Tarhuni v. Holder et al
Filing
49
Opinion and Order: For these reasons and construing all of Defendants' Motions as against Plaintiff's Proposed Second Amended Complaint, the Court GRANTS in part and DENIES in part the Official Capacity Defendants Motion 20 to D ismiss for Failure to State a Claim and for Lack of Jurisdiction. The Court GRANTS the Individual Capacity Defendants Motion 23 to Dismiss and DISMISSES without prejudice Claim One and Count One of Claim Two. The Court DISMISSES with prejudice Coun t Two of Claim Two. The Court grants Plaintiff leave to amend all claims dismissed without prejudice on the condition that Plaintiff can in good faith plead facts sufficient to satisfy the deficiencies discussed and state a plausible claim on the merits. The Court FURTHER ORDERS Plaintiff to file a Third Amended Complaint consistent with this Order no later than April 25, 2014. Upon the filing of the Third Amended Complaint, the Court encourages the remaining Defendants to file their Answer s so this matter may progress to dispositive-motion practice. In any event, Defendants shall file their responsive pleading(s) to Plaintiff's Third Amended Complaint no later than May 27, 2014. Signed on 03/26/2014 by Judge Anna J. Brown. See attached 54 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JAMAL TARHUNI,
3:13-cv-00001-BR
Plaintiff,
v.
ERIC HOLDER, in his official capacity
as Attorney General of the United
States; FEDERAL BUREAU OF
INVESTIGATION; JAMES B. COMEY, in his
official capacity as Director of the
Federal Bureau of Investigation; UNITED
STATES DEPARTMENT OF STATE; JOHN KERRY,
in his official capacity as Secretary
of State; FBI TERRORISM SCREENING
CENTER; TIMOTHY HEALY, in his official
capacity as Director of the FBI
Terrorism Screening Center; BRIAN ZINN,
an employee of the Federal Bureau of
Investigation, in his individual
capacity; HORACE THOMAS, an employee of
the Federal Bureau of Investigation, in
his individual capacity,
Defendants.
1 - OPINION AND ORDER
OPINION AND ORDER
STEVEN GOLDBERG
205 S.E. Spokane St.
Suite 300
Portland, OR 97202
(503) 445-4622
THOMAS H. NELSON
Thomas H. Nelson & Associates
P.O. Box 1211
Welches, OR 97067
(503) 622-3262
Attorneys for Plaintiff
BRIGHAM J. BOWEN
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, DC 20044
(202) 514-6289
Attorneys for Defendants Eric Holder, Federal
Bureau of Investigation, James B. Comey,
United States Department of State, John
Kerry, FBI Terrorism Screening Center, and
Timothy Healy
REGINALD M. SKINNER
Trial Attorney
United States Department of Justice
Civil Division
P.O. Box 7146
Ben Franklin Station
Washington, DC 20044
(202) 616-4314
Attorneys for Defendants Brian Zinn and Horace
Thomas
BROWN, Judge.
This matter comes before the Court on the following Motions:
2 - OPINION AND ORDER
1.
Motion (#20) to Dismiss for Failure to State a Claim and
for Lack of Jurisdiction filed by Defendants FBI Terrorism
Screening Center, Federal Bureau of Investigation, Timothy Healy,
Eric Holder, John Kerry, James B. Comey, and United States
Department of State (collectively referred to as Official
Capacity Defendants), and
2.
Motion (#23) to Dismiss Plaintiff’s First Amended
Complaint filed by Defendants Horace Thomas and Brian Zinn
(collectively referred to as Individual Capacity Defendants).
For the reasons that follow, the Court GRANTS in part and
DENIES in part the Official Capacity Defendants’ Motion (#20) to
Dismiss and GRANTS the Individual Capacity Defendants’ Motion
(#23) to Dismiss.
PROCEDURAL BACKGROUND
The Official Capacity Defendants moved to dismiss
Plaintiff’s First Amended Complaint (#13) under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that
Plaintiff failed to allege a justiciable case and controversy
with respect to Claims One and Five and failed to state a claim
on which relief may be granted on all claims.
The Individual Capacity Defendants moved to dismiss
Plaintiff’s First Amended Complaint under Federal Rules of Civil
Procedure 12(b)(2) and 12(b)(6) on the grounds that this Court
3 - OPINION AND ORDER
does not have personal jurisdiction over Defendant Thomas and the
Individual Capacity Defendants are entitled to qualified immunity
as a matter of law.
The Court heard oral argument on November 8, 2013.
At oral
argument Plaintiff acknowledged the First Amended Complaint
contained several pleading deficiencies, including many that made
consideration of the pending Motions difficult.
Accordingly, the
Court ordered Plaintiff to file a proposed Second Amended
Complaint to cure the pleading deficiencies as proposed at oral
argument.
The Court also allowed Defendants the opportunity to
file supplemental memoranda in further support of their Motions
to Dismiss in response to Plaintiff’s Proposed Second Amended
Complaint and allowed Plaintiff to file a supplemental reply
memorandum if desired.
On December 12, 2013, Plaintiff filed a Proposed Second
Amended Complaint (#40), and the parties timely filed their
supplemental memoranda.
For purposes of resolving the pending Motions, the Court
deems the Proposed Second Amended Complaint (PSAC) as the
operative Complaint.1
1
Accordingly, the Official and Individual
Although Plaintiff titles the Second Amended Complaint as
“Proposed,” the Court deems it to be Plaintiff’s Second Amended
Complaint for purposes of the pending Motions. Because the
parties refer to this document as the Proposed Second Amended
Complaint, however, the Court will continue to refer to it as
such for purposes of clarity and consistency in resolving
Defendants’ Motions.
4 - OPINION AND ORDER
Capacity Defendants’ Motions to Dismiss are construed as applying
to Plaintiff’s PSAC.
FACTUAL BACKGROUND
Plaintiff alleges the following pertinent facts:
I.
The No-Fly List
Defendant Federal Bureau of Investigation (FBI), through
Defendant Terrorism Screening Center (TSC), is responsible for
development and maintenance of the No-Fly List (List), which
consists of the names of individuals whom airlines serving or
flying within the United States may not transport.
Most
individuals on the List, including Plaintiff, are prohibited from
flying into, out of, or over Canadian airspace as well as
American airspace.
TSC places individuals on the List because “there is a
reasonable suspicion that the individuals are known or suspected
terrorists.”
PSAC ¶ 17.
Such “reasonable suspicion” 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 or terrorist activities.”
PSAC ¶ 17.
Individuals
placed on the List, including Plaintiff, are not given notice
that they are on the List, are not advised of the factual basis
5 - OPINION AND ORDER
for placement on the List, and do not have the right to a hearing
before a neutral decision-maker to challenge their placement on
the List.
Individuals who wish to challenge their placement on the
List may submit an inquiry to the Department of Homeland Security
Traveler Redress Inquiry Program (DHS TRIP).
DHS TRIP then
transmits the inquiry to the TSC, which determines whether any
action should be taken.
TSC is the final arbiter of whether an
individual is removed from the List.
II.
Plaintiff’s Inclusion on the No-Fly List
Plaintiff, an American citizen of Libyan descent, has lived
in the United States for 38 years and is a resident of Oregon.
Since the 1980s Plaintiff has considered himself an opponent of
Muammar Gaddafi’s 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 Oregon.
While in Libya Plaintiff provided cultural,
language, and logistical assistance to MTI by helping deliver
medicine, medical equipment, and supplies to Libya, and Plaintiff
often worked with Libyan and Tunisian government and humanitarian
organizations.
Near the end of his last assignment with MTI, Plaintiff
arranged to return to Portland on January 17, 2012, leaving
6 - OPINION AND ORDER
Tunis, Tunisia, on an Air France flight to Paris, France.
When
Plaintiff checked in at the Air France ticket counter in Tunis,
however, the ticket agent told him in the presence of other
travelers that he would not be allowed to board his flight and
that he should speak to United States Embassy officials.
Plaintiff asked to speak to the person in charge of the Air
France office and was taken to the office of Mahmoud Keshlef.
In
Mr. Keshlef’s office Plaintiff was shown three emails from the
Air France office in Paris.
The first email dated January 12,
2012, contained instructions to prevent Plaintiff from boarding
his flight.
