Tarhuni v. Holder et al
Filing
157
Opinion and Order. The Court GRANTS in part and DENIES in part Defendants' Motion (# 149 ) to Dismiss Fourth Amended Complaint and DISMISSES with prejudice Plaintiff's Claim Two insofar as it is premised on Plaintiff's alleged liberty interest in freedom from false government stigmatization. The Court, however, declines to dismiss Plaintiff's Fourth Amended Complaint in any other respect.The Court directs Defendants to file an answer to Plaintiff's Fourth Amended Compla int no later than August 24, 2018. The Court also directs the parties to confer and to file no later than August 24, 2018, a jointly proposed case-management schedule setting out their joint or opposed proposals fordeadlines (1) to complete discovery, (2) to file dispositive motions, and (3) to file a jointly proposed pretrial order. IT IS SO ORDERED. Signed on 7/27/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JAMAL TARHUNI ,
3:13-cv-00001-BR
Plaintiff,
v.
JEFFERSON B. SESSIONS, III, in his
official capacity as Attorney General
of the United States; CHRISTOPHER A.
WRAY, in his official capacity as
Director of the Federal Bureau of
Investigation; and CHRISTOPHER M.
PIEHOTA, in his official capacity as
Director of the Terrorist Screening
Center,
Defendants.
CELIA RUTH CHOY
Munger, Tolles & Olson LLP
1155 F. Street NW
Washington, DC 20010
(202) 220-1106
DAVID HALLECK FRY
NICHOLAS DANIEL FRAM
Munger, Tolles & Olson LLP
560 Mission Street, 27th Floor
San Francisco, CA 94105
(415) 512-4000
1 - OPINION AND ORDER
OPINION AND ORDER
ROSE LEDA EHLER
Munger, Tolles & Olson LLP
350 S. Grand Avenue, 50th Floor
Los Angeles, CA 90071
(213) 683-9100
AMY EDWARDS
Stoel Rives LLP
760 S.W. Ninth Avenue, Suite 3000
Portland, OR 97205
(503) 224-3380
Attorneys for Plaintiff
BRIGHAM J. BOWEN
SAMUEL M. SINGER
United States Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, DC 20044
(202) 514-6289
ADAM D. KIRSCHNER
United States Department of Justice
Civil Division, Federal Programs
20 Massachusetts Avenue, N.W., Room 7126
Washington, DC 20530
(202) 353-9265
Attorneys for Defendants Jefferson B. Sessions,
III; Federal Bureau of Investigation; Christopher
A. Wray; and Christopher M. Piehota
BROWN, Senior Judge.
This matter comes before the Court on Defendants' Motion
(#149) to Dismiss Fourth Amended Complaint.
On May 30, 2018, the
Court provided its tentative rulings to the parties and gave them
an opportunity to request supplemental briefing to address the
Court's analysis in those rulings.
On June 13, 2018, the Court
granted in part Defendants' request for supplemental briefing and
2 - OPINION AND ORDER
permitted Defendants to file a supplemental memorandum regarding
Plaintiff's procedural due-process claim.
See Order (#153).
Defendants filed their Supplemental Memorandum (#154) on June 27,
2018.
Plaintiff filed his Response (#155) to Defendants'
Supplemental Memorandum on July 11, 2018.
The Court has reviewed
the entire record on this Motion and concludes it is sufficiently
developed to resolve without oral argument.
For the reasons that follow, the Court GRANTS in part and
DENIES in part Defendants' Motion and DISMISSES Plaintiff's Claim
Two insofar as it is premised on Plaintiff's alleged liberty
interest in freedom from false government stigmatization.
The
Court, however, declines to dismiss Plaintiff's Fourth Amended
Complaint in any other respect.
BACKGROUND
Unless otherwise noted, the following facts are taken from
Plaintiff's Fourth Amended Complaint (#141) and assumed to be
true at this stage of the proceedings.
In his Fourth Amended Complaint Plaintiff brings four claims
based on his January 2012 placement on the No-Fly List and in the
Terrorist Screening Database (TSDB).
As explained below,
Plaintiff was removed from the No-FLy List on February 23, 2015.
Plaintiff alleges, and this Court assumes for purposes of this
Motion, that he, nonetheless, remains in the TSDB.
3 - OPINION AND ORDER
I.
The TSDB and the No-Fly List
Plaintiff's Fourth Amended Complaint contains allegations
regarding the No-Fly List, TSDB, and Department of Homeland
Security Traveler Redress Inquiry Program (DHS TRIP) procedures
that are generally consistent with the undisputed facts as they
have been represented on the record in this case and other cases
concerning the TSDB and No-Fly List in this district and in
districts across the country.
Where necessary to provide context
and to assist with the Court's analysis herein, the Court takes
judicial notice of facts that may not be·included in Plaintiff's
Fourth Amended Complaint but are consistent with Plaintiff's
allegations and that are not subject to reasonable dispute in
light of the history of this and related litigation.
Through Defendant Terrorism Screening Center (TSC) Defendant
Federal Bureau of Investigation (FBI) is responsible for the
development and maintenance of the No-Fly List, which consists of
the names of individuals whom airlines serving or flying within
the United States may not transport.
Most individuals on the No-
Fly List are prohibited from flying into, out of, or over
Canadian airspace as well as American airspace.
The No-Fly List is a subset of the TSDB, which is a
consolidated terrorist watchlist maintained by the TSC that
contains unclassified personally identifying information about
those in the database.
4 - OPINION AND ORDER
To nominate an individual to the TSDB the
government must have "substantive derogatory criteria to
establish a reasonable suspicion that the individual is a known
or suspected terrorist."
Fourth Am. Compl.
(#141) at<[ 13.
That
standard requires "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 aid of or related to
terrorism and terrorist activities."
Id.
Through the TSDB the
TSC provides terrorist identity information to various lawenforcement and screening agencies and entities, including the
Transportation Security Administration (TSA) and U.S. Customs and
Border Protection.
Information in the TSDB is also shared with
"certain foreign governments."
Id.
Plaintiff alleges placement in the TSDB results in (1) the
individual being subjected to "enhanced screening" at the
airport;
(2) the government collecting an "encounter package"
during each encounter with law enforcement or the TSA, including
personal information, information about items in the individual's
possession, financial information, and copies of electronic
devices and data; and (3) the potential that the individual may
be subject to a "temporary, threat-based expedited upgrade" to
being placed on the No-Fly List based on "the identification of a
category of individuals who may be used to conduct an act of
5 - OPINION AND ORDER
domestic or international terrorism, irrespective of
individualized suspicion."
Id. at i
15.
Under procedures in place at the time Plaintiff initiated
this action, individuals placed on the No-Fly List (including
Plaintiff) were not given notice that they were on the List, were
not advised of the factual basis for placement on the List, and
did not have the right to a hearing before a neutral decisionmaker to challenge their placement on the List.
