Kadura et al v. HOLDER JR et al

Filing 55

OPINION an ORDER Granting Defendants' 42 Motion to Dismiss Plaintiffs' Amended Complaint. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
YASEEN KADURA, et al.,
Plaintiffs,

Civil Case No. 14-13128
Honorable Linda V. Parker

v.
LORETTA E. LYNCH, et al.,
Defendants.
__________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS PLAINTIFFS’ AMENDED COMPLAINT (ECF NO. 42)
Plaintiffs Dr. Naji Abduljaber, Mr. Abdus Samad Tootla, Mr. Alaa Saade,
and Mr. Ahmed Saleh Abusaleh filed this action based on their alleged inclusion in
the Terrorist Screening Database. Defendants are Loretta E. Lynch, in her capacity
as Attorney General of the United States; James B. Comey, in his official capacity
as the Director of the Federal Bureau of Investigation (“FBI”); Christopher M.
Piehota, in his official capacity as Director of the Terrorist Screening Center
(“TSC”); Jeh Johnson, in his official capacity as the Secretary of the Department of
Homeland Security; R. Gil Kerlikowske, in his official capacity as Commissioner
of the United States Customs and Border Protection (“CBP”); John S. Pistole, in
his official capacity as Administrator of the United States Transportation Security
Administration (“TSA”); and John T. Morton, in his official capacity as Director of

1

the United States Immigration and Customs Enforcement (“ICE”) (collectively,
“Defendants”). Presently before the Court is Defendants’ motion to dismiss
Plaintiffs’ amended complaint. (ECF No. 42.) The parties have fully briefed the
motion. Finding the facts and legal arguments sufficiently presented in the parties’
briefs, the Court is dispensing with oral argument pursuant to Eastern District of
Michigan Local Rule 7.1(f). For the reasons that follow, the Court is granting
Defendants’ motion to dismiss.
II.

Standard for Motion to Dismiss for Lack of Subject-Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) allows for motions asserting lack

of jurisdiction of the subject matter. Fed. R. Civ. P. 12(b)(1). Where a Rule
12(b)(1) motion contains a factual attack, the court need not construe the
allegations in the non-moving party's favor because the burden of proving
jurisdiction is on the party asserting it. Moreover, it is recognized that a party
faced with a Rule 12(b)(1) motion to dismiss may not rest on the truth of the facts
asserted in its pleadings. See Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d
320, 325 (6th Cir.1990) (“[W]hen a court reviews a complaint under a factual
attack [on jurisdiction], ... no presumptive truthfulness applies to the factual
allegations.”); Exchange Nat'l Bank of Chicago v. Touch Ross & Co., 544 F.2d
1126, 1131 (2d Cir.1976) (“[A] party opposing a Rule 12(b)(1) motion cannot rest
on the mere assertion that factual issues may exist.”).

2

“When a defendant moves for a motion to dismiss under both Rule 12(b)(1)
and (b)(6), the court should consider the 12(b)(1) motion first because the 12(b)(6)
motion is moot if subject matter jurisdiction does not exist.” Taylor v. Dep't of
Human Servs. of Michigan, No. 09–CV–14639, 2010 WL 1257347, at *1–2
(E.D.Mich. Mar. 30, 2010) (quoting Moir v. Greater Cleveland Reg'l Transit Auth.,
895 F.2d 266, 269 (6th Cir.1990)).
III.

Standard for Motion to Dismiss for Failure to State a Claim
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of

the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134
(6th Cir. 1996). Under Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” To survive a motion to dismiss, a complaint need not contain
“detailed factual allegations,” but it must contain more than “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action . . ..”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not
“suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’ ”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).
As the Supreme Court provided in Iqbal and Twombly, “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly,

3

550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The
plausibility standard “does not impose a probability requirement at the pleading
stage; it simply calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of illegal [conduct].” Twombly, 550 U.S. at 556.
In deciding whether the plaintiff has set forth a “plausible” claim, the court
must accept the factual allegations in the complaint as true. Erickson v. Pardus,
551 U.S. 89, 94 (2007). This presumption is not applicable to legal conclusions,
however. Iqbal, 556 U.S. at 668. Therefore, “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555).
Ordinarily, the court may not consider matters outside the pleadings when
deciding a Rule 12(b)(6) motion to dismiss. Weiner v. Klais & Co., Inc., 108 F.3d
86, 88 (6th Cir. 1997) (citing Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir.
1989)). A court that considers such matters must first convert the motion to dismiss
to one for summary judgment. See Fed. R. Civ. P 12(d). However, “[w]hen a
court is presented with a Rule 12(b)(6) motion, it may consider the [c]omplaint and
any exhibits attached thereto, public records, items appearing in the record of the
case and exhibits attached to [the] defendant’s motion to dismiss, so long as they

4

are referred to in the [c]omplaint and are central to the claims contained therein.”
Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
IV.

