Kovac et al v. Wray et al
Filing
102
Memorandum Opinion and Order granting 90 Motion for Summary Judgment filed by Charles H Kable, Nicholas Rasmussen, Christopher Wray, Deborah Moore, David P Pekoske, Kevin K McAleenan and denying 96 Motion for Summary Judgment filed by Bashar Aljame, Fadumo Warsame, Adis Kovac, Abraham Sbyti, Suhaib Allababidi. (Ordered by Judge Brantley Starr on 3/9/2023) (ykp)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ADIS KOVAC, et al.,
§
§
§
§
§
§
§
§
§
Plaintiffs,
v.
CHRISTOPHER WRAY, et al.,
Defendants.
Civil Action No. 3:18-CV-0110-X
MEMORANDUM OPINION AND ORDER
Adis Kovac, Bashar Al-Jame, Suhai Allababidi, Abraham Sbyti, and Faduma
Mohamed Warsame (collectively, “the Passengers”) experienced rigorous screening at
airports. Convinced that they are on the terrorist watchlist, the Passengers sued the
leaders of several agencies1 (collectively, “the Government”). The Government and
the Passengers both move for summary judgment. [Doc. Nos. 90, 96]. For the reasons
explained below, the Court DENIES the Passengers’ motion for summary judgment
and GRANTS the Government’s motion for summary judgment.
I. Background, Issues, and Standard of Review
The Court describes (A) the watchlist, (B) redress procedures for those
potentially on the watchlist, (C) the Passengers’ factual allegations, (D) this case’s
procedural posture, and (E) the relevant standard of review.
1 The Passengers sued, among others, Christopher Wray, the Director of the Federal Bureau
of Investigation (“FBI”); Charles H. Kable, the Director of the Terrorist Screening Center (“TSC”);
Deborah Moore, the Director of the Transportation Security Administration (“TSA”) and the
Department of Homeland Security (“DHS”); Nicholas J. Rasmussen, director of the National
Counterterrorism Center (“NCTC”).
1
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A. The Watchlist
For years, the Government has sought to stymie terrorists’ ambitions to harm
the United States and its people. An obvious initial step in thwarting terrorists is to
ascertain their identities and to keep an eye on them. Accordingly, before 2003, “nine
[United States] agencies maintained twelve different terrorist watchlists” to keep
track of suspected terrorists.2 But recognizing the drawbacks of such a diffused
approach in the wake of 9/11, President George W. Bush issued an executive order
calling for the creation of the Terrorist Screening Center (“TSC”), which he tasked
with “consolidat[ing]” the Government’s watchlists into a singular list of “terrorist
identity information.”3 The FBI administers the TSC “in coordination” with DHS.4
Several agencies collaborate to create, maintain, and enforce the watchlist.
Initially, any United States agency with “a reasonable suspicion that [an] individual
is a known or suspected terrorist” can send a nomination to the National
Counterterrorism Center (“NCTC”) for that individual’s inclusion on the watchlist.5
The NCTC maintains a terrorist database and “serves as the primary organization
. . . for analyzing and integrating all intelligence . . . pertaining to terrorism.”6 After
the NCTC reviews a nomination, the TSC also reviews the nomination. Once an
individual is on the watchlist, the Transportation Security Administration (“TSA”)—
2
Doc. No. 91 at 17.
Id. at 8, 16. The Government calls that watchlist the Terrorist Screening Dataset or “TSDS.”
But given the deluge of acronyms in this case, the Court declines to pile on another one and instead
refers to the TSDS simply as “the watchlist.”
3
4
Id. at 2.
5
Id. at 21.
6
Id.
2
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an entity within DHS—takes the reins. Specifically, the TSA sets up shop in airports
and “compar[es] passenger information to the . . . terrorist watchlist.”7 If a person is
on the watchlist, TSA agents may subject him to enhanced screening or deny him
admittance to the airport’s “sterile area” altogether.8
The watchlist has several subset lists, and placement on them is contingent on
“heightened substantive derogatory criteria.”9 Two subsets are relevant here. First,
the Selectee List consists of individuals who may receive heightened screening at
airports. “[T]he criteria for inclusion on the Selectee List are not public.”10 Second,
the No-Fly List consists of individuals who may not board flights over United States
airspace. The criteria for inclusion on the No-Fly List are public.
B. Redress Procedures
A person who suspects he’s on the watchlist may file a “Traveler Inquiry Form”
with the TSC, describing his “experience[]” and “provid[ing] any comments or
additional information that [he] deem[s] relevant to the inquiry, including any
exculpatory information.”11 The TSC then reviews that information and “make[s] a
new determination as to whether the individual continues to satisfy the standard for
inclusion in the [watchlist].”12
7
49 U.S.C. § 44903(j)(2)(C)(ii).
8
Doc. No. 91 at 74. “Sterile” is only a term for security. Medically, airports are anything but
9
Doc. No. 90 at 12.
sterile.