Individuals who wished to challenge tpeir placement on the
List could submit an inquiry to DHS TRIP together with any
information that the individual believed could be relevant to his
placement on the List.
DHS TRIP then transmitted the inquiry to
the TSC, which determined whether any action should be taken.
Subject to judicial review, TSC was the final arbiter of whether
an individual was removed from the List.
After DHS TRIP and TSC
completed their respective assessments, DHS TRIP sent a letter to
the individual that advised any necessary changes had been made,
but DHS TRIP did not inform the individual whether they were (or
ever had been) in the TSDB, on the No-Fly List, or on any of the
other sublists and did not state whether the individual had been
removed from any of the lists or the TSDB.
Although the DHS TRIP procedures have changed as they relate
to United States citizens and lawful permanent residents
(collectively referred to as U.S. Persons) who are on the No-Fly
6 - OPINION AND ORDER
List and have been denied boarding an aircraft, Plaintiff alleges
the OHS TRIP procedures remain unchanged for those who are in the
TSDB but not on the No-Fly List.
On June 24, 2014, during the pendency of this matter, this
Court held in Latif v. Holder that Defendants' 1 prior OHS TRIP
procedures were constitutionally insufficient.
1134 (2014).
28 F. Supp. 3d
As a result of the Court's Opinion and Order in
Latif, Defendants revised OHS TRIP procedures as follows:
If a U.S. Person is not allowed to board a commercial
flight, that individual may submit an inquiry to OHS TRIP.
If
OHS TRIP verifies the individual is on the No-Fly List, then OHS
TRIP will send a letter notifying the individual of her or his
status on the No-Fly List and providing the individual with the
option to receive and/or to submit additional information.
If
the traveler elects to receive additional information, OHS TRIP
will provide a second letter with additional information that
includes the specific criteria under which the individual has
been placed on the List and an unclassified summary of the
information that supports the individual's placement on the NoFly List to the extent feasible in light of national-security and
law-enforcement interests.
The amount of information provided to
the individual varies on a case-by-case basis.
1
OHS TRIP will
Defendants in this case were also defendants in Latif v.
Holder.
7 - OPINION AND ORDER
provide the unclassified summary of the reasons for placement on
the No-Fly List if the national-security and law-enforcement
interests at stake make doing so feasible.
The second letter sent by OHS TRIP will include an
invitation for the individual to submit written responses that
may include exhibits or other materials that the individual deems
relevant.
The Administrator of the Transportation Security
Administration (TSA) or his designee will review the individual's
submission together with all information that the government
relies on to maintain the individual's placement on the No-Fly
List.
TSA will then provide the individual with a final written
determination, including the basis for the decision (to the
extent feasible in light of the national-security and lawenforcement interests at stake), and will notify the individual
of his ability to seek further judicial review.
II.
Plaintiff's Inclusion on the No-Fly List and in the TSDB
Plaintiff, an American citizen of Libyan descent, has lived
in the United States for 42 years, became a United States citizen
in 2006, is a resident of Oregon, and is married with four
children.
Plaintiff alleges he is "not a terrorist, and has
never been engaged in conduct constituting, in preparation for,
in aid of or otherwise related to terrorism or terrorist
activities."
Fourth Am. Compl.
8 - OPINION AND ORDER
(#141) at
~
18.
Since the 1980s Plaintiff has considered himself an opponent
of Muammar Gaddafi's now-deposed regime in Libya.
In the wake of
the revolution in Libya overthrowing the Gaddafi regime,
Plaintiff traveled to Libya three times in 2011 and early 2012 as
a volunteer with Medical Teams International (MTI), a
nongovernmental organization based in Tigard, Oregon.
While in
Libya Plaintiff provided cultural, language, and logistical
assistance to MTI by helping to deliver medicine, medical
equipment, and supplies to Libya.
During these trips Plaintiff
often worked with Libyan and Tunisian government and humanitarian
organizations, including Tunisia Red Crescent.
Plaintiff visited
and worked at refugee camps in Tunisia for Libyans fleeing
violence and helped bring American nurses into Libya through
Egypt.
Near the end of his third and final trip to Libya with MTI,
Plaintiff arranged to return to Portland on January 17, 2012.
When Plaintiff checked in for his flights from Tunis, Tunisia, to
Portland on January 17, 2012, he was denied boarding.
Plaintiff
met with the manager of the Air France office in Tunis who showed
Plaintiff three emails from the Air France off ice in Paris that
indicated American authorities instructed Air France to deny
Plaintiff boarding.
The Air France officials referred Plaintiff
to the United States Embassy for further information.
9 - OPINION AND ORDER
Plaintiff contacted the United States Embassy in Tunis.
Embassy personnel asked Plaintiff to come to the Embassy in Tunis
on January 24, 2012, to meet with undisclosed United States
agency personnel.
On January 24, 2012, Plaintiff arrived at the American
Embassy in Tunis with a Tunisian attorney and was met by Brian
Zinn, an FBI Agent from Portland, Oregon, and another individual
who was identified as the head of Embassy Security.
Agent Zinn
escorted Plaintiff to an interview room in which another FBI
agent, Horace Thomas, was also present.
Agent Zinn advised
Plaintiff that he and Thomas were there to discuss "derogatory
contacts" that Plaintiff made during his work in Libya.
Agent Zinn interviewed Plaintiff in the presence of
Plaintiff's Tunisian attorney for "several" hours as to his
activities in Libya; the names of people he worked with; his
views on terrorist organizations; whether he had contacts with
any terrorist, mujahideen, or Islamist groups; whether he had
knowledge of any planned attack on the United States or its
allies; and his religious views and practices.
During a break in the interview Agent Zinn told Plaintiff
that he would be permitted to return to the United States if he
passed a polygraph test.
Plaintiff agreed to take the test.
When another FBI agent asked Plaintiff to waive his
constitutional rights before taking the test, however, Plaintiff
10 - OPINION AND ORDER
refused after consulting by telephone with his American attorney,
and the interview was ended.
On February 13, 2012, Plaintiff returned to the United
States by air after making arrangements to do so with United
States personnel at the Embassy in Tunis and Plaintiff's American
counsel.
Plaintiff, however, remained on the No-Fly List and
remained unable to board a commercial aircraft after his return
to the United States.
Although Plaintiff was never asked to become an informant
for the FBI, Plaintiff alleges he believes he was put on the NoFly List as part of an effort by Agent Zinn to coerce Plaintiff
into becoming an informant related to activities at the Masjid
As-Saber Mosque where Plaintiff worships in Portland.
Plaintiff
bases this belief on Agent Zinn's participation in his interview
in Tunis and follow-up contacts in Portland as well as
allegations by two other members of the Masjid As-Saber Mosque
that they were asked to become informants in exchange for their
removal from the No-Fly List.
