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.