10
Doc. No. 91 at 23.
11
Id. at 63.
12
Id. at 64–65.
3
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But the TSC leaves the passenger in the dark. Specifically, the TSC generally
doesn’t divulge whether a person is on the watchlist.
Consequently, the TSC
concludes the redress process by providing the passenger with a cryptic statement
that it “ha[s] made any corrections to records that [its] inquiries determined were
necessary.”13 And a passenger can’t infer his placement on the watchlist from his
enhanced screening by the TSA because passengers may experience enhanced
screening for a variety of reasons, many of which have nothing to do with the
watchlist.
That secrecy largely vanishes for passengers on the No-Fly List. In 2014, a
court held that the government has to provide individuals “with notice regarding
their status on the No-Fly List and the reasons for placement on that List.”14
Accordingly, when a passenger on the No-Fly List seeks redress, DHS now “inform[s]
the applicant of his or her status on the [No-Fly] list” and, “where possible,” provides
“an unclassified summary of information supporting” that status.15
C. The Passengers
The Passengers are United States citizens who, collectively, experienced four
issues in their travels. First, some had trouble obtaining boarding passes. For
instance, Allababidi and Warsame had trouble printing their boarding passes at self-
13
Doc. No. 96 at 15.
14
Latif v. Holder, 28 F. Supp. 3d 1134, 1162 (D. Or. 2014).
15
Doc. No. 91 at 6.
4
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serve kiosks. Likewise, Allababidi and Al-Jame, after some delays, each received a
boarding pass containing an SSSS designation.16
Second, some alleged that they experienced enhanced screening at TSA
checkpoints. For instance, TSA agents asked Al-Jame “to take off [his] shoes, [his]
belt, and empty everything” in his pockets.17 Agents then conducted a “full body
search” on Al-Jame and “swabbed [his] hands.”18 Likewise, Allababidi asserts that
TSA agents spent an hour “going through every single item” of his carry-on luggage.19
Third, federal agents interrogated some of the Passengers. For instance, when
Al-Jame returned from Jordan, two TSA officers “interrogated [him] about [his] trip
[and] . . . [his] life.”20 Similarly, when Allababidi returned from Mexico, “agents
asked [him] [a] bunch of questions.”21
Fourth, agents denied some of the Passengers boarding altogether.
For
instance, on multiple occasions, agents “barred [Kovac] from boarding the plane” or
did “not allow[] [him] to get a boarding pass.”22 Although the Government later
confirmed that Kovac was on the No-Fly List, it has since removed him from that list.
16 The TSA instructs aircraft operators to put “SSSS” (short for Secondary Security Screening
Selection) on a person’s boarding pass to indicate that the individual must undergo enhanced
screening.
17
Id. at 99.
18
Id.
Id. at 104; see also id. at 99 (contending that Al-Jame’s “carry-on bag was searched
extensively and swabbed”); id. at 128, 136 (contending that Sbyti and Warsame similarly received
“extra screening”).
19
20
Id. at 99.
21
Id. at 104.
22 Doc. No. 96 at 12 (cleaned up); see also Doc. No. 91 at 93 (contending that Al-Jame that he
“was denied flight boarding”). The Government eventually allowed Al-Jame to fly.
5
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D. Procedural Posture
Initially, the Passengers brought claims under the Due Process Clause, the
Equal Protection Clause, the Non-Delegation Doctrine, and the Administrative
Procedure Act (“APA”). But the Court has whittled the case down.
First, the Court dismissed the Passengers’ equal-protection and non-delegation
claims.23 Further, the Court dismissed the Passengers’ due-process claims but only
to the extent the Passengers alleged a reputational liberty interest.24 Second, upon
learning that the Government removed Kovac from the No-Fly List, the Court
dismissed Kovac’s due-process claims to the extent he alleged a liberty interest in the
right to travel.25 Third, the Court dismissed the Passengers’ due process claims to
the extent the Passengers alleged a “liberty interest in nonattainder,” thereby
terminating the Passengers’ sole remaining due-process theory.26 Fourth, to resolve
the remaining APA claims, the Court allowed the Government to file portions of the
administrative record “under seal and for ex parte, in camera review only.”27
Consequently, only the APA claim remains. The Passengers aver that the
watchlist violates the APA in three ways. First, under the major-questions doctrine,
they contend that Congress never authorized the Government to create or maintain
a watchlist. Second, they argue that their supposed placement on the watchlist is
23
See Doc. No. 12 at 55–56 (hereinafter Kovac I).
24
Id. at 55.
25
See Doc. No. 43 at 10 (hereinafter Kovac II).
26
See Doc. No. 57 at 12 (hereinafter Kovac III).
27
Doc. No. 81 at 12 (hereinafter Kovac IV).
6
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arbitrary and capricious because the government had no reasonable basis for that
placement. Third, they contend that the redress process is arbitrary and capricious
because it deprives passengers of a meaningful opportunity to correct erroneous
information.