In 2013 Plaintiff submitted a OHS TRIP inquiry seeking
review of his placement on the No-Fly List.
Consistent with
procedures in place at that time Plaintiff received a letter from
OHS TRIP on July 25, 2013, advising him that OHS "'conducted a
review of any applicable records in consultation with other
11 - OPINION AND ORDER
federal agencies, as appropriate.
It has been determined that no
changes or conditions are warranted at this time.'"
Following the Court's ruling in Latif the Court entered its
Case-Management Order (#79) issued October 3, 2014, and directed
Defendants in this case to reconsider Plaintiff's DHS TRIP
inquiry under the newly-promulgated procedures.
By letter dated November 24, 2014, Defendants notified
Plaintiff that he remained on the No-Fly List because Defendants
identified Plaintiff as an "individual who 'may be a threat to
civil aviation or national security'" and specifically noted
Plaintiff is "an individual who represents a threat of engaging
in or conducting a violent act of terrorism and who is
operationally capable of doing so."
As to the unclassified
summary of reasons for Plaintiff's placement on the No-Fly List,
Defendants informed Plaintiff that "(t]he Government has concerns
about the nature and purpose of Jamal Tarhuni's travel to Libya
in 2011 and 2012."
The letter invited Plaintiff to provide any
responsive information no later than December 15, 2014.
After obtaining an extension of the deadline to submit
responsive materials, Plaintiff provided a written response to
Defendants by letter dated January 23, 2015, regarding their
asserted reasons for placing Plaintiff on the No-Fly List.
On
February 23, 2015, Defendants advised Plaintiff that he had been
12 - OPINION AND ORDER
removed from the No-Fly List "based on the totality of available
information, including your submissions to OHS TRIP."
III. Ongoing Effects of Plaintiff's Placement on the No-Fly List
and/or in the TSDB
Although Plaintiff has been removed from the No-Fly List, he
alleges his placement in the TSDB continues to burden his ability
to travel.
Plaintiff alleges he experiences "delays and enhanced
security measures every time he goes to the airport."
Compl.
(#141) at
~
58.
Fourth Am.
For example, when Plaintiff dropped his
14-year-old son off at the airport on April 14, 2016, Plaintiff
Id.
was not permitted to accompany his son to the gate.
On
January 9 and 13, 2017, when Plaintiff flew between Portland and
Seattle for work, he was delayed "for an extended period" at the
airline check-in counter, was issued a boarding pass marked
"SSSS," and was subjected to additional screening and questioning
both at the TSA screening checkpoint and at the gate before he
was permitted to board.
Id. at
~
59.
Similarly, when Plaintiff
and his family traveled to San Jose, California, the following
month, Plaintiff was again subjected to enhanced screening and
questioning at the TSA checkpoint and at the gate.
On his return
flight he was also "followed in an intimidating manner from the
checkpoint to his gate by five TSA agents."
Id. at
~
60.
Plaintiff alleges he no longer travels with his wife and son
because TSA agents discussed subjecting them to additional
screening during that San Jose trip.
13 - OPINION AND ORDER
Id. at
~
61.
IV.
Procedural Background and Plaintiff's Current Claims for
Relief
After Plaintiff was removed from the No-Fly List, Defendants
moved to dismiss this action as moot.
Because at that time
Plaintiff only sought injunctive relief related to his removal
from the No-Fly list, the Court granted Defendants' Motion and
dismissed this case as moot.
On appeal the Ninth Circuit reversed and remanded, surmising
Plaintiff may be able to obtain the additional relief of removal
from the TSDB even though he did not seek that form of relief
before this Court.
(9th Cir. 2017).
See Tarhuni v. Sessions,
692 F. App'x 477
On remand Plaintiff filed a Motion (#132)
for
Leave to Amend Complaint in which he sought to re-plead claims
against the Official-Capacity Defendants and to re-introduce
previously abandoned claims against Agent Zinn in his individual
capacity.
The Court granted Plaintiff's Motion in part as to his
claims against the Official-Capacity Defendants, but denied in
part Plaintiff's Motion as to his proposed claim against Agent
Zinn.
See Opin. and Order (#139) (issued Jan. 23, 2018).
Plaintiff filed his Fourth Amended Complaint on February 12,
2018 in which he brings four claims.
In Claim One Plaintiff
asserts his original inclusion on the No-Fly List violated his
rights to substantive due process and that his removal from the
TSDB as a whole is necessary to fully redress the injury caused
by that violation.
In Claim Two Plaintiff asserts the redress
14 - OPINION AND ORDER
procedures for challenging his placement in the TSDB violate his
rights to procedural due process.
Plaintiff brings Claim Three
under the Administrative Procedure Act (APA)
(5 U.S.C.
§§
702,
706 (2) (A)) on the basis that the OHS TRIP procedures pertaining
to an individual who is placed in the TSDB are arbitrary,
capricious, an abuse of discretion, and otherwise not in
accordance of law in light of the Congressional direction for the
Executive Branch to "establish a procedure to enable airline
passengers, who are delayed or prohibited from boarding a flight
because the advanced passenger prescreening system determined
that they might pose a security threat, to appeal such
determination and correct information contained in the system."
49 U.S.C.
§
44903(j) (2) (C) (iii) (I).
Finally, Plaintiff brings
Claim Four under the APA on primarily the same basis as Claims
One and Two; i.e., Defendants' actions in originally placing
Plaintiff on the No-Fly List violate his rights to substantive
due process and the OHS TRIP procedures related to contesting
Plaintiff's placement in the TSDB violate his rights to
procedural due process.
STANDARDS
Defendants move to dismiss Plaintiff's Fourth Amended
Complaint primarily on the basis that Plaintiff fails to state a
claim and, therefore, the Court should dismiss Plaintiff's Fourth
15 - OPINION AND ORDER
Amended Complaint pursuant to Federal Rule of Civil Procedure
12(b) (6).
Some of the arguments in Defendants' Motion, however,
also raise jurisdictional matters that may implicate dismissal
pursuant to Rule 12 (b) ( 1) .
I.
Motion to Dismiss under Rule 12(b) (6)
To 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."
550 U.S. 544, 570 (2007).
Commc'ns Servs.
Inc.,
Bell Atlantic v. Twombly,
See also CallerID4u, Inc. v. MCI
880 F.3d 1048, 1061 (9th Cir. 2018).
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.
Teixeira v. Cty. of Alameda, 873 F.3d 670, 678
See also Twombly, 550 U.S. at 556.
(9th Cir. 2017).
The plausibility standard is
not akin to a "probability requirement," but it asks for more
than a sheer possibility that a defendant has acted unlawfully.
Id.
