ibrahim v. department of homeland sec. 983...ibrahim v. department of homeland sec.985 cite as 669...

983IBRAHIM v. DEPARTMENT OF HOMELAND SEC.Cite as 669 F.3d 983 (9th Cir. 2012)

and is an unwilling third-party participantin this habeas proceeding. Thus, a Bittak-er-type balancing test does not work here,where Gonzalez has not filed a petition andthus has not chosen to put his communica-tions at issue. In addition, allowing unilat-eral waiver of confidential communicationsby a single codefendant without the con-sent of the others would likely severelyundermine the rationale for the joint de-fense privilege in the first place. SeeSchwimmer, 892 F.2d at 243 (a lawyer’s‘‘assistance can only be safely and readilyavailed of when free from the conse-quences or the apprehension of disclo-sure,’’ and joint defense privilege is anextension of that attorney-client privilege)(internal quotation omitted).

For the foregoing reasons, we concludethe district court’s analyses regardingprivilege versus work product and unilat-eral waiver by filing the section 2255 peti-tion were in error, and reverse and re-mand for further proceedings consistentwith this Opinion.

CONCLUSION

It appears that for at least part of theproceedings, Gonzalez and Paiz were partof a JDA, either express or implied. How-ever, it also appears possible that at somepoint that arrangement ended, such aswhen Gonzalez decided to pursue his ownself-serving defense and blame Paiz for thecrime rather than pursuing a jointly bene-ficial defense strategy. Therefore, we re-mand to the district court for an in cam-era evidentiary hearing to determine if andwhen the JDA ended, and when the com-munication at issue here (what Gonzalezwould ultimately testify to at Paiz’s trial)was made.

REVERSED AND REMANDED.

,

Rahinah IBRAHIM, an individual,Plaintiff–Appellant,

v.

DEPARTMENT OF HOMELAND SE-CURITY; Michael Chertoff, in his of-ficial capacity as the former Secre-tary of the Department of HomelandSecurity; Tom Ridge, in his officialcapacity as the former Secretary ofthe Department of Homeland Securi-ty; Terrorist Screening Center; Don-na Bucella, in her official capacity asformer Director of the TerroristScreening Center; Federal Bureau ofInvestigation; Robert S. Mueller, III,in his official capacity as Director ofthe Federal Bureau of Investigation;Janet Napolitano, in her official ca-pacity as Secretary of the Departmentof Homeland security; Eric H. HolderJr., Attorney General, in his officialcapacity as Attorney General; ArthurM. Cummings, II, in his official ca-pacity as Executive Assistant Directorof the FBI’s National SecurityBranch; National CounterterrorismCenter; Michael E. Leiter, in his offi-cial capacity as Director of the Na-tional Counterterrorism Center; De-partment of State; Hillary Clinton, inher official capacity as Secretary ofState, Defendants–Appellees,

and

John Bondanella, an individual; US In-vestigations Services, Inc., a Virginiacorporation; City and County of SanFrancisco; San Francisco Airport;San Francisco Police Department;Richard Pate, an individual; JohnCunningham, an individual; Eliza-beth Maron, an individual, Defen-dants.

984 669 FEDERAL REPORTER, 3d SERIES

No. 10–15873.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 9, 2011.

Filed Feb. 8, 2012.Background: Alien passenger who wasdetained and prevented from boardingplane while in United States on studentvisa sued airline, police, municipality, coun-ty, and numerous federal officials andagencies, seeking permanent injunction di-recting government to remove her namefrom no-fly list and to cease policies andprocedures implementing list, and assert-ing causes of action under § 1983, First,Fourth, and Fifth Amendments, and Cali-fornia tort law. The district court dis-missed the action. Plaintiff appealed. TheCourt of Appeals, 538 F.3d 1250, reversedin part. On remand, the United StatesDistrict Court for the Northern District ofCalifornia, William H. Alsup, J., 2009 WL4021757 and 2009 WL 5069133, dismissedremaining claims. Plaintiff appealed.Holdings: The Court of Appeals, W.Fletcher, Circuit Judge, held that:(1) plaintiff sufficiently alleged that she

still was on government watchlist;(2) favorable decision would redress alien’s

injury;(3) removal of her name from government

watchlists would make grant of a visamore likely;

(4) injuries that alien had suffered by hav-ing her name placed on ‘‘No–Fly List’’and other terrorist watchlists was nothypothetical;

(5) alien had significant voluntary connec-tion to United States; and

(6) identity of experts or consultants werenot exempt from security screeningprocess.

Reversed and remanded.Kevin Thomas Duffy, District Judge forthe United States District Court for South-

ern New York, sitting by designation, fileddissenting opinion.

1. Federal Courts O820

Discovery orders are reviewed forabuse of discretion.

2. Federal Civil Procedure O103.2, 103.3

To satisfy Article III’s standing re-quirements, a plaintiff must show (1) shehas suffered an ‘‘injury in fact’’ that isconcrete and particularized and actual orimminent, not conjectural or hypothetical;(2) the injury is fairly traceable to thechallenged action of the defendant; and (3)it is likely, as opposed to merely specula-tive, that the injury will be redressed by afavorable decision. U.S.C.A. Const. Art. 3,§ 1 et seq.

3. Federal Civil Procedure O103.2

A plaintiff has the burden of showingthat she has Article III standing.U.S.C.A. Const. Art. 3, § 1 et seq.

4. War and National Emergency O1129

Alien who had been in United Statesfor four years on student visa and then, asshe was leaving for school-sponsored con-ference, was arrested and detained, andthen subjected to enhanced screening atairport and at each stop-over, had sufferedinjury in fact, as required to have standingunder Article III to challenge presence ofher name on ‘‘No–Fly List’’ and otherterrorist watchlists, since reasonable infer-ence could be drawn that only individualswho were on government’s watchlists weresubject to detention and searches andState Department cited provision thatbarred entry of any persons known orsuspected to be connected to terrorismwhen it subsequently revoked alien’s stu-dent visa. U.S.C.A. Const. Art. 3, § 1 etseq.; Immigration and Nationality Act,§ 212(a)(3)(B), 8 U.S.C.A. § 1182(a)(3)(B).


5. War and National Emergency O1129Favorable decision would redress

alien’s injury, as required for her to havestanding under Article III to challengepresence of her name on ‘‘No–Fly List’’and other terrorist watchlists, althoughalien was no longer was in United Statesand her visa had been revoked; No–FlyList prevented alien from boarding anyUnited States carrier, whether or notflight departed from or landed in UnitedStates, and it also prevented her fromflying over United States airspace, andalien could suffer delays when travelingabroad, even on foreign carriers, resultingfrom presence of her name on the No–FlyList because United States shared its in-formation with 22 foreign governments.U.S.C.A. Const. Art. 3, § 1 et seq.

6. War and National Emergency O1129Alien who had been in United States

for four years on student visa and then, asshe was leaving for school-sponsored con-ference, was arrested and detained, andthen subjected to enhanced screening atairport and at each stop-over, suffered in-jury that would have been redressed byfavorable decision, as required to havestanding under Article III to challengepresence of her name on ‘‘No–Fly List’’and other terrorist watchlists despite herinability to reenter United States afterhaving her visa revoked, since reasonableinference could be made that removal ofher name from government watchlistswould make grant of a visa more likely.U.S.C.A. Const. Art. 3, § 1 et seq.

7. War and National Emergency O1129Injuries that alien had suffered by

having her name placed on ‘‘No–Fly List’’and other terrorist watchlists was nothypothetical, and thus alien could havestanding under Article III to seek prospec-tive relief against federal defendants, sincepresence of her name on government’sNo–Fly List imposed real limitations ontravel even in non-United States destina-

tions and alien would return to UnitedStates if permitted to do so. U.S.C.A.Const. Art. 3, § 1 et seq.

8. Constitutional Law O728, 885, 915

War and National Emergency O1129

Alien who no longer was in UnitedStates and had her visa revoked had sig-nificant voluntary connection to UnitedStates, and therefore she could assertclaims against federal defendants for pro-spective relief under First and FifthAmendments on allegations that her rightsto freedom of association, equal protection,and due process had been violated by plac-ing her name on terrorist watchlists,where she had been in United States forfour years on student visa, she voluntarilydeparted from United States to presentresults of her research at school-sponsoredconference, and she intended her stayabroad to be brief. U.S.C.A. Const.Amends. 1, 5.

9. Constitutional Law O686

Aliens legally within the United Statesmay challenge the constitutionality of fed-eral and state actions; even aliens who arein the United States illegally may bringconstitutional challenges, including theability to challenge the revocation of a visa.


A resident alien who voluntarilyleaves the United States on a brief tripwith an intent to return is constitutionallyentitled to a due process hearing if thegovernment seeks to exclude her upon re-turn to the United States. U.S.C.A.Const.Amend. 5.


When determining the constitutionalrights of aliens outside the United States,a court applies a ‘‘functional approach’’rather than a bright-line rule.


12. War and National EmergencyO1129

Identity of experts or consultantswere not exempt from security screeningprocess, in alien’s action against federaldefendants alleging that placement of hername on government’s terrorist watchlistsviolated her right to freedom of associationunder First Amendment and her rights toequal protection and due process underFifth Amendment, since United States hadlegitimate need to know that those expertsand consultants could be trusted with sen-sitive security information. U.S.C.A.Const.Amends. 1, 5; 49 C.F.R.§ 1520.5(a)(3); Fed.Rules Civ.Proc.Rule26(b)(4)(D), 28 U.S.C.A.

13. Federal Civil Procedure O1266

Federal Rule of Civil Procedure gov-erning non-testifying experts shields onlyagainst disclosure through interrogatoriesand depositions; it does not shield againstdisclosure when information is requiredpursuant to a background check mandatedby statute. Fed.Rules Civ.Proc.Rule26(b)(4)(D), 28 U.S.C.A.

