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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.
Governments 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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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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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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March 2013, Mr. Long decided to take a bus to Mexico, and then fly from Mexico to Qatar via
an unnamed location in South America. Id. 69.
Plaintiffs allege that they traveled to Turkey in October 2015, and at the end of the
month, Turkish officials detained them because the United States had flagged their passports.
Id. 7071. Plaintiffs contend that their passports were flagged as a result of Defendants
placing their names on the No Fly List. Id. 73, 75. Plaintiffs state that the United States
Government has agreed to allow them to fly to the United States. Compl. 76. But plaintiffs
further allege that they cannot make a responsible decision about whether to return . . . without
knowing they will be able to later leave the United States by plane. Id. 78.
Plaintiffs raise a constitutional due process claim under the Fifth Amendment, as well as
a statutory claim under the Administrative Procedure Act (APA). Id. 8092. Plaintiffs seek
a declaration from this Court that Defendants policies, practices, and customs violate the Fifth
Amendment. Id. at 23 (Prayer for Relief, 1). In the Complaint, Plaintiffs request an
injunction removing Plaintiffs from any watch list or database that burdens or prevents them
from flying or entering the United States[.] Id. (Prayer for Relief, 2). Plaintiffs motion for a
TRO likewise requests ordering Defendants to remove Plaintiffs from the No Fly List. Pls. Mot.
at 2.1
II.

Information about Plaintiffs Detention in Turkey


In the short time since Plaintiffs filed their initial papers, the Government has been able

to ascertain the following pertinent facts. The FBI has been advised that, in early November,
the Turkish National Police (TNP) received a phone call regarding foreigners at an address in
1

Further, although neither requested in the Complaints Prayer for Relief nor mentioned in the
Motion for Temporary Restraining Order, Plaintiffs state in their supporting memorandum that
they seek preliminary relief that would allow for their immediate release from Turkish
custody. Pls. Mem. 11.
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Gaziantep, Turkey. Declaration of John B. Phillips, III, Assistant Legal Attach for Ankara,
Turkey, International Operations Division, Federal Bureau of Investigation (Phillips Decl.)
(Exhibit 1) 7. The call was received via a hotline the TNP had established for reporting
suspicious behavior. Id. At that time, the TNP was conducting frequent detentions of
foreigners throughout Gaziantep as part of its investigation following the October 10, 2015
suicide bombings that had occurred in Ankara. Id. Gaziantep is in the Syria border region,
where the TNP has increased authority to detain and deport foreigners. Id.
The FBI understands that, based on that call, TNP officers located Plaintiffs and
determined that the three had neither legal residence nor legal employment in Turkey. Id. 8.
The Turkish Ministry of Foreign Affairs then informed the FBI that Turkey had not located a
record of Mr. Long and his family entering Turkey legally. Id. 9. Consequently, the FBI
understands that the Turkish Government intends to deport Mr. Long and his family to the
United States. Ex. 1, 10.
On November 3, 2015, the Turkish Government notified the U.S. Embassy in Ankara that
Plaintiffs had been detained. Declaration of Rachel Crawford, Citizens Services Specialist,
Bureau of Consular Affairs Office of Overseas Citizen Services, U.S. Department of State
(Crawford Decl.) (Exhibit 2) 2. Plaintiffs were transferred to immigration detention, where
they were visited by U.S. Embassy representatives on December 7, 2015. Id. 3. Turkish
officials at the deportation facility advised U.S. Embassy staff that Turkey deports individuals
detained under these circumstances only to their country of nationality. Id. 4. They also
advised that Plaintiffs had been informed that they would be deported to the United States. Id.
5.

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On December 3, 2015, a person who identified himself as a friend of the Plaintiffs


informed the U.S. Embassy that he had made reservations for Plaintiffs to travel to the United
States. Id. 6. The Embassy conveyed to that person that the U.S. Government had reviewed
the proposed travel plans and had no objection to those plans. Id. The Embassy was later
advised, however, that the family rejected the proposed travel because they did not want to go to
the United States. Ex. 2, 6.
Turkish government officials informed the Embassy and Plaintiffs that Plaintiffs will be
released to return to the United States, provided they pay for their own airplane tickets. Id. 7.
In accordance with 22 U.S.C 2671(b)(2)(B), if Mr. Long and his family are destitute and meet
other U.S. statutory requirements, the United States would be able to loan them money (at their
request and upon their application) to pay for airplane tickets back to the United States. Id. 8.
Also, as a matter of policy, the U.S. Government has processes available for U.S. persons who
experience travel difficulties in returning home from abroad, including in cases where such
difficulties may relate to the No Fly List.
III.