When a plaintiff's complaint pleads facts that are "merely
consistent with" a defendant's liability, the plaintiff's
complaint "stops short of the line between possibility and
plausibility of 'entitlement to relief.'"
Id. at 557
(brackets
omitted) .
The court must accept as true the allegations in the
complaint and construe them in favor of the plaintiff.
16 - OPINION AND ORDER
Novak v.
795 F.3d 1012, 1017 (9th Cir. 2015).
U.S.,
SanMedica Int'l,
See also Kwan v.
854 F.3d 1088, 1096 (9th Cir. 2017).
The
pleading standard under Federal Rule of Civil Procedure 8 "does
not require 'detailed factual allegations,' but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation."
Ashcroft v. Iqbal,
556 U.S. 662, 678
(quoting Twombly, 550 U.S. at 555).
8(a) (2).
(2009)
See also Fed. R. Civ. P.
"A pleading that offers 'labels and conclusions' or 'a
formulaic recitation of the elements of a cause of action will
not do.'"
Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at
555).
See also Omnicare, Inc. v. Laborers Dist. Council Const.
Indus.
Pension Fund,
135 S. Ct. 1318, 1332 (2015).
A complaint
also does not suffice if it tenders "naked assertion[s]" devoid
of "further factual enhancement."
Twombly, 550 U.S. at 557.
"In ruling on a 12(b) (6) motion, a court may generally
consider only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice."
Akhtar v. Mesa,
2012) (citation omitted).
698 F.3d 1202, 1212 (9th Cir.
Under Federal Rule of Evidence 201 "a
court may take judicial notice of 'matters of public record.'"
Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)
(quoting Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282
(9th Cir. 1986)).
In addition, a court "may consider a writing
referenced in a complaint but not explicitly incorporated therein
17 - OPINION AND ORDER
if the complaint relies on the document and its authenticity is
unquestioned."
Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.
2007) (citation omitted).
LLC, 852 F.3d 964, 967
II.
See also Dowers v. Nationstar Mortg.,
(9th Cir. 2017).
Motion to Dismiss under Rule 12(b) (1)
When deciding a motion to dismiss for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure 12(b) (1), the
court may consider allegations of jurisdictional facts by
affidavits and other evidence and resolve factual disputes when
necessary.
2014).
Young v. United States, 769 F.3d 1047, 1047 (9th Cir.
The court may permit discovery to determine whether it
has jurisdiction when "a more satisfactory showing of the facts
is necessary."
Cir. 2008).
Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th
The court has broad discretion in granting discovery
and may narrowly define the limits of such discovery.
Inc. v. Sys.
1977).
Tech. Assoc., Inc.,
Data Disc,
557 F.2d 1280, 1285 (9th Cir.
When a court receives only written submissions, "the
plaintiff need only make a prima facie showing of jurisdictional
facts to withstand a motion to dismiss."
Ranza v. Nike, Inc.,
793 F.3d 1059, 1068 (9th Cir. 2015) (quoting CollegeSource, Inc.
v. AcademyOn, Inc., 653 F.3d 1066, 1073 (9th Cir. 2011)).
Plaintiff bears the burden to establish that the court has
subject-matter jurisdiction.
18 - OPINION AND ORDER
Id. at 1068.
DISCUSSION
As noted, Defendants move to dismiss each of the claims in
Plaintiff's Fourth Amended Complaint.
I.
Claim One - Substantive Due Process
In Claim One Plaintiff contends Defendants' actions in
placing him on the No-Fly List violated his rights to substantive
due process and asserts he must be removed entirely from the TSDB
in order to redress fully the violation of Plaintiff's
substantive due-process rights.
The Court emphasizes Plaintiff
has not pleaded in his Fourth Amended Complaint that Defendants
violated his rights to substantive due process by placing him in
the TSDB.
Instead Plaintiff asserts Defendants violated his
substantive due-process rights by placing him on the No-Fly List
and that the Court must order his removal from the TSDB to remedy
fully the injuries caused by that violation.
Defendants overriding argument is that this Court should
dismiss Plaintiff's substantive due-process claim because
Plaintiff's placement within the TSDB 2 has not deprived him of
any "fundamental right" as required to establish any substantive
due-process violation.
In particular, Defendants contend
inclusion in the TSDB does not result in a burden sufficient to
2
Defendants neither confirm nor deny that Plaintiff remains
in the TSDB.
Instead, for purposes of this Motion only,
Defendants assume Plaintiff remains in the TSDB. At this stage
of the proceedings, therefore, the Court also assumes Plaintiff
remains in the TSDB as alleged in his Fourth Amended Complaint.
19 - OPINION AND ORDER
maintain a substantive due-process claim.
Glucksberg, 521 U.S. 702, 720-22
See Washington v.
(1997) (observing substantive due
process protects "fundamental rights found to be deeply rooted in
our legal tradition").
459, 467-68
See also Beydoun v. Sessions, 871 F.3d
(6th Cir. 2017) (holding placement on the Selectee
List and resulting additional screening and delays at the airport
did not sufficiently deprive the plaintiff of a fundamental right
to maintain a substantive due-process claim).
If Plaintiff asserted a substantive due-process claim on the
basis of his placement in the TSDB, the Court would agree with
Defendants and the analysis of the Sixth Circuit in Beydoun and
conclude Plaintiff would not have sufficiently alleged a
deprivation of a fundamental right to sustain a substantive dueprocess claim.
As noted, however, Plaintiff seeks removal from
the TSDB only as a remedy that stems from his claim that his
prior placement on the No-Fly List violated substantive due
process.
As this Court found in its March 26, 2014, Opinion and Order
(#49), the right to international travel is a right protected by
substantive due process and placement on the No-Fly List without
sufficient justification constitutes a deprivation of that right
sufficient to state a claim.
Tarhuni v. Holder,
8 F. Supp. 3d
1253, 1271-72 (D. Or. 2014).
In its Opinion and Order the Court
noted even though the Ninth Circuit concluded the right to
20 - OPINION AND ORDER
international travel was a fundamental right that was cognizable
under substantive due process, the Ninth Circuit panel expressed
three different opinions about which level of scrutiny applied in
the context of the deprivation of the right to travel
internationally.
Id. at 1270 (citing Eunique v. Powell,
971 (9th Cir. 2002)).
302 F.3d
As this Court found in March 2014,
however, it is not necessary to decide at this stage of the
proceedings the level of scrutiny that applies because "Plaintiff
plausibly alleges his placement on the No-Fly List as a citizen
who has never engaged in activities related to terrorism and who
does not pose a security threat to commercial aviation violates
even the most deferential review standard under substantive due
process."
Tarhuni,
8 F. Supp. 3d at 1271.
As the Ninth Circuit suggested in its remand order,
Defendant relies on Ibrahim v. Department of Homeland Security,
62 F. Supp. 3d 909 (N.D. Cal. 2014), for the proposition that
removal from "all government watchlists" can be an appropriate
remedy when an individual is unconstitutionally placed on the
No-Fly List.