Factual and Procedural Background
Plaintiffs’ lawsuit arises out of the federal government’s response to

domestic terrorism. The Terrorist Screening Center (“TSC”), an agency overseen
by the FBI, maintains a list of individuals who are suspected terrorists. (Amend.
Compl. ¶ 33.) There are two subsets to the TSC’s database: the Selectee List and
the No-Fly List.1 (Id. at ¶ 28.) Individuals on the Selectee List are able to fly after
extra screening at airports and border screenings, while individuals on the No-Fly
List are prevented from boarding flights. (Id.) While the FBI nominates
individuals to the watch list for suspected ties to domestic terrorism, TSC makes
the final determination whether an individual belongs on the list. (Id. at ¶ 50.) In
determining whether to place an individual on the Selectee List or No-Fly List,
TSC must have “reasonable suspicion requir[ing] articulable facts which, taken
together with rational inferences, reasonably warrant the determination that an
individual is known or suspected to be or has been engaged in conduct constituting,
in preparation for, in and of or related to terrorism and terrorist activities.” (Id. at ¶
51.)

1

Plaintiffs refer to the Selectee List and the No-Fly List as “government watch
list” or “watch list” in their amended complaint and opposition brief.
5

The TSC is responsible for disseminating the list of names to other
government agencies for their use. For example, TSC provides their database of
names to the Transportation Security Administration (“TSA”) to pre-screen
passengers. (Id. at ¶ 29; see also ECF No. 42 at Pg ID 856.) Plaintiffs allege that
the federal government distributes the names on this database to “state and local
authorities, foreign governments, corporations, private contractors, gun sellers,
[and] the captains of sea-faring vessels, among others.” (Amend. Compl. ¶ 38.)
Individuals who wish to challenge their placement on the Selectee or No-Fly
List may seek redress from TSA’s screening program by filing an inquiry with the
Department of Homeland Security’s Traveler Redress Inquiry Program (“DHS
TRIP”). (Id. at ¶ 80.) The DHS TRIP process is the only opportunity for an
individual to challenge their placement in the TSC database. (Id. at ¶ 81.) When
an individual challenges their placement, the “TSA, in coordination with the TSC
and other appropriate Federal law enforcement or intelligence agencies, if
necessary, will review all the documentation and information requested from the
individual, correct any erroneous information, and provide the individual with a
timely written response.” 49 C.F.R. § 1560.205(d). According to Plaintiffs, the
Department of Homeland Security responds “with a standard form letter that
neither confirms nor denies the existence of any terrorist watch list records relating
to the individual.” (Amend. Compl. ¶ 83.)

6

Plaintiff Dr. Naji Abduljaber was handcuffed and detained by Customs and
Border Protection (“CBP”) on July 8, 2007 when he attempted to re-enter the
United States through the Ambassador Bridge in Detroit, Michigan. (Id. at ¶ 88.)
His detention lasted approximately four hours. (Id. at ¶ 89.) Plaintiff Abduljaber
was again detained at the Detroit Metropolitan Airport on December 13, 2010. (Id.
at ¶ 90.) After his second detention, Plaintiff Abduljaber filed a redress request
with DHS TRIP. (Id. at ¶ 93.) Plaintiff Abduljaber received a response from DHS
TRIP on January 5, 2012 that failed to provide any details as to whether he was
still on the list. (Id. at ¶ 94.) As of the filing of the amended complaint, Plaintiff
Abduljaber is still subjected to “prolonged searches, detention[,] and questioning,
every time he travels by air.” (Id. at ¶ 96.)
Plaintiff Abdus Samad Tootla was first subjected to a secondary inspection
by CBP at the Detroit Metropolitan Airport on March 18, 2008. (Id. at ¶ 98.)
Plaintiff Tootla filed a redress request through DHS TRIP and received a letter
similar to Plaintiff Abduljaber’s on January 10, 2013. (Id. at ¶¶ 102-03.) Plaintiff
Tootla attempted to fly subsequent to his DHS TRIP redress request on November
12, 2013 and was detained by CBP officers who questioned him in a room. (Id. at
¶¶ 104, 106.) As of the filing of the amended complaint, Plaintiff Tootla is still
subjected to similar treatment every time he travels by air. (Id. at ¶ 108.)