E. Standard of Review
A court may set aside an agency action that is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.”28 “A decision is arbitrary or
capricious only when it is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.”29 “This narrow standard of review does
not seek the court’s independent judgment” but rather “asks only whether the agency
engaged in reasoned decision making based on consideration of the relevant
factors.”30
APA claims may only seek equitable relief and get tried to judges—not juries.
The Court’s review is limited to the administrative record,31 rendering the Court akin
to an appellate tribunal over the agency.32 What courts would consider to be fact
issues in a non-APA case they consider to be legal issues in an APA case, so summary
28
5 U.S.C. § 706(2)(A).
29
Yogi Metals Grp., Inc. v. Garland, 38 F.4th 455, 458 (5th Cir. 2022) (cleaned up).
30
Id.
5 U.S.C. § 706; see also Luminant Generation Co. v. E.P.A., 714 F.3d 841, 850 (5th Cir. 2013)
(recognizing that, in APA cases, “the focal point for judicial review should be the administrative record
already in existence, not some new record made initially in the reviewing court” (cleaned up)).
31
32 Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (“[W]hen a party
seeks review of agency action under the APA, the district judge sits as an appellate tribunal”).
7
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judgment is the appropriate mechanism for a district court to resolve an APA claim.33
Because both sides moved for summary judgment, the Court can resolve the
remaining claim here.
II. Analysis
The Court considers the (A) major-questions doctrine arguments and (B) APA
arguments.
A. Major-Questions Doctrine
“Congress enacts laws that define and . . . circumscribe the power of [executive
agencies] to control the lives of the citizens.”34 Sometimes, however, agencies “defy
Congressional limits” and aggrandize powers to themselves that Congress never
granted.35 Thankfully, a judicial bulwark helps hobble administrative power grabs:
The major-questions doctrine recognizes that there are “extraordinary cases . . . in
which the history and the breadth of the authority that the agency has asserted, and
the economic and political significance of that assertion, provide a reason to hesitate
before concluding that Congress meant to confer such authority.”36
In such cases, the current patchwork of applicable caselaw obligates courts to
employ a two-pronged analysis. First, a court must determine whether the agency
See James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996) (holding that issues
that appellant argued were disputes of fact precluding summary judgment were issues of law in the
context of agency review), cert. denied, 519 U.S. 1077 (1997).
33
34 Chamber of Com. of United States of Am. v. United States Dep’t of Labor, 885 F.3d 360, 387
(5th Cir. 2018).
35
Id.
36
W. Virginia v. E.P.A., 142 S. Ct. 2587, 2608 (2022) (cleaned up).
8
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asserted “the power to make decisions of vast economic and political significance.”37
Second, if the asserted power has significance, a court treats the power grab “with
skepticism” and requires the agency to “point to clear congressional authorization
permitting its action.”38 A bevy of non-exhaustive factors helps determine clear
authorization, including whether the agency (1) relies on a “cryptically delegated”
power, (2) “lack[s] the requisite expertise,” (3) “relies on an unheralded power,”
(4) receives a “transformative [power] expansion,” (5) “fundamental[ly] revis[es]” the
law, and (6) regulates subject matter “with a unique political history.”39 The Court
considers each prong in turn.
1. Vast Economic and Political Significance
“[T]he economic and political significance of [an] assertion” of authority can
“provide a reason to hesitate before concluding that Congress . . . confer[red] such
authority.”40 It’s not clear why the Supreme Court requires clear congressional
authorization only for major questions or significant assertions of authority. It
seems like the separation of legislative power in Article I from executive power in
Brown v. U.S. Dep’t of Educ., No. 4:22-CV-0908-P, 2022 WL 16858525, at *11 (N.D. Tex.
Nov. 10, 2022) (Pittman, J.) (cleaned up), cert. granted before judgment sub nom. Dep’t of Educ. v.
Brown, 143 S. Ct. 541 (2022).
37
38 Brown, 2022 WL 16858525, at *12 (cleaned up); see also Alabama Ass’n of Realtors v. Dep’t
of Health & Human Servs., 141 S. Ct. 2485, 2489 (2021). The Government contends that the law-ofthe-case doctrine bars the Passengers’ major-questions argument. Doc. No. 100 at 7–8. It doesn’t. In
rejecting the Passengers’ non-delegation argument, the Court held that Congress had provided the
agencies with “a general policy” regarding the watchlist. Kovac I, at 54. But the Court didn’t decide
whether this is a major-questions case or whether Congress clearly authorized the agency action at
issue. Accordingly, there’s no “rule of law enunciated by a federal court” that necessarily dictates the
Court’s major-questions analysis. Morrow v. Dillard, 580 F.2d 1284, 1289 (5th Cir. 1978).
39
Josh Blackman, Gridlock, 130 HARV. L. REV. 241, 266 (2016) (cleaned up).