James McManis, Marwa Elzankaly,Christine Peek, Elizabeth Pipkin, McManisFaulkner, San Jose, CA, for the appellant.

Paul G. Freeborne, Douglas Neal Let-ter, Joshua P. Waldman, U.S. Departmentof Justice, Washington, DC, for the appel-lees.

Veena Dubal, Asian Law Caucus, SanFrancisco, CA, and Maria V. Morris, San-ford Jay Rosen, Rosen Bien & Galvan,LLP, San Francisco, CA, for the amicicuriae.

Appeal from the United States DistrictCourt for the Northern District of Califor-nia, William H. Alsup, District Judge, Pre-siding. D.C. No. 3:06–cv–00545–WHA.

Before: DOROTHY W. NELSON andWILLIAM A. FLETCHER, CircuitJudges, and KEVIN THOMAS DUFFY,District Judge.*

Opinion by Judge WILLIAM A.FLETCHER; Dissent by Judge DUFFY.

OPINION

W. FLETCHER, Circuit Judge:

Plaintiff Rahinah Ibrahim is a citizen ofMalaysia and mother of four children.She was legally in the United States from2001 to 2005 as a Ph.D. student at Stan-ford University. She alleges that the U.S.government has mistakenly placed her onthe ‘‘No–Fly List’’ and other terroristwatchlists. On January 2, 2005, she at-tempted to travel to a Stanford-sponsoredconference in Malaysia where she was topresent her doctoral research. She wasprevented from flying and was detained ina holding cell for two hours at the SanFrancisco airport. She was allowed to flyto Malaysia the next day, but she wasprevented from returning to the UnitedStates after the conference. Ibrahim hasnot been permitted to return to the UnitedStates.

Ibrahim brought suit in federal districtcourt seeking, among other things, injunc-tive relief under the First and FifthAmendments, with the ultimate aim ofhaving her name removed from the gov-ernment’s watchlists. The district courtdenied injunctive relief. We reverse andremand for further proceedings.

* The Honorable Kevin Thomas Duffy, DistrictJudge for the U.S. District Court for Southern

New York, New York, sitting by designation.


I. Factual Background

A. Ibrahim’s Departure

Ibrahim is Associate Professor and Dep-uty Dean of Research, Postgraduate Stud-ies and International Affairs at the Facultyof Design and Architecture of the Univer-sity Putra Malaysia in Serdang, Malaysia.She has a Ph.D. in Construction Engineer-ing and Management from Stanford Uni-versity in California, where she studiedfrom 2001 to 2005 under a student visa.

This case has never gone beyond thecomplaint stage. For the narrative thatfollows, we rely on allegations in Ibrahim’scomplaint and on statements in her decla-ration in the district court, assuming thoseallegations and statements to be true forpurposes of our review. Tellabs, Inc. v.Makor Issues & Rights, Ltd., 551 U.S. 308,322–23, 127 S.Ct. 2499, 168 L.Ed.2d 179(2007).

On January 2, 2005, Ibrahim attemptedto fly to Kuala Lumpur, Malaysia, to pres-ent the results of her doctoral research ata Stanford-sponsored conference. She ar-rived at the San Francisco airport at about7 a.m. for a 9 a.m. flight, accompanied byher 14–year old daughter and a friend.She requested wheelchair assistance to thegate because she was recovering frommedical complications from a hysterecto-my. When Ibrahim tried to check in atthe ticket counter, a United Airlines em-ployee, David Nevins, discovered her nameon the federal government’s No–Fly List.Instead of issuing her a boarding pass,Nevins called the San Francisco police.

When San Francisco police officers ar-rived, they called the Transportation Secu-rity Operations Center,1 a division of thefederal Transportation Security Agency(‘‘TSA’’). A federal contractor employedby U.S. Investigation Services, Inc., John

Bondanella, answered the call. Bondanel-la told the police to prevent Ibrahim fromflying, to contact the FBI, and to detainIbrahim for questioning.

At 8:45 a.m., fifteen minutes before herflight was scheduled to leave, San Francis-co police officers handcuffed Ibrahim.They took her to a police station in theairport, searched her, and locked her in aholding cell. No one explained to Ibrahimwhy she had been arrested and detained.After about two hours, the FBI requestedthat the officers release her. Ibrahim wastold by an unspecified person that hername no longer appeared on the No–FlyList.

The next day, Ibrahim went to the SanFrancisco airport to catch a differentflight. An unspecified person told her thatshe was again (or still) on the No–Fly List.She was nonetheless allowed to fly to theStanford-sponsored conference in Malay-sia. She was subjected to enhancedscreening at the San Francisco airport andat all stops en route to Kuala Lumpur.

Ibrahim was scheduled to return toStanford to complete work on her Ph.D. onMarch 10. But when she arrived at theKuala Lumpur airport, she was told by aticketing agent that she would have to waitfor clearance from the United States Em-bassy before she could board. Anotherticketing agent told her that a note by hername instructed airport personnel to callthe police and have her arrested. Ibrahimwas not arrested but was prevented fromboarding her scheduled return flight. Shehas never been permitted to return to theUnited States.

On March 24, 2005, Ibrahim submitted arequest through TSA’s ‘‘Passenger Identi-ty Verification’’ program to clear her

1. Subsequently renamed ‘‘The Freedom Cen-ter.’’ Transportation Security Administra-tion, Transportation Security Operations Cen-

ter Re–Named Freedom Center, at http://www.tsa.gov/press/speeches/freedomdedication.shtm (last visited Aug. 30, 2011).


name. TSA failed to respond for approxi-mately one year, and only did so afterIbrahim filed this suit. In a form letter,TSA responded to Ibrahim’s request byexplaining that ‘‘[if] it has been determinedthat a correction to records is warranted,these records have been modified.’’ Theletter did not state whether Ibrahim was,or was not, on the No–Fly List or otherterrorist watchlists.

On April 14, 2005, an American consul inMalaysia sent Ibrahim a letter informingher that the Department of State had re-voked her student visa on January 31,2005, a month after her departure fromthe United States. The letter cited Ibra-him’s ‘‘possible ineligibility’’ under§ 212(a)(3)(B) of the Immigration & Na-tionality Act (INA) as the reason for therevocation. That section of the INA pro-vides, among other things, that ‘‘[a]nyalien’’ (1) who ‘‘has engaged in terroristactivity’’; (2) who ‘‘a consular officer, theAttorney General, or the Secretary ofHomeland Security knows, or has reason-able ground to believe, is engaged in or islikely to engage after entry in any terror-ist activity’’; or (3) who ‘‘has, under cir-cumstances indicating an intention tocause death or serious bodily harm, incitedterrorist activity,’’ is inadmissible to theUnited States. 8 U.S.C. § 1182(a)(3)(B).The letter further stated that revocation ofIbrahim’s visa did ‘‘not necessarily indicatethat [she was] ineligible to receive a U.S.visa in the future.’’ ‘‘That determination,’’the letter continued, ‘‘can only be made atsuch time as you apply for a new visa.’’Ibrahim applied for a new visa after shefiled this lawsuit. We take judicial noticethat the Department of State denied herapplication on December 14, 2009, duringthe pendency of this appeal. In a formletter with a series of boxes, a consularofficer marked a box indicating that INA§ 212(a)(3)(B) formed the basis of the de-nial of her visa. The letter did not explainhow the consular officer arrived at his

determination that she was suspected ofterrorist activities.

Ibrahim’s inability to return to the Unit-ed States has limited her academic andprofessional activities. She currently par-ticipates in a long-term project with Stan-ford to improve Malaysia’s construction in-dustry. If she were not prevented fromdoing so, she would return to Stanfordonce a year to work on the project. TheMalaysian university where Ibrahim cur-rently teaches participated in a summerprogram at Stanford’s Center for Integrat-ed Facility Engineering. Although Ibra-him was her school’s representative toStanford, she was unable to participate inthe program. Ibrahim collaborates withStanford Professors Raymond Levitt andRenate Fruchter, and has co-authored sev-eral papers with Professor Fruchter.Ibrahim has stated in an affidavit that sheis ‘‘occasionally able to meet face-to-facewith U.S. citizens outside the UnitedStates’’ but has ‘‘otherwise had to use vid-eo conferencing and email instead, both ofwhich are poor substitutes for face-to-facecontact.’’ Selangor, a provincial govern-ment in Malaysia, also asked Ibrahim toact as its representative at a conference inSan Francisco but she was unable to at-tend.

Ibrahim has close friends at Stanfordwhom she remains unable to visit. Herthesis advisor at Stanford, Professor BoydPaulson, died in December 2005. Profes-sor Paulson’s widow asked Ibrahim tospeak at his memorial service, but she wasunable to attend. Ibrahim states that shewould like to ‘‘finally TTT say goodbye tohim at his grave.’’

