Amiri et al v. Department of Homeland Security, Secretary of et al
Filing
40
ORDER Granting 20 Motion to Dismiss and Dismissing [ 19 Amended Complaint. Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
Loabat Amiri, Mohammed Amin Latif,
Farbod Latif,
Plaintiffs,
v.
Kirstjen Nielsen, Secretary, U.S. Department
of Homeland Security, in her official
capacity, et al.,
Case No. 17-cv-12188
Hon. Thomas L. Ludington
Mag. Judge Patricia T. Morris
Defendants.
__________________________________________/
ORDER GRANTING MOTION TO DISMISS AND DISMISSING AMENDED
COMPLAINT
On October 5, 2017, Plaintiffs Loabat Amiri (Amiri), her husband Mohamed Amin Latif
(Latif), and their son Farbod Latif (Farbod), filed an amended complaint challenging the denial
of Latif’s visa, and challenging Amiri and Latif’s placement on a terrorist watch list. ECF No. 1.
The amended complaint contains ten counts, alleging violations of the Immigration and
Nationality Act of 1965 (INA), the Administrative Procedure Act (APA), and various
constitutional provisions including Article 1 section 9 (Bill of Attainder) as well as amendments
1 (free exercise), 5 (equal protection, due process) and 6 (confrontation clause). The amended
complaint names 9 official capacity defendants who are the directors of various executive
departments and agencies including the Department of Homeland Security (DHS), the
Department of State (DOS), Customs and Border Protection (CBP), Federal Bureau of
Investigation (FBI), National Security Agency (NSA), National Counterterrorist Center (NCTC),
Office of the Director of National Intelligence (ODNI), and the Terrorist Screening Center
(TSC). The amended complaint also names unidentified agents of the FBI, TSC, and CBP.
Defendants moved to dismiss the amended complaint on October 19, 2017. ECF No. 20. 1
On January 30, 2018 the Court granted Defendants’ motion to dismiss in part. ECF No.
35. Pursuant to the doctrine of consular non-reviewability (the decisions of the Executive Branch
in reviewing visa applications are generally not subject to judicial review), the Court dismissed
all aspects of the amended complaint that challenged the inadmissibility determination and denial
of Latif’s visa. The Court also dismissed counts 1, 2, 5, 6, 7, and 9 in their entirety for failure to
state a claim upon which relief can be granted under Rule 12(b)(6). Fed. R. Civ. P. 12(b)(6).
Because the parties had not briefed several outstanding issues, the Court directed
supplemental briefing to address the following: 1) whether Plaintiffs have standing to challenge
Amiri and Latif’s alleged inclusion on the TECS database and the TSDB and to seek an
explanation for the designation, 2) whether Plaintiff Latif, as an unadmitted non-resident alien,
has a right to assert a constitutional or statutory challenge to his alleged inclusion on the TECS
database and TSDB and seek an explanation for the designation, 3) whether Plaintiffs have stated
a claim for relief under counts 3, 4, 8 and 10, and 4) whether Plaintiffs were required to exhaust
the administrative remedies furnished by the DHS Traveler Redress Inquiry Program (TRIP)
prior to initiating this case. Because Plaintiffs do not have standing, this opinion will primarily
address the first issue. To the extent Plaintiff Latif might have standing if he pursued different
relief, the exhaustion doctrine would apply. Thus, the exhaustion doctrine will be addressed
briefly as well.
1
A detailed factually summary is contained in the order granting Defendants’ motion to dismiss in part.
ECF No. 35.
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I.
A.
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal for lack of subject matter
jurisdiction. Article III of the United States Constitution prescribes that federal courts may
exercise jurisdiction only where an actual “case or controversy” exists. See U.S. Const. art. III, §
2. “Courts have explained the case or controversy requirement through a series of justiciability
doctrines, including, perhaps the most important, that a litigant must have standing to invoke
the jurisdiction of the federal courts.” Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 709–10
(6th Cir. 2015) (quotations omitted).
“The irreducible constitutional minimum of standing contains three elements.” Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1992). First, Plaintiff must have suffered an injury in fact –
an “invasion of a legally protected interest” which is “concrete and particularized” and not
“conjectural or hypothetical.” Id. at 561. Second, the injury must be fairly traceable to the
conduct complained of. Id. Third, “it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Id.