Overview of Relevant Statutory Framework


Congress tasked the Transportation Security Administration (TSA) with establishing

policies and procedures to identify individuals who may be a threat to civil aviation or national
security, to prevent those individuals from boarding aircraft or take other appropriate actions
with regard to those individuals, and to provide redress for travelers who are delayed or denied
boarding as a result. See 49 U.S.C. 114(h)(3); 44903(j)(2)(C)(iii), 44926(a). Among other
things, TSA relies upon the No Fly List and the Selectee List, subsets of the consolidated
Terrorist Screening Database (TSDB) maintained by the Terrorist Screening Center (TSC),
to screen passengers attempting to fly on U.S. commercial aircraft, or any commercial flight to,

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from, or over the United States. The No Fly List is designed to prevent individuals on the List
from boarding aircraft flying to, from, or over the United States. See 49 C.F.R.
1560.105(b)(1); 73 Fed. Reg. at 64,026 (Oct. 28, 2008). Passengers on the Selectee List undergo
enhanced security screening prior to being permitted to board a commercial aircraft flying to,
from, or over the U.S. These lists are not public, for numerous security reasons. For individuals
delayed or denied boarding resulting from TSAs watchlist matching program, TSA has in place
a robust process that allows individuals to seek redress by filing an inquiry with the Department
of Homeland Securitys Traveler Redress Inquiry Program (DHS TRIP), with ultimate review
in federal court. Through this process, U.S. persons on the No Fly List may receive confirmation
of their status on the List and other information designed to provide them with a meaningful
opportunity to be heard in response.
ARGUMENT
I.

Temporary Restraining Order Standard


A temporary restraining order is intended to preserve the status quo only until a

preliminary injunction hearing can be held. Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174
F.3d 411, 422 (4th Cir. 1999). The Supreme Court has made it clear that preliminary relief
whether through a temporary restraining order or a preliminary injunction is an extraordinary
and drastic remedy to be applied only in limited circumstances. See, e.g., Winter v. Nat. Res.
Defense Council, 555 U.S. 7, 24 (2008); Dewhurst v. Century. Aluminum Co., 649 F.3d 287, 290
(4th Cir. 2011). Indeed, a temporary restraining order should not be granted unless the movant,
by a clear showing, carries the burden of persuasion. Mazurek v. Armstrong, 520 U.S. 968, 972
(1997).

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The standard for granting either a TRO or a preliminary injunction is the same. Moore
v. Kempthorne, 464 F. Supp. 2d 519, 525 (E.D. Va. 2006). A movant must demonstrate that: (1)
he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the
public interest. Winter, 555 U.S. at 20; accord Real Truth About Obama, Inc. v. Fed. Election
Commn, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010),
reinstated in relevant part on remand, 607 F.3d 355 (4th Cir. 2010) (per curiam).
Relevant here, the courts have made a distinction in treatment between a motion for
preliminary injunctive relief to maintain the status quo and one to provide mandatory relief,
especially relief which in effect operates as deciding the case in favor of the movant. Tiffany v.
Forbes Custom Boats, Inc., 959 F.2d 232 (4th Cir. 1992). Mandatory preliminary injunctions
that do not preserve the status quo should be granted only in those circumstances when the
exigencies of the situation demand such relief. Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir.
1980). As set forth below, Plaintiffs have not satisfied this demanding standard.
II.

There is No Likelihood of Irreparable Harm to Plaintiffs in the Absence of


Emergency Injunctive Relief.
To obtain a temporary restraining order, Plaintiffs must demonstrate specific

facts . . . [which] clearly show that immediate and irreparable injury, loss, or damage will result
to the movant before the adverse party can be heard in opposition. Fed. R. Civ. P. 65(b)(1)(A).
Plaintiffs must also show the alleged harm will directly result from the action they seek to
enjoin. Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.1985). The harm must be both
certain and great and actual and not theoretical, id., and it cannot arise from Plaintiffs own
actions, Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976) (no irreparable harm where
litigant could avoid injury); PetroChem Processing, Inc. v. EPA, 866 F.2d 433, 438 (D.C. Cir.
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1989) (self-inflicted injuries break the causal chain linking the defendants conduct to the
asserted injury).
In evaluating Plaintiffs assertions of irreparable harm, it bears repeating that Turkish
officials have advised the FBI that Plaintiffs arrest was the result of information the TNP
received while investigating suspected illegal activities in the Syria border region, and that
Turkey then confirmed that Plaintiffs have no lawful residence or employment in Turkey and
appear to be in the country illegally. Ex. 1, 8-9. Plaintiffs also have been advised by Turkish
authorities that they may return to the United States (but must pay for plane tickets). Ex. 2, 7.
Plaintiffs had an itinerary, arranged for by a friend of the family, to fly to the United States, and
the U.S. Government did not object to the proposed travel plans; it even has a program that
would enable Plaintiffs to borrow money to pay for tickets back to the United States if necessary.
Ex. 2, 6, 8. Under these circumstances, Plaintiffs cannot seriously contend that judicial
intervention is necessary to remove them from Turkish custody or remedy their involuntary
exile from the United States. Rather, any injuries arising from their continued detention in
Turkey would be the result of their own decisions. See Pennsylvania, 426 U.S. at 667 (holding
that litigant cannot be heard to complain about damage inflicted by its own hand); Safari Club
Intl v. Salazar, 852 F. Supp. 2d 102, 123 (D.D.C. 2012).
The closest Plaintiffs come to asserting a cognizable injury is their claim that they
cannot make a responsible decision about whether to return to the United States by plane
without knowing that they will be able to later leave the United States by plane. See Compl.
78. In other words, Plaintiffs seek emergency relief to ensure that, in the event they do return to
the United States, they may do so secure in the knowledge that they may be able to one day leave
unimpeded. Such speculation about future injury does not constitute a harm that warrants