7

Plaintiff Alaa Saade was first subjected to secondary screening in the
summer of 2012 at the Detroit Metropolitan Airport. (Id. at ¶¶ 111-12.) On May 6,
2013, Plaintiff Saade was on a commercial flight that landed at the Detroit
Metropolitan Airport. (Id. at ¶ 117.) Upon arrival, Plaintiff Saade was escorted by
a CBP officer for a secondary inspection that included “prolonged searches,
detention and questioning.” (Id.) Two months later, on July 29, 2013, Plaintiff
Saade was detained at the Ambassador Bridge in Detroit, Michigan for
approximately six hours by CBP after a brief trip to Canada. (Id. at ¶ 115.)
Plaintiff Saade alleges that CBP officers “confiscate his phone and download the
data from his phone every time he re-enters the United States at the United StatesCanada border and every time he travels by air.” (Id. at ¶ 121.)
Plaintiff Saade filed a redress request through DHS TRIP and received a
response on October 28, 2013. (Id. at ¶¶ 113-14.) The response did not confirm or
deny the existence of any list and Plaintiff Saade’s placement on it. (Id. at ¶ 83.)
As of the filing of this amended complaint, Plaintiff Saade “continues to be
subjected to prolonged searches, detention and questioning when re-entering the
United States at the United States-Canada border” and every time he travels by air.
(Id. at ¶¶ 119-20.)
Plaintiff Ahmed Saleh Abusaleh was first subject to a secondary inspection
on February 11, 2004 at the Detroit Metropolitan Airport while attempting to board

8

a flight. (Id. at ¶ 123.) Plaintiff Abusaleh filed a redress request through DHS
TRIP and received a response on December 3, 2012. (Id. at ¶¶ 128-29.) The
response did not confirm or deny the existence of any list and Plaintiff Abusaleh’s
placement on it. (Id. at ¶¶ 83, 129.) Plaintiff Abusaleh was subjected to
secondary inspection again on November 23, 2013 at the Atlanta International
Airport. (Id. at ¶ 131.) Not only was he removed to a room for secondary
questioning, but a CBP officer asked Plaintiff Abusaleh if he would agree to
further questioning at his home. (Id. at ¶ 133.) As of the filing of this amended
complaint, Plaintiff Abusaleh continues to face similar treatment every time he
travels by air. (Id. at ¶ 134.)
Plaintiffs filed a six-count amended complaint on March 10, 2016 against
Defendants. (ECF No. 40.) On May 9, 2016, Defendants filed a motion to dismiss
Plaintiffs’ amended complaint. (ECF No. 42.) Plaintiffs filed a response on June
17, 2016 and Defendants’ filed a reply on July 8, 2016. (ECF Nos. 48, 51.)
V.

Analysis
A.

Standing

To establish standing, a plaintiff must show that: (1) he has suffered an
injury in fact that is “concrete and particularized” and “actual or imminent”; (2) the
injury is “fairly ... trace[able] to the challenged action of the defendant”; and (3) it
is “likely, as opposed to merely speculative, that the injury will be redressed by a

9

favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)
(internal quotation marks omitted).
Defendants first argue that this Court should dismiss Plaintiffs’ claims
because Plaintiffs lack constitutional standing. Defendants contend that Plaintiffs
have failed to allege sufficient facts to demonstrate that there is a “ ‘real and
immediate threat’ that they will be subjected to the alleged injury of additional
security screening in the future.” (ECF No. 42 at Pg ID 869.) In particular,
Defendants note that the instances of additional screening that led to this suit
occurred between February 2004 through 2013. (Id.) Defendants rely on City of
Los Angeles v. Lyons, 461 U.S. 95 (1983) in asserting that Plaintiffs’ past incidents
do not satisfy the standing requirements, because “past exposure to illegal conduct
does not in itself show a present case or controversy[.]” Id. at 102 (quoting O’Shea
v. Littleton, 414 U.S. 488, 495-96 (1974)).
Defendants’ reliance on City of Los Angeles is misplaced. In O’Shea, the
Supreme Court stated that past exposure is insufficient to establish a case or
controversy “if unaccompanied by any continuing, present adverse effects.”
O’Shea, 414 U.S. 488 at 495-96. Plaintiffs allege in their amended complaint that
they were placed on the government watch list. (See Amend. Compl. ¶¶ 96, 109,
122, 134.) There is no indication that Plaintiffs’ names have been removed from
the list. (See id.) Plaintiffs also allege that they have all been subject to

10

subsequent secondary inspections up through the filing of the amended complaint.
(See id. at ¶¶ 96, 108, 120, 134. Further, the relief Plaintiffs request, including
removal from the government watch list, would redress their injuries. (See id. at
Pg ID 682-83.); see also Shearson v. Holder, 865 F. Supp. 2d 850, 861 (N.D. Ohio
2011), aff'd, 725 F.3d 588 (6th Cir. 2013) (holding that erroneous placement of
plaintiff’s name on government travel watch list was a legally cognizable injury
under Article III); Mohamed v. Holder, 995 F.Supp.2d 520, 535 (E.D. Va. 2014)
(same). Thus, this Court concludes that Plaintiffs have standing.
B.

