Kovac et al v. Wray et al

Filing 57

MEMORANDUM OPINION AND ORDER: The Court GRANTS IN PART AND DENIES IN PART the government's Motion for Judgment on the Pleadings [Doc. No. 47 ]. The Court DISMISSES WITH PREJUDICE the plaintiffs' procedural and substantive due process claim s relating to an asserted liberty interest in nonattainder (Counts I and II). The plaintiffs retain their Administrative Procedure Act claims (Count III). The parties previously conferred in April 2020 and filed proposed scheduling orders on 6/12/202 0. Given that the Court has now ruled on the government's Rule 12(c) motion, the Court orders the parties to meet and confer and submit an updated proposed scheduling order to Court within 14 days of the date of this order. The Court administratively closes this case and will reopen it once the Court issues an amended scheduling order. (Ordered by Judge Brantley Starr on 11/6/2020) (ctf)

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-00110-X

MEMORANDUM OPINION AND ORDER
This case involves a challenge to the No-Fly List and the related Screening
List.1 Before the Court, is defendants Christopher Wray, Charles H. Kable, Deborah
Moore, Nicholas Rasmussen, David Peskose, and Kevin McAleen’s (“the government”
or “defendants”) Motion for Judgment on the Pleadings [Doc. No. 47]. That motion is
now ripe, and the Court GRANTS IN PART AND DENIES IN PART the motion. The
Court DISMISSES WITH PREJUDICE all of plaintiffs’ procedural (Count I) and
substantive (Count II) due process claims related to an asserted liberty interest in
nonattainder.2 But the plaintiffs retain their Administrative Procedure Act claims
(Count III).

Individuals on the Screening List are not prohibited from flying but are subjected to
heightened screening procedures.
1

2 As discussed below, the Constitution outlaws bills of attainder, which the Supreme Court has
defined as “a law that legislatively determines guilt and inflicts punishment upon an identifiable
individual without provision of the protections of a judicial trial.” Nixon v. Adm’r of Gen. Servs., 433
U.S. 425, 468 (1977).

1

I. Background, Issues, and Standard of Review
This is the third memorandum opinion on this case, so the Court will not delve
into the factual background yet again.3

But a procedural background into the

plaintiffs’ substantive (Count II) due process claims is needed to contextualize the
their current position.
In the plaintiffs’ original complaint, they pled substantive due process rights
under the Fifth Amendment of the Constitution. Specifically, the plaintiffs pled that
the government placing them on the No-Fly and Screening Lists deprived them of
“their [constitutional] liberty interests in travel, freedom from false stigmatization,
and nonattainder.”4 The Court dismissed the plaintiffs’ asserted liberty interests in
a freedom from false information, while their asserted liberty interest in nonattainder
survived. The plaintiffs asserted liberty interest in travel was broken up into two
categories of plaintiffs.

Kovac asserted a liberty interest in travel due to his

placement on the No-Fly List, which survived dismissal. But the Court dismissed the
Screening List plaintiffs’ asserted liberty interest in travel.
Before Kovac II issued, the government removed Kovac from the No-Fly List,
effectively mooting his claim on a substantive due process right to travel. Therefore,

See Kovac v. Wray, 363 F. Supp. 3d 721, 731 (N.D. Tex. Mar. 5, 2019) (Lindsay, J.) [Doc. No.
12] (hereinafter Kovac I); Kovac v. Wray, 449 F. Supp. 3d 649, 651 (N.D. Tex. Mar. 27, 2020) (Starr,
J.) [Doc. No. 43] (hereinafter Kovac II).
3

4

Doc. No. 1 at 42.
2

after Kovac II, the plaintiffs maintained only one substantive due process liberty
interest—an asserted interest in nonattainder.5
The plaintiffs now have three remaining claims: (1) procedural and
(2) substantive due process claims predicated on their liberty interest in nonattainder
from their placement on the Screening List (Counts I and II, respectively), and
(3) Administrative Procedure Act claims (Count III). Therefore, the current motion
and briefing cover three issues: (1) whether the government forfeited its defense for
failure to state a claim on the plaintiffs’ liberty interest in nonattainder, (2) whether
the government has violated the plaintiffs’ asserted liberty interest in nonattainder,
and (3) the outcome of plaintiffs’ Administrative Procedure Act claims.
II. Legal Standard
“The standard for deciding a Rule 12(c) motion is the same as a Rule 12(b)(6)
motion to dismiss.”6 Therefore, the Court “accept[s] all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.”7
III. Waiver of the Government’s 12(c) Motion
The first issue here is purely procedural: whether the government waived its
Rule 12(c) arguments by not bringing them in its Rule 12(b)(6) motion to dismiss.
The plaintiffs argue the government waived the arguments by not raising them in its

5 Based on the plaintiffs’ pleading, the Court sees no other Fifth Amendment liberty interest
beyond the three mentioned in the above paragraph. As discussed previously, the plaintiffs asserted
the deprivation of Fifth Amendment Due Process rights including “travel, freedom of false
stigmatization, and nonattainder,” two of which the Court previously dismissed. See discussion supra
Part I.
6

Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007).