See Pl.'s Resp.
(#150) at 11-13.
According to
Plaintiff, therefore, removal from the TSDB remains effective
relief that this Court may order to remedy his initial placement
on the No-Fly List.
Plaintiff, however, overstates the Northern District of
California's order in Ibrahim.
21 - OPINION AND ORDER
In that case the plaintiff was
placed on the No-Fly List in 2004 as a result of a mistake an FBI
Special Agent made in completing a nomination form.
Id. at 916.
The Special Agent intended to nominate Dr. Ibrahim to the TSDB
and various other sublists, but not to the No-Fly List.
Id.
Over the next several years Dr. Ibrahim, a Malaysian citizen who
had been studying architecture in the United States, experienced
various adverse effects of her placement on the No-Fly List,
including denial of boarding on a flight and revocation of
her student visa.
Id. at 917-27.
From 2004 through 2009
Dr. Ibrahim's status within the TSDB and on various sublists
changed numerous times for reasons that were not always clear.
Id. at 917-27.
By the time her case went to trial in December
2013 the government conceded Dr. Ibrahim "is not a threat to our
national security" and "does not pose (and has not posed) a
threat of committing an act of international or domestic
terrorism with respect to an aircraft, a threat to passenger or
civil aviation security, or a threat of domestic terrorism."
at 916-17.
Id.
Nonetheless, at the time of trial Dr. Ibrahim
"remain[ed] in the TSDB pursuant to a classified and secret
exception to the reasonable suspicion standard" and had not been
granted a visa to return to the United States.
Id. at 926.
In assessing Dr. Ibrahim's due-process claim, the court
found:
Since her erroneous placement on the no-fly list,
plaintiff has endured a litany of troubles in getting
22 - OPINION AND ORDER
back into the United States.
Whether true or not, she
reasonably suspects that those troubles are traceable
to the original wrong that placed her on the no-fly
list.
Once derogatory information is posted to the
TSDB, it can propagate extensively through the
government's interlocking complex of databases, like a
bad credit report that will never go away. As a
post-deprivation remedy, therefore, due process
requires, and this order requires, that the government
remediate its wrong by cleansing and/or correcting all
of its lists and records of the mistaken 2004
derogatory designation and by certifying that such
cleansing and/or correction has been accurately done as
to every single government watchlist and database.
This will not implicate classified information in any
way but will give plaintiff assurance that, going
forward, her troubles in returning to the United
States, if they continue, are unaffected by the
original wrong.
Id. at 928.
Notably, the court did not explicitly order the
government to remove Dr. Ibrahim from the TSDB.
Instead the
court required the government to disregard the designations in
the November 2004 form "for all purposes" and to "trace through
each agency database employing the TSDB and TIDE and make sure
the correction or deletion has actually been made."
Id. at 929.
The court also observed "[t]he government is always free to make
a new nomination doing it the right way."
Id.
The foundational premise that the court's order in Ibrahim
was built on, therefore, was that Dr. Ibrahim was entitled to a
complete remedy of the initial injury; i.e., the erroneous
November 2004 nomination.
To the extent that there were reasons
unrelated to the November 2004 nomination to maintain Dr. Ibrahim
in the TSDB or on any other watchlist, the order in Ibrahim did
23 - OPINION AND ORDER
nothing to compel the government to alter any such designations.
Although removal from the TSDB could conceivably spring from the
Ibrahim court's order, the court's direction to the government
itself was more narrowly tailored than Plaintiff acknowledges.
Nonetheless, the Court agrees Ibrahim supports Plaintiff's
position insofar as it is an example of the possibility that an
unconstitutional nomination to a TSDB sublist can have
consequences that extend beyond the plaintiff's presence on that
sublist.
In particular, this Court agrees with the Ibrahim
court's holding that in such circumstances a plaintiff would be
entitled to a remedy that would completely redress that injury
even if that relief reaches beyond the particular sublist to
which the plaintiff was erroneously nominated in the first place.
As noted, the Court concludes Plaintiff has adequately
pleaded his placement on the No-Fly List violated his substantive
due-process rights.
Although Plaintiff has since been removed
from the No-Fly List (like Dr. Ibrahim was), it is, nonetheless,
possible that Defendants' allegedly illegal actions still bear a
causal relationship to Plaintiff's continued presence in the TSDB
and the consequential impediments to travel that he continues to
experience.
Although Plaintiff's allegations as to this causal
connection are sparse, the Court finds Plaintiff's pleadings to
be adequate at this stage of the proceedings in light of the
inherently opaque nature of the process for nominating an
24 - OPINION AND ORDER
individual to the TSDB and its sublists.
Going forward, however,
Plaintiff will have to establish the elements of his substantive
due-process claim and also will have to demonstrate the causal
connection between his initial, allegedly unconstitutional
placement on the No-Fly List and the ongoing ill effects that
allegedly flow from his continued presence in the TSDB.
Accordingly, on this record the Court concludes Plaintiff
has adequately pleaded his substantive due-process claim in Claim
One and has established there remains a possible remedy to the
ongoing injuries that flow from that alleged violation.
Defendants' Motion as to Claim One, therefore, is denied.
II.
Claim Two - Procedural Due Process
As noted, in Claim Two Plaintiff asserts the DHS TRIP
procedures that allow Plaintiff to challenge his placement within
the TSDB violate his procedural due process rights.
Unlike his
substantive due-process claim, which focused on his original
placement on the No-Fly List, Plaintiff's procedural due-process
claim is focused on the procedures provided to challenge his
ongoing placement within the TSDB.
"Procedural due process imposes constraints on governmental
decisions which deprive individuals of 'liberty' or 'property'
interests within the meaning of the Due Process Clause of the
Fifth or Fourteenth Amendment."
319,
332
(1976).
Mathews v. Eldridge,
424 U.S.
"The fundamental requirement of due process is
25 - OPINION AND ORDER
the opportunity to be heard 'at a meaningful time and in a
meaningful manner.'"
Id. at 333 (quoting Armstrong v. Manzo,
U.S. 545, 552 (1965)).
380
Due process, however, "'is flexible and
calls for such procedural protections as the particular situation
demands.'"
Id. at 334
471, 481 (1972)).
(quoting Morrissey v. Brewer, 408 U.S.
The court must weigh three factors when
evaluating the sufficiency of procedural protections:
(1) "the
private interest that will be affected by the official action";
(2) "the risk of erroneous deprivation of such interest through
the procedures used, and the probative value, if any, of
additional or substitute procedural safeguards"; and (3) "the
Government's interest, including the function involved and the
fiscal and administrative burdens that the additional or
substitute procedural requirement would entail."
A.
Id. at 335.
