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Gill v. United States Department of Justice

United States Court of Appeals, Ninth Circuit

January 29, 2019

Wiley Gill; James Prigoff; Tariq Razak; Khaled Ibrahim; Aaron Conklin, Plaintiffs-Appellants,
v.
United States Department of Justice; Matthew Whitaker, Acting Attorney General; Program Manager -Information Sharing Environment; The Office of the Program Manager of the Information Sharing Environment, Defendants-Appellees.

          Argued and Submitted October 18, 2018 San Francisco, California

          Appeal from the United States District Court D.C. No. 3:14-cv-03120-RS for the Northern District of California Richard Seeborg, District Judge, Presiding

          Linda Lye (argued) and Julia Harumi, American Civil Liberties Union Foundation of Northern California Inc., San Francisco, California; Michael James Ableson and Stephen Scotch-Marmo, Morgan, Lewis & Bockius LLP, New York, New York; Christina Sinha, Asian Americans Advancing Justice-Asian Law Caucus, San Francisco, California; Hugh Handeyside, American Civil Liberties Union Foundation, New York, New York; Mitra Ebadolahi, American Civil Liberties Union Foundation of San Diego and Imperial Counties, San Diego, California; Jeffrey S. Raskin, Morgan Lewis & Bockius LLP, San Francisco, California; Peter Bibring, American Civil Liberties Union Foundation of Southern California, Los Angeles, California; for Plaintiffs-Appellants.

          Daniel Aguilar (argued) and H. Thomas Byron III, Appellate Staff; Alex G. Tse, Acting United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

          Before: MILAN D. SMITH, JR. and ANDREW D. HURWITZ, Circuit Judges, and RICHARD K. EATON, [*] Judge.

         SUMMARY[**]

         Administrative Procedure Act

         The panel affirmed the district court's summary judgment in favor of federal defendants in an action under the Administrative Procedure Act ("APA") challenging the Functional Standard regarding the sharing of terrorism-related information.

         In the wake of 9/11, the federal government sought to standardize the sharing of terrorism-related information through the adoption of a Functional Standard. Plaintiffs are United States citizens who are the subjects of a Suspicious Activity Report (SAR) or Information Sharing Environment (ISE)-SAR, none of whom have been charged with a crime.

         The panel held that the Functional Standard constituted final agency action because it had legal and practical effects.

         The panel held that the Functional Standard was exempt from the APA's notice and comment requirement because the significant discretion retained by agencies and their analysts in determining whether to disseminate information demonstrated that the Functional Standard was not a legislative rule. Legislative rules have the force of law, and are subject to notice and comment under the APA before becoming effective.

         Plaintiffs argued that the Functional Standard was arbitrary and capricious under the APA because it was inconsistent with the "reasonable suspicion" standard for disseminating criminal intelligence information in 28 C.F.R. Part 23. The panel held that the Department of Justice's decision to exclude SARs from Part 23 was not contrary to the record, and was consistent with the stated objectives of the Nationwide Suspicious Activity Reporting Initiative. The panel concluded that the Functional Standard was not arbitrary and capricious under the APA.

          OPINION

          M. SMITH, CIRCUIT JUDGE.

         In the wake of 9/11, law enforcement agencies at the federal, state, and local levels found that they were unable to communicate effectively about potential threats to our national security. In response, the federal government sought to standardize the sharing of terrorism-related information through the adoption of a "Functional Standard." Aaron Conklin, Wiley Gill, Khaled Ibrahim, James Prigoff, and Tariq Razak (collectively, Plaintiffs) challenged the Functional Standard under the Administrative Procedure Act (APA).[1] The district court granted summary judgment in favor of the federal defendants.

         We affirm. Although the Functional Standard constitutes final agency action, it was not required to undergo the APA notice and comment procedure, nor was it arbitrary and capricious.

         FACTUAL AND PROCEDURAL BACKGROUND

         I. Factual Background

         In October 2007, President George W. Bush issued a National Strategy for Information Sharing concerning terrorism-related information. The Strategy created fusion centers that would ensure Suspicious Activity Reports (SARs) were "disseminated to and evaluated by appropriate government authorities," and identify requirements to support a "unified process for reporting, tracking, and accessing" SARs. The nationwide effort to standardize this information sharing was called the Nationwide Suspicious Activity Reporting Initiative (NSI).

         To "govern[] how terrorism information is acquired, accessed, shared, and used," the Program Manager for the Information Sharing Environment (ISE) has issued three Functional Standards since the inception of the NSI, each superseding the previous one: Functional Standard 1.0 (issued January 2008), Functional Standard 1.5 (issued May 2009), and Functional Standard 1.5.5 (issued February 2015).[2] The current Functional Standard 1.5.5 focuses "exclusively on terrorism-related information."

         The Functional Standard defines suspicious activity as "[o]bserved behavior reasonably indicative of pre-operational planning associated with terrorism or other criminal activity." After receiving a report of suspicious activity, an officer creates a SAR. The SAR then undergoes a two-part evaluation process. An analyst determines whether the SAR meets certain behavioral criteria and has a potential nexus to terrorism.[3] If the analyst concludes that it does, the SAR becomes an ISE-SAR, and is uploaded to the eGuardian repository, where it is available to all NSI participants. The ISE-SAR is also input into the Federal Bureau of Investigation (FBI) classified system and sent to the Department of Homeland Security Office of Intelligence Analysis.

         Plaintiffs are United States citizens who are the subjects of a SAR or ISE-SAR, none of whom has been charged with a crime. The ISE-SAR on Gill notes his potential access to a "flight simulator type of game," his conversion to Islam, and his "pious demeanor." The FBI visited Gill's sister and questioned her about Gill's religious beliefs. Another SAR describes Razak as a male of believed Middle Eastern descent who "meticulously stud[ied] the entry/exit points" of a train station. After the SAR was uploaded to eGuardian, the FBI questioned Razak. The SAR concerning ...


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