The second email delivered approximately two hours
later instructed Air France officials in Tunis to permit
Plaintiff to board his flight.
A third email dated January 13,
2012, however, again instructed Air France to prevent Plaintiff
from boarding.
On January 17, 2012, Plaintiff called the American Embassy
in Tunis and was connected with United States Consular Officer
Michael Sweeney.
Sweeney informed Plaintiff that he did not have
any information, but he stated he would contact somebody in
Washington, D.C., and call Plaintiff when he had more
information.
On January 18, 2012, Plaintiff went to the American
Embassy in Tunis and met with Sweeney.
have any additional information.
7 - OPINION AND ORDER
Sweeney stated he did not
Plaintiff informed Sweeney that
he had purchased an airline ticket that was valid for three
months and that it was about to expire.
Two hours later Consular Officer Sweeney called Plaintiff
and advised him that “personnel from some undisclosed U.S.
agency” wanted to interview him.
PSAC ¶ 27.
Plaintiff suggested
they start the interview immediately, but Sweeney indicated that
would not be possible because the agency personnel had to travel
to Tunis.
Because his airplane ticket was about to expire,
Plaintiff asked if the Embassy would cover the additional cost of
purchasing a new airplane ticket.
not.
Sweeney responded it would
PSAC ¶ 27.
On January 22, 2012, after Plaintiff returned to Libya, he
received a call from Consular Officer Sweeney.
Plaintiff on the line with FBI Agent Zinn.
Sweeney put
Agent Zinn identified
himself as an FBI agent and proposed an interview for January 24,
2012.
Plaintiff requested the interview take place in Libya or
at a neutral location such as a hotel in Tunis, but Agent Zinn
stated the interview had to take place at the United States
Embassy in Tunis.
Agent Zinn advised Plaintiff that he would
return to the United States if Plaintiff failed to appear for the
interview and nothing would change with respect to Plaintiff’s
ability to fly home.
PSAC ¶¶ 28-29.
On January 24, 2012, Plaintiff arrived at the American
Embassy in Tunis with a Tunisian attorney and was met by Agent
8 - OPINION AND ORDER
Zinn and the head of Embassy Security.
Agent Zinn escorted
Plaintiff to an interview room in which Horace Thomas, Legal
Attache for the U.S. Embassies in Algiers, Algeria, and Tunis,
Tunisia, was also present.
Agent Zinn advised Plaintiff that he
and Thomas were there to assess “derogatory contacts” that
Plaintiff had made while in Libya and which led to Plaintiff
being prevented from boarding his flight back to the United
States.
PSAC ¶ 30.
In the presence of Plaintiff’s Tunisian attorney, Agent Zinn
interviewed Plaintiff for 3½ 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
refused and thereby ended the interview.
Although Plaintiff was
free to leave the Embassy throughout the interview, he was not
free to return to the United States in light of the fact that he
was prohibited from boarding an airplane.
9 - OPINION AND ORDER
In addition, because
the interview was scheduled on such short notice, Plaintiff’s
American attorney was unable to travel to Tunisia to represent
Plaintiff during the interrogation.
Following the interview, Plaintiff and his American attorney
contacted Consular Officer Sweeney about what Plaintiff could do
to return to the United States, but Sweeney was unable to provide
any guidance.
Due in part to Plaintiff’s family and attorney
contacting United States Senator Ron Wyden’s office, Sweeney
informed Plaintiff in “early February [2012]” that he could
return home notwithstanding his inclusion on the No-Fly List.
Accompanied by his American attorney, Plaintiff flew from Tunis
to Paris on February 13, 2012; from Paris to Amsterdam on
February 14, 2012; and then from Amsterdam to Portland.
On February 29, 2012, however, Plaintiff was prohibited from
boarding a flight from Portland to Seattle.
In early March 2012
Plaintiff traveled by rail to Minneapolis, Minnesota, to
represent MTI at an event, and Plaintiff continued to Washington,
D.C., by automobile to attend meetings.
On March 8, 2013,
Plaintiff was invited to Washington, D.C., to participate in a
meeting the following week with Libyan government officials, but
attempts to obtain a waiver through Senator Wyden’s office to
permit him to fly were unsuccessful.
unable to make that trip.
Plaintiff, therefore, was
Plaintiff also attempted to fly from
Portland to Seattle on December 11, 2012, and July 23, 2013, but
10 - OPINION AND ORDER
he was not permitted to board those flights.
On July 23, 2013,
Plaintiff “was told by Alaska Airlines employees, at the ticket
counter in front of other passengers, that he was not allowed to
board due to information they received from TSA.”
PSAC ¶ 47.
As a result of his alleged placement on the List, Plaintiff
has been unable to continue volunteering with MTI in Libya and
has been unable to explore potential business and employment
opportunities in Libya.
Plaintiff also has been unable to visit
family in Libya and to attend family events.
Plaintiff knows if
he were able to travel to Libya, he would be unable to return to
the United States.
PSAC ¶ 49.
Because Plaintiff has had to
explain to people why he is unable to travel by air to meet
various commitments, he contends he has been stigmatized as a
terrorist or an associate of terrorists.
PSAC ¶ 51.
Although Plaintiff has never officially been told he is on
the List, he suspects he is because of his experiences in being
denied boarding in Tunisia and subsequently in Portland.
Plaintiff submitted a DHS TRIP inquiry seeking review of his
placement on the No-Fly List.
Plaintiff received a letter from
DHS TRIP on July 25, 2013, advising him that DHS “‘conducted a
review of any applicable records in consultation with other
federal agencies, as appropriate.
It has been determined that no
changes or conditions are warranted at this time.’”
PSAC ¶ 45.
The July 25, 2013, letter advised Plaintiff of his right to
11 - OPINION AND ORDER
request an administrative appeal, but the letter did not provide
any information as to the basis for Plaintiff’s inclusion on the
List.
III. Plaintiff’s Claims for Relief
Plaintiff asserts five claims for relief against various
combinations of Defendants.
A.
Claim One
In Claim One Plaintiff alleges all Defendants violated
Plaintiff’s right to return to the United States as guaranteed
by the Citizenship Clause of the Fourteenth Amendment to the
United States Constitution.
Plaintiff alleges being placed on
the No-Fly List while overseas “effectively rendered Plaintiff
stateless, thereby depriving Plaintiff of all of his rights and
protections under the U.S. Constitution.”
PSAC ¶ 52.
Plaintiff
also alleges his “continued presence on the List . . . will
continue to affect his ability to return to the U.S. if Plaintiff
travels outside of the U.S. by boat or alternate mode of
transport, but seeks to return by plane.”
PSAC ¶ 53.
Plaintiff
alleges this violation of his Fourteenth Amendment rights gives
rise to a cause of action for damages against the Individual
Capacity Defendants pursuant to Bivens v. Six Unnamed Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971).
12 - OPINION AND ORDER
Plaintiff seeks injunctive and declaratory relief as to all
Defendants and $1 million in damages from the Individual Capacity
Defendants.
B.
Claim Two
In two separate counts in Claim Two Plaintiff alleges all
Defendants violated his substantive due-process rights.
1.
Count One
In Count One of Claim Two Plaintiff alleges Defendants
violated Plaintiff’s protected liberty interest in international
travel.
Plaintiff alleges he has a liberty interest in
international travel free from unreasonable burdens, and his
continuing inclusion on the No-Fly List lacks a rational
relationship to any legitimate government interest because
Plaintiff does not pose a security threat to commercial aviation.
Plaintiff alleges Defendants’ violation of Plaintiff’s right to
international travel gives rise to a Bivens cause of action for
damages against the Individual Capacity Defendants.
Accordingly, Plaintiff seeks injunctive and declaratory
relief against all Defendants and $1 million in damages from the
Individual Capacity Defendants.
2.
Count Two
In Count Two of Claim Two Plaintiff alleges all
Defendants violated Plaintiff’s right to be free from false
government stigmatization as an individual who is known or
13 - OPINION AND ORDER
suspected to be involved in terrorist activity.
Plaintiff
alleges his inclusion on the No-Fly List will continue to result
in foreseeable public disclosure of Plaintiff’s status on the
List, and he alleges this violation of his right to be free from
false government stigmatization gives rise to a Bivens cause of
action for damages against the Individual Capacity Defendants.