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injunctive relief, and even if it did, the harm would be neither irreparable nor grounds for an
emergency injunction granting the ultimate relief sought on the merits.
First, Plaintiffs have failed to identify harm that is certain and great, much less
irreparable. Plaintiffs claim of irreparable injury appears to be as follows: if Plaintiffs return to
the United States (as they have acknowledged they would be permitted to do), and if they
thereafter wish to travel abroad, and if they encounter difficulties in attempting to do so, then
they might face a cognizable harm.2 This kind of alleged injury based on a chain of contingent
future events does not support extraordinary injunctive relief. See Maersk Container Serv. Co. v.
Jackson, 131 F.3d 135 (4th Cir. 1997) (no showing of irreparable harm where plaintiff did not
show that he suffered a legally cognizable harm).3
Second, and more fundamentally, even if Plaintiffs theory of harm were viable, the
injuries they describe are in no way irreparable. There is no irreparable harm if an adequate
remedy exists at law. Al-Abood v. El-Shamari, 71 F. Supp. 2d 511, 515 (E.D. Va. 1999). As
discussed infra, Section IV, if Plaintiffs continue to have concerns about No Fly List status upon
their return to the United States, and face travel difficulties as a result of their alleged placement
on the No Fly List, they can seek redress through DHS TRIP. If the redress process confirms
that each of them are on the No Fly List, then they will be informed of that and receive an

Indeed, numerous suits have been filed in federal court challenging alleged status on
government watchlists. While some district courts have identified a protected liberty interest in
international (but not domestic) travel by air, see, e.g., Mohamed v. Holder, 995 F. Supp. 2d 520
(E.D. Va. 2014); Latif v. Holder, 969 F. Supp. 2d 1293 (D. Or. 2013); Tarhuni v. Holder, 8 F.
Supp. 3d 1253 (D. Or. 2014), in none of them has a preliminary injunction issued.
3

See also City of Los Angeles v. Lyons, 461 U.S. 95, 105-07 (1983) (prospective injunctive
relief is not available with respect to law enforcement activities based on prior alleged harms
without a showing of actual present or imminent future harm); cf. Clapper v. Amnesty Intl USA,
133 S. Ct. 1138, 1151 (2013) (Article III standing cannot be based self-imposed actions based on
fear of possible future injury).
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opportunity to administratively challenge their placement on the List, and obtain unclassified
information explaining their placement (to the extent consistent with national security). Upon
completion of that process, Plaintiffs could also have the option of seeking review of their
alleged placement on the No Fly List, in addition to any related constitutional claims, in an
appropriate federal court. See Sampson v. Murray, 415 U.S. 61, 90 (1974) (The possibility that
corrective relief will be available in the normal course of litigation weighs heavily against a
claim of irreparable harm.). Moreover, if Plaintiffs want to challenge their alleged placement
on the No Fly List right now before they return to the United States for fear of being denied
boarding in the future they are free to do so while they remain in Turkey. If, on the other hand,
Plaintiffs wish to leave Turkey now, they can challenge their status upon returning to the United
States. Where Plaintiffs have an adequate remedy at law, their apparent preference to forego
DHS TRIP and remain in Turkey does not entitle them to emergency injunctive relief as to their
alleged placement on the No Fly List.
Any sense of urgency is further undercut by Plaintiffs delay in seeking a preliminary
injunction. If, as Plaintiffs allege, Mr. Long has been on the No Fly List since at least 2012,
and the U.S. Government prevented Mr. Long from returning to Qatar in March 2013,4 Compl.
60-69, Mr. Long has had nearly three years to challenge his alleged placement on the List. Mr.
Longs delay in seeking relief from his alleged listing belies his contention that the Court must
act now to resolve his challenge. Prindable v. Assn of Apartment Owners of 2987Kalakaua, 304
F. Supp. 2d 1245, 1262 (D. Haw. 2003) (Such a lengthy delay, when there has been no change
in the relevant factual circumstances, cuts decidedly against a finding of harm or hardship

The Complaint does not allege when Plaintiffs Juangjan Daves and Leshauna Daves were
supposedly placed on the No Fly List, or what basis those plaintiffs have for believing they have
been listed.
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irreparable or otherwise.); see also Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1318 (1983)
(delay tends to blunt [a] claim of urgency and counsels against the grant of a stay.). If
uncertainty about future travel from the United States called for emergency relief, Mr. Long
presumably would have taken action in 2013. Only now, when in the custody of a foreign
nation, and with the opportunity to return to the United States available, do Plaintiffs invoke their
alleged inability to return home without being subject to any No Fly List restriction. But
Plaintiffs have had the opportunity to avail themselves of administrative and judicial process to
address their alleged status for more than two years.
III.