40
W. Virginia, 142 S. Ct. at 2608 (cleaned up).
9
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Article II (subject to checks and balances like the presidential veto) means that
agencies should always have clear congressional authorization when they act to avoid
“lord[ing] it over the people without proper authority.”41 Although some questions
are obviously major based on the number of people who may feel the impact of the
government regulation,42 in some cases, it’s unclear why the Supreme Court
considered an agency power grab to be particularly major or significant.43
For
instance, when an agency asserted authority to regulate tariff rates, the Supreme
Court stressed that that authority had “enormous importance.”44 It seems like what
should be significant is not how many Americans the regulation impacts but instead
that the regulation was without authorization from the people’s elected
representatives.45
In any event, the Court concludes that the watchlist has vast political
significance under the Supreme Court’s current formulation of the major-questions
doctrine. The watchlist consists of over a million people, and the Government could
41
Chamber of Com., 885 F.3d at 387.
See, e.g., N.F.I.B. v. O.S.H.A., 142 S. Ct. 661, 665, 662 (2022) (finding an agency’s vaccine
mandate was a politically “significant encroachment into the lives—and health—of a vast number of
employees” where it impacted “roughly 84 million workers”); see also id. at 667 (Gorsuch, J.,
concurring) (“The agency claims the power to force 84 million Americans to receive a vaccine or
undergo regular testing. By any measure, that is a claim of power to resolve a question of vast national
significance.”). The Passengers contend that a major-questions case need not have economic
significance—it can have purely political significance. Doc. No. 101 at 7. The Court agrees.
42
43 Blackman, supra note 39, at 283 (“Why were the tariff rates in MCI and refundable tax
credits in King so significant? Without any further explication, these seem like mundane attributes
of well-worn regulatory schemes.”).
44
MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 (1994).
45
See generally Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty
(2004).
10
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place an unlimited number of people on it.46 Further, the liberty intrusions that flow
from the watchlist are significant.
To maintain the watchlist, the Government
“collect[s] a vast array of identifying information about an individual.”47 Further, in
this case alone, TSA agents executed a “full body search” on one Passenger and
swabbed his carry-on bag.48 Government agents likewise interrogated many of the
Passengers.
The Government can also “distribut[e] watch list information to
thousands of other entities, and perhaps even impos[e] adverse immigration
consequences on listees.”49 Thus, the watchlist has vast political significance.50
2. Clear Congressional Authorization
Regardless, Congress clearly authorized the watchlist.
Each relevant
consideration demonstrates that authorization.
Cryptically Delegated: Congress “does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions.”51 For instance, when the
Food and Drug Administration (“FDA”) asserted the “authority to regulate tobacco
products” based on a statutory provision allowing the FDA to ensure the “safety” of
certain products, the Court concluded that “Congress could not have intended to
46
Doc. No. 91 at 41 n.9 (providing data from 2017).
47 Doc. No. 101 at 8. The Passengers also assert that the Government “den[ies] some access to
commercial flights that cross United States airspace altogether.” Id. But only Kovac previously
claimed he was on the No-Fly List, and, since the Government removed him from that list, this Court
has found that “Kovac’s claims stemming from his presence on the No-Fly List are moot.” Kovac II, at
9. Accordingly, the Court declines to consider Kovac’s being barred from flights.
48
Doc. No. 91 at 104.
49
Doc. No. 101 at 8.
Even supposing that the watchlist doesn’t present a major question, the Court would reach
the same result because Congress clearly authorized the watchlist.
50
51
Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001).
11
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delegate a decision of such . . . significance to an agency in so cryptic a fashion.”52 In
short, Congress doesn’t “hide elephants in mouseholes.”53
Here, Congress clearly authorized the Government to create and maintain the
watchlist. Specifically, Congress authorized “[t]he Administrator of the [TSA] and
the Director of the [FBI] jointly [to] assess current and potential threats to the
domestic air transportation system,” including “individuals with the capability and
intent to carry out terrorist . . . acts.”54
And Congress authorized the TSA
Administrator and FBI Director “jointly [to] decide on and carry out the most effective
method for continuous analysis and monitoring of [those] security threats.”55 In
short, Congress authorized the TSA and the FBI to identify potential terrorists and
pick a method for monitoring them. There’s nothing cryptic about that command:
Congress gave clear statutory authorization for the creation and maintenance of a
list enumerating suspected terrorists.56
Further, Congress clearly authorized the TSA’s use of the watchlist during
airport screening. Specifically, Congress authorized the TSA “to use information from
government agencies to identify individuals on passenger lists who may be a threat
to civil aviation or national security” and to “prevent [such] individual[s] from
52
F.D.A. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000).
53
Whitman, 531 U.S. at 468.
54
49 U.S.C. § 44904(a).
55
Id.