B. The Government’s TerroristWatchlists

Since the terrorist attacks of September11, 2001, the federal government has as-sembled a vast, multi-agency, counterter-rorism bureaucracy that tracks hundreds


of thousands of individuals. See, e.g., 6U.S.C. §§ 122, 124h, 482, 485; Exec. OrderNo. 13388, 70 Fed. Reg. 62023 (Oct. 25,2005). At the heart of this bureaucracy isthe Terrorist Screening Center (‘‘TSC’’).Established by the Attorney General in2003 pursuant to a presidential directive,the mission of TSC is ‘‘to consolidate theGovernment’s approach to terrorismscreening and provide for the appropriateand lawful use of Terrorist Information inscreening processes.’’ See Homeland Se-curity Presidential Directive/HSPD–6.Though administered by the FBI, TSCretains personnel from the Departments ofState, Homeland Security, and Defense,and other federal agencies.2

TSC manages the Terrorist ScreeningDatabase (‘‘TSDB’’), the federal govern-ment’s centralized watchlist of known andsuspected terrorists. The National Coun-terterrorism Center nominates known andsuspected international terrorists to theTSDB, while the FBI nominates knownand suspected domestic terrorists. TSCdistributes subsets of the TSDB to otherfederal agencies to help implement thegovernment’s counterterrorism initiatives.TSA uses two subsets of the TSDB—theNo–Fly List and the Selectee List—to

screen airline passengers. Individuals onthe No–Fly List are prohibited fromboarding American carriers or any flighthaving virtually any contact with U.S. ter-ritory or airspace. Individuals on the Se-lectee List are subject to enhanced securi-ty screening before boarding an airplane.3

The State Department uses a subset of theTSDB to screen visa applicants throughthe Consular Lookout and Support Sys-tem.4

The evidence and procedures used tonominate individuals to the TSDB are keptsecret from the general public, as are thenames of those in the TSDB. However,thousands of front line law enforcementofficers from federal, state, local, territori-al, and tribal agencies have access to theTSDB, as do some private sector entitiesand individuals.5 As of January 2011, TSChad also agreed to share information with22 foreign governments.6

Since its inception, the TSDB has grownby more than 700%, from about 158,000records in June 2004 to over 1.1 millionrecords in May 2009. In 2007, these rec-ords contained information on approxi-mately 400,000 individuals.7 As of 2007,the TSDB was increasing at a rate of20,000 records per month.8 TSC makes

2. Five Years After the Intelligence Reform andTerrorism Prevention Act: Stopping TerroristTravel: Hearing Before the S. Comm. onHomeland Sec. and Governmental Affairs,111th Cong. 1–2 (Dec. 9, 2009) (Statement ofTimothy J. Healy, Director, Terrorist Screen-ing Center) [hereinafter ‘‘Healy Statement’’].

3. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO–08–110, TERRORIST WATCHLIST SCREENING: OPPORTUNI-

TIES EXIST TO ENHANCE MANAGEMENT OVERSIGHT,

REDUCE VULNERABILITIES IN AGENCY SCREENING

PROCESSES, AND EXPAND USE OF THE LIST 30 (2007)[hereinafter ‘‘2007 GAO Report’’].

4. Id. at 30.

5. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO–10–401T, HOMELAND SECURITY: BETTER USE OF TER-

RORIST WATCHLIST INFORMATION AND IMPROVEMENTS

IN DEPLOYMENT OF PASSENGER SCREENING CHECK-

POINT TECHNOLOGIES COULD FURTHER STRENGTHEN

SECURITY 2 (2010).

6. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO–11–335, VISA WAIVER PROGRAM: DHS HAS IMPLE-

MENTED THE ELECTRONIC SYSTEM FOR TRAVEL AU-

THORIZATION, BUT FURTHER STEPS NEEDED TO AD-

DRESS POTENTIAL PROGRAM RISKS 21 n.24 (2011).

7. 2007 GAO REPORT at 8; U.S. DEP’T OF JUSTICE,

OFFICE OF THE INSPECTOR GENERAL, AUDIT DIVISION,

AUDIT REPORT 09–25, THE FEDERAL BUREAU OF

INVESTIGATION’S TERRORIST WATCHLIST NOMINATION

PRACTICES i–ii & n.4 (2009).

8. U.S. DEP’T OF JUSTICE, OFFICE OF THE INSPECTOR

GENERAL, AUDIT DIVISION, AUDIT REPORT 07–41,FOLLOW-UP AUDIT OF THE TERRORIST SCREENING

CENTER iii (2007) [hereinafter ‘‘2007 DOJ Re-port’’].


400 to 1200 changes to the TSDB everyday.9 It is the ‘‘world’s most comprehen-sive and widely shared database of terror-ist identities.’’ 10

In theory, only individuals who pose athreat to civil aviation are put on the No–Fly and Selectee Lists, but the JusticeDepartment has criticized TSC for its‘‘weak quality assurance process.’’ 11 InJuly 2006—after the events that gave riseto this lawsuit—there were 71,872 recordsin the No–Fly List. After an internal re-view, TSC downgraded 22,412 recordsfrom the No–Fly List to the Selectee Listand deleted entirely an additional 5,086records. By January 2007, the TSC hadcut the No–Fly List by more than half, to34,230 records.12 Tens of thousands oftravelers have been misidentified becauseof misspellings and transcription errors inthe nomination process, and because ofcomputer algorithms that imperfectlymatch travelers against the names on thelist.13 TSA maintains a list of approxi-mately 30,000 individuals who are com-monly confused with those on the No–Flyand Selectee Lists.14 One major air carri-er reported that it encountered 9,000 erro-neous terrorist watchlist matches everyday during April 2008.15

Nomination and identification errors areso common that TSC organized a redressunit in 2007 to deal with complaints. Theredress procedures have been opaque. A

2006 GAO report stated that an individualwho submitted a query to TSC’s redressunit received an initial response letter that‘‘neither confirms nor denies the existenceof any terrorist watch list records relatingto the individual.’’ 16 A 2009 internal DHSreport stated, ‘‘With few exceptions, re-dress-seekers receive response letters thatdo not reveal the basis for their traveldifficulties, the action the government tookto address those difficulties, or other stepsthat they may take to help themselves inthe future.’’ 17

When Ibrahim filed suit, TSA manageda Passenger Identity Verification programfor travelers who believed that they weremistakenly put on the No–Fly or SelecteeList. In place of that program, the Depart-ment of Homeland Security (‘‘DHS’’) nowmanages the Traveler Redress InquiryProgram (‘‘TRIP’’). A 2007 Departmentof Justice audit commended TSC for accu-rately resolving redress queries, but notedthat 45% of the reviewed records con-tained an error.18 The 2009 DHS reportwas less charitable, concluding that the‘‘TRIP website advises travelers that theprogram can assist them with resolving arange of travel difficulties. Our review ofredress results revealed that those claimsare overstated. While TRIP offers effec-tive solutions to some traveler issues, itdoes not address other difficulties effec-tively, including the most common—watchlist misidentifications in aviation securitysettings.’’ 19

9. Healy Statement at 2.

10. Id. at 1.

11. 2007 DOJ REPORT at iii.

12. Id. at 32–33 & n.49.

13. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO–06–1031, TERRORIST WATCH LIST SCREENING, EFFORTS

TO HELP REDUCE ADVERSE EFFECTS ON THE PUBLIC

2, 4–6, 19–20 (2006) [hereinafter ‘‘2006 GAOReport’’].

14. Id. at 34.

15. DEP’T OF HOMELAND SEC., OFFICE OF INSPECTOR

GENERAL, OIG–09–103, EFFECTIVENESS OF THE

DEPARTMENT OF HOMELAND SECURITY TRAVELER RE-

DRESS INQUIRY PROGRAM (REDACTED) 37 (2009)[hereinafter ‘‘2009 DHS Report’’].

16. See 2006 GAO Report at 31.

17. 2009 DHS Report at 89.

18. 2007 DOJ Report at xix.

19. 2009 DHS Report at 33–34.


II. Procedural Background

On January 27, 2006, Ibrahim filed suitagainst DHS, TSA, TSC, the FBI, theFederal Aviation Administration (‘‘FAA’’),and individuals associated with these enti-ties (collectively, ‘‘the federal defendants’’);the City and County of San Francisco, theSan Francisco Police Department, the SanFrancisco Airport, the County of San Ma-teo, and individuals associated with theseentities (collectively, ‘‘the city defen-dants’’); and United Airlines, UAL corpo-ration, and individuals associated withthese entities (collectively, ‘‘the private de-fendants’’). Ibrahim asserted § 1983claims and state-law tort claims arising outof her detention at the San Francisco air-port, as well as several constitutionalclaims based on the inclusion of her nameon government terrorist watchlists. Thedistrict court dismissed her claims againstthe federal defendants under 49 U.S.C.§ 46110(a), which vests exclusive originaljurisdiction in the courts of appeals oversuits challenging security orders issued byTSA.

A panel of this court reversed in partthe district court’s dismissal of the federaldefendants. We held that § 46110(a) doesnot bar district court jurisdiction overIbrahim’s challenges to her placement onthe government terrorist watchlists, in-cluding the No–Fly List, because the listsare managed by TSC rather than TSA.Ibrahim v. Dep’t of Homeland Sec., 538F.3d 1250, 1254–56 (9th Cir.2008). Weheld, however, that § 46110(a) requires allchallenges to TSA’s policies and proce-dures implementing the No–Fly and otherlists to be filed directly in the court ofappeals. Id. at 1256–57.20

After remand, Ibrahim filed a SecondAmended Complaint (‘‘SAC’’). In Claim

13 of her SAC, Ibrahim asserted severalcauses of action against the remaining fed-eral defendants. Ibrahim alleges in Claim13 that the inclusion of her name on thegovernment’s terrorist watchlists violatesher First Amendment right to freedom ofassociation and her Fifth Amendmentrights to due process and equal protection.She also alleges that the federal defen-dants violated the Administrative Proce-dure Act (‘‘APA’’), which we construe as anallegation that the APA waives the sover-eign immunity of the United States, there-by allowing her claims under the First andFifth Amendments and authorizing reme-dies for those claims. See Ibrahim, 538F.3d at 1254. Ibrahim asks for an injunc-tion that would require the government totake her name off its terrorist watch lists,including the No–Fly List, or, in the alter-native, to provide procedures under whichshe could challenge her inclusion on thoselists.

The federal defendants moved to dismissClaim 13 for lack of standing and for fail-ure to state a claim upon which relief canbe granted. The government contendedthat Ibrahim has no standing under ArticleIII of the Constitution. The governmentcontended, further, that Ibrahim has noright to assert claims under the First andFifth Amendments because she is an alienwho has voluntarily left the United States.