“The standing inquiry is particularly rigorous when reaching the merits of the dispute
‘would force [the Court] to decide whether an action taken by one of the other two branches of
the Federal Government was unconstitutional.”’ Parsons, 801 F.3d at 710 (quoting Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 408, (2013)). The party invoking federal jurisdiction bears the
burden of establishing the standing elements. Lujan, 504 U.S. at 561.
B.
The Ninth Circuit has addressed the question of whether an alien has standing to
challenge her inclusion on the No-Fly list where her visa application was also denied. Ibrahim v.
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Dep’t of Homeland Sec., 669 F.3d 983 (9th Cir. 2012). In Ibrahim, the plaintiff was an alien who
was in the United States on a student visa when she was detained and prevented from boarding a
plane at the San Francisco airport. Id. She filed suit against numerous federal agencies seeking a
permanent injunction directing the government to remove her name from the No-Fly list. Id. In
addressing whether she had standing to challenge her inclusion on the list, the court noted that
“the government mischaracterizes Ibrahim’s injury by focusing solely on her inability to return
to the United States.” Id. at 993. The court further explained that Ibrahim suffered distinct
injuries due to her presence on the No-Fly list: “The no Fly-List prevents her from boarding any
U.S. carrier whether or not a flight departs from or lands in the United States. It also prevents her
from flying over U.S. airspace. These injuries are unrelated to her lack of a visa.” Id.
The court also noted that:
Even if Ibrahim’s injury were limited to her inability to enter the United States,
she would still have standing. Ibrahim does not challenge the revocation of her
visa, as decisions of consular officers to deny a visa are immune from judicial
review. But it is a reasonable inference that removal of her name from
government watchlists would make a grant of a visa more likely. If Ibrahim’s
name were removed from the TSDB, and thereby removed from the Consular
Lookout and Support System, the State Department would be likely to grant her a
visa, given that it has relied on her alleged connection to terrorism as the basis for
revoking her visa and denying her application for a new one. Though Ibrahim’s
future ability to obtain a visa is uncertain and we would be powerless to review a
denial, plaintiff need not demonstrate that there is a guarantee that their injuries
will be redressed by a favorable decision . . . Plaintiffs must show only that a
favorable decision is likely to redress their injuries, not that a favorable decision
will inevitably redress their injuries . . . As the district court correctly observed,
while obtaining a visa may stand as a potential obstacle to her entry into the
United states, it does not completely foreclose redressibility. Ibrahim is not
required to solve all roadblocks simultaneously and is entitled to tackle one
roadblock at a time.
Id. (internal quotations omitted) (emphasis in original).
More recently, the Sixth Circuit has addressed the issue of whether an individual has
standing to challenge his or her designation on a terrorist watchlist. In Shearson, the United
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States Customs and Border Protection (CBP) detained the plaintiff, a U.S. Citizen, and her
daughter as they drove into the U.S. from Canada. Shearson v. Holder, 725 F.3d 588, 589 (6th
Cir. 2013). The vehicle was searched and the plaintiff and her daughter were ultimately allowed
to enter the U.S.. The plaintiff filed a Freedom of Information Act (FOIA) request for documents
related to her detention, and she ultimately obtained documents revealing that CBP detained and
searched her because “when Customs entered her name into its system, her name returned ‘an
Armed and Dangerous’ designation in the Customs’ terrorist database.” Id. at 590. The plaintiff
sought prospective declaratory and injunctive relief claiming that her inclusion on a terrorist
watchlist violated the Procedural Due Process guarantees of the Fifth Amendment. The plaintiff
argued “not only that the government wrongly detained her in 2006, but also that, by remaining
on the list, the government is “constrain[ing] her right to travel freely internationally, to be
treated like others situated similarly to her, and has subjected her to the stigma that attends
placement on a government watchlist.” Id. at 593. The court concluded that “Shearson’s past
detention, in conjunction with the presumption that she remains on terrorist watchlists, makes it
likely that she is ‘realistically threatened with future injury.”’ Id. (quoting Ibrahim, 538 F.3d at
1256 n. 9.). The Court ultimately held, however, that the plaintiff failed to exhaust administrative
remedies by failing to avail herself of DHS’s Traveler Redress Inquiry Program (TRIP)).
II.
In their supplemental brief, Defendants argue that Plaintiffs do not have standing to
challenge their alleged inclusion on the TECS database and the TSDB and to seek an explanation
for the designation because Plaintiffs allege no injury independent from the denial of Latif’s visa.