Accordingly, Plaintiff seeks injunctive and declaratory
relief against all Defendants and $1 million in damages from the
Individual Capacity Defendants.
C.
Claim Three
In Claim Three Plaintiff alleges Defendants Holder, FBI,
Comey, TSC, and Healy deprived Plaintiff of substantive due
process by violating his fundamental right to interstate travel
by airplane.
Plaintiff again alleges he does not present a
security threat to commercial aviation, and his placement on the
List, therefore, lacks “any rational relationship to a compelling
government interest.”
PSAC ¶ 61.
Plaintiff seeks injunctive and declaratory relief in Claim
Three.
D.
Claim Four
In Claim Four Plaintiff alleges Defendants Holder, FBI,
Comey, TSC, and Healy violated Plaintiff’s right to due process
because the process applicable to his placement on the No-Fly
List and his inability to challenge his continued inclusion on
14 - OPINION AND ORDER
the List violates procedural due process.
In particular,
Plaintiff alleges these Defendants violated Plaintiff’s right to
procedural due process by failing to give Plaintiff postdeprivation notice of his name on the List or the basis of his
inclusion, a “meaningful and timely opportunity” to challenge his
inclusion on the List, and an independent forum in which to
secure his removal from the List.
Plaintiff alleges he was
deprived of his liberty interests in international travel,
freedom from false government stigmatization, and interstate
travel without constitutionally adequate process.
Plaintiff seeks injunctive and declaratory relief on Claim
Four.
E.
Claim Five
In Claim Five Plaintiff alleges the Official Capacity
Defendants violated Plaintiff’s Fifth Amendment rights against
self-incrimination and representation of counsel by compelling
Plaintiff to participate in interrogation without the
representation of Plaintiff’s American counsel.
Plaintiff
alleges as long as he remains on the List, Defendants may engage
in the same tactic of compelled interrogation without the
presence of counsel.
Accordingly, Plaintiff seeks injunctive and declaratory
relief on Count Five.
15 - OPINION AND ORDER
DISCUSSION
The Official Capacity Defendants move to dismiss Claims One
and Five pursuant to Federal Rule of Civil Procedure 12(b)(1) for
lack of subject-matter jurisdiction on the ground that these
claims fail to state a justiciable cause of action.
In addition,
the Official Capacity Defendants move to dismiss all claims
pursuant to 12(b)(6) for failure to state a claim on which relief
may be granted.
The Individual Capacity Defendants move to dismiss Claims
One and Two (the only Claims in which the Individual Capacity
Defendants are named) as to Defendant Thomas pursuant to Federal
Rule of Civil Procedure 12(b)(2) for lack of personal
jurisdiction.
In addition, the Individual Capacity Defendants
assert they are entitled to qualified immunity on Claims One and
Two and, accordingly, move to dismiss those claims pursuant to
Federal Rule of Civil Procedure 12(b)(6).
I.
Standards
A.
Federal Rule of Civil Procedure 12(b)(1)
When deciding a motion to dismiss for lack of subject-matter
jurisdiction under Rule 12(b)(1), the court may consider
affidavits and other evidence supporting or attacking the
complaint's jurisdictional allegations.
944, 956 (9th Cir. 2005).
The court may permit discovery to
determine whether it has jurisdiction.
16 - OPINION AND ORDER
Autery v. U.S., 424 F.3d
Data Disc, Inc. v. Sys.
Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977).
The
court has broad discretion in granting discovery and may narrowly
define the limits of such discovery.
Id.
When the court
"receives only written submissions, the plaintiff need only make
a prima facie showing of jurisdiction."
Rio Props., Inc. v. Rio
Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002).
Plaintiff
has the burden to establish that the court has subject-matter
jurisdiction.
Ass'n of American Med. Coll. v. United States, 217
F.3d 770 (9th Cir. 2000).
B.
Federal Rule of Civil Procedure 12(b)(2)
When "the existence of personal jurisdiction is challenged
and the defendant appears specially to contest its presence in
the jurisdiction, the plaintiff has the burden to come forward
with some evidence to establish jurisdiction."
Dist. Council No.
16 of Intern. Union of Painters & Allied Trades, Glaziers,
Architectural Metal & Glass Workers, Local 1621 v. B&B Glass,
Inc., 510 F.3d 851, 855 (9th Cir. 2007)(citing Schwarzenegger v.
Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004)).
"The
court may consider evidence presented in affidavits to assist it
in its determination and may order discovery on the jurisdictional issues."
Doe v. Unocal Corp., 248 F.3d 915, 922 (9th
Cir. 2001)(citing Data Disc, Inc. v. Sys. Tech. Assoc., Inc., 557
F.2d 1280, 1285 (9th Cir. 1977)).
If the court makes a
jurisdictional decision based only on pleadings and affidavits
17 - OPINION AND ORDER
submitted by the parties and does not conduct an evidentiary
hearing, the plaintiff need make only a prima facie showing of
personal jurisdiction.
omitted).
B&B Glass, 510 F.3d at 855 (citation
When determining whether the plaintiff has met the
prima facie showing, the court must assume the truth of
uncontroverted allegations in the complaint.
Ochoa v. J.B.
Martin and Sons Farms, Inc., 287 F.3d 1182, 1187 (9th Cir. 2002).
When the court rules on a defendant's motion to dismiss for
lack of personal jurisdiction without holding an evidentiary
hearing, the plaintiff's version of the facts, unless directly
contravened, is taken as true, and the court must resolve factual
conflicts in the parties' affidavits in the plaintiff's favor.
Harris Rutsky & Co. Ins. Serv., Inc. v. Bell & Clements LTD, 328
F.3d 1122, 1129 (9th Cir. 2003).
C.
Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is
plausible on its face.”
545 (2007).
Bell Atlantic v. Twombly, 550 U.S. 544,
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. at 556.
“The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more
18 - OPINION AND ORDER
than a sheer possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Twombly, 550
U.S. at 546).
When a complaint pleads facts that are “merely
consistent with” a defendant's liability, it “stops short of the
line between possibility and plausibility of entitlement to
relief.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
557).
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-harmedme accusation.”
U.S. at 555).
Iqbal, 556 U.S. at 678 (quoting Twombly, 550
See also Fed. R. Civ. P. 8(a)(2).
“A pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’”
Twombly, 550 U.S. at 555).
Id. (citing
A complaint also does not suffice if
it tenders “naked assertion[s]” devoid of “further factual
enhancement.”
II.
Id. at 557.
Official Capacity Defendants’ Motion (#20) to Dismiss
The Official Capacity Defendants move to dismiss Plaintiff’s
Claims One and Five on the ground that this Court lacks subjectmatter jurisdiction because Plaintiff does not have standing to
seek injunctive and declaratory relief on those claims.
Official Capacity Defendants also move to dismiss all of
19 - OPINION AND ORDER
The
Plaintiff’s claims against them because Plaintiff fails to state
a claim on the merits.
A.
Subject-Matter Jurisdiction
The Official Capacity Defendants contend Plaintiff is not
entitled to the declaratory and injunctive relief sought in
Plaintiff’s Claims One and Five because he has not alleged an
injury that is sufficiently likely to recur.
“[A] plaintiff must demonstrate standing separately for each
form of relief sought.”
Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 185 (2000)(citing City of Los
Angeles v. Lyons, 461 U.S. 95, 109 (1983)).
To have standing to
seek injunctive relief, a plaintiff must show “that he is
realistically threatened by a repetition” of the injury that the
injunction seeks to redress.
Lyons, 461 U.S. at 109.
A
plaintiff must establish a reasonable fear that the injury will
recur.
“It is the reality of the threat of repeated injury that
is relevant to the standing inquiry, not the plaintiff’s
subjective apprehensions.”
original).
Id. at 107 n.8 (emphasis in
To make a sufficient showing, a plaintiff must
establish either “‘that the defendant had, at the time of the
injury, a written policy, and that the injury ‘stems from’ that
policy’” or “‘the harm is part of a pattern of officially
sanctioned . . . behavior, violative of plaintiff’s federal
rights.’”
Melendres v. Arpaio, 695 F.3d 990, 998 (9th Cir. 2012)
20 - OPINION AND ORDER
(quoting Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001))
(ellipses in original).
“[A] plaintiff who has standing to seek damages for a past
injury, or injunctive relief for an ongoing injury, does not
necessarily have standing to seek prospective relief such as a
declaratory judgment.”