The district court held that Ibrahim hasstanding. The district court speculatedthat Ibrahim’s inclusion in the No–Fly Listmight be a ‘‘monumental mistake,’’ butnonetheless dismissed Claim 13, holdingthat Ibrahim was ‘‘an alien who voluntarilyleft the United States and thus left herconstitutional rights at the water’s edge.’’

20. Ibrahim had also filed a petition directlywith the Ninth Circuit pursuant to§ 46110(a). Because Ibrahim no longer re-sides in California, the panel transferred that

petition to the D.C. Circuit. Ibrahim, 538F.3d at 1253 n. 2. Proceedings there are beingheld in abeyance pending resolution of thisappeal. Id.


Ibrahim has settled her claims againstthe non-federal defendants. She appealsthe dismissal of her Claim 13 against thefederal defendants. She also appeals dis-covery rulings.

III. Standard of Review

[1] We review de novo a districtcourt’s dismissal of a complaint under Fed-eral Rule of Civil Procedure 12(b)(6) forfailure to state a claim. Alonzo v. ACFProp. Mgmt., Inc., 643 F.2d 578, 579 (9thCir.1981). A complaint must state a claimfor relief that is ‘‘plausible on its face.’’Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.1937, 1949, 173 L.Ed.2d 868 (2009). Thefacts in the complaint are liberally con-strued in the plaintiff’s favor and are gen-erally accepted as true. Id. The com-plaint, however, must allege ‘‘more than asheer possibility that a defendant has act-ed unlawfully.’’ Id. We review discoveryorders for abuse of discretion. Laub v.U.S. Dep’t of Interior, 342 F.3d 1080, 1084(9th Cir.2003).

IV. Discussion

A. Standing

[2, 3] ‘‘To satisfy Article III’s standingrequirements, a plaintiff must show (1) shehas suffered an ‘injury in fact’ that is (a)concrete and particularized and (b) actualor imminent, not conjectural or hypotheti-cal; (2) the injury is fairly traceable to thechallenged action of the defendant; and (3)it is likely, as opposed to merely specula-tive, that the injury will be redressed by afavorable decision.’’ Bernhardt v. Cnty. ofLos Angeles, 279 F.3d 862, 868–69 (9thCir.2002) (quoting Friends of the Earth,Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,528 U.S. 167, 180–81, 120 S.Ct. 693, 145L.Ed.2d 610 (2000)). A plaintiff has theburden of showing that she has standing.See Takhar v. Kessler, 76 F.3d 995, 1000(9th Cir.1996) (quoting Warth v. Seldin,

422 U.S. 490, 501, 95 S.Ct. 2197, 45L.Ed.2d 343 (1975)).

[4] Ibrahim seeks only prospective re-lief against the federal defendants. Toestablish standing under Article III, she‘‘must demonstrate that [s]he is realistical-ly threatened by a repetition of the viola-tion,’’ Armstrong v. Davis, 275 F.3d 849,860–61 (9th Cir.2001) (internal quotationmarks, alterations, and emphasis omitted),abrogated on other grounds by Johnson v.California, 543 U.S. 499, 504–05, 125 S.Ct.1141, 160 L.Ed.2d 949 (2005), or show acredible threat of future injury, City of LosAngeles v. Lyons, 461 U.S. 95, 106, 103S.Ct. 1660, 75 L.Ed.2d 675 (1983).

The government makes three standingarguments under Article III. First, it ar-gues that Ibrahim has failed to allege thatshe is still on a government watchlist.The government refuses to confirm ordeny whether Ibrahim is on a watchlist,but it contends that her SAC compels theconclusion that she is not now on the No–Fly List, given that she was allowed to flyto Malaysia the day after she was de-tained. The government ascribes theboarding denial in Malaysia to Ibrahim’slack of a visa. Second, the governmentargues that a favorable judicial decisionwill not redress Ibrahim’s injury. Thegovernment notes that the revocation ofIbrahim’s student visa and her inability toobtain a new one independently bars Ibra-him from entering the United States, andthat consular decisions denying visas areimmune from judicial review. Third, thegovernment argues that Ibrahim’s injuryis hypothetical because she has no immedi-ate plans to travel.

The government’s first argument is easi-ly answered. The reasonable inference todraw from Ibrahim’s complaint is that sheis on one or more government watchlists.When she flew from San Francisco to Ma-laysia, she was subject to enhanced


searches at the San Francisco Airport andall subsequent stopovers. In general, onlyindividuals who are on the government’sSelectee List are subject to such searches.In Malaysia, a ticketing agent told Ibrahimthat a note by her name instructed airportpersonnel to have her arrested. Would-betravelers to the United States are not typi-cally subject to arrest before boardingmerely for lacking a proper visa. Whenthe State Department revoked Ibrahim’sstudent visa, it cited INA § 212(a)(3)(B),which bars entry of any persons known orsuspected to be connected to terrorism.When Ibrahim applied for a new visa, theState Department denied her applicationfor the same reason. The State Depart-ment reviews the Consular Lookout andSupport System—a subset of the TSDB—to make visa determinations.

[5] The government’s second argu-ment, that a favorable decision will notredress her injury, is also unpersuasive.The government mischaracterizes Ibra-him’s injury by focusing solely on her ina-bility to return to the United States. TheNo–Fly List prevents her from boardingany U.S. carrier, whether or not a flightdeparts from or lands in the United States.It also prevents her from flying over U.S.airspace. These are injuries unrelated toher lack of a visa. Further, TSC sharesthe TSDB with 22 foreign governments.We can reasonably infer that Ibrahim willsuffer delays (or worse) when travelingabroad, even on foreign carriers, resultingfrom the presence of her name on the No–Fly List.

[6] Even if Ibrahim’s injury were lim-ited to her inability to enter the UnitedStates, she would still have standing.Ibrahim does not challenge the revocationof her visa, as decisions of consular offi-cers to deny a visa are immune from judi-cial review. See Bustamante v. Mukasey,531 F.3d 1059, 1060 (9th Cir.2008). But itis a reasonable inference that removal of

her name from government watchlistswould make a grant of a visa more likely.If Ibrahim’s name were removed from theTSDB, and thereby removed from theConsular Lookout and Support System,the State Department would be morelikely to grant her a visa, given that ithas relied on her alleged connection toterrorism as the basis for revoking hervisa and denying her application for anew one. Though Ibrahim’s future abilityto obtain a visa is uncertain and we wouldbe powerless to review a denial, ‘‘plaintiffsneed not demonstrate that there is a‘guarantee’ that their injuries will be re-dressed by a favorable decision TTT

[P]laintiffs must show only that a favor-able decision is likely to redress [theirinjuries], not that a favorable decision willinevitably redress [their injuries].’’ Wil-bur v. Locke, 423 F.3d 1101, 1108 (9thCir.2005) (internal quotations omitted, em-phasis and alterations in original) (quotingGraham v. FEMA, 149 F.3d 997, 1003(9th Cir.1998), abrogated on othergrounds by Levin v. Commerce Energy,Inc., ––– U.S. ––––, 130 S.Ct. 2323, 176L.Ed.2d 1131 (2010)). As the districtcourt correctly observed, ‘‘While obtaininga visa may stand as a potential obstacleto her entry into the United States, itdoes not completely foreclose redressabili-ty. Ibrahim is not required to solve allroadblocks simultaneously and is entitledto tackle one roadblock at a time.’’

[7] The government’s third argument,that Ibrahim’s injuries are hypothetical be-cause she has no immediate plans to trav-el, is also unpersuasive. It is by no meansclear that Ibrahim has no plans to travel tonon-US destinations. As noted above, thepresence of her name on the government’sNo–Fly List imposes real limitations onsuch travel. Further, it is obvious fromher SAC that Ibrahim will return to theUnited States if permitted to do so. Ibra-


him regularly collaborates with professorsin the United States, is a member of sever-al professional organizations in the UnitedStates, and has an extensive network ofclose friends in the United States. Ibra-him has been invited to return to theUnited States on several occasions sincefiling this lawsuit and has been obliged todecline every invitation because of the le-gal obstacles to her return. These are nothypothetical ‘‘ ‘some day’ intentions.’’ Lu-jan v. Defenders of Wildlife, 504 U.S. 555,564, 112 S.Ct. 2130, 119 L.Ed.2d 351(1992).

We therefore agree with the districtcourt that Ibrahim has standing under Ar-ticle III to challenge the presence of hername on government watchlists.

B. Constitutional Claims

[8] Claim 13 of the SAC alleges thatthe placement of Ibrahim’s name on thegovernment’s terrorist watchlists violatesher right to freedom of association underthe First Amendment and her rights toequal protection and due process underthe Fifth Amendment.21

At this point in the litigation, no courthas attempted to determine the merits ofIbrahim’s claims under the First and FifthAmendments. The parties have notbriefed whether her placement on a terror-ist watchlist violates her rights to freedomof association, equal protection, and due

process. The only question before us iswhether Ibrahim even has the right toassert such claims.