7

Id. (quotation marks omitted).
3

motion to dismiss. The government responds that Rule 12(c) and (h)(2)(B) save the
arguments contained in its Rule 12(c) motion. The Court agrees with the government.
Despite a prior round of motion-to-dismiss briefing, the government raised for
the first time in its Rule 12(c) motion for judgment on the plaintiffs’ nonattainder
claims. A straightforward application of the Federal Rules of Civil Procedure allows
the government—at the 12(c) stage of litigation—to assert its defense against the
plaintiffs’ asserted liberty interests in nonattainder. Rule 12(h)(2) states, “[f]ailure
to . . . state a legal defense to a claim may be raised . . . by a motion under Rule
12(c).”8 While the government could have raised its defense to nonattainder claims
earlier, it did not have to. Therefore, the Court may evaluate the arguments in the
government’s Rule 12(c) motion.
IV. Plaintiffs’ Asserted Liberty Interest
in Nonattainder (Counts I & II)
The defining feature of our government is separation of powers. The central
question in analyzing the potential dismissal of Counts I & II of plaintiffs’ complaint
is whether or not the Constitution’s nonattainder guarantee now applies to the
executive branch, specifically an executive agency. The plaintiffs argue that because
the clause’s interest in nonattainder is so fundamentally important, it applies to
agency action as well as legislative action.

The government counters that the

original, formal meaning of the Nonattainder Clause only applies to legislative action.
The Court agrees with the government that the original public meaning of the

8

FED. R. CIV. P. 12(h)(2).

4

Nonattainder Clause and relevant precedent confirm it only applies to legislative
action.
The Nonattainder Clause states that “[n]o Bill of Attainder or ex post facto
Law shall be passed.”9 The Supreme Court has defined a bill of attainder as “a law
that legislatively determines guilt and inflicts punishment upon an identifiable
individual without provision of the protections of a judicial trial.”10 By using the term
“law,” the clause’s guarantee applies only to legislative action.
The clause’s history, context, and subsequent case law confirm this reading.
“In England a bill of attainder originally connoted a parliamentary Act sentencing a
named individual or identifiable members of a group to death.”11

To early

Englishmen, “bills of attainder meant a very particular thing: parliamentary acts
sentencing named persons to death without the benefit of a judicial trial.”12
The Founders also understood that the clause’s reference to “law” was a
constitutional guarantee against the legislative branch.

For instance, James

Madison in Federalist 44 stated, “[b]ills of attainder . . . are contrary to . . . every
principle of sound legislation.”13 Additionally, Alexander Hamilton in Federalist 80

9

U.S. CONST. art. I, § 9, cl. 3.

10

Nixon, 433 U.S. at 468.

11

Id. at 473. Aren’t you glad we declared our independence?

12

Kaspersky Lab, Inc. v. U.S. Dep’t of Homeland Sec., 909 F.3d 446, 454 (D.C. Cir. 2018)

(quotation marks omitted).
13

THE FEDERALIST NO. 44, at 282 (J. Madison) (C. Rossiter ed. 1961) (emphasis added).
5

expressly listed bills of attainder as one of the “specified exceptions to legislative
authority.”14
Likewise, the Supreme Court in its early days understood the clause’s
guarantee of nonattainder to apply to the legislative branch alone, but permitted an
expansion of the categories of bills of attainder beyond England’s original prohibition
against acts sentencing citizens to death.15

More recently, the Supreme Court

reaffirmed its belief that, as originally ratified, the clause was a “general safeguard
against legislative exercise of judicial function, or more simply—trial by

legislature.”16
The plaintiffs make an intriguing, but ultimately failing counter argument: if
the Nonattainder Clause was such an important guarantee, why should the
guarantee be limited to legislative action exclusively?

A non-binding concurrence,

albeit from the Supreme Court, echoes the plaintiffs’ purpose-based approach: “I
cannot believe that the authors of the Constitution, who outlawed the bill of
attainder, inadvertently endowed the executive with power to engage in the same
tyrannical practices that had made the bill such an odious institution.”17
The problem with the plaintiffs’ argument, however, is while binding authority
has not directly ruled against expanding the clause to include agency action, the

14

Id. NO. 80, at 476–77 (A. Hamilton) (emphasis added).

15 Fletcher v. Peck, 10 U.S. 87, 138 (1810) (“A bill of attainder may affect the life of an
individual, or may confiscate his property, or may do both.”).
16

United States v. Brown, 381 U.S. 437, 442 (1965) (emphases added).

17

Joint Anti–Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 143 (1950) (Black, J.,

concurring).