969 (9th Cir. 2010).
Mayfield v. United States, 599 F.3d 964,
Thus, a plaintiff must demonstrate the
declaratory judgment sought will redress the injury suffered as a
result of the allegedly illegal action.
Mere “psychic
satisfaction is not an acceptable Article III remedy because it
does not redress a cognizable Article III injury.”
Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 107 (1998).
A
plaintiff whose injury lies wholly in the past without a
reasonable likelihood of recurring in the future, therefore,
lacks standing to seek a declaratory judgment because the remedy
sought would only serve to give the aggrieved plaintiff the
“psychic satisfaction” of having a court declare the defendant’s
past actions illegal.
Leu v. Int’l Boundary Comm’n, 605 F.3d
693, 694 (9th Cir. 2010).
Thus, as with injunctive relief, Plaintiff must demonstrate
he is reasonably threatened by repetition of the injury to
establish that he has standing to seek a declaratory judgment.
21 - OPINION AND ORDER
1. Claim One:
Fourteenth Amendment Citizenship Clause
In Claim One Plaintiff asserts the Official Capacity
Defendants denied Plaintiff his rights under the Citizenship
Clause of the Fourteenth Amendment to the United States
Constitution to return to the United States.
Plaintiff contends
the Official Capacity Defendants stranded Plaintiff in Libya and
Tunisia by placing him on the No-Fly List and thereby effectively
rendering him stateless.
Plaintiff, therefore, seeks a
declaratory judgment declaring that Defendants denied Plaintiff
his rights under the Fourteenth Amendment as a United States
citizen.
Plaintiff also seeks an injunction prohibiting
Defendants from preventing Plaintiff’s return to the United
States by air from future international travel and from requiring
Plaintiff to participate in potentially incriminating
interrogation by United States officials without counsel of
choice to assist Plaintiff.
Defendants contend the Court should dismiss Claim One
because the injury alleged by Plaintiff in the PSAC is wholly in
the past and is not likely to recur.
Indeed, Plaintiff
acknowledges in his PSAC that he returned to the United States on
February 14, 2012, which was approximately three weeks after he
was initially denied boarding.
PSAC ¶¶ 35-36.
Plaintiff,
however, also notes he has been denied boarding on airplanes
three additional times since returning to Portland.
22 - OPINION AND ORDER
PSAC ¶ 47.
At the heart of Claim One is an alleged de facto denial
of Plaintiff’s rights as an American citizen because Defendants
deprived Plaintiff of his right to return to the United States by
placing him on the No-Fly List while abroad in a country where
air travel was the only practicable means of returning to the
United States.
In other words, Plaintiff does not base Claim One
on an alleged right to international travel, but rather a much
narrower right to return to the United States from a location
abroad in which the only practicable means of return is by air.
On the face of the PSAC, however, it is unlikely that
Plaintiff could be stranded in a foreign country where air travel
is the only practicable means of return to the United States
because, as Plaintiff acknowledges, his current presence in the
United States and on the No-Fly List render it improbable that
this injury will recur under Plaintiff's current circumstances.
Plaintiff’s alleged likelihood of future injury on Claim One is
based on a fear that he will not be able to return to the United
States from a location abroad that he acknowledges he cannot
get to while on the List.
Thus, any such injury is not
“realistically threatened,” and, therefore, Plaintiff is not
entitled to injunctive and declaratory relief on that basis at
this time.
See Lyons, 461 U.S. at 109.
23 - OPINION AND ORDER
Accordingly, because Plaintiff only seeks in Claim One
injunctive and declaratory relief as to the Official Capacity
Defendants, the Court dismisses Claim One on this record.
2. Claim Five: Fifth Amendment Right Against SelfIncrimination
In Claim Five Plaintiff alleges the Official Capacity
Defendants violated Plaintiff’s Fifth Amendment right against
self-incrimination by requiring Plaintiff to submit to an
interview before he would be allowed to return to the United
States by air.
Plaintiff specifically alleges “[a]lthough
[P]laintiff was free to leave the Embassy where his interrogation
was conducted, he was not free to leave Tunisia to return to his
home and family in the U.S. unless and until he cooperated with
defendant FBI agents by answering questions which could be used
against him in future criminal proceedings.”
PSAC ¶ 32.
In
addition, Plaintiff alleges the Official Capacity Defendants
denied him counsel of choice by scheduling the interview before
his counsel had an opportunity to get to Tunisia from the United
States.
The Court concludes Plaintiff’s Claim Five fails for
much the same reasons as Claim One.
As with the circumstances
set out in Claim One, Plaintiff does not allege facts showing
that he presently faces a realistic threat of repetition of the
Hobson’s choice of cooperating with interrogation abroad as a
precursor to returning to the United States or being stranded
24 - OPINION AND ORDER
abroad because his presence in the United States and alleged
inclusion on the No-Fly List makes the possibility of being
stranded abroad remote at this time.
It appears Plaintiff seeks to re-characterize Claim
Five later in the PSAC when he alleges “the same tactic of
forcing [P]laintiff to participate in coercive interrogations
without the assistance of counsel in order to be removed from the
[No-Fly List] can be used by defendants.”
added).
PSAC ¶ 67 (emphasis
Thus, Plaintiff also asserts the coercion he fears will
recur does not arise from being stranded in a foreign country,
but rather from the risk of being interrogated again without
counsel as a condition of being removed from the No-Fly List.
Even viewing Plaintiff’s PSAC with the requisite
inferences favorable to him, the Court concludes Plaintiff’s
alternative characterizations of Claim Five do not sufficiently
plead a basis for injunctive and declaratory relief because
Plaintiff does not allege there have been any further attempts to
interrogate him since his return to the United States more than
two years ago nor is there any pleaded basis from which one could
plausibly infer that Defendants are likely to attempt to use
Plaintiff’s presence on the No-Fly List to compel his cooperation
with interrogation.
In other words, an allegation that
Defendants can use Plaintiff’s alleged status on the No-Fly List
to compel him to cooperate with interrogation without counsel
25 - OPINION AND ORDER
does not constitute “a realistic threat” that Defendants are
likely to do so in the future.
Accordingly, the Court concludes on this record that
Plaintiff lacks standing to seek prospective relief on Claim
Five, and, therefore, the Court dismisses Claim Five.2
B.
Failure to State a Claim
The Official Capacity Defendants seek to dismiss Plaintiff’s
remaining claims against them for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6).
1.
Claim Two:
Substantive Due Process
Plaintiff alleges two separate counts of substantive
due-process violations under Claim Two of his PSAC.
In Count One
Plaintiff alleges all Defendants violated his protected liberty
interest in international travel by placing him on the No-Fly
List.
In Count Two Plaintiff alleges all Defendants violated his
substantive due-process right to be free from false government
stigmatization.
2
Even if Plaintiff’s allegations on Claim Five could
plausibly establish standing to seek prospective relief, the
Court notes such a claim, nevertheless, is without merit. A
coerced statement is only “‘used’ in a criminal case” to
establish a Fifth Amendment violation “when it has been relied
upon to file formal charges against the declarant, to determine
judicially that the prosecution may proceed, and to determine
pretrial custody status.” Stoot v. City of Everett, 583 F.3d
910, 925 (9th Cir. 2009). There is no such allegation in this
case.
26 - OPINION AND ORDER
The Official Capacity Defendants move to dismiss both
Counts of Claim Two as to Defendants Kerry, named in his official
capacity as Secretary of State, and the Department of State
because the Department of State does not have a role in No-Fly
List determinations.
Indeed, the only allegations concerning
Defendants Department of State and Kerry relevant to Claim Two
are that Consular Officer Sweeney, a State Department employee,
corresponded with Plaintiff after he was denied boarding; that
Sweeney connected Plaintiff with Agent Zinn without informing
Plaintiff that Agent Zinn was with the FBI; and that the
interrogation took place at the U.S. Embassy in Tunis, a
Department of State facility.
The Court on this record concludes these allegations
are insufficient to state any plausible claim for denial of
substantive due process under Claim Two, and, therefore, the
Court dismisses Claim Two as to Defendants Kerry and State.
a.
Count One:
Right to International Travel
In Count One of Claim Two Plaintiff asserts his
placement on the No-Fly List violates his protected liberty
interest in international travel.