The Balance of Harms and the Public Interest Weigh Heavily in Favor of Denying
Plaintiffs Proposed Injunction.
While Plaintiffs fail to show that they would suffer irreparable harm absent the requested

relief, the preliminary relief they seek would be highly prejudicial to Defendants and adverse to
the public interest. Plaintiffs ask this Court to issue a preliminary order, with potentially severe
national security implications, without the benefit of the normal processes of administrative and
judicial review. Such an order would contravene basic principles of administrative law and mark
an unprecedented departure from judicial review of agency action in the sensitive area of national
security.
Plaintiffs seek an order requiring the Government to remove them from the No Fly List,
Pls. Mem. at 9-10, but concede that they have not challenged their alleged placement on the List
through the revised redress process, id. at 20-21. Not only is exhaustion of the administrative
process appropriate, see infra Section IV, but it is essential to creating an adequate record for
judicial review. See Mohamed v. Holder, 995 F. Supp. 2d 520, 527 (E.D. Va. 2014) (Because
challenges to the No Fly List implicate the most compelling of governmental duties to protect
our country, they cannot be responsibly addressed without an informed, fact-based record.);
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Latif v. Holder, No. 10-cv-750, Dkt. No. 152 (D. Or. Oct. 3, 2014) (order requiring parties to
apply new No Fly List administrative procedures).5 Proceeding without initial agency review is
particularly unwarranted in the national security context, where the judiciary must proceed with
caution and due deference to the expertise of the Executive Branch. See, e.g., Holder v.
Humanitarian Law Project, 561 U.S. 1, 34 (2010) (explaining that when it comes to drawing
factual inferences in this area, the lack of competence on the part of the courts is marked, . . . and
respect for the Governments conclusions is appropriate); Al Haramain Islamic Found. Inc. v.
Dept of Treasury, 686 F.3d 965, 979 (9th Cir. 2011) (acknowledging extremely deferential
review in the national security and intelligence area).
Similarly, Plaintiffs attempt to obtain merits relief by bypassing the administrative
process and invoking truncated judicial proceedings is particularly unwarranted given the
compelling governmental and public interests at stake. As this Court has recognized, the
Government has a compelling interest in preventing the use [of] a commercial aircraft as an
instrument of mass murder. Mohamed, 995 F. Supp. 2d at 527. The purpose of the No Fly List
is to guard against this threat. If someone were on the No Fly List and removed, even for a short
period of time, without robust administrative and judicial review, that could render U.S. aviation
vulnerable. Such weighty determinations should be made on a factual record developed in the
normal course of administrative procedures not pursuant to a short-circuited preliminary
judicial process absent any proper basis for emergency relief. This is especially so where
Plaintiffs are in their present circumstances due to their own decision to travel to Turkey, where

The Mohamed Court ultimately concluded that it could not grant plaintiffs requested remedy
inter alia, removal from the No Fly Listwithout the benefit of the revised redress process. See
Mohamed v. Holder, No. 1:11-CV-50 AJT/MSN, 2015 WL 4394958, at *12 (E.D. Va. July 16,
2015).
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they may return to the United States, and where they have declined to avail themselves of an
available remedy.6
IV.

Plaintiffs Have Not Demonstrated a Likelihood of Success on the Merits.


To justify the requested injunctive relief, Plaintiffs must make a clear showing that they

are likely to succeed on the merits. Dewhurst v. Century Aluminum Co., 649 F.3d 287, 293 (4th
Cir. 2011) (quoting Winter) (internal citations omitted). Further, where there are serious
questions as to the Courts jurisdiction, it is more unlikely that the plaintiff can establish a
likelihood of success on the merits. Munaf, 553 U.S. at 690.
A. Plaintiffs Claims on the Merits Fail for Lack of Ripeness and for Failure To
Exhaust Administrative Remedies.
As noted, Plaintiff Saadiq Long, who alleges he was denied boarding on a flight most
recently in 2013, has failed in the nearly three intervening years to challenge his assumed No Fly
List status in court.7 The redress process has been substantially revised since Mr. Longs alleged