Def. Supp. Br. at 7-13, ECF No. 36. For these same reasons, Defendants argue that Plaintiffs
have failed to state a claim because they have identified no constitutional right that has been
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invaded. Plaintiffs respond that they have indeed alleged injuries independent from the denial of
Latif’s visa, including travel impediments, reputational injury, as well as Latif’s inability to enter
the U.S..
The remaining counts from the amended complaint are counts 3, 4, 8, and 10, insofar as
they allege that Plaintiffs Amiri and Latif are wrongfully listed in TECS and the TSDB (and not
insofar as they challenge the denial of Latif’s visa). Count 3 alleges that Defendants violated the
Fifth Amendment Procedural Due Process clause because Defendants failed to provide Plaintiffs
a pre-deprivation notice and an opportunity to contest the designations. Am. Compl. ¶¶ 82, 8485. Count 4 alleges that Defendants violated the Substantive Due Process Clause of the Fifth
Amendment by infringing on Plaintiffs’ right to international travel. Specifically, Plaintiffs
allege that “they are unable to travel internationally because of the TECS designation placed on
Amiri and Latif . . .” Id. ¶ 91. Count 10 also alleges that Defendants violated the Substantive Due
Process Clause of the Fifth Amendment because Plaintiff Latif “has suffered a ‘change in legal
status’—he is legally barred from travelling to or from the United States, which he would do had
he not been subjected to the inadmissibility and TECS designation.” Id. at ¶ 135. Count 8 alleges
that Defendants violated the Administrative Procedure Act (APA) because “Defendants’ actions
in preventing Plaintiffs’ travel into the United States were arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law . . .” Id. ¶ 124.
A.
Plaintiff Amiri lacks standing to challenge her alleged inclusion on the TECS database
and TSDB and to seek an explanation for the designation because she has alleged no concrete
injury connected to her inclusion on these lists that is actual or imminent, and that is likely to be
redressed by a favorable ruling. She alleges that she is “unable to travel internationally because
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of the TECS designation” yet identifies no instance in which she has ever unsuccessfully
attempted to travel as a result of the TECS designation. Plaintiff Amiri’s allegations are
distinguishable from the allegations of the plaintiff in Ibrahim, whose designation on the No-Fly
list prevented her from boarding any U.S. Carrier, whether or not the flight departed from or
landed in the U.S., and also prevented her from flying over U.S. airspace. Ibrahim, 669 F.3d at
993. Plaintiff Amiri, by contrast, alleges no such travel impediments. The court in Ibrahim also
noted that “[e]ven if Ibrahim’s injury were limited to her inability to enter the United States,”
this is a distinct injury from the denial of her visa, and is sufficient to support standing. Id.
Plaintiff Amiri, by contrast, has not alleged that she is prevented from entering the United States.
To the contrary, she is a permanent resident currently residing in Midland, Michigan. Am.
Compl. ¶ 13.
Shearson is also distinguishable. In Shearson, the plaintiff obtained documents via a
FOIA request which confirmed that she was detained by the CBP at a port of entry due to her
presence in the TECS database. Shearson, 725 F.3d at 589–90. The court concluded that
“Shearson’s past detention, in conjunction with the presumption that she remains on terrorist
watchlists, makes it likely that she is ‘realistically threatened with future injury.”’ Id. Here, by
contrast, Plaintiff Amiri’s allegations are inconsistent with the notion that she was ever detained,
or that her travel was ever impeded, due to her alleged TECS designation. To the contrary, she
alleges that she and her family traveled without incident to and from Europe on multiple
occasions, were checked against all security databases by Defendant CBP, and were re-admitted
to the U.S. on each occasion. Am. Compl. ¶ 35.
The first time Plaintiff Amiri alleges that she ever experienced any travel impediment
was in April of 2010. The impediment, however, was not connected to her alleged TECS
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designation. Rather, it was caused by the expiration of her and her husband’s H visas which
required renewal. Id. ¶¶ 36-39. It was not until November 25, 2010, however, that a TECS record
was allegedly created for Amiri and Latif. Id. ¶ 43. Thus, the delay Plaintiffs experienced months
earlier was not fairly attributable to the creation of the TECS records. After the creation of the
TECS record, Latif was detained for 30 days pending removal to Great Britain. Id. ¶ 44. There is
no allegation, however, that Amiri was ever detained following the creation of the TECS record,
or ever experienced any subsequent travel impediment.
In their supplemental brief, Plaintiffs contend that Amiri’s TECS record “can be used at
any time to impede her travel.” Pl. Suppl. Br. at 12, ECF No. 38. To support standing, however,
an injury in fact must be “concrete and particularized” and not “conjectural or hypothetical.”
