FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FAISAL NABIN KASHEM; RAYMOND No. 17-35634 EARL KNAEBLE IV; AMIR MESHAL; STEPHEN DURGA PERSAUD, D.C. No. Plaintiffs-Appellants, 3:10-cv-00750- BR v. WILLIAM P. BARR, Attorney General; OPINION CHRISTOPHER A. WRAY; CHARLES H. KABLE IV, Director, Defendants-Appellees. Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding Argued and Submitted October 9, 2018 Portland, Oregon Filed October 21, 2019 Before: Raymond C. Fisher and Consuelo M. Callahan, Circuit Judges, and Cathy Ann Bencivengo, District Judge. * Opinion by Judge Fisher * The Honorable Cathy Ann Bencivengo, United States District Judge for the Southern District of California, sitting by designation. 2 KASHEM V. BARR SUMMARY ** No Fly List The panel affirmed the district court’s summary judgment in favor of the United States government in an action alleging that plaintiffs’ inclusion on the No Fly List, prohibiting them from boarding commercial aircraft flying to, from or within the United States or through United States airspace, violates their procedural and substantive due process rights. The panel held that the district court properly rejected plaintiffs’ as-applied vagueness challenges. The panel determined that the No Fly List criteria are not impermissibly vague merely because they require a prediction of future criminal conduct, or because they do not delineate what factors are relevant to that determination. The panel held that the criteria are “reasonably clear,” in their application to the specific conduct alleged in this case, which includes, for one or more plaintiffs, associating with and financing terrorists, training with militant groups overseas and advocating terrorist violence. Furthermore, the criteria are not so standardless that they invite arbitrary enforcement, at least as applied to plaintiffs. Because the panel concluded the No Fly List criteria were not vague as applied, it declined to reach plaintiffs’ facial vagueness challenges. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. KASHEM V. BARR 3 The panel agreed with the district court’s disposition of plaintiffs’ procedural due process claims. Applying Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the panel weighed plaintiffs’ private interests, the government’s interests, the risk of erroneous deprivation through the procedures provided, and the value of the additional safeguards proposed by the plaintiffs, and concluded that the procedures provided to plaintiffs were constitutionally sufficient, or that any error was nonprejudicial. The panel determined that given the national security concerns at issue, and with the exceptions noted, the government had taken reasonable measures to ensure basic fairness to the plaintiffs and followed procedures reasonably designed to protect against erroneous deprivation of plaintiffs’ liberty. Because there was no prejudicial denial of basic fairness, the panel did not decide whether, in a different case, less severe travel restrictions might be required as an alternative to a complete ban on air travel. Nor did the panel address whether the procedures employed here would be adequate in a ...
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