In addition, to the extent Plaintiffs ask this Court to relieve them from the custody of the
Turkish authorities, see Pls. Mem. at 11, such an order would necessarily be directed at Turkey,
which is not a defendant, and would otherwise intrude on Turkeys sovereignty. See Wilson v.
Gerard, 354 U.S. 524, 529 (1957) (A sovereign nation has exclusive jurisdiction to punish
offenses against its laws committed within its borders, unless it expressly or impliedly consents
to surrender its jurisdiction.); Munaf v. Geren, 553 U.S. 674, 692 (2008) (order of release would
interfere with foreign states sovereign authority to punish offenses against its laws committed
within its borders). Even if Plaintiffs were asking the Court to simply request their release from
the Turkish authorities, that request would intrude upon the Executive Branchs exclusive power
over foreign affairs. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 31920 (1936); KindHearts for Charitable Humanitarian Dev., Inc. v. Geithner, 647 F. Supp. 2d 857,
878 (N.D. Ohio 2009).
7

DHS TRIP is available to travelers who have been delayed or denied boarding of aircraft; have
been denied or delayed entry into the United States at a port of entry or border crossing; or who
have been repeatedly referred to additional (secondary) screening. While DHS TRIP is generally
available to travelers, the revised DHS TRIP process is available only for U.S. persons who have
been denied boarding. Because the other Plaintiffs do not allege that they have been denied
boarding, they are not eligible for (and have shown no need for) the revised redress process.
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denial of boarding in 2012. See Mohamed v. Holder, No. 1:11-CV-50 AJT/MSN, 2015 WL
4394958, at *13 (E.D. Va. July 16, 2015) (describing revised redress process).
Until Plaintiff avails himself of the congressionally mandated process, his claims are not
ripe. See 13B Charles A. Wright & Arthur R. Miller, Fed. Practice & Proc. 3532.6 (3d ed.
2004) ([R]ipeness may be used to express the exhaustion principle that administrative remedies
should be tried before running to the courts.). A case is ripe when a dispute is definite and
concrete. See Ostergren v. Cuccinelli, 615 F.3d 263, 288 (4th Cir. 2010). A case is not ripe
when problems such as the inadequacy of the record . . . or ambiguity in the record . . . will
make a case unfit for adjudication on the merits, Ostergren, 615 F.3d at 288 (quoting Scott v.
Pasadena Unified Sch. Dist., 306 F.3d 646, 662 (9th Cir. 2002)); Regl Mgmt. Corp. v. Legal
Servs. Corp., 186 F.3d 457, 465 (4th Cir. 1999) (considering the agencys interest in
crystallizing its policy before that policy is subject to review and the courts interest in
avoiding unnecessary adjudication and in deciding issues in a concrete setting.). By
adjudicating Plaintiffs claims now, without allowing the redress process to run its course, the
Court would be ruling on the hypothetical deficiencies of a decision that has not been tested, and
would be doing so without the benefit of the agencys expert assessment.
In addition to ripeness, courts may require exhaustion as a prudential matter before a
plaintiff can seek judicial review. See Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 501
(1982). When Congress has not clearly required exhaustion, sound judicial discretion governs
whether exhaustion is appropriate. McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992) (The
exhaustion doctrine also acknowledges the commonsense notion of dispute resolution that an
agency ought to have an opportunity to correct its own mistakes with respect to the programs it

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administers before it is haled into federal court.).8 The Fourth Circuit has considered three
factors in determining whether to require administrative exhaustion:
(1) agency expertise makes agency consideration necessary to generate a
proper record and reach a proper decision;
(2) relaxation of the requirement would encourage the deliberate bypass of
the administrative scheme; and
(3) administrative review is likely to allow the agency to correct its own
mistakes and to preclude the need for judicial review.
Garcia-Bonilla v. Ashcroft, 89 Fed. Appx. 846, 848 (4th Cir. 2004) (unpublished); see NoriegaLopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003) (same). Applying these principles, the
Sixth Circuit dismissed the claims of a traveler who failed to exhaust her remedies through DHS
TRIP. See Shearson v. Holder, 725 F.3d 588, 593-95 (6th Cir. 2013), 2013 WL 3968800, at *57. The Sixth Circuit reasoned that an exhaustion requirement in this context promotes judicial
efficiency, encourages administrative accuracy, and creates an administrative record. See id. at
594-95.
The same reasoning justifies requiring exhaustion here. Mr. Long seeks to challenge the
specific reasons for which he was allegedly placed on the No Fly List. DHS TRIP is intended to
address claims like Mr. Longs, and the redress process plainly would assist the Court and the
parties by disclosing his current status with respect to the No Fly List, and, if he is currently on
the No Fly List, the criteria for listing him and (where possible) an unclassified summary of the
reasons for doing so. See Mohamed, No. 1:11-CV-50 AJT/MSN, 2015 WL 4394958, at *13. In
the absence of a proper administrative challenge, the Government does not disclose a persons
8