Lujan, 504 U.S. at 561. Latif’s previous detention by the CBP due to his TECS designation
makes it likely that he is “realistically threatened with future injury,” namely future travel
impediments due to his TECS designation. See Shearson, 725 F.3d at 593 (quoting Ibrahim, 538
F.3d at 1256 n. 9). Plaintiff Amiri, however, is not realistically threatened with future injury. Her
contention that her TECS record “can be used at any time to impede her travel” is purely
hypothetical, as no such travel impediment has occurred in the past.
Plaintiffs cite Latif and KindHearts for the proposition that “[p]ersons who believe they
are on the Watchlist have a right to receive information used for their inclusion on that list.” Pl.
Suppl. Br. at 3-4 (citing Latif v. Holder, 28 F. Supp. 3d 1134 (Dist. Or. 2014)); KindHearts for
Charitable Humanitarian Dev., Inc. v. Geithner (KindHearts I), 647 F. Supp. 2d 857, 868 (N.D.
Ohio 2009)). Plaintiffs appear to be arguing that mere presence on the list itself, divorced from
any harmful consequence of being listed, is sufficient to confer Article III standing. Plaintiffs
contend that “Both the courts in Latif v. Holder and KindHearts for Charitable Humanitarian
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Dev., Inc. v. Geithner found standing to challenge the Watchlist and to receive information
contained in that database.” Pl. Supp. Br. at 4.
In fact, neither of these cases explicitly discusses standing. At most, Latif indirectly
addresses the injury-in-fact element by finding that the plaintiffs had a constitutionally protected
liberty interest in traveling internationally by air, and had the same interest in their reputations,
both of which were burdened due to their presence on the No-Fly list. Latif v. Holder, 28 F.
Supp. 3d at 1148. Plaintiffs make no meaningful attempt to explain how this case is applicable.
Merely establishing the existence of a constitutionally protected interest does not end the
standing inquiry. That constitutionally protected interest must also have been invaded in order
for a plaintiff to have suffered an injury. As discussed above, being listed on the No-Fly list
results in unique travel impediments such as the inability to fly over U.S. Airspace and the
inability to board a U.S. Carrier. As discussed above, there is no allegation that Plaintiff Amiri
has suffered any travel impediment connected to her alleged TECS designation.2
B.
Plaintiff Latif, on the other hand, has alleged injuries connected to his TECS designation,
including that his travel has been impeded, and that he has been denied entry to the U.S. because
he is wrongfully listed on TECS. Am. Compl. ¶¶ 44, 135. Nevertheless, these injuries are not
likely to be redressed by a favorable ruling. Plaintiffs assert that their TECS designation is based
on unsubstantiated information, is supported by no substantial justification that they are in any
2
Plaintiffs also allege “reputational injury.” Specifically, Plaintiffs allege that “As a direct and proximate
cause of Defendants actions, the Plaintiffs have suffered harm to their reputation”, that they “have been
stigmatized as security risks with ties to terrorism.” Am. Compl. ¶¶ 94-95. These allegations are too
vague and non-specific to support Article III standing. There is no allegation that their TECS records have
been publicized. In contrast to the facts of Latif v. Holder, 28 F. Supp. 3d 1134, 1150 (D. Or. 2014), in
which the stigmatizing information was publically disclosed to a “small group of individuals in the same
area of the airport as the traveler when the traveler is denied boarding,” Plaintiff Amiri does not allege
that any stigmatizing information about her was ever made publically known.
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way associated with terrorism, and is based on religious profiling. Id. ¶¶ 69, 70. Notably,
however, Plaintiffs do not seek to have their name removed from TECS or the underlying
TSDB.3
Rather, Plaintiffs ask the Court to “Order the Defendants to provide both Plaintiffs Latif
and Amiri the explanation for the TECS designation at a minimum in camera or in a summary,”
and to “Order the Defendants to provide the Plaintiffs with the agency and person responsible for
making . . . the TECS reports at a minimum in camera or in a summary.” Am. Compl. at 33. To
satisfy the redressability prong of the Article III standing test, the relief the plaintiff is seeking
must provide redress for the injury. Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 715 (6th Cir.
2015). Plaintiffs contend that “If Latif had access to the information in the TECS database, then
he might be able to redress any adverse information which might result in being able to obtain a
visa to the U.S. or at a minimum entry to the U.S.” Pl. Supp. Br. at 16 (citing Ibrahim, 669 F.3d
983). In order for a plaintiff to have standing, however, “it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561
(emphasis added).