[9] We begin with the uncontestedproposition that if Ibrahim had remainedin the United States, she would have beenable to assert claims under the First andFifth Amendments to challenge her place-ment on the government’s terrorist watch-lists. It is well established that alienslegally within the United States may chal-lenge the constitutionality of federal andstate actions. See, e.g., Examining Bd. ofEngineers, Architects and Surveyors v.Flores de Otero, 426 U.S. 572, 580, 96 S.Ct.2264, 49 L.Ed.2d 65 (1976); Mathews v.Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48L.Ed.2d 478 (1976); Hampton v. Mow SunWong, 426 U.S. 88, 101–03, 96 S.Ct. 1895,48 L.Ed.2d 495 (1976); Sugarman v. Dou-gall, 413 U.S. 634, 641, 93 S.Ct. 2842, 37L.Ed.2d 853 (1973); Kwong Hai Chew v.Colding, 344 U.S. 590, 596, 73 S.Ct. 472, 97L.Ed. 576 (1953); Torao Takahashi v.Fish and Game Comm’n, 334 U.S. 410,419–20, 68 S.Ct. 1138, 92 L.Ed. 1478(1948). Even aliens who are in the UnitedStates illegally may bring constitutionalchallenges, see, e.g., Plyler v. Doe, 457 U.S.202, 211–12, 102 S.Ct. 2382, 72 L.Ed.2d 786(1982); Wong Wing v. United States, 163U.S. 228, 237, 16 S.Ct. 977, 41 L.Ed. 140(1896), including the ability to challenge

21. Claim 13 also alleges a violation of theFourteenth Amendment, but Ibrahim’s briefon appeal makes clear that this allegationrefers to the equal protection component ofthe Fifth Amendment. See Bolling v. Sharpe,347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884(1954). The heading to Claim 13 also allegesa violation of the Fourth Amendment, but thebody of Claim 13 makes no reference to theFourth Amendment, and Ibrahim’s brief onappeal makes clear that she is alleging claimsunder only the First and Fifth Amendments.

Claim 13 also alleges violation of the Ad-ministrative Procedure Act, 5 U.S.C. § 500 etseq. We understand this to be an allegation

that the APA waives the sovereign immunityof the United States for violations of the Firstand Fifth Amendments and authorizes reme-dies for such violations. The governmentcontends that Ibrahim has waived any right toappeal the district court’s denial of her claimunder the APA. We disagree, given that Ibra-him’s APA claim ultimately depends on theviability of her First and Fifth Amendmentclaims. See Califano v. Sanders, 430 U.S. 99,105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)(holding APA does not provide an indepen-dent basis for subject matter jurisdiction indistrict courts).


the revocation of a visa, see ANA Int’l,Inc. v. Way, 393 F.3d 886, 893–94 (9thCir.2004) (allowing judicial review of INSdecision to revoke temporary worker visafor purely legal questions, including consti-tutional challenges). The question in thiscase is whether Ibrahim lost the right sheotherwise had because she left the UnitedStates.

[10] The Supreme Court has held in aseries of cases that the border of the Unit-ed States is not a clear line that separatesaliens who may bring constitutional chal-lenges from those who may not. For ex-ample, a resident alien who voluntarilyleaves the United States on a brief tripwith an intent to return is constitutionallyentitled to a due process hearing if thegovernment seeks to exclude her upon re-turn to the United States. See, e.g., Lan-don v. Plasencia, 459 U.S. 21, 34, 103 S.Ct.321, 74 L.Ed.2d 21 (1982) (resident alienentitled to constitutional due process hear-ing in exclusion proceedings upon re-entryafter a ‘‘few days’’ abroad); Rosenberg v.Fleuti, 374 U.S. 449, 450, 83 S.Ct. 1804, 10L.Ed.2d 1000 (1963) (entry after innocent,casual, and brief excursion abroad did notqualify as ‘‘entry’’ for immigration pur-poses); Kwong Hai Chew, 344 U.S. at 593–95, 73 S.Ct. 472 (resident alien entitled toconstitutional due process hearing afterexclusion following a five-month voyageabroad). See also Boumediene v. Bush,553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d41 (2008) (aliens held as enemy combatantsoutside the de jure sovereign territory ofthe United States may petition for habeascorpus to challenge the constitutionality oftheir detention); Al Maqaleh v. Gates, 605F.3d 84, 95–96 (D.C.Cir.2010) (location ofalien outside the United States is only afactor in determining the extraterritorialreach of the Constitution); Nat’l Councilof Resistance of Iran v. Dep’t of State, 251F.3d 192 (D.C.Cir.2001) (a foreign organi-zation with property in the United Statesentitled to constitutional due process hear-

ing before Secretary of State may classifyit as a ‘‘foreign terrorist organization’’);Cardenas v. Smith, 733 F.2d 909, 915(D.C.Cir.1984) (Colombian national outsidethe United States entitled to assert dueprocess claim against U.S. governmentbased on seizure of her Swiss bank ac-count); In re Aircrash in Bali, Indonesiaon April 22, 1974, 684 F.2d 1301, 1308 n. 6(9th Cir.1982) (nonresident aliens suing onsame cause of action as citizens have theright to assert takings claim).

[11] In United States v. Verdugo–Ur-quidez, 494 U.S. 259, 110 S.Ct. 1056, 108L.Ed.2d 222 (1990), the Supreme Courtwrote that ‘‘aliens receive constitutionalprotections when they have come withinthe territory of the United States anddeveloped substantial connections with thiscountry.’’ Id. at 271, 110 S.Ct. 1056. TheCourt’s statement in Verdugo–Urquidezwas an elaboration of its earlier languagein Johnson v. Eisentrager, 339 U.S. 763, 70S.Ct. 936, 94 L.Ed. 1255 (1950), that analien ‘‘is accorded a generous and ascend-ing scale of rights as he increases hisidentity with our society.’’ Verdugo–Ur-quidez, 494 U.S. at 269, 110 S.Ct. 1056(quoting Eisentrager, 339 U.S. at 770, 70S.Ct. 936) (internal quotations omitted).The Court wrote in Boumediene that theright of an alien outside the United Statesto assert constitutional claims is based on‘‘objective factors and practical concerns’’rather than ‘‘formalism.’’ 553 U.S. at 764,128 S.Ct. 2229. In determining the consti-tutional rights of aliens outside the UnitedStates, the Court applies a ‘‘functional ap-proach’’ rather than a bright-line rule. Id.

A comparison of Ibrahim’s case withVerdugo–Urquidez, Eisentrager, andBoumediene is instructive.

In Verdugo–Urquidez, plaintiff had beenarrested in Mexico and brought against hiswill to the Mexico–United States border,where he was turned over to United States


authorities and imprisoned in the UnitedStates while awaiting trial on narcoticssmuggling charges. The Court held thatthe plaintiff had ‘‘no previous significantvoluntary connection with the UnitedStates’’ and therefore had no right to as-sert a Fourth Amendment challenge tosearches and seizures of his property byUnited States agents in Mexico. Verdu-go–Urquidez, 494 U.S. at 271, 110 S.Ct.1056 (emphasis added).

Relying on Verdugo–Urquidez, the gov-ernment insists that Ibrahim left theUnited States ‘‘voluntarily’’ and that shethereby forfeited any right to assert con-stitutional claims she might have had ifshe had remained in the United States.The government mistakes the nature ofthe Verdugo–Urquidez inquiry. UnderVerdugo–Urquidez, the inquiry is whetherthe alien has voluntarily established a con-nection with the United States, not wheth-er the alien has voluntarily left the UnitedStates. The circumstances of an alien’sdeparture may cast some light on whetherthe alien has established, and wishes tomaintain, a voluntarily established connec-tion with the United States. But themere fact that an alien’s departure is vol-untary tells us very little. In Ibrahim’scase, she left the United States to attenda Stanford-sponsored conference to pres-ent her academic research, performed inconnection with her Ph.D. studies at Stan-ford, and she expected to return to Stan-ford after the conference to complete herstudies. Ibrahim thus did not intend tosever her established connection to theUnited States by her voluntary departure,but rather to develop that connection fur-ther.

In Eisentrager, the plaintiffs were Ger-man citizens who had been arrested inChina, convicted of violating the laws ofwar after adversary trials before a U.S.military tribunal in China, and sent to aprison in Germany to serve their sen-

tences. The Supreme Court held thatthey did not have a right to seek a writ ofhabeas corpus under our Constitution.The Court summarized:

[To agree with plaintiffs that they areentitled to seek habeas] we must holdthat a prisoner of our military authori-ties is constitutionally entitled to thewrit, even though he (a) is an enemyalien; (b) has never been or resided inthe United States; (c) was captured out-side of our territory and there held inmilitary custody as a prisoner of war;(d) was tried and convicted by a MilitaryCommission sitting outside the UnitedStates; (e) for offenses against laws ofwar committed outside the UnitedStates; (f) and is at all times imprisonedoutside the United States.

339 U.S. at 777, 70 S.Ct. 936.

Ibrahim’s case is unlike that of theplaintiffs in Eisentrager. She has notbeen convicted of, or even charged with,any violation of law. She is a citizen of acountry with which we have never been atwar. She contends that the placement ofher name on the government’s terroristwatchlists is a mistake. Her contention isnot implausible, given the frequent mis-takes the government has made in placingnames on these lists. She has establisheda substantial voluntary connection with theUnited States through her Ph.D. studies ata distinguished American university, andshe wishes to maintain that connection.

In Boumediene, the plaintiffs werealiens who had been designated as enemycombatants and who were detained at theUnited States Naval Station in Guantana-mo. Plaintiffs had not been tried or con-victed of any crime. They sought federalhabeas corpus. The government arguedthat because plaintiffs were aliens who hadcommitted acts outside the United Statesand were being detained outside the Unit-ed States, they were not entitled to seek


habeas relief. The Court rejected the gov-ernment’s proposed bright-line rule, call-ing it a ‘‘formal, sovereignty-based test.’’553 U.S. at 764, 128 S.Ct. 2229. The Courtwrote that while the United States doesnot have de jure sovereignty over the Na-val Station at Guantanamo Bay, it ‘‘main-tains de facto sovereignty.’’ Id. at 755, 128S.Ct. 2229. Applying a ‘‘functional ap-proach,’’ id. at 764, 128 S.Ct. 2229, theCourt held that the plaintiffs in Boume-diene, unlike the plaintiffs in Eisentrager,had a right to seek a writ of habeas cor-pus.

