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United States Court of Appeals for the Ninth Circuit
October 18, 2018, Argued and Submitted, San Francisco, California; January 29, 2019, Filed
[*1182] 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).3 The district court granted summary judgment in favor of the federal defendants.
We affirm. Although the Functional Standard [**4] 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 [*1183] 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).4 The current Functional Standard 1.5.5 focuses "exclusively on terrorism-related [**5] 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.5 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.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
913 F.3d 1179 *; 2019 U.S. App. LEXIS 2941 **
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.
Prior History: [**1] Appeal from the United States District Court for the Northern District of California. D.C. No. 3:14-cv-03120-RS. Richard Seeborg, District Judge, Presiding.
Gill v. DOJ, 246 F. Supp. 3d 1264, 2017 U.S. Dist. LEXIS 44789 (N.D. Cal., Mar. 27, 2017)
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