Adequacy of DHS TRIP Redress Process

Defendants next argue that any claim by Plaintiffs challenging the adequacy
of the DHS TRIP redress process should be dismissed. Defendants rely on the
recent decision of the Sixth Circuit in Mokdad v. Lynch, 804 F.3d 807 (6th Cir.
2015), which recognized that a challenge to the DHS TRIP redress process was, in
effect, a challenge to a TSA order because Congress had specifically directed TSA
to establish the redress process. (ECF No. 42 at Pg ID 871.) Further, the Mokdad
Court acknowledged that 49 U.S.C. § 46110 “makes clear that the federal courts of
appeals have exclusive jurisdiction to review the orders of certain federal agencies,
including [TSA].” Mokdad, 804 F.3d at 809; see 49 U.S.C. § 46110 (granting
exclusive jurisdiction to the federal courts of appeals to “review” the “order[s]” of
agencies including the TSA). Therefore, Defendants argue that Plaintiffs’ claims

11

challenging the DHS TRIP redress process should be dismissed for lack of subjectmatter jurisdiction.
The amended complaint suggests a challenge to the DHS TRIP redress
process. In Count III, Plaintiffs state that Defendants failed to provide them with a
“constitutionally adequate mechanism that affords them notice of the reasons and
bases for their placement on the federal watch list and a meaningful opportunity to
contest their continued inclusion on the federal watch list.” (Amend. Compl. ¶
158.) However, in their response brief, Plaintiffs contend that they are not
challenging a TSA order. Rather, Plaintiffs argue that they are challenging the
placement of their names on the watch list. (ECF No. 48 at Pg ID 924 (“Here,
Plaintiffs are not so much challenging the adequacy of DHS TRIP as they are
challenging their placement on the terrorist watch list.”)). Further, Plaintiffs argue
this case does not involve a TSA order because “TSC [] placed plaintiffs on the
List, and TSC is not an agency covered by Section 46110.” Id.
This Court recognizes that in Mokdad, the Sixth Circuit declined to find
whether 49 U.S.C. § 46110 deprived a district court of subject-matter jurisdiction
over claims challenging the adequacy of the redress process.2 Although the issue
was avoided, the Mokdad Court stated that 49 U.S.C. § 46110 makes “clear that

2

The Court dismissed Mokdad’s claim without prejudice because he failed to join
a necessary party in his action. Mokdad, 804 F.3d at 812.
12

the federal courts of appeals have exclusive jurisdiction to review the orders of
certain federal agencies, including the TSA:
[A] person disclosing a substantial interest in an order issued by the
Secretary of Transportation (or the Under Secretary of Transportation
for Security with respect to security duties and powers designated to
be carried out by the Under Secretary or the Administrator of the
Federal Aviation Administration with respect to aviation duties and
powers designated to be carried out by the Administrator) in whole or
in part under this part, part B, or subsection (l) or (s) of section 114
may apply for review of the order by filing a petition for review in the
United States Court of Appeals for the District of Columbia Circuit or
in the court of appeals of the United States for the circuit in which the
person resides or has its principal place of business.
49 U.S.C. § 46110.”
Mokdad, 804 F.3d at 809; see also Bazzi v. Lynch, No. 16-10123, 2016 WL
4525240 at *5 (E.D. Mich. Aug. 30, 2016) (finding that the district court lacks
subject-matter jurisdiction over challenges to adequacy of DHS TRIP redress
process pursuant to 49 U.S.C. § 46110(a)). Any challenge to the DHS TRIP
redress process should be raised with the appropriate appellate court pursuant to 49
U.S.C. § 46110. This Court finds that it lacks subject matter jurisdiction over any
challenges in Plaintiffs’ amended complaint to the adequacy of the DHS TRIP
redress process.
C.

Procedural Due Process [Count I]

To prevail on a procedural due process claim, a party must establish that it
possessed a constitutionally protected interest, that it was deprived of that interest,

13

and that the government did not afford it adequate procedural rights prior to
depriving it of that interest. Machisa v. Columbus City Bd. of Educ., 563 F. App'x
458, 462 (6th Cir.2014) (citing Taylor Acquisitions, L.L.C. v. City of Taylor, 313
Fed. Appx. 826, 830 (6th Cir.2009)).
Defendants argue that Plaintiffs’ allegation that their Fifth Amendment
procedural due process right was violated is without merit. Plaintiffs argue their
right to procedural due process was violated when they were not provided “any
reason or basis for their placement on the federal watch list and…a meaningful
opportunity to challenge their continued inclusion on the federal watch list.”
(Amend. Compl. ¶ 138.)
In their motion to dismiss, Defendants contend that no protected interest was
infringed upon due to the extra screenings or detentions that Plaintiffs faced in the
course of travel. According to Defendants, a delay during the course of travel does
not constitute a deprivation of the right to travel under the due process clause.
(ECF No. 42 at Pg ID 858.) Further, Defendants argue that Plaintiffs fail to satisfy
the “stigma plus” test articulated by the Supreme Court, which determines whether
alleged reputational harm infringes a liberty interest. (Id.) The Court will first
discuss the two protected interests Plaintiff alleges were infringed upon by
Defendants: (1) freedom of movement and (2) their reputations. (Id. at ¶¶ 139-40.)