Private Interest
Plaintiff alleges in his Fourth Amended Complaint that he
has been deprived of two liberty interests:
the right to travel
both internationally and domestically and the right to be free
from false government stigmatization.
Defendants contend
Plaintiff has not alleged a sufficient deprivation of those
liberty interests to maintain his procedural due-process claim.
1.
Right to Travel
The parties agree the rights to both interstate and
international travel are protected by the United States
26 - OPINION AND ORDER
Constitution and the deprivation of those interests could, in
theory, give rise to a procedural due-process claim.
Defendants,
however, contend Plaintiff's alleged placement in the TSDB cannot
support a procedural due-process claim because the alleged
consequences, including enhanced screening and questioning, do
not amount to a deprivation of Plaintiff's right to travel.
In
particular, Defendants rely on two cases from the Eastern
District of Michigan in which that court found placement in the
TSDB or on the Selectee List and the resulting additional
screening and questioning at airports does not constitute the
deprivation of a liberty interest under procedural due process
because it does not prohibit or sufficiently burden the
plaintiff's right to travel.
See Bazzi v. Lynch, No. 16-10123,
2016 WL 4525240, at *5-*8 (E.D. Mich. Aug. 30, 2016).
See also
Beydoun v. Lynch, No. 14-cv-13812, 2016 WL 3753561, at *4-*5
(E.D. Mich. July 14, 2016).
Plaintiff, on the other hand, relies on Elhady v.
Piehota, No. 1:16-cv-375 (AJT/JFA), 2017 WL 8784456, at *5-*6
(E.D. Va. Sept. 5, 2017), in which the Eastern District of
Virginia reached the opposite conclusion and allowed a
plaintiff's procedural due-process claim to go forward on the
basis of impediments to travel caused by placement in the TSDB.
The Elhady court distinguished Beydoun on the basis that the
plaintiff in Elhady alleged placement on the Selectee List had
27 - OPINION AND ORDER
deterred him from flying,
and that allegation was sufficient to
state a procedural due-process claim on the basis of the
deprivation of the plaintiff's right to travel.
Id.
In
contrast, the plaintiff in Beydoun did not make such an
allegation.
Id., at *5.
When discussing the right to travel as protected by the
Constitution, the Ninth Circuit has emphasized "the Constitution
does not guarantee the right to travel by any particular form of
transportation."
Cir. 2006).
Gilmore v. Gonzalez,
435 F.3d 1125, 1136 (9th
As this Court has observed in the context of the
constitutionally-protected right to international travel,
however, deprivation of the right to travel by commercial airline
can give rise to a procedural due-process claim because travel by
commercial airline is effectively the only mode of transportation
reasonably available for travel to much of the world.
Holder,
Tarhuni,
28 F. Supp. 3d 1134, 1148 (D. Or. 2014).
8 F. Supp. 3d at 1273.
Latif v.
See also
Although burdens on an
individual's ability to fly on commercial airlines may not
deprive an individual of his or her right to interstate travel in
the same manner as international travel, the Court adheres to its
rulings in Latif and previously in this case because Plaintiff's
claim implicates both the rights to interstate travel and
international travel, and, therefore, government action that
28 - OPINION AND ORDER
deprives Plaintiff of his ability to fly on commercial airlines
is subject to procedural due-process scrutiny.
Unlike in Latif and the previous allegations in this
case related to the No-Fly List, however, Plaintiff's presence in
the TSDB does not carry with it a blanket prohibition on flying
via commercial airlines.
If Plaintiff's allegations were limited
to the more thorough screening and questioning that the Beydoun
court addressed, the Court would find Plaintiff has not pleaded
the deprivation of a liberty interest sufficient to give rise to
a procedural due-process claim. 3
Although such additional
screening and questioning can cause inconvenience, delays, and
even potentially embarrassing situations, they are not a
sufficient deprivation of the liberty interest in travel to give
rise to a procedural due-process claim as long as such additional
measures do not unreasonably delay a traveler.
Plaintiff, however, also alleges when a individual is
placed in the TSDB,
each "encounter" with law enforcement, including
the TSA, involves collection of an "encounter
package" of information including sensitive
personal information like the individual's
prescription information, anything that is in her
[sic] or her pockets or wallet, financial
3
Moreover, in light of the focus of the first Mathews
factor on the government's actions in depriving an individual of
a protected liberty interest, the Court is skeptical of the
Elhady court's apparent finding that a plaintiff's subjective
feelings of being deterred from traveling is sufficient to
establish the deprivation of a protected liberty interest.
29 - OPINION AND ORDER
information like bank account numbers, copies of
their electronic devices, including cell phone
contact lists, laptop images, GPS data, photos on
their camera, among other categories of
information.
Fourth Am. Compl.
(#141) at
~
15 (emphasis added).
Although
Plaintiff does not reference the collection of bank-account
numbers, copies of electronic devices, cell-phone contact lists,
laptop images, GPS data, or photos on his camera when he
discusses the particular burdens he was exposed to when flying,
at this stage of the proceedings the Court is required to infer
that Plaintiff has personally experienced such searches from
Plaintiff's allegation that the "encounter package" is collected
at "each 'encounter' with law enforcement, including the TSA."
Unlike the additional airport-security screening and questioning
at issue in Beydoun, the collection of such an encounter package
is far beyond merely a more thorough version of the airport
screening to which every traveler must submit and encroaches into
numerous areas of privacy that are not ordinarily subject to
inspection at the airport.
Depending upon the particular facts
of a case, the collection of such an "encounter package" by the
TSA, as alleged by Plaintiff, could constitute such a significant
intrusion into a traveler's privacy that the Court concludes it
is a sufficient deprivation of Plaintiff's liberty interest in
travel to warrant procedural due-process protection.
30 - OPINION AND ORDER
Defendants challenge this conclusion in three ways.
First, Defendants contend Plaintiff's allegation regarding the
collection of encounter packages by TSA agents during airport
screening is incorrect.
Defendants rely on the September 5,
2007, congressional testimony of then-Secretary of Homeland
Security Michael Chertoff 4 and a July 12, 2017, Department of
Homeland Security Privacy Impact Assessment for Secure Flight 5
for the proposition that TSA policy limits TSA's collection of
information to basic biographical information.
The authorities
Defendants rely on, however, only speak to the types of
information collected by TSA generally and do not address the
particular procedures followed or information collected during
the enhanced screening of individuals in the TSDB.
Thus, even if
the Court could take judicial notice of the matters cited in
Defendants' authorities at this stage of the proceedings, those
authorities would not negate Plaintiff's allegation concerning
the collection of an encounter package, which the Court must
otherwise accept as true for purposes of Defendants' Motion to
Dismiss.
4
Testimony of Secretary Michael Chertof f Before the House
Committee on Homeland Security, 2007 WL 2507839 (Sept. 5, 2007).