Although Darby v. Cisneros, 509 U.S. 137 (1993) holds that courts may not impose exhaustion
as a discretionary prerequisite for an APA claim when plaintiffs challenge an agency action that
is otherwise final, the reasoning in Darby does not apply to the constitutional claims. See id. at
153-54. Because this Court can order Plaintiff to exhaust administrative remedies before hearing
his constitutional claims, the APA claims can be stayed. Darby also does not affect the ripeness
or standing requirements. See, e.g., Howell v. INS, 72 F.3d 288 (2d Cir. 1995) (Walker, J.,
concurring) (reasoning that Darby did not affect ripeness analysis).
16

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status with respect to the No Fly List or the reasons therefore, because disclosure of current
status, in and of itself, provides valuable operational information to those plotting terrorist
attacks. The case is therefore not presently fit for adjudication.
Moreover, if Mr. Long is on the No Fly List, DHS TRIP would afford him the
opportunity to respond to the Governments concerns, and the TSA Administrator would
consider his response before reaching an informed decision about whether he currently poses a
threat.9 This process would provide an expert administrative review of Plaintiffs claims and
reconsideration, if appropriate, of his purported placement on the No Fly List. It may even
preclude the need for judicial review by providing him with the relief he seeks removal from
the No Fly List. See Am. Fedn of Govt Emps. v. Nimmo, 711 F.2d 28, 31 (4th Cir. 1983)
([E]xhaustion is particularly appropriate when the administrative remedy may eliminate the
necessity to decide constitutional questions.). Requiring exhaustion here would thus resolve or
clarify the issues for judicial review and create a public record, while ensuring that individuals
seeking review of matters that could be resolved at the administrative level do not clog the
courts with unnecessary petitions. Kurfees v. INS, 275 F.3d 332, 336 (4th Cir. 2001).
Another court in this district recently concluded that a litigant must avail himself of the
revised DHS TRIP procedures before challenging them on constitutional grounds. Mohamed v.
Holder, No. 1:11-CV-50 AJT/MSN, 2015 WL 4394958, at *13 (E.D. Va. July 16, 2015).
Although the Mohamed Court was initially inclined against requiring exhaustion, see Mohamed,
995 F. Supp. 2d at 535-36, it recognized that the revised redress procedures significantly

This evaluation necessarily implicates the Executive Branchs expertise in national security and
intelligence matters. See CIA v. Sims, 471 U.S. 159, 178 (1985); El-Masri v. United States, 479
F.3d 296, 305 (4th Cir.), cert. denied, 552 U.S. 947 (2007). The Supreme Court emphasized in
McCarthy, 503 U.S. at 145, that [e]xhaustion concerns apply with particular force when . . . the
agency proceedings in question allow the agency to apply its special expertise.
17

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changed the exhaustion calculus, Mohamed, No. 1:11-CV-50 AJT/MSN, at *13. Whereas under
the previous redress process the plaintiff would not receive any substantive information as to
whether he was, or ever had been, on the No Fly List, or the grounds for his potential inclusion
on the list, Mohamed, 995 F. Supp. 2d at 535-36, the revised DHS TRIP process would allow
for both a constitutionally adequate post-deprivation review and also a reviewing court to be
presented with an administrative record that allows a sufficient assessment concerning whether
[the plaintiff] was, in fact, given a constitutionally adequate opportunity to challenge any
placement on the No Fly List, Mohamed v. Holder, No. 1:11-CV-50 AJT/MSN, at *13. Other
courts have similarly required plaintiffs to engage in the revised DHS TRIP process for similar
reasons. See Latif, Dkt. No. 152; Fikre v. FBI, No. 13-cv-899, Dkt. No. 57 (D. Or. Jan. 15,
2015); Tarhuni v. Holder, No. 13-cv-001, Dkt. Nos. 79, 86 (D. Or. Oct. 3, 2014). This rationale
applies with equal force here.
B. Plaintiffs Claims Are Otherwise Unlikely to Succeed on the Merits.
Plaintiffs bring a due process claim and a claim under the Administrative Procedure Act.
According to Plaintiffs, the due process claim comprises a narrow as-applied substantive due
process claim based on facts specific to them, a broad as-applied substantive due process claim
not based on facts specific to them, and a facial challenge to the No Fly List. Compl. 81.
Although Plaintiffs have not described the scope of these various claims with any specificity, they
appear to be making two arguments: first, that the Governments alleged decision to place them
on the No Fly List violated their rights to substantive due process; and second, that the
Government violates substantive due process any time it places an individual on the No Fly List.
(The APA claim appears to be largely coextensive with the first of these arguments). In support
of these claims, Plaintiffs cite variously to decisions about the Citizenship Clause of the