Although the gravamen of Plaintiff Latif’s redressibility theory is far from clear, it
appears as though he is arguing that, if he is provided information concerning his TECS
designation, this might provide him an explanation for why the government considers him to be
associated with terrorist activity (assuming this is even the reason for the TECS designation).
3
The plaintiff in Ibrahim, by contrast, did seek to have her name removed from the No-Fly list. See
Ibrahim, 669 F.3d at 993. The plaintiff in Shearson also sought to have her information removed from the
TECS database and the TSDB. See Shearson v. Holder, 865 F. Supp. 2d 850, 861 (N.D. Ohio
2011), aff'd, 725 F.3d 588 (6th Cir. 2013). Furthermore, in Scherfen, the plaintiffs sought to be removed
from the TSDB. Scherfen v. U.S. Dep’t of Homeland Sec., No. 3:CV-08-1554, 2010 WL 456784, at *1
(M.D. Pa. Feb. 2, 2010)
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Latif might then be able to address the conduct in question, which might alleviate the
government’s suspicions concerning his connection to terrorist activity. The government might
then remove him from the databases, after which he might be able to obtain a visa. This is far too
speculative a scenario to support article III standing, particularly given what is known about the
TECS system and the TSDB (the database that the TECS system draws information from). “In
contrast to TIDE4 (operated by NCTC), the TSDB (operated by TSC) does not include
‘derogatory intelligence information.’ Instead, it consists of ‘sensitive but unclassified terrorist
identity information consisting of biographic identifying information such as name or date of
birth or biometric information such as photographs, iris scans, and fingerprints.” CONG. RES.
SERV. REP, TERRORIST DATABASES
HURDLES TO LITIGATION
AND THE NO FLY LIST: PROCEDURAL DUE PROCESS AND
at 2, https://fas.org/sgp/crs/homesec/R43730.pdf (last visited Jan. 15,
2018). at 2–3 (quoting Mohamed v. Holder, 995 F. Supp. 2d 520, 526 n.8 (E.D. Va. 2014)).
Even if Plaintiff Latif did seek to have his name removed from the list, however, he
would face another obstacle, namely the exhaustion requirement. In Shearson, the court held that
a citizen alleging her name erroneously appeared in TECS, resulting in her being detained at a
port of entry, was required to exhaust her administrative remedies by submitting a claim via the
DHS Traveler Redress Inquiry Program (TRIP) prior to bringing a Fifth Amendment Procedural
Due Process claim against the DHS and the CBP. Shearson, 725 F.3d at 594 (6th Cir. 2013).
The plaintiff had argued that TRIP was “an inadequate administrative procedure because
it was created to solve the problems of air travelers who have been misidentified as being on the
terrorist watchlist,” and was not a process “for resolving the problems of individuals actually on
4
The NCTC’s Terrorist Identities Datamart Environment (TIDE) is the “central repository of the U.S.
Government containing derogatory information about suspected international terrorists.” CONG. RES.
SERV. REP, TERRORIST DATABASES AND THE NO FLY LIST: PROCEDURAL DUE PROCESS AND HURDLES TO
LITIGATION at 2, https://fas.org/sgp/crs/homesec/R43730.pdf (last visited Jan. 15, 2018). Due to the
national security importance of this information, the contents of the database are classified. Id.
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the watchlist or of land travelers.” Shearson at 594 (6th Cir. 2013). Furthermore, the District
Court’s dismissal of the action for failure to exhaust occurred approximately five years after the
incident in which plaintiff was detained by the CBP.5 Shearson v. Holder, 865 F. Supp. 2d 850
(N.D. Ohio 2011), aff’d, 725 F.3d 588 (6th Cir. 2013). Thus, one could question what value the
TRIP program could provide to the plaintiff at that point.
