Feds Blasted for Trying Dismiss Case in Secret

     SAN FRANCISCO (CN) - The U.S. government cannot dismiss a challenge to a Malaysian woman's placement on the terrorist no-fly list, a federal judge ruled.
     Rahinah Ibrahim, a citizen of Malaysia and former Stanford University student, claims she was detained at San Francisco International Airport in January 2005 when she tried to fly to Malaysia because her name was on the government's no-fly list.
     She returned to the airport the next day to catch a different flight after being held for two hours and told she was no longer on the no-fly list.
     While at the airport the next day, she was told she was still on the no-fly list but was allowed to fly to Malaysia anyway. She has not been permitted to return to the United States.
     Ibrahim tried to clear her name with the Transportation and Security Administration, but the agency did not reveal its decision. The State Department revoked Ibrahim student visa in April 2005 based on a statute that denies U.S. entry to aliens suspected of terrorist activity. The government denied a subsequent visa application.
     Ibrahim sued government agencies, the airline and others in 2006. A federal judge in San Francisco dismissed her claims against the government for lack of jurisdiction, but the 9th Circuit reversed in 2008.
     On remand, the court found that Ibrahim had standing to sue, but that her voluntary departure extinguished her capacity to sue under the Administrative Procedures Act and U.S. Constitutional. Ibrahim settled her claims against the non-federal defendants and appealed the dismissal of her APA and constitutional claims as well as adverse discovery rulings.
     In February 2012, the 9th Circuit affirmed Ibrahim's standing, reversed the dismissal of her APA and constitutional claims, and vacated some discovery rulings.
     Undeterred, the government moved again to dismiss again, asserting that Ibrahim lacks standing, and that her claims also fail as a matter of law.
     In support of its motion, it submitted confidential records to the court review in camera, away from the eyes of Ibrahim and her lawyers.
     The paperwork that the government submitted to both sides "is totally redacted to the standing issue," U.S. District Judge William Alsup.
     "The government's latest motion based on lack of standing, being a complete mystery, is denied," according to the ruling.
     Alsup noted that he has not reviewed any of the ex parte communications or read any redacted pages in the briefing, and does not believe those records are in the courthouse.
     Precedential decisions "strongly favor maintenance of our traditional system of play in which both sides have notice of the arguments and evidence being used against them," according to the ruling.
     With good cause, a judge may receive ex parte secret communications for deciding ancillary matters like discovery privileges, "but only in the rarest of circumstances should the judge do so to resolve or end a case," he added.
     The decision to do so remains "a matter of discretion for the district judge."
     In the 1991 decision, Meridian Intern Logistics Inc. v. United States, the 9th Circuit allowed the government to present declarations filed under seal. But Alsup said those declarations were still in the court record, and were used to support a certification from the attorney that the FBI actions in question had all been done within the scope and course of FBI employment.
     Alsup said Meridian was limited to the "precise facts" of that case, which are "much different" in this case.
     There is no certification in this case, Alsup said.
     "By contrast, the government wishes to whisk away all of its secret evidence and leave no trace behind in our district court records for appellate review," he wrote. "Our court of appeals would have to depend upon an agency bureaucratic process to recreate the same material shown to the district court judge."
     In another case, the 9th Circuit ruled that a security directive it reviewed in camera and ex parte was a final order, and then transferred the case to itself for appellate review, Alsup noted.
     But "nothing in this ex parte procedure was used to make a ruling on the merits and, indeed, our court of appeals went on to reach the merits in the next passage in the opinion," he wrote. "By contrast, here the government seeks to use ex parte communications to defeat plaintiff's case altogether."
     In 1995, the 9th Circuit made "good law" with American-Arab Anti-Discrimination Committee v. Reno, Alsup said.
     That ruling found that "due process was violated when the government uses secret, classified information to deny resident illegal aliens the privilege of legalization, that is, temporary or permanent resident status," he added.
     "Given that in our very case, our court of appeals has now held that Ibrahim, even though voluntarily outside our country, is entitled to assert claims to the same extent as an alien within our borders, it is hard to avoid the Reno principle in the instant civil action," the ruling states.
     Alsup added that: "Here the government seeks to affirmatively use allegedly privileged information to dispose of the case entirely without ever revealing to the other side what its secret evidence might be."
     "In sum, only in the rarest of circumstances should a district judge, in his or her discretion, receive an ex parte argument and evidence in secret from only one side aimed at winning or ending a case over the objection of the other side," he added. "Here, the government has not justified its sweeping proposal. It has gone so far as even to redact from its table of authorities some of the reported case law on which it relies! This is too hard to swallow."
     Alsup added that, "if the government seeks to make an affirmative use of evidence to end the case, then it must disclose that information - under an appropriate protective order, of course, but nonetheless disclose it."
     Ibrahim has stated plausible claims for relief under the First and Fifth Amendments, and for APA violations, the court found, green-lighting the claims for the pleading stage.
     The government failed to show that Ibrahim's counsel cannot be trusted to handle sensitive information in the case.
     Ibrahim is represented by James McManis of McManis Faulkner in San Jose.
     Alsup said that McManis and his colleagues are "reputable lawyers in a reputable firm with no history of infractions."
     Furthermore, there is "no classified information is involved in this case," he added.
     While the case involves sensitive security information, the agencies involved cleared Ibrahim's counsel to receive and review this material pursuant to a 2006 statute.
     Alsup blasted the government's "persistent and stubborn refusal to follow the statute."
     It must turn over the information requested in discovery to Ibrahim's attorneys for their review, "but not for access by plaintiff herself," according to the ruling.
     Alsup concluded that, after "six years and two unsuccessful appeals by the government, it is time to resolve this case on the merits. The court needs the cooperation and assistance of counsel to do so."
     The government is represented by Justice Department attorney Paul Freeborne.