Specifically, Plaintiff argues
his placement on the No-Fly List is not rationally related to any
legitimate government interest because “Plaintiff poses no
security threat to commercial aviation.”
PSAC ¶ 56.
The
Official Capacity Defendants respond by arguing the freedom to
27 - OPINION AND ORDER
travel internationally is not a right protected by substantive
due process and even if it were, Plaintiff has failed to allege
an adequate deprivation of that right because alternative means
of travel remain available to him.
The Ninth Circuit has concluded the right to
travel internationally is protected by substantive due process.
See Eunique v. Powell, 302 F.3d 971 (9th Cir. 2002)(recognizing
the right to international travel as a protected right under
substantive due process although the court did not agree about
the appropriate level of scrutiny).
See also Aptheker v. Sec'y
of State, 378 U.S. 500, 505 (1964)(quoting Kent v. Dulles, 357
U.S. 116, 127 (1958)(“The right to travel abroad is ‘an important
aspect of the citizen’s ‘liberty’’ guaranteed in the Due Process
Clause of the Fifth Amendment.”); Mohamed v. Holder, No. 1:11-CV50 (AJT/TRJ), 2014 WL 243115, at *14 (E.D. Va. Jan. 22, 2014);
Ibrahim v. Dep’t of Homeland Sec., No. C 06-00545 WHA, 2012 WL
6652362, at *7 (N.D. Cal., Dec. 20, 2012).
The right to
international travel “‘has been considered to be no more than an
aspect of the ‘liberty’ protected by the Due Process Clause of
the Fifth Amendment.
As such this ‘right,’ the Court has held,
can be regulated within the bounds of due process.’”
Haig v.
Agee, 453 U.S. 280, 307 (1981)(quoting Califano v. Torres, 435
U.S. 1, 4 n.6 (1978)).
28 - OPINION AND ORDER
Thus, this Court rejects the Official Capacity
Defendants’ argument that the right to international travel is
not a cognizable right and holds, consistent with Eunique,
Aptheker, and Mohamed, the right to international travel is a
constitutional right protected by substantive due process.3
The Court also notes Plaintiff alleges “[a]ir
travel is the only practical means of passenger travel between
the North American continent and Europe, Asia, Africa, the Middle
East, and Australia.”
PSAC ¶ 16.
Although this may be the sort
of conclusory allegation that ordinarily is not entitled to
acceptance as true at this stage of the proceedings, it is,
nevertheless, consistent with the realities of the modern world.
While the Constitution does not ordinarily
guarantee the right to travel by any particular
form of transportation, given that other forms of
travel usually remain possible, the fact remains
that for international travel, air transport in
these modern times is practically the only form of
transportation, travel by ship being prohibitively
expensive.
Ibrahim, 2012 WL 6652362, at *7.
See also Latif v. Holder, No.
3:10-cv-00750-BR, 2013 WL 4592515, at *8 (D. Or. Aug. 28, 2013);
Mohamed, 2014 WL 243115, at *6.
Perhaps with the exception of a
relatively few countries in North and Central America, travel by
air is not merely the most convenient form of international
travel, but, given time and financial realities, travel by air is
3
The Court need not decide at this point the level of
scrutiny that applies to the right to international travel.
29 - OPINION AND ORDER
the only practical mode of international travel for the vast
majority of travelers.
Moreover, it is undisputed that inclusion on the
No-Fly List prohibits listed persons from boarding commercial
flights to or from the United States and from flying over
American airspace.
Thus, the practical necessity of traveling by
air to travel internationally means being on the No-Fly List is
virtually a complete bar to such travel by American citizens.
Accordingly, the Court concludes such a bar is sufficient to
implicate a citizen’s substantive due-process right to
international travel.
Finally, the Court notes 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.
In summary, the Court concludes Plaintiff has
stated a plausible substantive due-process claim based on his
right to international travel.
Accordingly, on this record the
Court denies the Official Capacity Defendants’ Motion to Dismiss
Count One of Claim Two as to the remaining Official Capacity
Defendants.
30 - OPINION AND ORDER
b.
Count Two:
False Government Stigmatization
In Count Two of Claim Two Plaintiff alleges
Defendants violated Plaintiff’s substantive due-process rights
when they subjected Plaintiff to false government stigmatization
as a terrorist by placing him on the No-Fly List.
The freedom
from false government stigmatization or “stigma plus” is a
procedural due-process doctrine and is not a protected
constitutional right for purposes of a substantive due-process
claim.
Paul v. Davis, 424 U.S. 693, 712-14 (1976)(declining to
consider the plaintiff’s stigma claim under substantive due
process after recognizing “stigma plus” doctrine in the
procedural due-process context).
See also Doe v. Michigan Dep't
of State Police, 490 F.3d 491, 501-02 (6th Cir. 2007); In re
Selcraig, 705 F.2d 789, 796 (5th Cir. 1983).
But see Moore v.
Nelson, 394 F. Supp. 2d 1365, 1367-69 (M.D. Ga. 2005)(suggesting
a “stigma plus” claim could provide a basis for a substantive
due-process claim if the defendant’s conduct “shocks the
conscience”).4
On this record the Court dismisses Count Two of
Claim Two.
4
Even if the Moore court is correct that a “stigma plus”
claim is viable under substantive due process in certain
circumstances, Plaintiff has not alleged in his PSAC any
stigmatizing conduct sufficiently egregious to “shock the
conscience.”
31 - OPINION AND ORDER
2. Claim Three: Substantive Due-Process Right to
Interstate Travel
In Claim Three Plaintiff alleges Defendants Holder,
FBI, Comey, TSC, and Healey violated Plaintiff’s substantive dueprocess fundamental right to interstate travel by placing
Plaintiff on the No-Fly List.
As to interstate travel, however,
“‘burdens on a single mode of transportation do not implicate the
right to interstate travel.’”
Gilmore v. Gonzalez, 435 F.3d
1125, 1137 (9th Cir. 2006)(quoting Miller v. Reed, 176 F.3d 1202,
1205 (9th Cir. 1999)).
Plaintiff attempts to distinguish this precedent by
arguing the limitation in this case is much more substantial than
in Miller and Gilmore because it entirely precludes Plaintiff
from interstate travel by air, which, in many circumstances, is
the most convenient form of interstate travel.
however, misinterprets Gilmore and Miller.
Plaintiff,
In Gilmore the Ninth
Circuit held “Gilmore does not possess a fundamental right to
travel by airplane even though it is the most convenient mode of
travel for him.”
435 F.3d at 1137.
Thus, it was not the less-
than-absolute nature of the restriction at issue in Gilmore that
defeated the plaintiff’s claim, but instead the lack of a right
to interstate travel by any particular form of transportation;
i.e., in this case by air.
32 - OPINION AND ORDER
On this record the Court concludes Plaintiff does not
have a protected liberty interest in interstate travel by air,
and, therefore, the Court dismisses Claim Three.
3. Claim Four:
Procedural Due Process
In Claim Four Plaintiff alleges the procedures provided
in the DHS TRIP and judicial-review process are constitutionally
inadequate and violate the Due Process Clause of the Fifth
Amendment.
Plaintiff alleges the DHS TRIP and judicial-review
process is constitutionally inadequate because Plaintiff has not
been provided with post-deprivation notice of his status on the
No-Fly List, has not been informed of the basis for his inclusion
on the List, and has not had a meaningful and timely opportunity
in an independent forum to challenge his inclusion on the List.
Plaintiff alleges these procedural inadequacies unconstitutionally deprive him of his protected liberty interests in
international travel, freedom from false stigmatization, and
interstate travel.
“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.”
U.S. 319, 332 (1976).
Mathews v. Eldridge, 424
“The fundamental requirement of due
process is the opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’”
33 - OPINION AND ORDER
Id. at 333 (quoting Armstrong v.
Manzo, 380 U.S. 545, 552 (1965)).
Due process, however, “‘is
flexible and calls for such procedural protections as the
particular situation demands.’”
Id. at 334 (quoting Morrissey v.
Brewer, 408 U.S. 471, 481 (1972)).
The court must weigh three
factors in 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 PSAC that he has been
deprived of three liberty interests:
the right to international
travel, the right to be free from false government stigmatization, and the right to interstate travel.
The Official
Capacity Defendants contend none of these interests are
cognizable under procedural due process.