Ibrahim shares an important similaritywith the plaintiffs in Boumediene. TheBoumediene plaintiffs and Ibrahim bothsought (or seek) the right to assert consti-tutional claims in a civilian court in orderto correct what they contend are mistakes.In Boumediene, plaintiffs sought the rightto try to establish they were not, in fact,enemy combatants. Ibrahim seeks theright to try to establish that she does not,in fact, deserve to be placed on the govern-ment’s watchlists.

The government in Boumediene pro-posed a bright–line ‘‘formal sovereignty-based test’’ under which the absence of dejure jurisdiction over Guantanamo wouldhave meant that plaintiffs had no right toseek habeas corpus under the Constitution.The Court disagreed, adopting instead a‘‘functional approach’’ under which the ab-sence of de jure jurisdiction was not deter-minative. Id. at 764, 128 S.Ct. 2229. Thegovernment proposes a similar bright-line‘‘formal sovereignty-based test’’ in Ibra-him’s case. Under the government’s pro-posed test in this case, any alien, no mat-ter how great her voluntary connectionwith the United States, immediately losesall constitutional rights as soon as shevoluntarily leaves the country, regardlessof the purpose of her trip, and regardlessof the length of her intended stay abroad.The government’s proposed test is not the

law. The law that we are bound to followis, instead, the ‘‘functional approach’’ ofBoumediene and the ‘‘significant voluntaryconnection’’ test of Verdugo–Urquidez.

Under Boumediene and Verdugo–Ur-quidez, we hold that Ibrahim has ‘‘signifi-cant voluntary connection’’ with the UnitedStates. She voluntarily established a con-nection to the United States during herfour years at Stanford University whileshe pursued her Ph.D. She voluntarily de-parted from the United States to presentthe results of her research at a Stanford-sponsored conference. The purpose of hertrip was to further, not to sever, her con-nection to the United States, and she in-tended her stay abroad to be brief.

We do not hold that tourists, businessvisitors, and all student visa holders havethe same connection to the United Statesas Ibrahim. Nor do we hold that Con-gress is without authority to exclude unde-sirable aliens from the United States andto prescribe terms and conditions for entryand re-entry of aliens. See, e.g., Hampton,426 U.S. at 101 n. 21, 96 S.Ct. 1895; Gal-van v. Press, 347 U.S. 522, 530–31, 74 S.Ct.737, 98 L.Ed. 911 (1954); Shaughnessy v.United States ex rel. Mezei, 345 U.S. 206,210–11, 73 S.Ct. 625, 97 L.Ed. 956 (1953).We hold only that Ibrahim has established‘‘significant voluntary connection’’ with theUnited States such that she has the rightto assert claims under the First and FifthAmendments. Like the Court in Boume-diene, we express no opinion on the validi-ty of the underlying constitutional claims.Boumediene, 553 U.S. at 733, 128 S.Ct.2229.

C. Discovery Rulings

1. Discovery Order

Ibrahim challenges a discovery orderentered by the district court. After re-mand from this court but before the feder-al defendants were dismissed, Ibrahim


sought through discovery: (1) FBI phonelogs; (2) TSA employee logs from the SanFrancisco airport; (3) TSA employee logsfrom the Transportation Security Opera-tions Center; (4) the No–Fly List andother documents identifying Ibrahim as acandidate for special screening; (5) docu-ments considered when placing Ibrahim’sname on the No–Fly List; (6) documentsconsidered when placing Ibrahim’s namein the TSDB; (7) documents discussingher detention at SFO; (8) documents in-structing law enforcement to arrest or de-tain Ibrahim; (9) documents discussing in-structions about the incident exchangedbetween federal and local defendants; (10)documents discussing instructions abouther between federal and local defendants;and (11) video recordings of certain con-versations. The district court did not ruleon these requests before dismissing thefederal defendants.

After the federal defendants were dis-missed, Ibrahim renewed her discovery re-quest on the ground that these documentswere relevant to her still-pending claimsfor damages against the city and privatedefendants. The district court ordered thefederal defendants to produce documentsnumbered (1) through (3) and (7) through(11), above, because the information con-tained in these documents was relevant toIbrahim’s still-pending claims.

However, the district court denied Ibra-him’s request for documents numbered (4)through (6), on the ground that the federaldefendants had been dismissed and thatthe information contained in these docu-ments was relevant, if at all, only to theclaims against the now-dismissed federaldefendants. The court also denied Ibra-him’s request for responses to interrogato-ries directed to the federal defendants, onthe ground that interrogatories can be di-rected only to parties. Fed.R.Civ.P. 33.

We vacate the district court’s denial ofdiscovery of these three categories of doc-

uments, and its denial of the request forinterrogatories, in light of our holding thatIbrahim has the right to assert claimsagainst the federal defendants under theFirst and Fifth Amendments. We leave itto the district court to determine whether,in light of our holding, all or part of Ibra-him’s discovery requests should be grant-ed.

2. Disclosure of Non-testifying Experts.

[12, 13] Ibrahim also appeals the deni-al of her request to share Sensitive Securi-ty Information with her non-testifying ex-perts. Sensitive Security Information is‘‘information obtained or developed in theconduct of security activities TTT the dis-closure of which TSA has determinedwould TTT [b]e detrimental to the securityof transportation.’’ 49 C.F.R.§ 1520.5(a)(3). Such information is sharedonly with ‘‘covered persons’’ who have a‘‘need to know’’ the information ‘‘to carryout transportation security activities.’’ Id.at 1520.7(j), 1520.11(a)(1). Under § 525(d)of the Department of Homeland SecurityAppropriations Act of 2007, Pub. L. No.109–295, 120 Stat. 1355, 1382 (Oct. 4, 2006),Congress has authorized the disclosure of‘‘Sensitive Security Information’’ duringdiscovery to civil litigants who show ‘‘sub-stantial need’’ for the information, provid-ed that the district court

enters an order that protects the [Sensi-tive Security Information] from unau-thorized or unnecessary disclosure andspecifies the terms and conditions of ac-cess, unless upon completion of a TTT

terrorist assessment like that done foraviation workers on the persons seekingaccess to [Sensitive Security Informa-tion] TTT the Transportation SecurityAdministration or DHS demonstratesthat such access to the information forthe proceeding presents a risk of harmto the nation.


Ibrahim argues that the identity of non-testifying experts is not discoverable, andthat the identity of her experts will berevealed if they are required to submit toa TSA background check. Rule26(b)(4)(D) provides, ‘‘Ordinarily, a partymay not, by interrogatories or deposition,discover facts known or opinions held byan expert who has been retained or spe-cially employed by another party in antici-pation of litigation or to prepare for trialand who is not expected to be called as awitness at trial.’’ Ibrahim’s reliance onRule 26 is misplaced for three reasons.First, Rule 26 shields only against disclo-sure through interrogatories and deposi-tions; it does not shield against disclosurewhen information is required pursuant to abackground check mandated by statute.Second, Ibrahim has not shown how abackground check will reveal ‘‘facts knownor opinions held’’ by her experts. Finally,the rule does not prevent disclosure of theidentity of a nontestifying expert, but only‘‘facts known or opinions held’’ by such anexpert. See also Fed.R.Civ.P. 26(b)(3)(B)(preventing disclosure of ‘‘mental impres-sions, conclusions, opinions, or legal theo-ries of a party’s attorney or other repre-sentative concerning the litigation’’). Thedistrict court correctly held:

It is commonplace for experts and con-sultants on both sides of any ordinarycivil action to be vetted so that tradesecrets and other sensitive informationwill not fall into the hands of someonewith an adverse position to the owner ofthe sensitive information (other than, ofcourse, adverse parties to the litigationitself). The risk is simply too great thatsomeone in such an adverse position willbe tempted to misuse sensitive informa-tion for a purpose other than the litiga-tion. For example, a trade secret mightbe misappropriated by a consultant orexpert and written into a pending patentapplication. This risk is all the greaterwhen dealing with [Sensitive Security

Information] and national security. In-deed, it is hard to imagine any legiti-mate reason for suppressing the identityof experts or consultants and exemptingthem from the security screening pro-cess, given that our country has a legiti-mate need to know that those expertsand consultants can be trusted with the[Sensitive Security Information] in thiscase.

(Emphasis in original).

Conclusion

We hold that Ibrahim has significantvoluntary connection to the United Statesand she may therefore assert claimsagainst the federal defendants for prospec-tive relief under the First and FifthAmendments. We vacate in part and af-firm in part the district court’s discoveryrulings.

We REVERSE in part, AFFIRM inpart, and VACATE in part. We RE-MAND for further proceedings consistentwith this opinion. Costs to Appellant.

DUFFY, District Judge:

I dissent.

The facts that are pled and developedby the Petition and submission of the gov-ernment show that the Petitioner, Rahi-nah Ibrahim, was in the United Statesfrom 2001 to 2005 on a student visa toearn her doctorate from Stanford Univer-sity. Prior to the time she left her nativeMalaysia for Stanford, she had been anassistant professor at the University Pu-tra Malaysia in Serdang, Malaysia. Nearthe end of her doctoral studies, Petitionerwas invited to participate in a symposiumat that same university to present herresearch. She voluntarily purchased herticket to Malaysia and made the othernecessary arrangements to attend thesymposium. On January 2, 2005, Petition-er arrived at the airport in San Franciscoas per the ticket and was advised by a


representative of United Airlines that shewas on a ‘‘No Fly’’ list. Instead of issuingher a boarding pass, the representativecalled the San Francisco police. Petition-er was arrested and detained for twohours until F.B.I. agents arrived and di-rected that she be released.1 The Peti-tioner was told she was no longer on the‘‘No Fly’’ list at that time. The very nextday, Petitioner went to the airport whereshe was again told her name was on the‘‘No Fly’’ list. Petitioner neverthelessboarded her plane, and although sheclaims she was subjected to enhancedscrutiny and searches at every stopoveron the trip, she successfully arrived inMalaysia.