14

1.

Freedom of Movement3

The Supreme Court has recognized a right to travel. See Saenz v. Roe, 526
U.S. 489, 500 (1999) (recognizing three components to interstate travel). The
Sixth Circuit found that government action implicates the right to travel “when it
actually deters travel, when impeding travel is its primary objective, or when it
uses a classification that serves to penalize the exercise of the right.” League of
United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 535 (6th Cir. 2007.) In
League of United Am. Citizens, the Sixth Circuit held that an inconvenience, such
as requiring a party to carry additional personal identification papers, “can hardly
be said to deter or penalize travel. To the extent this inconvenience burdens
exercise of the right to travel at all, the burden is incidental and negligible,
insufficient to implicate denial of the right to travel.” Id.
Other circuits have discussed whether the right to travel is infringed when a
party is not prevented from traveling, but rather faces a hurdle to travel. The
Second, Fifth, and Ninth Circuits have found that the right to travel does not
guarantee the most convenient form of travel. See Town of Southold v. Town of
Plaintiffs’ response brief to the motion to dismiss fails to argue that they have “a
liberty interest in traveling free from unreasonable burdens within, to, and from the
United States” for purposes of establishing a violation of procedural due process.
(Amend. Compl. ¶ 139; see also ECF No. 48 at 21-26.) Rather, Plaintiffs’ brief
focuses on the “freedom of movement” in the context of substantive due process.
For purposes of both procedural and substantive due process, the Court will
examine whether freedom of movement is a protected liberty interest.

3

15

East Hampton, 477 F.3d 38, 54 (2d Cir. 2007) (“Travelers do not have a
constitutional right to the most convenient form of travel[, and] minor restrictions
on travel simply do not amount to the denial of a fundamental right”); Gilmore v.
Gonzales, 435 F.3d 1125, 1136 (9th Cir. 2006) (“[T]he Constitution does not
guarantee the right to travel by any particular form of transportation.”); Cramer v.
Skinner, 931 F.2d 1020, 1031 (5th Cir. 1991) (“Minor restrictions on travel simply
do not amount to the denial of a fundamental right that can be upheld only if the
Government has a compelling justification.”); City of Houston v. F.A.A., 679 F.2d
1184, 1198 (5th Cir. 1982) (stating that passengers do not possess “a constitutional
right to the most convenient form of travel”). In cases analogous to the facts here,
courts within this district have found that no protected interest is violated where an
individual is subject to extra screening or detention. See Bazzi v. Lynch, No. 1610123, 2016 WL 4525240 *6 (E.D. Mich. Aug. 30, 2016) (“This Court
agrees…that delay and inconvenience in travel does not amount to a deprivation of
right protected by the due process clause[.]”); Beydoun v. Holder, No. 14-cv-13812,
2016 WL 3753561 *5 (E.D. Mich. Feb. 13, 2015) (“[P]laintiff’s allegations do not
rise to the level of a due process violation, because he alleges that he can still fly
after additional screening and has not been deterred from flying”).
Plaintiffs focus their discussion on freedom of movement by providing the
court with a historical overview of the Constitution’s history, including an analysis

16

of enumerated and unenumerated rights found in the Constitution. (ECF No. 48 at
Pg ID 27-32.) The Court acknowledges that the Plaintiffs have and continue to be
subjected to “prolonged searches, detention and questioning” when they travel by
air or cross the United States-Canadian border. (Amend. Compl. ¶¶ 89, 96, 98,
104, 106, 108, 111, 119-20, 123, 134.) But Plaintiffs have not alleged that they
have been unable to travel due to the alleged placement of their names on the
watch list. In the amended complaint, each Plaintiff was able to fly despite being
subject to secondary screening and/or detention. Plaintiffs attempt to argue that
freedom of movement without delay is a protected liberty interest. However,
Plaintiffs provide no legal authority that establishes freedom of movement without
delay as a fundamental right. This Court agrees with Defendants that Plaintiffs
have not sufficiently alleged that the right to travel without delay is a protected
interest for due process purposes.
2.