5
Dep't of Homeland Sec., Privacy Impact Assessment Update
for Secure Flight (July 12, 2017), available at
https://www.dhs.gov/sites/default/files/publications/pia- tsa - secu
reflight 18%28h%29 july2017.pdf.
31 - OPINION AND ORDER
Second, Defendants contend Plaintiff's allegations do
not establish TSA agents collected an encounter package from
Plaintiff during any airport security screening.
disagrees.
The Court
Although, as noted, the vagueness of Plaintiff's
allegations give the Court some pause, the Court notes Plaintiff
alleges TSA agents collect an encounter package "each" time an
individual on the TSDB encounters TSA.
at
~
15.
Fourth Am. Compl.
(#141)
Because Plaintiff also alleges he has encountered TSA
during airport security screenings on multiple occasions since
being placed on the TSDB, at this stage of the proceedings the
Court must inf er TSA agents collected an encounter package from
Plaintiff during each such encounter.
Finally, Defendants contend the collection of an
encounter package is not relevant to this Court's analysis
regarding Plaintiff's right to travel even though the collection
of an encounter package may implicate Plaintiff's right to
privacy.
The Court disagrees.
The collection of an encounter
package as alleged in Plaintiff's Fourth Amended Complaint may
deter an individual from traveling by commercial airline in such
a way that it represents a significant burden on an individual's
right to travel.
In other words, the allegations lead to an
inference that individuals forced to turn over to the government
a wide range of deeply personal information every time they fly
on a commercial airline will be less likely to exercise their
32 - OPINION AND ORDER
right to travel.
The collection of an encounter package by TSA
agents during the airport security screening of individuals on
the TSDB, therefore, is relevant to whether placement on the TSDB
deprives such individuals of their right to travel.
Accordingly, on this record the Court concludes
Plaintiff has adequately pleaded at this stage that Defendants
deprived him of his liberty interest in travel to an extent that
gives rise to a procedural due-process claim.
2.
False Government Stigmatization
On the other hand, the Court concludes Plaintiff has
not sufficiently pleaded a claim under procedural due-process for
deprivation of Plaintiff's right to be free from false government
stigmatization.
The Court notes it previously dismissed
Plaintiff's "stigma-plus" claim in its March 24, 2014, Opinion
and Order on the basis that Plaintiff did not adequately plead
the government made a public disclosure of Plaintiff's thenstatus on the No-Fly List.
See Tarhuni,
8 F. Supp. 3d at 1273-
75.
In the Court's March 24, 2014, Opinion and Order, the
Court found there were four elements to a "stigma-plus" claim:
(1) the public disclosure by the government,
stigmatizing statement,
plus
(2) of a
(3) the accuracy of which is contested,
(4) the denial of "'some more tangible interest[] such as
employment.'"
Id. at 1273 (quoting Ulrich v. City and Cty. of
33 - OPINION AND ORDER
San Francisco,
308 F.3d 968, 982 (9th Cir. 2002)).
In deciding
that Motion to Dismiss, the Court found:
For purposes of this Motion, three of the four
requirements for a cognizable "stigma plus" claim are
easily determined.
First, there is unquestionably a
significant stigma attached to placement on the No-Fly
List.
Indeed, it is difficult to conceive of a more
stigmatizing status than being suspected of involvement
with terrorist activity.
Second, at this stage of the
proceedings Plaintiff's allegations that he is not
involved in terrorist activity and does not pose a
security threat to commercial aviation sufficiently
contests the accuracy of the alleged stigmatization.
Third, as noted, Plaintiff's placement on the No-Fly
List deprives him of his right to international travel
by air, which satisfies the "plus" element.
See Latif,
969 F. Supp. 2d at 1304-05. As currently pled,
however, Plaintiff's allegations fall short of
satisfying the fourth element of public disclosure,
which requires that the defendant "actually disseminate
the stigmatizing comments in a way that would reach .
. the community at large." Palka v. Shelton, 623 F.3d
447, 454 (7th Cir. 2010).
Disclosures to other
government agencies or to an opposing litigating party
are not "public" for purposes of "stigma plus." See
Bishop v. Wood, 426 U.S. 341, 348-49, 96 S. Ct. 2074,
48 L. Ed.2d 684 (1976).
See also Wenger v. Monroer 282
F.3d 1068, 1074 n. 5 (9th Cir. 2002).
Id. at 1274.
In particular, the Court found the government
disclosure of No-Fly List status to the airlines and the
additional incidental disclosures to other passengers who may
overhear or witness an individual being denied boarding were not
enough to implicate the sort of community-wide reputational
injury required for a stigma-plus claim.
Id. at 1274-75.
The
Court notes Plaintiff did not directly raise this finding as
error during his appeal, and the Court of Appeals did not address
it in its remand order.
34 - OPINION AND ORDER
Plaintiff's allegations with respect to his stigma-plus
claim in the Fourth Amended Complaint are not materially
different from those that the Court found insufficient in the
Proposed Second Amended Complaint considered in its March 24,
2014, Opinion and Order.
Although Plaintiff alleges he and
members of his family have been asked about Plaintiff's placement
on the No-Fly List by others who learned about it through
"various press reports," Plaintiff does not identify any
disclosure from the government that led to those press reports.
To the contrary, this Court is aware through its experience in
this case that media reports of Plaintiff's status on the No-Fly
List have been informed by the record in these public proceedings
that Plaintiff initiated and by Plaintiff's voluntary disclosures
to media.
See, e.g., Bryan Denson, Homeland Security removes
Tigard businessman Jamal Tarhuni from no-fly list, OregonLive
(Feb. 24, 2015), http://www.oregonlive.com/tigard/index.ssf/
2015/02/homeland security_removes tiga.html; Helen Jung,
Case of
Tigard man, grounded by no-fly list, offers glimpse into
secretive airport security screening, OregonLive (Apr. 12, 2012),
http://www.oregonlive.com/travel/index.ssf/2012/04/case of_tigard
_man_grounded_by.html.
Otherwise, the extent of the public
disclosure of Plaintiff's presence in the TSDB as alleged in the
Fourth Amended Complaint is similar to Plaintiff's allegations
35 - OPINION AND ORDER
concerning the No-Fly List in his Proposed Second Amended
Complaint. 6
Accordingly, the Court adheres to its March 24, 2014,
Opinion and Order and concludes Plaintiff has failed to
adequately plead a deprivation of his liberty interest in being
free from false government stigmatization.
B.
Risk of Erroneous Deprivation
As noted, as to the second prong of the Mathews balancing
analysis the court must consider "the risk of erroneous
deprivation of [the liberty or property] interest through the
procedures used, and the probative value, if any, of additional
or substitute procedural safeguards.n
424 U.S. at 335.
Although the Court cannot complete any final analysis of the
Mathews balancing at this early stage of the proceedings, the
Court concludes Plaintiff's allegations concerning the OHS TRIP
process are sufficient to establish he is plausibly entitled to
greater procedural protections regarding his ability to challenge
his placement in the TSDB.