Petitioner attended the symposium andstayed in Malaysia for an additional twomonths until March 10, 2005, when sheattempted to board a return flight to theUnited States. She was prevented fromdoing so and was told by a ticketing agentin Malaysia that she would have to wait forclearance from the U.S. embassy beforebeing permitted to board. She was alsotold by another ticketing agent that a notenext to her name instructed airport per-sonnel to alert the police and have herarrested.

Petitioner has been unable to return tothe United States since leaving in 2005.

She has remained in contact with herfriends at Stanford, using electronic de-vices and meeting with them in personoutside of the United States. She claims,however, that such means of contact areinadequate and lists them among her inju-ries in bringing the present action. Peti-tioner also claims her alleged placement onthe ‘‘No Fly’’ list constitutes injury be-cause she is prevented from flying U.S.airline carriers to other foreign countriesand from otherwise flying over U.S. air-space.

On March 24, 2005, Petitioner submitteda request to the Transportation SecurityAdministration’s (‘‘TSA’’) ‘‘Passenger Iden-tity Verification’’ program to clear hername from the ‘‘No Fly’’ list. Petitionerreceived a written response approximatelyone year later, advising her that any rec-ords warranting corrections had been mod-ified. This response did not indicatewhether Petitioner’s name appeared on the‘‘No Fly’’ list or other terrorist watchlists.

On April 14, 2005, an American consul inMalaysia sent Petitioner a letter. Shelearned that the State Department hadrevoked her student visa on January 31,2005.2 The letter referenced Section212(a)(3)(B) of the Immigration and Na-tionality Act (‘‘INA’’) as grounds for revo-cation.3 This INA provision was again

1. Petitioner sued the San Francisco Airport,City and County of San Francisco, San Fran-cisco Police Department, certain San Francis-co Police Department officers, US Investiga-tions Services, Inc. and John Bondanella forfalse arrest as part of this action. All of herclaims against the non-federal defendantswere settled for the total sum of $225,000,following her acceptance of the non-federaldefendants’ offer to compromise under Rule68 of the federal Rules of Civil Procedure.

2. Although according to Petitioner’s brief, herstudent visa was valid until January 2007, itwas due to expire at the end of her studies,which occurred some three months later inJune 2005.

3. The INA provides, in pertinent part, thatany alien

who: (I) has engaged in a terrorist activity;(ii) a consular officer, the Attorney General,or the Secretary of Homeland Securityknows, or has reasonable ground to believe,is engaged in or is likely to engage afterentry in any terrorist activity; (iii) has, un-der circumstances indicating an intentionto cause death or serious bodily harm, incit-ed terrorist activity

is ‘‘ineligible to receive visas and ineligible tobe admitted to the United StatesTTTT’’ 8U.S.C. § 1182(a)(3)(B).


referenced in the denial of her later appli-cation for a visitor visa. Petitioner claims,however, that the denials of her originalstudent visa and her visitor visa applica-tion are solely because she is on the ‘‘NoFly’’ list. She instituted this Petition toremove her name from the ‘‘No Fly’’ listand other terrorist watchlists with the an-nounced expectation that the State De-partment would then issue her a visitorvisa. It is clear that one of the principalreasons Petitioner plans to visit the UnitedStates is to advance her academic career.

The only evidence in the record concern-ing the relationship between visa decisionsand the ‘‘No Fly’’ list is the flat statementby the State Department that the revoca-tion of Petitioner’s student visa did notdepend on Petitioner’s being on the ‘‘NoFly’’ list: ‘‘[v]isa decisions are independentfrom and made without reference to any‘No Fly’ list.’’

As the majority recognizes, courts can-not interfere with the granting (or revoca-tion) of a visa. (See Bustamante v. Muka-sey, 531 F.3d 1059, 1060 (9th Cir.2008));see also 8 U.S.C. §§ 1104(a); 1201(I). Themajority, however, would grant Petitionera hearing on the question of her placementon the ‘‘No Fly’’ list, among other govern-ment watchlists. They claim that the Peti-tioner has a constitutional right to such ahearing because of her ‘‘substantial volun-tary connections’’ to the United States.The government has argued that an alienlocated outside the jurisdiction of the Unit-ed States cannot seek a mandatory injunc-tion for alleged ‘‘as applied’’ unconstitu-tionality. I do not believe it necessary toadopt this bright line test that the govern-ment suggests. Instead, let us turn to the

cases cited by the majority as precedentfor their decision.

The majority relies on a number of casesto show that certain aliens located outsidethe United States can challenge the consti-tutionality of U.S. laws. One such case isKwong Hai Chew v. Colding, 344 U.S. 590,73 S.Ct. 472, 97 L.Ed. 576 (1953). In thatcase, the petitioner, of Chinese ancestry,entered the United States in the early1940s during World War II. He servedhonorably in the United States MerchantMarine and married an American womanwho had been born in this country. Afterthe war, he continued in his career as aseaman. He received seaman’s papers fromthe United States Coast Guard, and in1950 he obtained a job on the S.S. Sir JohnFranklin, an American flagship. The voy-age took several months. At all timesduring this voyage, Kwong Hai Chew wasserving as a seaman under American arti-cles and thus was under de facto jurisdic-tion of the United States. If he had violat-ed U.S. law, the United States could haveprosecuted him. Kwong Hai Chew wasalso entitled to U.S. ‘‘maintenance andcure.’’ 4 Upon the ship’s return to SanFrancisco, Kwong Hai Chew was deniedentry, and the ship thereafter sailed toNew York where Kwong Hai Chew wasput on Ellis Island ‘‘for safe-keeping onbehalf of the master of the S.S. ‘Sir JohnFranklin.’ ’’ Id. at 595, 73 S.Ct. 472. TheSupreme Court recognized that, whileKwong Hai Chew was on the high seas, hewas at all times under the jurisdiction ofthe United States, as evidenced by theAmerican flag on the S.S. Sir John Frank-lin.

4. ‘‘Maintenance and cure’’ is a benefit givento American seamen under an ancient doc-trine that the master of a ship cannot aban-don a sick seaman in a foreign port but mustsee to the well-being of the seaman. Thus,the master must pay for the ‘‘cure’’ of the

seaman’s injury or illness and to maintain theseaman until he can be returned to the homeport. Rules for such expenditures are set inpart by the flag of the vessel, in which theseaman served. 1B Matthew Bender, Bene-dict on Admiralty § 42 (7th ed. 2011).


Kwong Hai Chew did not attack thevalidity of the law that permitted the Unit-ed States Attorney General to exclude cer-tain aliens from entry into the UnitedStates. The Court viewed his position asif he were within the continental UnitedStates at all times in question and permit-ted the issuance of the writ of habeascorpus. Kwong Hai Chew merely provesthe majority’s ‘‘uncontested propositionthat if Ibrahim had remained in the Unit-ed States,’’ she would have been able tochallenge the constitutionality of the gov-ernment’s action in placing her on the ter-rorist watchlists. In the instant case, Pe-titioner resides in Malaysia and, therefore,does not enjoy the right of constitutionalchallenge.

Slightly more instructive on the issue ofwhether aliens located outside of the Unit-ed States can bring constitutional claims isBoumediene v. Bush, 553 U.S. 723, 128S.Ct. 2229, 171 L.Ed.2d 41 (2008). There,the action was brought on behalf of certainaliens held captive at the U.S. naval baseat Guantanamo Bay, Cuba. Boumedieneand his fellow petitioners found themselvesunder de facto U.S. jurisdiction in Guanta-namo Bay, where the United States exer-cised ‘‘absolute and indefinite control.’’ Id.at 727, 128 S.Ct. 2229. The SupremeCourt rejected the same bright line testproposed by the government here andfound that Boumediene and his fellow peti-tioners had the right to seek the writ ofhabeas corpus. The Supreme Court’s de-cision did not disregard the extraterritori-

ality of the claims being asserted, but fo-cused instead on the fact that Boumedieneand his fellow petitioners held at Guanta-namo Bay were in U.S. custody followingcapture in, and transfer from, various for-eign lands. Here, the Petitioner, knowingthat she could be forever banned fromreturning to this country, voluntarily leftand returned to her native land, outside ofU.S. jurisdiction.5 No one can believe thatshe did not know exactly the consequencesof the choice she made.

In Johnson v. Eisentrager, 339 U.S. 763,70 S.Ct. 936, 94 L.Ed. 1255 (1950), a groupof German nationals sought the writ ofhabeas corpus after being arrested by theUnited States Army in China, convicted ofviolating the laws of war by a MilitaryCommission sitting in China, and impris-oned in Germany. The Supreme Courtheld that such ‘‘enemy aliens, resident,captured and imprisoned abroad’’ did nothave the right to seek the writ. Id. at 777,70 S.Ct. 936. The majority concludes thatbecause the Petitioner is not such a per-son, she may seek redress for her constitu-tional claims. The majority, however,overlooks the fact that, like the petitionersin Eisentrager, the Petitioner does not findherself under U.S. jurisdiction, whether dejure or de facto, as did the petitioners inBoumediene.