I.
Right to International Travel
Plaintiff asserts he has been deprived of his
protected liberty interest in international travel.
The Court
has already concluded the right to international travel by air is
a cognizable liberty interest under procedural due process.
34 - OPINION AND ORDER
See
Latif, 2013 WL 4592515, at *7-*9.
Moreover, the private interest
in international travel is substantial; i.e., international
travel is not merely a luxury in light of the fact that many
individuals find it is necessary to engage in business, to
maintain family relationships, to practice a religion, or to
perform humanitarian work.
Indeed, some of these same reasons
underlie Plaintiff's alleged purposes for traveling to Libya and
Tunisia.
PSAC ¶¶ 5, 21-22, 48-49.
Thus, tourism, although far
from a trivial interest in its own right, is not the only reason
persons seek to travel internationally in these modern times.
The Court concludes on this record that
Plaintiff has alleged sufficient facts to establish at this early
stage of the proceedings that his placement on the No-Fly List
deprived him of the right to international travel, which is a
substantial private interest entitled to procedural due-process
protection.
ii.
False Government Stigmatization
Plaintiff also asserts he has been deprived
of his protected liberty interest in being free from false
government stigmatization.
False government stigmatization can
implicate procedural due-process protections when a plaintiff
shows “the public disclosure of a stigmatizing statement by the
government, the accuracy of which is contested, plus the denial
of ‘some more tangible interest[] such as employment.’”
35 - OPINION AND ORDER
Ulrich
v. City and Cty of San Francisco, 308 F.3d 968, 982 (9th Cir.
2002)(quoting Paul, 424 U.S. at 701, 711 (2002)(emphasis and
omission in original)).
“The ‘plus’ must be a deprivation of
liberty or property by the state that directly affects the
plaintiff’s rights.”
(9th Cir. 2004).
Miller v. California, 355 F.3d 1172, 1178
The “plus” prong is satisfied if the plaintiff
cannot “do something that [he] could otherwise do.”
See also Latif, 2013 WL 4592515, at *9.
Id. at 1179.
This formulation has
come to be known as the “stigma plus” test.
Ulrich, 308 F.3d at
982.
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, 2013 WL 4592515, at *10.
As currently pled, however,
Plaintiff’s allegations fall short of satisfying the fourth
36 - OPINION AND ORDER
element of public disclosure, which requires that the defendant
“actually disseminate the stigmatizing comments in a way that
would reach . . . the community at large.”
F.3d 447, 454 (7th Cir. 2010).
Palka v. Shelton, 623
Disclosures to other government
agencies or to an opposing litigating party are not “public” for
purposes of “stigma plus.”
348-49 (1976).
See Bishop v. Wood, 426 U.S. 341,
See also Wenger v. Moore, 282 F.3d 1068, 1074 n.5
(9th Cir. 2002).
Plaintiff alleges the following in his PSAC:
When plaintiff checked in at the Air France ticket
counter at Carthage Airport in Tunis, he was told
by the ticket agent – in the presence of other
travelers – that he would not be allowed to board
his flight, and that he should speak to U.S.
Embassy personnel. Plaintiff asked to speak to
the person in charge of the Air France office at
the airport and was told to speak to Mahmoud
Keshlef. Plaintiff was then escorted to
Keshlef’s office. During the meeting, Keshlef
showed plaintiff three emails on his computer
screen in French, translated by Keshlef, which had
been sent on January 12, 2013. The first email
came from the Air France office in Paris as per
instructions from American authorities asking Air
France to not allow plaintiff to board his
flights. A second email came two hours later on
January 12th telling Air France to allow plaintiff
to board. A third email was sent on January 13th
telling Air France not to allow plaintiff to
board.
PSAC ¶ 24.
As to a subsequent boarding denial at Portland
International Airport, Plaintiff alleges:
On July 23rd, [2013,] plaintiff was told by Alaska
Airlines employees, at the ticket counter in front
of other passengers, that he was not allowed to
board due to information they received from TSA.
37 - OPINION AND ORDER
Plaintiff then spoke with Rick Kolonder while at
the airport, a supervisory transportation security
inspector with TSA, who told plaintiff he must
take this up with Homeland Security.
PSAC ¶ 47.
Here the government disclosed to Air France
and Alaska Airlines that Plaintiff was to be denied boarding
and instructed the airlines to refer Plaintiff to the United
States Embassy and TSA respectively.
The airlines are prohibited
from disclosing such information to the public.
§§ 1520.5(b)(9)(ii), 1544.305(f)(2).
49 C.F.R.
Thus, the instruction to
the airlines not to permit Plaintiff to board and to refer
Plaintiff to government officials did not constitute
dissemination of the stigmatizing information in such a way as to
reach the community at large.
The ticket agents also made statements to
Plaintiff that he would not be permitted to board together with
references to TSA and the United States Embassy respectively.
The ticketing agents told him “in the presence of other
travelers” and “in front of other passengers” that he would not
be permitted to board and that he should speak to TSA or the
Embassy.
PSAC ¶¶ 24, 47.
While the “other passengers” may be
the “community at large,” these allegations still do not give
rise to an inference that the stigmatizing statements reached the
other passengers so as to cause harm to Plaintiff’s reputation.
In other words, it is far from clear that the other passengers
38 - OPINION AND ORDER
were sufficiently privy to Plaintiff’s conversations with the
ticketing agents to constitute a public disclosure.
Plaintiff’s
allegations, therefore, are “merely consistent with” the Official
Capacity Defendants’ purported liability and “stop[] short of the
line between possibility and plausibility of entitlement to
relief.”
See Iqbal, 556 U.S. at 678.
Thus, as currently pled,
Plaintiff’s “stigma plus” procedural due-process claim is not
viable.
iii. Right to Interstate Travel
Plaintiff also asserts he has been deprived
of his protected liberty interest in interstate travel.
As
noted, however, “‘burdens on a single mode of transportation do
not implicate the right to interstate travel.’”
F.3d at 1137 (quoting Miller, 176 F.3d at 1205).
Gilmore, 435
Thus, Plaintiff
cannot rely on his right to interstate travel to establish a
“liberty interest” for substantive due-process purposes.
In summary, Plaintiff sufficiently alleges he
has been deprived of his protected liberty interest in
international travel.
Plaintiff’s allegations are insufficient,
however, to establish he has been deprived of a protected liberty
interest in being free from false government stigmatization or
deprived of a protected liberty interest in interstate travel.
39 - OPINION AND ORDER
b.
Risk of Erroneous Deprivation
As noted, for 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.”
424 U.S. at 335.
The Court concludes on this record that Plaintiff’s
allegation of a cognizable liberty interest in international
travel; factual allegations about the DHS TRIP process;
allegations concerning deficiencies in the procedures provided
including lack of notice of being on the No-Fly List, lack of
disclosure of the basis for his presence on the List, and lack of
an independent forum in which to challenge being on the List; and
Plaintiff’s alleged additional necessary procedures are
sufficient to state a plausible claim for relief at this stage of
the proceedings.
c.
Government’s Interest
Finally, for the third prong of the Mathews
balancing analysis the court must consider “the Government’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.”
Id.
Unquestionably,
“no governmental interest is more compelling than the security of
the Nation.”
Haig, 453 U.S. at 307.
40 - OPINION AND ORDER
Over the last three decades
the security of commercial airlines has repeatedly been at the
forefront of national security concerns.
243115, at *6-*10.
See Mohamed, 2014 WL
Nevertheless, “[w]hile the government no
doubt has a significant and even compelling interest, an American
citizen placed on the No-Fly List has countervailing liberty
interests and is entitled to a meaningful opportunity to
challenge that placement.”
Id., at *15.
At this stage of the proceedings the Court
concludes on this record that Plaintiff has plausibly alleged the
procedures in the DHS TRIP process and subsequent judicial review
do not strike the proper balance under Mathews and, therefore,
violate due process.
Accordingly, the Court cannot conclude as a
matter of law that the DHS TRIP process provides sufficient
procedural safeguards to defeat Plaintiff’s procedural dueprocess claim.
Before the Court can make a final determination,
however, a substantial development of the record is required.
C.
Conclusion
In summary, as to the Official Capacity Defendants, the
Court concludes as follows:
1.