56 The list of Congressional commands authorizing a watchlist could go on. For instance,
Congress charged the TSA with “establish[ing] procedures for notifying . . . airline security officers of
the identity of individuals known to pose, or suspected of posing, a risk of air piracy or terrorism.” 49
U.S.C. § 114(h)(2). Congress also tasked DHS with “[p]reventing the entry of terrorists and the
instruments of terrorism into the United States.” 6 U.S.C. § 202(1).
12
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boarding an aircraft[] or take other appropriate action with respect to [those]
individual[s].”57 That’s clear authorization for the TSA’s use of the watchlist to
screen airline passengers.
The Passengers disagree. First, they contend that the Government can’t locate
any specific language authorizing the watchlist. But the Passengers only come to
that conclusion by ignoring the specific statutory language authorizing the watchlist.
For instance, the Passengers cite 49 U.S.C. § 44904(a), but they omit its requirement
that the TSA and FBI identify “individuals with the capability and intent to carry out
terrorist . . . acts.”58
Second, the Passengers obliquely contend that Congress didn’t “expressly
authorize[]” the TSC or the watchlist.59 Presumably, the Passengers are peeved that
none of the statutes expressly says “watchlist” or “Terrorist Screening Center.” But
the test isn’t whether the Government adopted Congress’s preferred nomenclature in
labeling its terrorism apparatuses. The test is whether Congress “authoriz[ed] an
agency to exercise [the] powers” at issue.60 And Congress clearly—not cryptically—
authorized the watchlist.
Expertise: “When an agency has no comparative expertise in making certain
policy judgments, . . . Congress presumably would not task it with doing so.”61 For
57
49 U.S.C. § 114(h)(3)(A)–(B).
58
Doc. No. 96 at 21 (quoting 49 U.S.C. § 44904(a)).
59
Id. at 22 (emphasis added).
60
Alabama Ass’n, 141 S. Ct. at 2489 (cleaned up).
61
W. Virginia, 142 S. Ct. at 2612–13 (cleaned up).
13
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instance, when the Occupational Safety and Health Administration (“OSHA”)
“ordered 84 million Americans to [] obtain a COVID-19 vaccine,” the Supreme Court
concluded that OSHA’s “sphere of expertise” involves “hazards that employees face
at work”—not “public health more generally.”62
Tellingly, the Passengers ignore this consideration.
The TSA’s sphere of
expertise includes identifying “individuals known to pose . . . a risk of . . . terrorism.”63
DHS has expertise in “prevent[ing] terrorist attacks.”64 And the FBI has expertise in
“detect[ing] . . . crimes against the United States.”65 Accordingly, the Government
possesses the expertise necessary to create and maintain a terrorist watchlist.
Unheralded Power: “When an agency claims to discover in a long-extant
statute an unheralded power . . . , [courts] typically greet its announcement with a
measure of skepticism.”66 For instance, in striking down OSHA’s vaccine mandate,
several Justices found it “telling that OSHA, in its half century of existence, has never
before adopted a broad public health regulation of this kind.”67 Similarly, when the
62
N.F.I.B., 142 S. Ct. at 665.
49 U.S.C. § 114(h)(2); cf. Pellegrino v. United States of Am. Transp. Sec. Admin., Div. of Dep’t
of Homeland Sec., 937 F.3d 164, 170 (3d Cir. 2019) (recognizing that “TSOs . . . perform the screening
of all passengers and property[] to protect travelers from hijackings, acts of terror, and other threats
to public safety” (cleaned up)).
63
64
6 U.S.C. § 111(b)(1)(A).
65
28 U.S.C. § 533(1).
66 Util. Air Regulatory Grp. V. E.P.A., 573 U.S. 302, 324 (2014) (cleaned up). But see Griswold
v. Connecticut, 381 U.S. 479, 484 (1965) (discovering a substantive right to privacy in the long-extant
Due Process Clause because “specific guarantees in the Bill of Rights have penumbras, formed by
emanations from those guarantees”).
N.F.I.B., 142 S. Ct. at 666 (Gorsuch, J., concurring) (“Section 655(c)(1) was not adopted in
response to the pandemic, but some 50 years ago at the time of OSHA’s creation. Since then, OSHA
has relied on it to issue only comparatively modest rules addressing dangers uniquely prevalent inside
the workplace, like asbestos and rare chemicals.”); see also BST Holdings, L.L.C. v. Occupational
Safety & Health Admin., United States Dep’t of Labor, 17 F.4th 604, 619 (5th Cir. 2021) (Duncan, J.,
67
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Center for Disease Control and Prevention (“CDC”) imposed an eviction moratorium,
the Court noted that “no regulation premised on [the statutory provision at issue] has
even begun to approach the size or scope of the eviction moratorium.”68
Tellingly, the Passengers also ignore this consideration, likely because the TSC
has maintained the watchlist for nearly two decades.69 Before that, “nine [] agencies
maintained twelve different [] watchlists.”70 Accordingly, the authority to create and
maintain a watchlist is not premised on a novel reading of a long-extant statute.