18

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Fourteenth Amendment, the Due Process Clause, and domestic and international travel. But
none of these authorities provide support for Plaintiffs constitutional claims, which fail as a
matter of law because Plaintiffs have not alleged any cognizable violation of substantive due
process such as the deprivation of a fundamental right. Cnty. of Sacramento v. Lewis, 523
U.S. 833, 845 (1998); Huggins v. Prince Georges Cnty., Md., 683 F.3d 525, 535 (4th Cir. 2012);
Hawkins v. Freeman, 195 F.3d 732, 738 (4th Cir. 1999).
First, Plaintiffs have not adequately pled a violation of the Citizenship Clause. Count
One of the Complaint, which purports to plead a violation of the Fifth Amendment guarantee of
substantive due process, does not mention anywhere the Citizenship Clause of the Fourteenth
Amendment. Compare Compl. 80-88 with Pls. Mem. at 11-13. The Citizenship Clause
provides that [a]ll persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state wherein they reside. U.S.
Const. amend XIV, 1. The Citizenship Clause serves as a constitutional definition and grant
of citizenship. Afroyim v. Rusk, 387 U.S. 253, 262 (1967). Although this clause provides the
constitutional basis for claims regarding an individuals legal status as a citizen, Plaintiffs have
not been deprived of citizenship or any of the rights alleged to be inherent in citizenship. As
they must admit, they have been told they may return to the United States in coordination with
Turkish and U.S. authorities, notwithstanding any alleged No Fly List status. Beyond this,
Plaintiffs do not cite any cases in which the Citizenship Clause has been interpreted to
encompass other particular rights. The only court to address the question found that allegations
of placement on the No Fly List did not invade any right protected by the Fourteenth
Amendment. Fikre v. F.B.I., 23 F. Supp. 3d 1268, 1280-81 (D. Or. 2014). In light of the

19

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absence of authority supporting Plaintiffs claims, they have not shown a likelihood of success
on the merits of their Citizenship Clause claim.
Second, Plaintiffs claim they have a right to return to the United States. Although there
have been very few occasions for courts to pass upon the contours of a citizens right to enter
and reside in the United States, see Nguyen v. INS, 533 U.S. 53 (2001), Plaintiffs have not been
denied any such right. By their own admission, see Compl. 76, Plaintiffs may leave Turkish
custody and return to the United States, but apparently decline to do so. In such circumstances,
any right of return claim must fail. See Fikre, 23 F. Supp. 3d at 1282 (rejecting right-of-return
claim where individual had the ability to fly to the United States from abroad with the assistance
of the U.S. Government).
Plaintiffs allege that they would refuse to return to the United States until given assurances
that they can leave the United States again by airplane. But Plaintiffs do not identify any
constitutional right to such assurances, and insofar as they allege a burden on their future
international travel from the United States due to their alleged placement on the No Fly List, that
claim is not appropriate for any grant of an emergency injunction. The Supreme Court has
rejected the notion that international travel is a fundamental right, holding that the freedom to
travel outside the United States must be distinguished from the right to travel within the United
States. Haig v. Agee, 453 U.S. 280, 306 (1981). [T]he freedom to travel abroad is
subordinate to national security and foreign policy considerations; as such, it is subject to
reasonable governmental regulation. Id.; see also Califano v. Aznavorian, 439 U.S. 170, 176-77
(1978) (governmental action said to infringe the freedom to travel abroad is not to be judged by
the same standard applied to laws that penalize the right of interstate travel).

20

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Moreover, even if Plaintiffs alleged placement on the No Fly list could burden a
substantive due process right to possible, future, international travel, see Tarhuni v. Holder, 8 F.
Supp. 3d 1253, 127072 (D. Or. 2014) (substantive due process challenge to No Fly list
placement found subject to some level of judicial scrutiny), Plaintiffs still have not shown a
likelihood of success on the merits with respect to their particular claims. Plaintiffs facial
challenge must fail because they have not even attempted to argue that the statutory program at
issue has no plainly legitimate sweep. See, e.g., Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 (2008); United States v. Moore, 666 F.3d 313, 318-319 (4th
Cir. 2012) (Under the well-recognized standard for assessing a facial challenge to the
constitutionality of a statute, the Supreme Court has long declared that a statute cannot be held
unconstitutional if it has constitutional application.). Plaintiffs cannot plausibly contend that
Congresss determination that some individuals pose too great a threat to civil aviation or
national security to board commercial aircraft has no constitutional application.
Plaintiffs as-applied challenge to their alleged placement on the No Fly List fails for
similar reasons. The Court has no basis to review, much less find a likelihood of success on the
merits, of such a claim at this preliminary stage. Absent application of current redress procedures
which could identify whether any of the Plaintiffs are on the No Fly List, and if so permit them
an opportunity to receive any unclassified reasons for that placement and respond there
presently is no record to review regarding this claim. Plaintiffs, without even knowing whether
they are on the No Fly List or the basis therefore, ask the Court to assume that the Government
acted unreasonably in allegedly assessing that one or more of them currently poses a threat to
national security. The ultimate review of such a claim would be deferential to national security
considerations, and Plaintiffs certainly have not shown they are likely to prevail. Humanitarian

