengers either present identification or be subjected to a
more extensive search. The more extensive search is similar
to searches that we have determined were reasonable and
“consistent with a full recognition of appellant’s constitu-
tional right to travel.” United States v. Davis, 482 F.2d 893,
912-13 (9th Cir. 1973).
1156 GILMORE v. GONZALES
[13] In Davis, an airline employee searched the defendant’s
briefcase as part of the airport’s preboarding screening proce-
dure. Although we remanded for further consideration of
whether the defendant consented to the search, we held that
airport screening searches of potential passengers and their
immediate possessions for weapons and explosives is reason-
able so long as each potential passenger maintains the right to
leave the airport instead of submitting to the search. Id. at
912. In so holding, we considered several airport screening
procedures, including behavioral profiling, magnetometer
screening, identification check, and physical search of the
passenger’s person and carry-on baggage. Id. at 900. We see
little difference between the search measures discussed in
Davis and those that comprise the “selectee” search option of
the passenger identification policy at hand. Additionally, Gil-
more was free to decline both options and use a different
mode of transportation. In sum, by requiring Gilmore to com-
ply with the identification policy, Defendants did not violate
his right to travel.
IV. Fourth Amendment
Gilmore next alleges that both options under the identifica-
tion policy—presenting identification or undergoing a more
intrusive search—are subject to Fourth Amendment limita-
tions and violated his right to be free from unreasonable
searches and seizures.
Request For Identification
Gilmore argues that the request for identification implicates
the Fourth Amendment because “the government imposes a
severe penalty on citizens who do not comply.” Gilmore high-
lights the fact that he was once arrested at an airport for refus-
ing to show identification and argues that the request for
identification “[i]mposes the severe penalty of arrest.” Gil-
more further argues that the request for identification violates
the Fourth Amendment because it constitutes “a warrantless
GILMORE v. GONZALES 1157
general search for identification” that is unrelated to the goals
of detecting weapons or explosives.
[14] The request for identification, however, does not
implicate the Fourth Amendment. “[A] request for identifica-
tion by the police does not, by itself, constitute a Fourth
Amendment seizure.” INS v. Delgado, 466 U.S. 210, 216
(1984). Rather, “[a]n individual is seized within the meaning
of the fourth amendment only if, in view of all of the circum-
stances surrounding the incident, a reasonable person would
have believed that he was not free to leave.” United States v.
$25,000 U.S. Currency, 853 F.2d 1501, 1504 (9th Cir. 1988)
(internal quotation marks omitted). In Delgado, the Supreme
Court held that INS agents’ questioning of factory workers
about their citizenship status did not constitute a Fourth
Amendment seizure. In $25,000 U.S. Currency, we held that
a DEA agent’s request for identification from a person wait-
ing to board a flight was not a Fourth Amendment seizure.
[15] Similarly, an airline personnel’s request for Gilmore’s
identification was not a seizure within the meaning of the
Fourth Amendment. Gilmore’s experiences at the Oakland
and San Francisco airports provide the best rebuttal to his
argument that the requests for identification imposed a risk of
arrest and were therefore seizures. Gilmore twice tried to
board a plane without presenting identification, and twice left
the airport when he was unsuccessful. He was not threatened
with arrest or some other form of punishment; rather he sim-
ply was told that unless he complied with the policy, he would
not be permitted to board the plane. There was no penalty for
noncompliance.
Request To Search
[16] Gilmore argues that the selectee option is also uncon-
stitutional because the degree of intrusion is unreasonable.
We reject this argument because it is foreclosed by our deci-
sions in United States v. Davis, 482 F.2d 893 (9th Cir. 1973)
1158 GILMORE v. GONZALES
and Torbet v. United Airlines, Inc., 298 F.3d 1087 (9th Cir.
2002). The identification policy’s search option implicates the
Fourth Amendment. See Davis, 482 F.2d at 895 (holding that
the government’s participation in airport search programs
brings any search conducted pursuant to those programs
within the reach of the Fourth Amendment). Airport screening
searches, however, do not per se violate a traveler’s Fourth
Amendment rights, and therefore must be analyzed for rea-
sonableness. Id. at 910. As we explained in Davis:
To meet the test of reasonableness, an administrative
screening search must be as limited in its intrusive-
ness as is consistent with satisfaction of the adminis-
trative need that justifies it. It follows that airport
screening searches are valid only if they recognize
the right of a person to avoid search by electing not
to board the aircraft.