Transformative Power Expansion: Courts distrust an agency’s power grab if it
“would bring about an enormous and transformative expansion in [the agency’s]
regulatory authority.”71
Transformative expansions occur where an agency has
“never before” exercised such a “sweeping authority.”72 For instance, OSHA’s vaccine
mandate constituted a transformative expansion because it gave OSHA authority
over the medical decisions of “84 million Americans,” which was “simply not part of
what the agency was built for.”73
concurring) (“OSHA issued it under an emergency provision addressing workplace ‘substances,’
‘agents,’ or ‘hazards’ that it has used only ten times in the last 50 years and never to mandate
vaccines.”); Texas v. Becerra, 575 F. Supp. 3d 701, 715–16 (N.D. Tex. 2021) (Kacsmaryk, J.) (“CMS
itself admits that said statutory provisions have never been invoked or used to implement a vaccine
mandate.”), appeal dismissed, No. 22-10049, 2022 WL 2752370 (5th Cir. Jan. 24, 2022).
68
Alabama Ass’n, 141 S. Ct. at 2489.
69
Kovac I, at 3.
70
Doc. No. 91 at 17.
71
Util. Air, 573 U.S. at 324.
Florida v. Dep’t of Health & Human Servs., 19 F.4th 1271, 1303 (11th Cir. 2021) (Lagoa, J.,
dissenting); see also BST Holdings, 17 F.4th at 619 (Duncan, J., concurring) (concluding that OSHA
lacked authority to impose a vaccine mandate where “OSHA issued it under an emergency provision
addressing workplace ‘substances,’ ‘agents,’ or ‘hazards’ that it has used only ten times in the last 50
years and never to mandate vaccines”).
72
73
N.F.I.B., 142 S. Ct. at 665 (cleaned up).
15
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The Passengers don’t attempt to argue that the watchlist is a transformative
power expansion, so they’ve forfeited any such argument. On the arguments before
it, the Court cannot conclude that the watchlist is a transformative power expansion.
The watchlist existed for nearly two decades, and it drew from “twelve [existing]
terrorist watchlists.”74
Fundamental Revision of the Law: Where a power grab would constitute “a
fundamental revision of the statute” granting the agency power, courts conclude that
the asserted power “was not the idea Congress enacted into law.”75 For instance,
when the Department of Education (“DOE”) authorized “$400 billion in student loan
forgiveness,” the Northern District of Texas concluded that the DOE’s asserted
authority would effectively “rewrite title IV [] to provide for loan forgiveness.”76
The Passengers ignore this consideration, and for good reason.
Congress
required the TSA and FBI to identify individuals “with the capability and intent to
carry out terrorist . . . acts” and to “carry out the most effective method for continuous
analysis and monitoring of” those individuals.77 The watchlist implements that grant
of authority—it doesn’t revise it.
Unique Political History: Sometimes the subject matter of an agency’s asserted
authority has a “unique political history” suggesting that Congress didn’t grant the
74
Doc. No. 91 at 17.
75
MCI Telecommunications, 512 U.S. at 231–32.
76
Brown, 2022 WL 16858525, at *13 (cleaned up).
77
49 U.S.C. § 44904(a).
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agency authority to regulate the matter in question.78 For instance, when the FDA
regulated tobacco products, the Court noted that Congress had “created a distinct
regulatory scheme for tobacco products, squarely rejected proposals to give the FDA
jurisdiction over tobacco, and repeatedly acted to preclude any agency from exercising
significant policymaking authority in the area.”79
Predictably, the Passengers ignore this consideration. Congress didn’t create
a regulatory system for watchlists outside of the FBI, DHS, and TSA. And instead of
precluding those agencies’ involvement in the watchlist, Congress has repeatedly
ratified it.
For instance, Congress directed the TSA to “compar[e] passenger
information . . . to the automatic selectee and no fly lists.”80 Likewise, Congress
directed DHS, “in consultation with the Terrorist Screening Center, [to] design and
review . . . operating procedures for the collection . . . of data . . . in the no fly and
automatic selectee lists.”81 Accordingly, the political history confirms that Congress
authorized the watchlist.
In sum, while the watchlist’s political significance makes it a major question,
Congress clearly authorized the list and TSA’s use of it. Accordingly, the Court rejects
the Passengers’ major-questions argument.
78
Brown & Williamson, 529 U.S. at 159.
79
Id. at 159–60.
80
49 U.S.C. § 44903(j)(2)(C)(i); see also id. § 44903(j)(2)(C)(v).
81
49 U.S.C. § 44903(j)(2)(E)(iii).
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B. Arbitrary and Capricious Review
The Court next analyzes the Passengers’ arguments that (1) their alleged
watchlist placement and (2) the watchlist redress procedures are arbitrary and
capricious.