Right to Reputation

In Count I, Plaintiffs allege the second liberty interest infringed upon by
Defendants is the “right to be free from false government stigmatization as
individuals who are ‘known or suspected to be’ terrorists[.]” (Amend. Compl. ¶
140.) Defendants argue that Plaintiffs fail to satisfy the “stigma-plus” test created
by the Supreme Court to determine whether an alleged reputational harm infringes
a liberty interest. (ECF No. 42 at Pg ID 858.)

17

“[A] person's reputation, good name, honor, and integrity are among the
liberty interests protected by the due process clause of the fourteenth amendment.”
Quinn v. Shirey, 293 F.3d 315, 319 (6th Cir. 2002) (quoting Chilingirian v. Boris,
882 F.2d 200, 205 (6th Cir.1989)). However, damage to reputation alone is
insufficient to infringe on an individual’s due process rights. In Paul v. Davis, 424
U.S. 693 (1976), the Supreme Court stated that a plaintiff may not recover for
damages to his reputation if the alleged defamatory acts did not also result in the
deprivation of a constitutionally protected right or interest. Id. In Paul, the
Supreme Court found that “[t]he interest in reputation alone which respondent
seeks to vindicate…is quite different from the liberty or property [interests]
recognized in [the Court’s due process jurisprudence].” Id. at 711. The Supreme
Court held that a successful plaintiff must show more than an injury to their
reputation; there must also be a deprivation “of a right previously held under state
law[.]” Id. at 709. “A successful plaintiff must therefore show that the state’s
action both damaged his or her reputation (the stigma) and that it ‘deprived [him or
her] of a right previously held under state law’ (the plus).” Doe v. Michigan Dept.
of State Police, 490 F.3d 491, 502 (6th Cir. 2007) (quoting Paul, 424 U.S. at 708.)
Plaintiffs argue that their reputation is infringed upon by Defendants’ actions.
Plaintiffs’ boarding passes have included the designation of “SSSS” to indicate
they should be subject to additional screening. (ECF No. 48 at Pg ID 930.)

18

Plaintiffs also allege their “designation as a ‘Known or Suspected Terrorist’ is
disseminated to screening agencies such as TSA and CBP, ‘22 foreign
governments,’ and even ‘ship captains’ in addition to domestic and international
air carriers.” (Id.) Plaintiffs do not go as far as to say that their reputation was
infringed upon to the general public. Rather, Plaintiffs allege that Defendants
provided the names in the TSC database to a number of entities, including state and
local authorities, corporations, private contractors, and gun sellers. (Amend.
Compl. ¶ 144.) Plaintiffs do not provide any factual support that they suffered any
stigmatization by the disclosure of their names to third parties.
Assuming arguendo that Plaintiffs are able to establish the first prong of the
stigma-plus test, Plaintiffs have failed to establish the second prong. Plaintiffs do
not allege that they were “deprived of a right previously held under state law.”4
Doe, 490 F.3d 491 (6th Cir. 2007) (quoting Paul, 424 U.S. at 708.) Plaintiffs
reference how individuals named on the watch list have suffered because of their
inclusion, including having their bank accounts closed and being unable to make
wire transfers. (ECF No. 48 at Pg ID 930.) However, Plaintiffs do not allege that
they have had their own bank accounts closed or been unable to make a wire

4

In their opposition brief, Plaintiffs allege that the “plus” factor can be met “so
long as such damage flows from injury caused by the defendant to a plaintiff’s
reputation[.]” Siegert v. Gilley, 500 U.S. 226 (1991). However, Plaintiffs have
failed to allege how their reputation was damaged in their amended complaint and
brief.
19

transfer. Plaintiffs do not plead any facts that show damage to their own reputation
as a result of their placement on the watch list or any obstacles they have faced
other than secondary screening and detention. The Court therefore finds that
Plaintiffs have not suffered an infringement of their reputation under the due
process clause.
3. Nonattainder
In Count I, Plaintiffs also state that they “have a liberty interest in
nonattainder (ie: the interest against being singled out for punishment without
trial).” (Amend. Compl. ¶ 141.) Plaintiffs contend their punishments “include, but
are not limited to, inability to travel by air and unreasonable burdens placed upon
traveling by air to and from the United States, over U.S. air space and at land
border crossings, and false association with a list of individuals suspected of
terrorism.” (Id.)
Plaintiffs fail to adequately plead any punishments they have faced. The
amended complaint does not include any instances where Plaintiffs were prevented
from traveling. Rather, the amended complaint includes allegations of extra
screenings and detention. (See e.g., id. at ¶¶ 92, 96, 105, 108, 112, 116, 119, 125.)
Plaintiffs also provide no support for their conclusory allegation of “unreasonable
burdens” in traveling. (Id. at ¶ 141.) The amended complaint fails to provide more
than “‘naked assertions’ devoid of ‘further factual enhancement’” in arguing that

20

nonattainder is a liberty interest for due process purposes here. For the reasons
above, the Court dismisses Plaintiffs’ Fifth Amendment procedural due process
claims.
D.