I must also note a crucial distinctionbetween Boumediene and Eisentrager onthe one hand and the present case on theother. The petitioners in the habeas cases

5. The majority attempts to analogize Boume-diene and the present case by stating thatpetitioners in both cases simply sought tocorrect mistakes the United States had madeconcerning their status. The majority spendsmuch space on the failures of the TSA, theTerrorist Screening Center and other govern-ment agencies in managing the ‘‘No Fly’’ andother watchlists. To my mind, the statisticsquoted show a real effort on the government’spart to reduce the mistakes and to remove asmany people from the ‘‘No Fly’’ and other

government watchlists as possible. This ef-fort was expended over the entire time thatPetitioner was making complaints and pursu-ing this lawsuit. It seems to me that, if possi-ble, the government would prefer to dropsomeone from the watchlists rather than havea possible airing (through costly and publiclitigation) of the mistakes made. All ofwhich, I believe, is evidence that Petitioner’splacement on the ‘‘No Fly’’ list was not amistake.


cited above sought to challenge their de-tention at U.S. hands, whereas the Peti-tioner is not in our custody and thereforecan have no grounds on which to seeksimilar relief.

The majority relies on the standard setforth by the Supreme Court in UnitedStates v. Verdugo–Urquidez, 494 U.S. 259,110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), toconclude that Petitioner may assert herconstitutional claims. Verdugo was aMexican national who was arrested inMexico, brought to the United Statesagainst his will and imprisoned pendingthe outcome of narcotics smugglingcharges against him. The Supreme Courtheld that Verdugo had no right to assertclaims that the search and seizure of hisproperty in Mexico constituted a FourthAmendment violation when he had ‘‘noprevious significant voluntary connectionwith the United StatesTTTT’’ Id. at 271, 110S.Ct. 1056.

The majority distinguishes Verdugo–Ur-quidez by finding that Petitioner ‘‘estab-lished a substantial voluntary connectionwith the United States through her studiesat a distinguished American university.’’ Icannot come to the same conclusion. If wewere to hold today that Petitioner mayassert her constitutional claims becauseshe formed a ‘‘substantial voluntary con-nection with the United States’’ while hereon a student visa, then we would be hardpressed not to allow all alien students whostudied in the United States and subse-quently left the country to bring constitu-tional claims in our courts.

The majority seems to think that theholding of this case can be restricted toPetitioner and her constitutional claimsalone. In doing so, however, it points tono reason why those similarly situated tothe Petitioner could not avail themselves ofthe holding of this case. The majoritybelieves it is enough that Petitioner (1)was in the country for a period of time,

and (2) that upon departure she intendedto come back to the country. If this weresufficient to vest constitutional rights in analien located outside of the United Statesto bring actions in the United Statesagainst the government, there would be asignificant number of aliens in the worldjust waiting to get into court. For exam-ple, a visitor to this country who overstayshis visa, makes a livelihood in this countryfor a substantial amount of time, andchooses voluntary departure when caughtas an illegal alien, could fit within the classof people who would have such rights. Hewould have been in the country for a ‘‘sub-stantial time’’ and would have friends andcontacts in this country—as would mostillegal aliens. As such, he would mostlikely have the desire and intention toreturn to this country.

As this example shows, the majorityholding is too broad, while the govern-ment’s bright line argument based on ex-traterritoriality is too narrow and hide-bound for use in the modern world.

In the case at bar, however, there is noneed to set forth a definitive test becausethe simple answer is that Petitioner hasnot shown a ‘‘substantial voluntary connec-tion’’ with the United States, which is themeasurement the majority believes theprecedent would require. The Petitionerdoes not suggest that she ever worked inor paid taxes to the United States or in-deed did anything (except study at a uni-versity) to indicate that she ever made aconscious decision to live in this country orto accept any of the responsibilities of apermanent resident. She merely came toacquire the education available and there-by improve her position in her own nativecountry. Obviously, the Petitioner is quitecontent in having advanced from assistantprofessor at the University Putra Malaysiaprior to obtaining her doctorate to associ-ate professor and Deputy Dean of that


university now. At all times that she wasin the United States, her main objectivewas to personally benefit from this coun-try. Any contribution the Petitioner madeto the United States was incidental to thisobjective.6 That, to my mind, is totallyinsufficient to constitute a substantial vol-untary connection.

Compare the instant case with KwongHai Chew who, as discussed above, had anAmerican-born wife, had become a perma-nent resident and had already filed a peti-tion for naturalization before he left thecountry.

In any event, the real complaint thatPetitioner has is that she no longer has avisa to come and go as she pleases. Wealready have, in the record, a statementfrom the State Department establishingthat Petitioner’s removal from the ‘‘NoFly’’ list will not affect its visa determina-tions as concern her and that she will notget the visa she desires. Neither thisaction, nor any other court action, canredress her complaint.

Section 1104(a) of Title 8 sets forth thepowers and duties of the Secretary ofState, specifically excluding the authorityto review consular officers’ determinations‘‘relating to the granting or refusal of vi-sas.’’ Section 1201(I) of Title 8 expresslyprecludes visa revocations from judicial re-view. Read together, courts have extend-ed the application of Section 1104(a) topreclude administrative and judicial reviewof all factual determinations relating tovisa applications. See, e.g., Bustamante v.Mukasey, 531 F.3d 1059, 1060 (9th Cir.2008). Courts are therefore deprived ofthe power to order the State Departmentto issue a visa.

This is as it should be. These questionsare clearly political and should not be re-

solved by the judicial branch of our gov-ernment. Thus, the claimed injury ofwhich Petitioner suffers is non-redressa-ble. At a constitutional minimum, ‘‘it mustbe ‘likely,’ as opposed to merely ‘specula-tive,’ that the injury will be ‘redressed by afavorable decision.’ ’’ Lujan v. Defenders ofWildlife, 504 U.S. 555, 560–61, 112 S.Ct.2130, 119 L.Ed.2d 351 (1992) (citing Simonv. Eastern Ky. Welfare Rights Organiza-tion, 426 U.S. 26, 41–42, 96 S.Ct. 1917, 48L.Ed.2d 450 (1976)). Petitioner seeks aninjunction to remove her name from anygovernment watchlist, including the ‘‘No–Fly’’ list, to enable her passage to theUnited States to attend conferences andfurther her professional relationships. Re-moval of her name, however, does not en-sure lawful entry into the United States.Petitioner must first obtain a valid visa.

The majority cites to the DistrictCourt’s observation that ‘‘[w]hile obtaininga visa may stand as a potential obstacle toher entry into the United States, it doesnot completely foreclose redressability.Petitioner is not required to solve all road-blocks simultaneously and is entitled totackle one roadblock at a time.’’ This mayring true where remaining roadblocks donot preclude a likely redress. Here, how-ever, the State Department based its deni-al of Petitioner’s visa application ongrounds other than her ‘‘No–Fly’’ status.Petitioner’s inability to obtain a valid visadespite her removal from the ‘‘No Fly’’ listor any other government watchlist consti-tutes more than a ‘‘potential obstacle’’ toher entry—it renders her entry highlyspeculative at best.

In sum, I would affirm the DistrictCourt and hold that the alien Petitionerhas no standing to bring this action sinceshe has no substantial voluntary connec-

6. In fact, Petitioner’s own declaration showsshe intended to contribute not to the UnitedStates, but to ‘‘the construction industry in

Malaysia, specifically in the architecturefield.’’

1005SKILSTAF, INC. v. CVS CAREMARK CORP.Cite as 669 F.3d 1005 (9th Cir. 2012)

tion to this country. I would further holdthat Petitioner’s alleged harm is ultimatelynon-redressable and thus, she is withoutstanding to bring her claim in this or anyother federal court.

,

SKILSTAF, INC., on behalf of itselfand all others similarly situated,

Plaintiff–Appellant,

v.

CVS CAREMARK CORP.; Longs DrugsStores Corporation; the Kroger Co.;New Albertson’s, Inc.; Rite Aid Cor-poration; Safeway Inc.; SupervaluInc.; Walgreen Co.; Wal–Mart StoresInc., Defendants–Appellees.

No. 10–15338.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 12, 2011.

Filed Feb. 9, 2012.

Background: Third-party payor broughtputative class action against retail pharma-cies, alleging pharmacies violated Racke-teer Influenced and Corrupt OrganizationsAct (RICO) and state law by joining in, orprofiting from, the conspiracy betweendrug-pricing publishers and drug wholesal-er to inflate the average wholesale prices(AWP) for many brand-name prescriptiondrugs. Pharmacies moved to dismiss forfailure to state a claim. The United StatesDistrict Court for the Northern District ofCalifornia, Susan Y. Illston, J., 2010 WL199717, granted motion. Payor appealed.

Holdings: The Court of Appeals, Rosen-thal, District Judge, sitting by designation,held that:

(1) phrase ‘‘or any other person’’ as usedin settlement agreement and finaljudgment in prior related action barred

payor from bringing related claimsagainst pharmacies;

(2) payor was not entitled to discovery ofadditional extrinsic evidence to proveambiguity of settlement agreementreached in prior action;

(3) enforcing judgment and settlementagreement in prior related action, in-cluding covenant not to sue, did notviolate due process; and

(4) payors were barred, under doctrine ofissue preclusion, from collaterally at-tacking settlement issued in prior classaction.

Affirmed.

1. Federal Courts O776, 794Court of Appeals reviews de novo the

district court’s grant of a motion to dismissfor failure to state a claim, accepting allfactual allegations in the complaint as trueand construing them in the light most fa-vorable to the nonmoving party.

2. Federal Courts O776Court of Appeals reviews de novo a

district court’s interpretation of a consentjudgment.

3. Contracts O147(1)Under California law, the fundamental

goal of contract interpretation is to giveeffect to the mutual intent of the parties asit existed at the time of contracting.

4. Evidence O448Because California law recognizes that

the words of a written instrument oftenlack a clear meaning apart from the con-text in which the words are written, courtsmay preliminarily consider any extrinsicevidence offered by the parties.

5. Evidence O448Under California law, if a court de-

cides, after preliminary consideration of

ibrahim v. department of homeland sec. 983...ibrahim v. department of homeland sec.985 cite as 669...

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