The Court dismisses Claims One and Five without
prejudice pursuant to Federal Rule of Civil Procedure 12(b)(1)
for lack of subject-matter jurisdiction.
2.
The Court dismisses with prejudice Count Two of
Claim Two, Claim Three, and that part of Claim Four concerning
41 - OPINION AND ORDER
the right to interstate travel pursuant to Rule 12(b)(6).
Because, as discussed above, Plaintiff alleges in these claims
deprivation of liberty interests that are not cognizable under
their respective due-process doctrines as a matter of law, a
further opportunity to amend would be futile.
P. 15(a)(2).
See Fed. R. Civ.
See also Carrico v. City and Cnty. of San
Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011)(noting leave to
amend is properly denied “if amendment would be futile”).
3.
The Court dismisses without prejudice Count One of
Claim Two pursuant to Rule 12(b)(6) as to Defendants Kerry and
the Department of State only.
4.
The Court dismisses Plaintiff’s “stigma plus”
portion of Claim Four pursuant to Rule 12(b)(6) without
prejudice.
5.
The Court denies the Official Capacity Defendants’
Motion to Dismiss Count One of Claim Two as to Defendants Holder,
FBI, Comey, TSC, and Healey and that portion of Claim Four as to
Plaintiff’s right to international travel.
III. Individual Capacity Defendants’ Motion (#23) to Dismiss
The Individual Capacity Defendants move to dismiss Counts
One and Two on the grounds that this Court does not have personal
jurisdiction over Defendant Thomas in light of the allegations in
the PSAC, and, in any event, the Individual capacity Defendants
are entitled to qualified immunity.
42 - OPINION AND ORDER
A.
Personal Jurisdiction
An exercise of personal jurisdiction must satisfy the
requirements of the long-arm statute of the forum state and
comport with the principles of federal due process.
Ziegler v.
Indian River County, 64 F.3d 470, 473 (9th Cir. 1995).
Because
Oregon’s “long-arm jurisdictional statute is coextensive with
federal due process requirements, the jurisdictional analyses
under state law and federal due process are the same.”
Schwarzenegger, 374 F.3d at 800-01.
See also Or. R. Civ. P.
4(L).
“There are two types of personal jurisdiction:
specific.”
Ziegler, 64 F.3d at 473.
general and
General jurisdiction exists
when the nonresident defendant engages in “‘continuous and
systematic . . . contacts’” that “‘approximate physical presence’
in the forum state.”
Schwarzenegger, 374 F.3d at 801 (quoting
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
416 (1984), and Bancroft & Masters, Inc. v. Augusta Nat’l, Inc.,
223 F.3d 1082, 1086 (9th Cir. 2000)).
“This is an exacting
standard, as it should be, because a finding of general
jurisdiction permits a defendant to be haled into a court in the
forum state to answer for any of its activities anywhere in the
world.”
Id.
The Ninth Circuit has established a three-prong test for
analyzing a claim of specific jurisdiction.
43 - OPINION AND ORDER
(1)
The non-resident defendant must purposefully
direct his activities or consummate some
transaction with the forum or resident
thereof; or perform some act by which he
purposefully avails himself of the privilege
of conducting activities in the forum,
thereby invoking the benefits and protections
of its laws;
(2)
the claim must be one which arises out of or
relates to the defendant’s forum-related
activities; and
(3)
the exercise of jurisdiction must comport
with fair play and substantial justice, i.e.
it must be reasonable.
Schwarzenegger, 374 F.3d at 802 (quoting Lake v. Lake, 817 F.2d
1416, 1421 (9th Cir. 1987)).
“The plaintiff bears the burden of
satisfying the first two prongs of the test.”
If Plaintiff is
successful in doing so, the burden shifts to the defendant to
“‘present a compelling case’ that exercise of jurisdiction would
not be reasonable.”
Id. (quoting Burger King Corp. v. Rudzewicz,
471 U.S. 462, 476-78 (1985)).
Plaintiff’s allegations as to Legal Attache Thomas are
sparse.
Plaintiff alleges Legal Attache Thomas is an FBI
employee who works as the Legal Attache for the United States
Embassies in Algiers, Algeria, and Tunis, Tunisia.
Plaintiff
alleges when he arrived at the United States Embassy in Tunis for
his interview with Agent Zinn, he was “escorted into an interview
room where defendant Thomas was also present.”
PSAC ¶ 30.
In
his specific allegations concerning the individual liability of
Agent Zinn and Legal Attache Thomas, Plaintiff alleges:
44 - OPINION AND ORDER
Regardless of whether defendants Zinn and Thomas
were involved in the initial decision to place
plaintiff on the No Fly List, they were complicit
in using plaintiff’s continued presence on the
List – in violation of plaintiff’s clearly
established constitutional rights to procedural
and substantive due process under the Fifth
Amendment, and citizenship right under the
Fourteenth Amendment – to require him to submit to
interrogation in Tunisia without his U.S. counsel
present and to cooperate with defendant FBI.
PSAC ¶ 41.
Although defendant Thomas, unlike Zinn, was not
stationed in Portland, Oregon, his participation
in plaintiff’s interrogation and denial of
plaintiff’s constitutional rights was expressly
aimed and purposefully directed toward Oregon in
that Thomas knew plaintiff was being prevented
from returning to his home and family in Oregon
and, if he were allowed to return to Oregon, would
be prevented from leaving Oregon by plane.
PSAC ¶ 42.
Plaintiff’s allegations are well short of establishing that
this Court has personal jurisdiction over Legal Attache Thomas.
The only factual allegations concerning Thomas are that he was
the Legal Attache in the United States Embassies in Algeria and
Tunisia and was “present” in the room in which Agent Zinn
interviewed Plaintiff.
PSAC ¶¶ 11, 30.
Moreover, Thomas has
never traveled to or resided in, registered to vote, worked,
maintained an office, or owned any real or personal property in
Oregon.
Mem. in Support of Individual Capacity Defs.’ Mot. to
Dismiss (#24), Ex.1 (Decl. of Horace Thomas).
45 - OPINION AND ORDER
Thomas's mere presence during allegedly illegal acts by
other parties is insufficient to show that he engaged in
“continuous and systematic” contacts with the forum state for the
purpose of establishing general jurisdiction or “purposefully
direct[ed]” any activity to the forum state for the purpose of
establishing specific jurisdiction.
See Schwarzenegger, 374 F.3d
at 801-02.
Accordingly, the Court concludes on this record that
Plaintiff’s claims against Legal Attache Thomas are insufficient
to establish this Court's personal jurisdiction over him.
B.
Qualified Immunity
As noted, Plaintiff relies on Bivens to support his claims
against the Individual Capacity Defendants.
403 U.S. 388.
Under
Bivens and its progeny, federal agents may be sued for damages in
their individual capacities to remedy violations of certain
constitutional rights.
See, e.g., Bivens, 403 U.S. at 389
(creating the cause of action for Fourth Amendment violations);
Davis v. Passman, 442 U.S. 228, 234 (1979)(extending the Bivens
cause of action to Fifth Amendment due-process claims); Carlson
v. Green, 446 U.S. 14 (1980)(applying the Bivens cause of action
to Eighth Amendment violations).
Government officials sued under Bivens, however, are
generally “shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
46 - OPINION AND ORDER
constitutional rights of which a reasonable person would have
known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity can be properly raised in a pre-discovery
dispositive motion such as a motion under Rule 12(b)(6).
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
See also A.D. v.
California Highway Patrol, 712 F.3d 446, 456 (9th Cir. 2013).
“[W]hether a government official is entitled to qualified
immunity is a two-part inquiry:
(1) whether the facts alleged,
taken in the light most favorable to the party asserting the
injury, show that the official’s conduct violated a
constitutional right; and (2) whether that right was clearly
established ‘in light of the specific context of the case.’”
Clairmont v. Sound Mental Health, 632 F.3d 1091, 1100 (9th Cir.
2011)(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).
The
“dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 202, overruled in part on other grounds by
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Thus, to avoid
qualified immunity, the right allegedly violated must have been
“‘clearly established’ at the time of the challenged conduct.”
Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2080 (2011).
“Qualified immunity gives government officials breathing
room to make reasonable but mistaken judgments about open legal
47 - OPINION AND ORDER
questions.
When properly applied, it protects ‘all but the
plainly incompetent or those who knowingly violate the law.’”