Nevertheless, the Sixth Circuit affirmed the dismissal:
While there are deficiencies in the Redress Program process, we agree with the
district court that Shearson should be required to exhaust her administrative
procedures by submitting a traveler inquiry form through the Redress Program
before she can proceed with this case. There is very little guidance in any Circuit
considering administrative exhaustion as it pertains to the Redress Program and
there is no case law in this Circuit. However, when considering the purposes of
the exhaustion doctrine, making Shearson submit a Traveler Redress inquiry is
reasonable to promote judicial efficiency and allow the agencies involved an
opportunity to resolve problems with their procedures . . . . Additionally, forcing
Shearson to advance her claims through the Program will promote judicial
efficiency, despite the Redress Program’s shortcomings. There are thousands of
people on the government’s terrorist watchlists, and there are thousands more
people each year whom the government misidentifies as being on the lists. The
Redress Program procedures help force an internal review of the data and may
lead to the removal of a person’s name from the terrorist database. While the
Redress Program’s determination letters do not provide a direct answer for
travelers about whether the terrorist watchlist has included or continues to include
them, the Redress Program review process creates a record that may be reviewed
by a judge in camera. This record will help a court better determine the issues,
determine whether a plaintiff has standing, and whether the plaintiff’s claim is
moot. Id. Making it easier for plaintiffs to bypass the Redress Program will
burden the courts when many cases can be easily resolved.
Shearson v. Holder, 725 F.3d 588, 595 (6th Cir. 2013). Here, Plaintiff Latif alleges he was
detained by the CBP due to his TECS record, which he contends is based on unsubstantiated
information. Am. Compl. ¶¶ 44, 69. Plaintiffs ask the Court to direct Defendants to produce
records for in camera review. This relief could potentially be obtained via the DHS TRIP
5
Similarly here, Plaintiff Latif was detained by the CBP more than 7 years ago.
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process, which Plaintiff Latif has not availed himself of. Indeed, the plaintiffs in Scherfen
invoked the DHS TRIP process, requesting removal from the TSDB, and the documents
produced through that administrative process were reviewed in camera by the Court. Scherfen v.
U.S. Dep’t of Homeland Sec., 2010 WL 456784, at *1-2, 7-8 (M.D. Pa. Feb. 2, 2010). This aided
the court in determining whether the plaintiffs had standing to pursue further declaratory or
injunctive relief. Id. Similar judicial efficiencies could be gained by Plaintiff Latif submitting a
DHS TRIP inquiry.6
In sum, Plaintiffs have not established that they have standing to seek information
concerning their inclusion in the TECS database and the TSDB. Although it appears Plaintiff
Latif would have standing to pursue different relief (namely removal of his information from
these databases), he has not sought such relief. Furthermore, even if he had done so, he would
first be required to exhaust administrative remedies via DHS TRIP. Accordingly, the amended
complaint will be dismissed.
III.
6
Plaintiffs contend that the exhaustion requirement doesn’t apply, notwithstanding the holding of
Shearson, because the Shearson court observed in a footnote that it was unclear whether the exhaustion
requirement applied to an APA claim. Pl. Supp. Br. at 18-20 (citing Shearson v. Holder, 725 F.3d at 594).
Plaintiffs overlook the fact that the district court in Shearson held that the plaintiff had failed to state a
claim under the APA, even if the plaintiff had met the prudential standing requirement of the APA.
Shearson v. Holder, 865 F. Supp. 2d 850, 866 (N.D. Ohio 2011), aff'd, 725 F.3d 588 (6th Cir. 2013). The
district held that plaintiff’s APA claim was not viable because “Plaintiff has not alleged that a judicially
manageable standard exists for reviewing Defendants’ inclusion of persons on the TSDB or a derivative
watch list. Nor is there any statute that provides a standard of review. Instead, Defendants’ authority to
create and maintain watchlists is derived from the President’s Executive powers and Defendants’ general
authority to secure the national borders.” Id. The district court’s holding in Shearson as to a challenge
under the APA to a plaintiff’s inclusion in the TECS database and the TSDB is thus equally applicable
here, and that holding was not disturbed by the Sixth Circuit on appeal. Shearson v. Holder, 725 F.3d at
588. Plaintiffs also contend that exhaustion is not required in this case because it would be futile. Pl.
Supp. Br. at 19-20. Plaintiffs contend that DHS TRIP has been found to be a futile because it is an
ineffective administrative remedy. To support this assertion Plaintiffs cite a district court opinion from the
District of Oregon. However, Plaintiffs ignore the fact that the Sixth Circuit in Shearson (which is the
controlling decision here), found that exhaustion via DHS TRIP would not be futile despite the admitted
“deficiencies in the Redress Program process.” Shearson v. Holder, 725 F.3d at 595.
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Accordingly, it is ORDERED that the motion to dismiss, ECF No. 20, is GRANTED.
It is further ORDERED that the amended complaint, ECF No. 19, is DISMISSED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: July 9, 2018
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 9, 2018.
s/Kelly Winslow
KELLY WINSLOW, Case Manager
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