Id. at 910-11 (footnotes omitted). Gilmore was free to reject
either option under the identification policy, and leave the air-
port. In fact, Gilmore did just that. United Airlines presented
him with the “selectee” option, which included walking
through a magnetometer screening device, being subjected to
a handheld magnetometer scan, having a light body patdown,
removing his shoes, and having his bags hand searched and
put through a CAT-scan machine. Gilmore declined and
instead left the airport.
[17] Additionally, the search option “is no more extensive
or intensive than necessary, in light of current technology, to
detect weapons or explosives . . . [and] is confined in good
faith to [prevent the carrying of weapons or explosives aboard
aircrafts]; and . . . passengers may avoid the search by elect-
ing not to fly.”11 Torbet, 298 F.3d at 1089 (describing the
11
We recently held in United States v. Marquez, 410 F.3d 612, 616 (9th
Cir. 2005), that a handheld magnetometer wand scan is no more intrusive
and extensive than necessary.
GILMORE v. GONZALES 1159
requirements for reasonableness as laid out in Davis) (cita-
tions omitted). Therefore, the search option was reasonable
and did not violate Gilmore’s Fourth Amendment rights.
[18] Gilmore also suggests that the identification policy did
not present a meaningful choice, but rather a “Hobson’s
Choice,” in violation of the unconstitutional conditions doc-
trine. We have held, as a matter of constitutional law, that an
airline passenger has a choice regarding searches:
[H]e may submit to a search of his person and imme-
diate possessions as a condition to boarding; or he
may turn around and leave. If he chooses to proceed,
that choice, whether viewed as a relinquishment of
an option to leave or an election to submit to the
search, is essentially a “consent,” granting the gov-
ernment a license to do what it would otherwise be
barred from doing by the Fourth Amendment.
Davis, 482 F.2d at 913. Gilmore had a meaningful choice. He
could have presented identification, submitted to a search, or
left the airport. That he chose the latter does not detract from
the fact that he could have boarded the airplane had he chosen
one of the other two options. Thus, we reject Gilmore’s
Fourth Amendment arguments.
V. Right To Associate and Right To
Petition the Government
Finally, Gilmore argues that because the identification pol-
icy violates his right to travel, it follows that it also violates
his right to petition the government and freely associate.
These claims, as Gilmore argued in his appellate brief, are
based on the notion that “[f]reedom to physically travel and
the free exercise of First Amendment rights are inextricably
intertwined.” Here, this logic works to Gilmore’s detriment.
That is, even accepting Gilmore’s assertion that there is a con-
nection between the right to travel and First Amendment free-
1160 GILMORE v. GONZALES
doms, his argument fails because, as we explained, his right
to travel was not unreasonably impaired.
Gilmore argues that the identification requirement impinges
his First Amendment right to associate anonymously. In sup-
port of this argument he relies principally on Thomas v. Col-
lins, 323 U.S. 516, 539 (1945), in which the Supreme Court
concluded that a registration requirement for public speeches
is “generally incompatible with an exercise of the rights of
free speech and free assembly.” Thomas, however, is easily
distinguishable from the present case. Unlike the regulation in
Thomas, the identification policy is not a direct restriction on
public association; rather it is an airline security measure.
[19] Further, Gilmore did not allege that he was exercising
his right to freely associate in the airport, but rather that he
was attempting to fly to Washington, D.C. so that he could
exercise his right to associate there. The enforcement of the
identification policy did not prevent him from associating
anonymously in Washington, D.C. because he could have
abided by the policy, or taken a different mode of transport.
Although the policy did inconvenience Gilmore, this inconve-
nience did not rise to the level of a constitutional violation. In
the end, Gilmore’s free association claim fails because there
was no direct and substantial action impairing this right.
[20] Gilmore’s right to petition claim similarly fails.
Although Gilmore did not fly to Washington, D.C., where he
planned to petition the government for redress of grievances,
the identification policy did not prevent him from doing so.
The identification policy is not a direct regulation of any First
Amendment expressive activity, nor does it impermissibly
inhibit such activity. Gilmore’s claims that Defendants vio-
lated his rights to associate anonymously and petition the gov-
ernment are without merit.
Conclusion
[21] In sum, we conclude that Defendants did not violate
Gilmore’s constitutional rights by adopting and implementing
GILMORE v. GONZALES 1161
the airline identification policy. Therefore, his claims fail on
the merits and we deny his petition for review.
TRANSFERRED, PETITION DENIED.