Id. at 2085 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
The plaintiff is not required to support the alleged violated
right with “a case directly on point, but existing precedent must
have placed the statutory or constitutional question beyond
debate.”
Id. at 2083.
“In most cases, the lack of on-point
precedent would compel [courts] to grant qualified immunity.”
Maxwell v. County of San Diego, 708 F.3d 1075, 1083 (9th Cir.
2013).
“Nevertheless, ‘in an obvious case, [general] standards
can ‘clearly establish’ the answer, even without a body of
relevant case law.’”
Id. (quoting Groh v. Ramirez, 540 U.S. 551,
578 (2004)).
1.
Claim One:
Clause
Fourteenth Amendment Citizenship
In Claim One Plaintiff alleges the actions of Agent
Zinn and Legal Attache Thomas in “relying on Plaintiff’s
placement on the [No-Fly List] while outside of the U.S. to bar
his return to the U.S. to coerce his participation in his
interrogation deprived plaintiff of his rights as a citizen, give
rise to a cause of action for damages directly under the
Citizenship Clause of the Fourteenth Amendment.”
PSAC ¶ 54.
Citizenship Clause of the Fourteenth Amendment provides:
The
“All
persons born or naturalized in the United States, and subject to
48 - OPINION AND ORDER
the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside.”
U.S. Const. amend. XIV, § 1.
Plaintiff’s theory in Claim One appears to be that his
placement on the No-Fly List while abroad violated Plaintiff’s
rights as a United States citizenship as guaranteed by the
Citizenship Clause and that the Individual Capacity Defendants,
therefore, also violated Plaintiff’s right to citizenship when
Agent Zinn used Plaintiff’s status on the List to leverage his
cooperation in the interrogation at the United States Embassy in
Tunis.5
Plaintiff does not, however, allege the Individual
Capacity Defendants were responsible for placing Plaintiff on the
No-Fly List; i.e., Plaintiff has not alleged the Individual
Capacity Defendants were the federal agents directly responsible
for stranding him abroad.
Moreover, Plaintiff does not cite any
authority, and the Court has not found any, that indicates the
rights secured under the Citizenship Clause extend to a
prohibition against interviewing a citizen stranded abroad as a
condition of boarding a flight back to the United States.
Thus,
Plaintiff has not plausibly alleged Agent Zinn’s interrogation of
Plaintiff in Tunisia while Plaintiff was on the No-Fly List
5
Unlike other portions of the Fourteenth Amendment such as
the Privileges and Immunities Clause, the Citizenship Clause
applies to actions by the federal government. Saenz v. Roe, 526
U.S. 489, 507-08 (1999). See also Russell v. Hug, 275 F.3d 812,
822 (9th Cir. 2002)(Privileges and Immunities Clause of the
Fourteenth Amendment "applies in terms only to actions taken by
states, not to those . . . taken by the federal government.").
49 - OPINION AND ORDER
violated a “clearly established” right under the Citizenship
Clause.
Accordingly, the Court concludes on this record that
the Individual Capacity Defendants are entitled to qualified
immunity on Claim One.
2.
Claim Two: Substantive Due Process
As noted, in Claim Two Plaintiff asserts two counts of
substantive due-process violations.
In Count One Plaintiff
alleges his placement on the No-Fly List and Agent Zinn’s
interrogation of Plaintiff in Tunisia while he was on the No-Fly
List violated Plaintiff’s protected right to international
travel.
In Count Two Plaintiff alleges the Individual Capacity
Defendants’ actions violated Plaintiff’s substantive due-process
right to freedom from false government stigmatization.
a.
Count One:
Right to International Travel
Although Plaintiff purports to bring Count One
against the Individual Capacity Defendants on the ground that
they violated Plaintiff's substantive due-process right to
international travel, Plaintiff does not allege the Individual
Capacity Defendants were responsible for Plaintiff’s placement on
the No-Fly List.
Thus, Plaintiff has not alleged the Individual
Capacity Defendants interfered in any way with his right to
international travel.
The fact that Agent Zinn allegedly
interviewed Plaintiff as a condition of boarding a flight back to
50 - OPINION AND ORDER
the United States does not establish that the Individual Capacity
Defendants violated Plaintiff’s right to international travel.
In other words, Plaintiff’s right to international travel was
infringed as a function of being on the No-Fly List with or
without the alleged actions of the Individual Capacity
Defendants.
Accordingly, the Court concludes on this record
that the Individual Capacity Defendants are entitled to qualified
immunity on Count One of Claim Two.
b.
Count Two:
False Government Stigmatization
Plaintiff’s Count Two fails as to the Individual
Capacity Defendants for the same reason that it failed against
the Official Capacity Defendants:
The freedom from false
government stigmatization or “stigma plus” is not a cognizable
substantive due-process right.
Moreover, even if “stigma plus”
were cognizable under substantive due process, Plaintiff has not
alleged the Individual Capacity Defendants publicized Plaintiff’s
inclusion on the No-Fly List.
Accordingly, the Court concludes on this record
that the Individual Capacity Defendants are entitled to qualified
immunity in light of the fact that Plaintiff failed to allege the
violation of a cognizable, “clearly established” substantive dueprocess right in Count Two.
51 - OPINION AND ORDER
C.
Conclusion
In summary, the Court concludes:
1.
Plaintiff fails to allege facts sufficient to
establish personal jurisdiction over Legal Attache Thomas, and,
therefore, the Court grants the Individual Capacity Defendants’
Motion to Dismiss as to the claims against Thomas pursuant to
Federal Rule of Civil Procedure 12(b)(2).
2.
The Court concludes the Individual Capacity
Defendants are entitled to qualified immunity on Claims One and
Two, the only claims in which they are named.6
The Court, therefore, grants the Individual Capacity
Defendants’ Motion to Dismiss and dismisses without prejudice
Plaintiff's Claim One and Count One of Claim Two as to the
Individual Capacity Defendants pursuant to Rule 12(b)(6).
Because, as discussed above, Count Two of Claim Two alleges
violation of a liberty interest that is not cognizable under
substantive due process as a matter of law, further leave to
amend would be futile.
Accordingly, the Court dismisses Count
Two of Claim Two with prejudice as to the Individual Capacity
Defendants.
See Fed. R. Civ. P. 15(a)(2).
See also Carrico, 656
F.3d at 1008.
6
As a result of the Court’s ruling on personal
jurisdiction, this holding alternatively applies to Legal Attache
Thomas.
52 - OPINION AND ORDER
CONCLUSION
For these reasons and construing all of Defendants' Motions
as against Plaintiff's Proposed Second Amended Complaint, the
Court:
1.
GRANTS in part and DENIES in part the Official Capacity
Defendants’ Motion (#20) to Dismiss for Failure to State a Claim
and for Lack of Jurisdiction.
Accordingly, the Court DISMISSES
with prejudice the following claims against the Official Capacity
Defendants:
Count Two of Claim Two, Claim Three, and Claim Four
with respect to the right to interstate travel.
The Court
DISMISSES without prejudice Count One of Claim Two as to
Defendants Kerry and Department of State only.
The Court
DISMISSES without prejudice Claim One; Claim Four with respect to
the right to be free from false government stigmatization; and
Claim Five.
2.
The Court GRANTS the Individual Capacity Defendants’
Motion (#23) to Dismiss and DISMISSES without prejudice Claim One
and Count One of Claim Two.
The Court DISMISSES with prejudice
Count Two of Claim Two.
3.
The Court grants Plaintiff leave to amend all claims
dismissed without prejudice on the condition that Plaintiff can
in good faith plead facts sufficient to satisfy the deficiencies
discussed above and state a plausible claim on the merits.
53 - OPINION AND ORDER
The Court FURTHER ORDERS Plaintiff to file a Third Amended
Complaint consistent with this Order no later than April 25,
2014.
Upon the filing of the Third Amended Complaint, the Court
encourages the remaining Defendants to file their Answers so this
matter may progress to dispositive-motion practice.
In any
event, Defendants shall file their responsive pleading(s) to
Plaintiff's Third Amended Complaint no later than May 27, 2014.
IT IS SO ORDERED.
DATED this 26th day of March, 2014.
/s/ Anna J. Brown
_____________________________
ANNA J. BROWN
United States District Judge
54 - OPINION AND ORDER
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