1. Alleged Watchlist Placement
The Passengers maintain that there’s no “reasonable basis for the Government
to place them on the watch list.”82 Under arbitrary and capricious review, agencies
must “articulate a satisfactory explanation for [their] action[s] including a rational
connection between the facts found and the choice made.”83 The Government has
filed a classified supplement to its briefing for the Court’s ex parte, in camera review,
purportedly showing that, “to the extent that one or more Plaintiffs was or is in the
[watchlist] . . . , any such placements were supported by evidence.”84
After carefully considering that classified information, the Court concludes
that any challenged Government action was neither arbitrary nor capricious.85 And
any agency making such a watchlist nomination did not do so “solely based on race,
ethnicity, national origin, religious affiliation, or First Amendment protected
activities,” as the Passengers allege.86
82
Doc. No. 96 at 24.
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (cleaned up).
83
84 Doc. No. 90 at 21. The classified information is securely kept in a sensitive compartmented
information facility—not in the Court’s garage.
Nothing in this opinion should be construed as confirming or denying the Passengers’ status
on or off the watchlist.
85
86
Doc. No. 1 at 46.
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Accordingly, the Court GRANTS the Government’s motion for summary
judgment as to any placement on the watchlist and DENIES the Passengers’ motion
for summary judgment as to any placement on the watchlist.
2. Redress Process
The Passengers complain that the redress process for individuals who believe
they are on the watchlist does not provide such individuals “with any information
about their apparent inclusion on the [watchlist].”87
Here’s why that could be
relevant: Congress requires the redress process to allow passengers to “correct
information contained in [a] system” referred to as “the advanced passenger
prescreening system.”88 Thus, the argument goes, an individual must know his
watchlist status “in order for an individual to correct erroneous information” in that
system.89 The Government’s failure to provide the Passengers’ watchlist status, they
argue, is therefore “arbitrary and capricious” in that it “entirely fail[s] to consider an
important aspect of the problem.”90
But the Government has not failed to consider the Passengers’ ability to correct
information in the prescreening system.
For instance, Passengers sometimes
experience enhanced screening when the Government “misidentifie[s]” them because
their “name is . . . similar to the name of a different individual who is included in the”
87
Doc. No. 96 at 25 (emphasis omitted).
88 49 U.S.C. § 44903(j)(2)(C)(iii)(I); id. § 44903(j)(2)(C)(i) (recognizing that the passenger
prescreening system “allow[s] the [DHS] to assume the performance of comparing passenger
information . . . to the automatic selectee and no fly lists, utilizing all appropriate records in the
consolidated and integrated terrorist watchlist maintained by the Federal Government”).
89
Doc. No. 96 at 25.
90
Motor Vehicle, 463 U.S. at 43.
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watchlist.91
Page 20 of 24 PageID 2862
Accordingly, the Government directs individuals seeking redress to
“produce. . . at least one piece of government-issued photo identification.”92 In such
cases,
photo
identification
allows
the
Government
to
“prevent
future
misidentification by . . . correcting information in the traveler’s record.”93
Further, the Government directs Passengers seeking redress to provide any
“exculpatory information.”94 That too helps correct erroneous information, because
the “TSC reviews th[at] . . . exculpatory information . . . to make a new determination
as to whether the individual continues to satisfy the standard for inclusion in the
[watchlist].”95
But regardless, the Government declines to disclose watchlist status for good
reason.96 Inclusion on the watchlist hinges on “highly sensitive national security and
law enforcement information.”97
Disclosure of that information could provide
terrorists “with valuable insight into the specific ways in which the Government goes
about detecting and preventing terrorist attacks.”98 Even “[c]onfirmation that an
individual is not in the [watchlist] would be of considerable value to terrorist groups,”
as it would allow them “to confirm which individuals . . . are more likely to evade
91
Doc. No. 91 at 64 (cleaned up).
92
Id. at 63.
93
Id. (emphasis added).
94
Id.
95
Id. at 64–65.
96 Shrimpers & Fishermen of the RGV v. United States Army Corps of Eng’rs, 56 F.4th 992, 996
(5th Cir. 2023) (recognizing that an agency’s action is not arbitrary and capricious when the agency
“articulate[s] a satisfactory explanation for its action” (cleaned up)).
97
Doc. No. 91 at 41.
98
Id.
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detection and escape scrutiny.”99 Tellingly, courts have repeatedly recognized the
logic of that rationale.100
In sum, the Government has implemented the congressional mandate that
passengers be able to correct information in the prescreening system. But, for good
reason, it does so without divulging a passenger’s watchlist status. The Passengers
lodge three main objections.
First, the Passengers attempt to shoot the moon, maintaining that Congress’s
information-correcting requirement entitles them to even more information—in
particular, all “information [] in the [terrorist] databases” concerning the
Passengers.101 But that argument improperly conflates the prescreening system
with the Government’s terrorism database.