Substantive Due Process [Count II]

In Count II of the amended complaint, Plaintiffs raise a substantive due
process claim against Defendants for placing Plaintiffs on the watch list. (Id. at ¶¶
146-55.) Plaintiffs allege that Defendants’ placement of their names on the watch
list deprive Plaintiffs of their “liberty interests in travel, freedom from false
stigmatization, and nonattainder.” (Id. at ¶ 147.) Plaintiffs go further, arguing that
this deprivation is “arbitrary and capricious, shock[s] the conscience, violate[s] the
decencies of civilized conduct and are so brutal and offensive that they do not
comport with the traditional ideas of fair play and decency.” (Id. at ¶ 152.)
The Supreme Court in Washington v. Glucksberg, 521 U.S. 702 (1997)
recognized that there are two primary features in the substantive due process
analysis: (1) protection of fundamental rights and liberties and (2) “a careful
description of the asserted fundamental liberty interest.” Id. at 720-21 (internal
citations omitted). To qualify as a fundamental right, the right must be “deeply
rooted in this Nation’s history and tradition” or “implicit in the concept of ordered
liberty” such that “neither liberty nor justice would exist if they were sacrificed….”

21

Does v. Munoz, 507 F.3d 961, 964 (6th Cir. 2007) (quoting Washington, 521 U.S.
at 721).
Plaintiffs again assert that the fundamental right in question here is the
freedom of movement. Again, Plaintiffs do not allege that they have been unable
to travel. Plaintiffs have been able to travel, despite extra screening and detention.
For the reasons discussed at length in Section V.C.1., Plaintiffs have not
sufficiently alleged that freedom of movement is a protected interest for
substantive due process purposes.
E.

Administrative Procedure Act, 5 U.S.C. §§ 702, 706 [Count III]

In Count III of the amended complaint, Plaintiffs allege that Defendants
violated the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702, 706 by
denying them “a constitutionally adequate legal mechanism that affords them
notice of the reasons and bases for their placement on the federal watch list and a
meaningful opportunity to contest their continued inclusion on the federal watch
list[.]” (Amend. Compl. ¶ 158.)
Plaintiffs’ APA claim is an attack on the DHS TRIP redress process. (See
ECF No. 48 at Pg ID 953.) For the reasons set forth above in Section V.A., this
Court therefore lacks subject matter jurisdiction over any challenges in Plaintiffs’
amended complaint to the adequacy of the DHS TRIP redress process. Therefore,
Plaintiffs’ APA claim is dismissed for lack of subject-matter jurisdiction.

22

F.

Equal Protection [Count IV]

In Count IV of the amended complaint, Plaintiffs allege that their equal
protection rights were violated based on their status as Muslim-American travelers.
(Amend. Compl. ¶ 161-65.)5 In their opposition brief, Plaintiffs note that leaked
government documents demonstrate that Defendants’ watch list allegedly contains
a disproportionate number of Muslims. (ECF No. 48 at Pg ID 952.) Defendants
respond that Plaintiffs have failed to state more than a “formulaic recitation” of the
claim, in violation of Twombly-Iqbal standards. (ECF No. 51 at Pg ID 996.)
“To state an equal protection claim, a plaintiff must adequately plead that the
government treated the plaintiff disparately as compared to similarly situated
persons and that such disparate treatment either burdens a fundamental right,
targets a suspect class, or has no rational basis. As we have held, the threshold
element of an equal protection claim is disparate treatment; once disparate
treatment is shown, the equal protection analysis to be applied is determined by the
classification used by government decision-makers.” Ctr. for Bio-Ethical Reform,
Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (internal citations and
quotation marks omitted); see also Scarbrough v. Morgan County Bd. of Educ.,
470 F.3d 250, 260 (6th Cir. 2006).
5

As Defendants note in their motion, Plaintiffs’ fifth count “is word-for-word the
same as their Equal Protection claim.” (ECF No. 42 at Pg ID 890.) Plaintiffs do
not provide any reasons for treating the two counts differently, and thus the Court
will treat Count IV and Count V the same.
23