C.
Government's Interest
Finally, as to the third prong of the Mathews balancing
analysis the court must consider "the Government's interest,
6
Because Plaintiff did not appeal the Court's dismissal of
the portion of his procedural due-process claim based on the
stigma-plus doctrine, the Court notes this conclusion remains law
of the case.
36 - OPINION AND ORDER
including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement
would entail."
Id.
As the Court observed in its March 26, 2014,
Opinion and Order, "[u]nquestionably,
'no governmental interest
is more compelling than the security of the Nation.'"
Agee, 453 U.S. 280, 307
(1981).
Haig v.
Over the last three decades the
security of commercial airlines has repeatedly been at the
forefront of national security concerns."
at 1275-76.
Tarhuni,
8 F. Supp. 3d
Nonetheless, although the Court is unable to conduct
the Mathews analysis until the Court has a more developed record
before it, the Court concludes Plaintiff has sufficiently alleged
the OHS TRIP procedures that are provided to challenge continued
placement in the TSDB do not strike the proper balance under the
Mathews test.
Accordingly, on this record the Court concludes Plaintiff
has sufficiently pleaded a procedural due-process claim on the
basis of the government's deprivation of his right to travel as a
result of his continued placement in the TSDB, and, therefore,
the Court denies Defendants' Motion as to this claim.
As noted,
however, the Court grants Defendants' Motion as to Plaintiff's
allegation that Defendants deprived him of his liberty interest
in being free from false government stigmatization.
37 - OPINION AND ORDER
III. Claims Three and Four - Administrative Procedure Act
As noted, in Claims Three and Four Plaintiff brings claims
under the APA.
A.
Claim Three - 49 U.S. C. § 44903 (j) (2) (C) (iii) (I)
In Claim Three Plaintiff asserts the DHS TRIP procedures
as applied to those individuals in the TSDB violate the
Congressional direction to the Executive Branch in 49 U.S.C.
§
44903(j) (2) (C) (iii) (I) and, therefore, are "arbitrary,
capricious,
. and otherwise not in accordance of law" in
violation of the APA, 5 U.S. C.
§
7 0 6 ( 2) (A) .
Section
44903 (j) (2) (C) (iii) (I) requires the Executive Branch to
"establish a procedure to enable airline passengers, who are
delayed or prohibited from boarding a flight because the advanced
passenger prescreening system determined that they might pose a
security threat, to appeal such determination and correct
information contained in the system."
With respect to his placement in the TSDB, Plaintiff
contends the DHS TRIP procedures do not sufficiently provide him
an opportunity to "appeal such determination and correct
information contained in the system."
relying on the direction in
§
Id.
Plaintiff's claim
44903 (j) (2) (C) (iii) (I), therefore,
is virtually identical to his procedural due-process claim,
albeit under a statutory rather than a constitutional rule of
decision.
38 - OPINION AND ORDER
The Court notes the Congressional mandate in
§
44903 (j) (2) (C) (iii) is broader than Plaintiff indicates
in his Fourth Amended Complaint.
Section 44903(j) (2) (C) (iii)
provides:
(iii) Requirements. - In assuming performance of the
function under clause (ii), the Assistant Secretary
shall(I) establish a procedure to enable airline
passengers, who are delayed or prohibited from
boarding a flight because the advanced passenger
prescreening system determined that they might
pose a security threat, to appeal such
determination and correct information contained in
the system;
(II) ensure that Federal Government databases that
will be used to establish the identity of a
passenger under the system will not produce a
large number of false positives;
(III) establish an internal oversight board to
oversee and monitor the manner in which the system
is being implemented;
(IV) establish sufficient operational safeguards
to reduce the opportunities for abuse;
(V) implement substantial security measures to
protect the system from unauthorized access;
(VI) adopt policies establishing effective
oversight of the use and operation of the system;
and
(VII) ensure that there are no specific privacy
concerns with the technological architecture of
the system.
For many of the same reasons as the Court found as to
Plaintiff's procedural due-process claim, the Court concludes
Plaintiff has adequately alleged the OHS TRIP procedures as
39 - OPINION AND ORDER
they relate to individuals in the TSDB do not meet the
requirements of § 4 4 903 ( j) ( 2) ( C) (iii) .
Because the parties
have not yet meaningfully addressed the precise requirements
of § 4 4 903 ( j) ( 2) ( C) (iii) , the Court declines at this stage of the
proceedings to determine whether§ 44903(j) (2) (C) (iii) requires
any greater protections than procedural due-process.
Accordingly, on this record the Court concludes Plaintiff
has sufficiently alleged a claim under § 706(2) (A) on the
basis that the OHS TRIP procedures as applied to individuals
in the TSDB are "arbitrary, capricious,
and otherwise not
in accordance of law" in light of the requirements of
§ 44903 (j) (2) (C) (iii), and, therefore, the Court denies
Defendants' Motion as to Claim Three.
B.
Claim Four - APA Violation Premised on Violations of
Substantive and Procedural Due Process
As noted, in Claim Four Plaintiff asserts Defendants'
actions were arbitrary, capricious, or otherwise not in
accordance with law in violation of the APA because Defendants'
actions in originally placing him on the No-Fly List violate
substantive due process and the OHS TRIP procedures related to
contesting Plaintiff's placement in the TSDB violate procedural
due process.
This claim merely mirrors Plaintiff's Claims One
and Two.
Accordingly, the Court declines to dismiss Plaintiff's Claim
Four on the same bases as it declined to dismiss Plaintiff's
40 - OPINION AND ORDER
Claims One and Two, and, therefore, the Court denies Defendants'
Motion as to Claim Four.
CONCLUSION
For these reasons, the Court GRANTS in part and DENIES in
part Defendants' Motion (#149) to Dismiss Fourth Amended
Complaint and DISMISSES with prejudice Plaintiff's Claim Two
insofar as it is premised on Plaintiff's alleged liberty interest
in freedom from false government stigmatization.
The Court,
however, declines to dismiss Plaintiff's Fourth Amended Complaint
in any other respect.
The Court directs Defendants to file an answer to
Plaintiff's Fourth Amended Complaint no later than August 24,
2018.
The Court also directs the parties to confer and to file
no later than August 24, 2018, a jointly proposed case-management
schedule setting out their joint or opposed proposals for
deadlines (1) to complete discovery,
(2) to file dispositive
motions, and (3) to file a jointly proposed pretrial order.
IT IS SO ORDERED.
DATED this 27th day of July, 2018.
ANNA J. BROWN
United States Senior District Judge
41 - OPINION AND ORDER
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