The prescreening system—the
information of which the Passengers are entitled to correct—is a system that
“compar[es] passenger information . . . to the automatic selectee and no fly lists,
utilizing all appropriate records in the . . . terrorist watchlist.”102
99
Because the
Id. at 43.
100 See, e.g., Elhady v. Kable, 993 F.3d 208, 215 (4th Cir. 2021) (“For example, if a terrorist
group knew that some of its operatives were not in the [watchlist], it could craft a plan sending those
operatives through an airport or border while helping other members avoid detection.”); Gordon v.
F.B.I., 388 F. Supp. 2d 1028, 1037 (N.D. Cal. 2005) (“Requiring the government to reveal whether a
particular person is on the watch lists would enable criminal organizations to circumvent the purpose
of the watch lists by determining in advance which of their members may be questioned.”); Wright v.
Fed. Bureau of Investigation, No. 3:20-CV-173-G-BN, 2020 WL 7345678, at *6 (N.D. Tex. Nov. 13,
2020) (Horan, M.J.) (approving, in the context of a Freedom of Information Act request, the FBI’s
refusal to “confirm[] []or den[y] the existence of any watchlist information, because the mere
acknowledgment of the existence or non-existence of responsive records would trigger harm”), report
and recommendation adopted, No. 3:20-CV-0173-G-BN, 2020 WL 7344707 (N.D. Tex. Dec. 14, 2020)
(Fish, J.).
101
Doc. No. 96 at 25.
102
49 U.S.C. § 44903(j)(2)(C)(i).
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Government doesn’t import the entirety of the NCTC’s terrorism database into the
prescreening system, Congress didn’t provide the Passengers free rein to snoop
through the terrorist databases.
Second, the Passengers cite Latif v. Holder, which held that the Government’s
redress procedure was arbitrary and capricious as applied to individuals on the “Mo–
Fly [sic] List.”103 That case is inapposite. To begin, Latif erroneously conflated the
prescreening system—which passengers are entitled to correct—and the terrorism
databases—which passengers have no statutory right to correct.104 Moreover, the
court didn’t mention any governmental explanation for its nondisclosure of an
individual’s No-Fly List status. In contrast, the Government here provides swaths of
declarations explaining its rationale. Accordingly, the Court declines to follow Latif.
Third, the Passengers note that the Government informs passengers seeking
redress of their No-Fly List status. Because the congressional mandate for a redress
procedure is the same for individuals on the No-Fly List and the Selectee List, the
argument goes, the Government’s disclosure to individuals on the No-Fly List
“highlights the illegality of its refusal to provide other affected passengers with any
information at all.”105
But the implied proposition in the Passengers’ argument is that an agency
must afford every subset of individuals the same level of redress procedures.
103
28 F. Supp. 3d 1134, 1163 (D. Or. 2014).
Id. (requiring that a passenger be able “to correct erroneous information in the government’s
terrorism databases” (emphasis added)).
104
105
Doc. No. 96 at 26.
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Tellingly, the Passengers provide no precedent demanding such strict homogeneity.
That’s probably because they can’t. The APA only requires courts to confirm that an
agency has “a satisfactory explanation for its action.”106 The Court declines to impose
a one-way ratchet on the Government.
Moreover, the Government has provided multiple satisfactory explanations as
to why it alerts individuals of their No-Fly List status. As courts have noted, “[t]he
No Fly List is the most restrictive category” because individuals in that category may
not board “flights through U.S. airspace.”107 Thus, the Government explains that the
“enhanced procedures” for those on the No-Fly List are “due to the substantially
greater imposition that placement on the No Fly List entails for affected persons.”108
Additionally, the Government notes that “a traveler may receive heightened
screening for multiple reasons,” so heightened screening doesn’t effectively alert the
screened passenger that he is on a watchlist.109 But when the Government bars a
person from boarding an airplane altogether, the cat’s out of the bag. The barred
passenger all but knows he’s on the No-Fly List, so there’s little point in the
Government keeping up a charade when the barred passenger seeks redress. In
contrast, “[t]he majority of passengers designated for enhanced security screening are
so designated for reasons other than [watchlist] status,” so a person subject to
106
Shrimpers, 56 F.4th at 996 (cleaned up).
107
Elhady, 993 F.3d at 214.
108
Doc. No. 100 at 17.
109
Doc. No. 100 at 17.
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enhanced screening wouldn’t know whether the Government suspects his
involvement with terrorist activities.110
Because the Government’s redress procedure is not arbitrary and capricious,
the Court GRANTS the Government’s motion for summary judgment as to the
Passengers’ APA claim concerning redress procedures and DENIES the Passengers’
motion for summary judgment as to the Passengers’ APA claim concerning redress
procedures.
III. Conclusion
The Court DENIES the Passengers’ motion for summary judgment and
GRANTS the Government’s motion for summary judgment.
IT IS SO ORDERED this 9th day of March, 2023.
___________________________________
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE
110
Doc. No. 91 at 71.
24
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