21

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Law Project, 561 U.S. at 3435 (observing that, when it comes to collecting evidence and
drawing factual inferences in this area, the lack of competence on the part of the courts is
marked, and respect for the Governments conclusions is appropriate) (internal citation
omitted).10
Instead, Plaintiffs would have this Court, as a matter of preliminary relief, overrule
whatever national security determinations the Government may have made concerning Plaintiffs
and the No Fly List, absent any showing that they are entitled to such relief and, again, without
first undertaking the administrative redress process. Aside from the fact that the only alleged
harm not being able to return home to the United States without assurances that they could
again depart is not irreparable, Plaintiffs fall well short of demonstrating that they should be
entitled to emergency injunctive relief (let alone ongoing relief) from any existing No Fly List
determination. Humanitarian Law Project, 561 U.S. at 34 (deference to Executive Branch); Al
Haramain, 686 F.3d at 979 (same). Plaintiffs are no different than the numerous other parties
who have brought No Fly List claims, none of whom have even sought, much less obtained,
preliminary injunctive relief of the kind Plaintiffs seek here.
Finally, whether this Court would have jurisdiction over the review of any substantive
determination with respect to placement on the No Fly List that emerges from the revised redress
process is unresolved at this stage. While Plaintiffs preemptively assert that this Court would
have jurisdiction, see Pls Mem. at 19-20, Defendants note that the revised DHS TRIP process

10

Preliminary relief at this stage would be inappropriate for the additional reason that
determinations concerning the No Fly List typically involve sensitive and often classified
national security information that generally is protected from disclosure. See Steinbach Decl.,
Latif v. Lynch, Dkt. No. 254 (D. Or.) at 23 (observing that derogatory information informing
No Fly determinations is often classified). Particularly in these circumstances, application of the
administrative redress process in an attempt to develop any unclassified record is important, and
further counsels against ruling on a final merits question in a preliminary proceeding.
22

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now available to Plaintiffs, which was substantially modified in the last year and which
culminates, for individuals on the No Fly List, in a final order by the TSA Administrator, raises an
issue of whether this Court would have jurisdiction to review the final TSA orders that emerge
from that revised redress process. See Mohamed v. Holder, No. 1:11-CV-50 AJT/MSN, 2015 WL
4394958, at *13 n. 16 (E.D. Va. July 16, 2015) (noting that [s]ubstantial issues exist as to the
appropriate form of judicial review of decisions to place someone on the No Fly List and that the
issue should be decided in the first instance by the Fourth Circuit upon review of a DHS TRIP
decision); 49 U.S.C. 46110 (channeling review of orders in whole or in part by the TSA
administrator to the Courts of Appeals). This potential question of jurisdiction underscores the
tenuous basis of Plaintiffs claim for preliminary injunctive relief, and the prudence of requiring
Plaintiffs to engage in the appropriate administrative process, so that a complete, up-to-date
record can be presented and any jurisdictional questions can be addressed in the normal course of
litigation.
CONCLUSION
For the foregoing reasons, the Court should deny Plaintiffs motion for a temporary
restraining order.

Dated: December 17, 2015

Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
DANA J. BOENTE
United States Attorney
ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch
23

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BRIGHAM BOWEN
AMY E. POWELL
SAMUEL M. SINGER
EMILY S. NEWTON
STEPHEN M. ELLIOTT
Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20001
Tel: (202)
Fax: (202) 616-8460
E-Mail: samuel.m.singer@usdoj.gov
_______________________________
R. JOSEPH SHER
Assistant U.S. Attorney
Office of the U.S. Attorney
Justin W. Williams U.S. Attorneys Building
2100 Jamieson Ave.,
Alexandria, VA. 22314
Tel: (703) 299-3747
Fax: (703) 299-3983
E-Mail: joe.sher@usdoj.gov
Attorneys for the Defendants

24

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CERTIFICATE OF SERVICE
I certify that on December 17, 2015, I electronically filed the foregoing with the Clerk of
Court using the CM/ECF system, which will send a notification of such filing to the following
counsel of record:
Gadeir Abbas
Council on American Islamic Relations
453 New Jersey Avenue, SE
Washington, DC 20003
Phone: 202-646-6034
Fax: 202-488-3305

Dated: December 17, 2015


/S/
R. JOSEPH SHER
Assistant U.S. Attorney
Office of the U.S. Attorney
Justin W. Williams U.S. Attorneys Building
2100 Jamieson Ave.
Alexandria, VA. 22314

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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.
)
_________________________________________ )

EXHIBIT 2
DECLARATION OF RACHEL CRAWFORD
CITIZENS SERVICES SPECIALIST,
BUREAU OF CONSULAR AFFAIRS OFFICE OF OVERSEAS
CITIZEN SERVICES,
U.S. DEPARTMENT OF STATE

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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.
)
_________________________________________ )

EXHIBIT 1
DECLARATION OF JOHN B. PHILLIPS, III.
ASSISTANT LEGAL ATTACH FOR ANKARA, TURKEY,
INTERNATIONAL OPERATIONS DIVISION,
FEDERAL BUREAU OF INVESTIGATION

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