UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION

  __________________________________________ ) SAADIQ LONG,

et al.

, ) ) Plaintiffs, ) ) v. ) Case No. 1:15-CV-1642 ) LORETTA LYNCH, in her official capacity as ) Attorney General of the United States,

et al 

., ) ) Defendants. )  _________________________________________ )

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER 

 

INTRODUCTION

Plaintiffs are United States citizens in the custody of the Government of Turkey. They claim that that their detention in Turkey is the result of their alleged placement on the U.S. Government’s No Fly List, and they ask the Court to remedy their alleged “involuntary exile” from the United States and the “psychological stress” of being in Turkish custody with a temporary restraining order mandating that their alleged placement on the No Fly List be reversed. But there is no basis for granting such extraordinary relief as a matter of fact or law. As Plaintiffs allege in their Complaint, the United States has previously advised them that they may fly to this country; indeed, prior travel plans for the family were arranged, and the U.S. Government even has a program that would enable the family to borrow money to pay for their  plane tickets. In addition, as set forth below, Plaintiffs are being held by Turkish immigration authorities pending their deportation from Turkey to the United States. Thus, their request for emergency relief does not concern their ability to leave Turkey and return to the United States.

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2 Rather, Plaintiffs have apparently declined to return to the United States out of concern that they will not be able to leave the country by plane due to their alleged placement on the No Fly List. But apprehension about possible future travel difficulties is no justification for the emergency relief being sought. Plaintiffs are free to challenge their alleged placement on the No Fly list, while they are in Turkey or after they return to the United States. But there is no basis for granting them, on an emergency injunctive basis, the ultimate relief on the merits – removal from their alleged placement on the No Fly List – simply because they do not wish to return until that issue is adjudicated. As set forth further below, Plaintiffs’ motion should be denied because it does not satisfy any of the stringent requirements for preliminary relief. First, Plaintiffs cannot show that they will face “irreparable harm” in the absence of a temporary restraining order directing reversal of their alleged placement on the No Fly List. Any harm arising from their ongoing detention is the result of their refusal to return to the United States and not a proper basis for emergency relief. Second, the emergency relief Plaintiffs request – reversal of their alleged placement on the No Fly List – would be highly prejudicial to Defendants and harmful to the public interest. There is an established administrative process for U.S. persons denied boarding to obtain information about their status and, if they are on the No Fly List, reasons for any such placement, to the extent consistent with national security. This process would form the basis of any subsequent judicial review of a No Fly determination. Plaintiffs expressly

oppose

 any application of this process, instead calling for emergency injunctive relief that would bypass the administrative stage and secure the final relief sought in the Complaint through

de novo

 judicial review. Moreover, Plaintiffs demand not only that the Court second-guess a national security decision (their alleged placement on the No Fly List) without having the assistance of a proper

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3 agency record, but also that the Court do so immediately, without the benefit of full judicial  proceedings. Finally, Plaintiffs have not established a likelihood of success on the merits, for multiple reasons. As a threshold matter, there are serious questions about exhaustion and ripeness. In addition, Plaintiffs themselves raise the question whether this Court would have jurisdiction to review these claims, and Plaintiffs have failed to show a likelihood of success on the merits on that question sufficient to support emergency injunctive relief. Nor have Plaintiffs provided a  basis for the Court to find that their alleged placement on the No Fly List is erroneous, let alone that the Government lacks the constitutional authority to place them on the List in the first place. Their memorandum focuses primarily on inapposite authority concerning the right of U.S. citizens to return to the United States – something that is not at issue where Plaintiffs concede that the U.S. Government has indicated that it will allow Plaintiffs to fly to the United States. For these reasons, and those set forth below, Plaintiffs’ motion for a temporary restraining order should be denied.

BACKGROUND

 

I. Plaintiffs’ Allegations

Plaintiffs filed a Complaint and an accompanying Emergency Motion for a Temporary Restraining Order on December 11, 2015.

See

 Compl., ECF No. 1; Pls.’ Mot, ECF No. 2. Plaintiffs claim that while living in Qatar in 2012, Mr. Long was denied the ability to board a commercial airline to visit his mother in Oklahoma. Compl. ¶ 62. Plaintiffs further claim that Mr. Long subsequently flew to Oklahoma, but when he attempted to return to Qatar several months later, “the FBI refused to allow him to board a plane[.]”

 Id.

 ¶ 68. Plaintiffs assert that in

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