Plaintiffs allege that they are Muslim-American and have faced extra
screenings and detention while traveling due to their religious status. (Amend.
Compl. ¶¶ 10-13.) Plaintiffs also direct the Court to documents that “make it clear
that Defendants’ watch list includes a disproportionate number of Muslims.” (ECF
No. 48 at Pg ID 952.) That alone is insufficient to satisfy the requisite pleading
standards for a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662 (2009)
(finding that plaintiff’s complaint did not “nudg[e] his claim of purposeful
discrimination across the line from conceivable to plausible” when alleging FBI
surveilled more Muslims than members of any other religion). Here, Plaintiffs fail
to state that similarly situated individuals from different religious background have
not been subject to the same treatment by Defendants in their amended complaint.
See Ctr. for Bio-Ethical Reform, Inc., 648 F.3d at 379; see also Nali v. Ekman, 355
Fed.Appx. 909, 913 (6th Cir.2009) (allegation of discriminatory intent based on
race must be “accompanied by some evidence that the people not disciplined were
similarly situated and of a different race”). Further, Plaintiffs’ allegations in Count
IV of the amended complaint amount to “[t]hreadbare recitals of the elements” of
equal protection. The Court finds this insufficient and therefore dismisses
Plaintiffs’ equal protection claim.

24

G.

Non-Delegation

Plaintiffs’ last count alleges that Defendants’ violated the non-delegation
doctrine because Congress allegedly failed to “provide[] the Executive Branch
with intelligible principles from which the Executive can implement its watch list
schemes regarding civil aviation and national security.” (Amend. Compl. ¶ 173.)
In particular, Plaintiffs argue that the statute authorizing TSA to act “provides no
guidance as to when Defendants should list a person.” (ECF No. 48 at Pg ID 957.)
Further, Plaintiffs contend there is no statutory authority for the dissemination of
names included in the TSC database. (Id.) Defendants contend that the statutory
scheme underlying the creation of their Selectee List and No-Fly List meet the
“intelligible principle” test requirements.
The non-delegation doctrine prevents Congress from delegating its
legislative power to another branch of government. Mistretta v. United States, 488
U.S. 361, 371 (1989). Congress is allowed to request assistance from other
branches. Id. at 372. “[Congress] must provide an intelligible principle to which
the person or body authorized to [exercise the delegated authority] is directed to
conform.” United States v. Lawrence, 735 F.3d 385, 419 (6th Cir. 2013) (quoting
J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, (1928)) (internal
quotation marks omitted)). To pass the “intelligible principle” test, Congress must
“clearly delineate[] the general policy, the public agency which is to apply it, and

25

the boundaries of this delegated authority.” Mistretta, 488 U.S. at 372-73 (quoting
Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946). The Supreme Court has
invalidated a statute on non-delegation grounds only twice in our nation’s history,
doing so for the first and last time in 1935. See Panama Ref. Co. v. Ryan, 293 U.S.
388 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
In the Court’s words, it has “almost never felt qualified to second-guess Congress
regarding the permissible degree of policy judgment that can be left to those
executing or applying the law.” Am. Trucking Assns., Inc. v. Whitman, 531 U.S.
457, 474-75 (2001) (internal quotation omitted).
Congress authorized TSA with overseeing airline security in 49 U.S.C. §
114(d):
(d) Functions.—The Under Secretary [of TSA] shall be responsible
for security in all modes of transportation, including—
(1) carrying out chapter 449, relating to civil aviation security,
and related research and development activities; and
(2) security responsibilities over other modes of transportation
that are exercised by the Department of Transportation.
In 49 U.S.C. § 44904, Congress authorized TSA and the FBI to jointly “assess
current and potential threats to the domestic air transportation system.” 49 U.S.C.
§ 44904(a). This provision provides more guidance in assessing threats:
The assessment shall include consideration of the extent to which
there are individuals with the capability and intent to carry out
terrorist or related unlawful acts against that system and the ways in
which those individuals might carry out those acts. The Under
Secretary and the Director jointly shall decide on and carry out the
26

most effective method for continuous analysis and monitoring of
security threats to that system.
Id.
Plaintiffs contend that Congress is required to provide “guidance as to when
Defendants should list a person” in order to satisfy the “intelligible principle”
requirement. (ECF No. 48 at Pg ID 957.) However, the Supreme Court has not
held that Congress needs to provide detailed guidelines—Congress need only
“delinate[] the general policy.” Mistretta, 488 U.S. at 372-73 (emphasis added).
Further, the two cases Plaintiffs rely on do not engage in the intelligible
principle analysis. Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S.
607 (1980); Kent v. Dulles, 357 U.S. 116 (1958). Therefore, this Court is
dismissing Count VI for failure to state a claim.
VI.

Conclusion
For all of the above reasons, the Court finds that Plaintiffs fail to state a

viable claim for the relief sought in their amended complaint. Therefore, the Court
is granting Defendants’ motion to dismiss Plaintiffs’ amended complaint.
Accordingly,
IT IS ORDERED that Defendants’ Motion to Dismiss Plaintiffs’ Amended

27

Complaint (ECF No. 42) is GRANTED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: March 8, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, March 8, 2017, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager

28