6

weight of authority supports the government’s originalist approach—that the
Constitution’s guarantee of nonattainder applies exclusively to legislative action.
The weightiest of the aforementioned authority comes from the Fifth Circuit, which,
in failing to expand the Nonattainder Clause’s guarantee of nonattainder to agency
action,18 noted that: “No circuit court has yet held that the bill of attainder
clause . . . applies to regulations promulgated by an executive agency,”19 and “the
“bulk of authority suggests that the constitutional prohibition against bills of
attainder applies to legislative acts, not to regulatory actions of administrative
agencies.”20
The plaintiffs cast doubt on Paradissiotis v. Rubin by categorizing it as
“assum[ing] (without deciding) that an executive action can constitute a bill of
attainder.”21

While the plaintiffs are technically correct in that Paradissiotis’s

“assuming without deciding” framework does not bind this Court in one direction or

Paradissiotis v. Rubin, 171 F.3d 983, 988–89 (5th Cir. 1999) (“Even if we were inclined to
apply the bill of attainder clause to [agency action]. . . .”).
18

19

Id. at 988 (collecting cases).

20

Id. at 989.

21

Doc. 54 at 10.
7

another, the 7th,22 9th,23 10th,24 11th,25 and Federal Circuit Courts of Appeals26 have
all likewise declined to extend the clause to agency action. Those courts aren’t
binding, but they are right. The Nonattainder Clause refers to “bills” and “law,”
which were and are the province of the legislature.27 Even if the administrative state
has grown far beyond what Madison feared and Hamilton dreamed of, this Court will
not rewrite the Constitution.

If applying the Nonattainder Clause’s guarantee of

nonattainder beyond its original meaning to include agency action is as laudable as
the plaintiffs suggest, then the processes to amend the Constitution established in
Article V should be no meaningful impediment to updating the Constitution.
Applying that legal framework to these facts, the plaintiffs were placed on their
respective lists not by legislative action, but by an amalgamation of agency action.
Ultimately, the Terrorist Screening Center (“Screening Center”), an agency, follows

Glob. Relief Found., Inc. v. O'Neill, 315 F.3d 748, 755 (7th Cir. 2002) (“Application of
the IEEPA is not a bill of attainder; implementation of the statute is in the hands of the Executive and
Judicial Branches, while a bill of attainder is a decision of guilt made by the Legislative Branch.”).
22

23 Marshall v. Sawyer, 365 F.2d 105, 111 (9th Cir. 1966) (In response to appellant’s contention
that Justice Black’s concurrence in McGrath, 341 U.S. 143 “imply[ies] that an act by an administrative
or executive branch of government may constitute a bill of attainder[,] the Court holds that “[w]e do
not regard the language relied upon as authority for thus expanding what appellant himself concedes
to be the traditional role of a bill of attainder.”).

Walmer v. U.S. Dep’t of Def., 52 F.3d 851, 855 (10th Cir. 1995) (“The bulk of authority
suggests that the constitutional prohibition against bills of attainder applies to legislative acts, not to
regulatory actions of administrative agencies.”).
24

25 Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 n.9 (11th Cir. 2008) (“We have never held
that the Constitution’s Bill of Attainder Clause . . . is applicable to Executive Branch regulations, and
other courts have suggested to the contrary.”).

Korte v. Office of Pers. Mgmt., 797 F.2d 967, 972 (Fed. Cir. 1986) (“Korte has cited no
authority, and we are aware of none, holding that the clause applies to the executive branch.”).
26

27 This is an elementary principle.
See Schoolhouse Rock!: I'm Just a Bill, ABC (1976)
(describing
the
process
of
how
a
bill
becomes
a
law),
https://www.youtube.com/watch?v=Otbml6WIQPo.

8

a two-prong test to determine if someone—including the plaintiffs—is placed into the
Terrorist Screening Database (“Database”).28

But other agencies can nominate

Database entries through a nomination process to the National Counterterrorism
Center (“Counterterrorism Center”), which then reviews and recommends potential
entries to the Screening Center for possible placement.29 In any event, regardless of
whichever agency nominated the plaintiffs to the Screening Center, the nomination
and subsequent review and placement were a result of executive action by means of
agencies, not legislative action by Congress.
To summarize, because no bill of attainder has occurred, the plaintiffs’
protected liberty interest in nonattainder is uninfringed. And because the plaintiffs’
substantive liberty interest in nonattainder is uninfringed, the plaintiffs’ procedural
due process interest in nonattainder is, likewise, uninfringed.30 Therefore, the Court
dismisses the plaintiffs’ procedural and substantive claims (Count I and Count II),
which are predicated on an asserted liberty interest in nonattainder.
The only remaining question is whether the plaintiffs are entitled to replead
these nonattainder claims. They are not. Whether the plaintiffs style the argument
as under the Nonattainder Clause or a nonattainder argument under the Due Process

28

See Kovac I, 363 F. Supp. 3d at 733.

29

See id.

30 See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972) (“The requirements of
procedural due process apply only to the deprivation of interests encompassed by the [Constitution’s]
protection of liberty and property.”).

9

Clause, neither legislative argument can prevail against agency action. Therefore,
any pleading amendment of these nonattainder claims would be futile.31
V. The Plaintiffs’ Administrative Procedure
Act Claims (Count III)
The government argues in its Rule 12(c) motion (like it did in the motion to
dismiss phase) that the plaintiffs’ Administrative Procedure Act claims are “largely
coextensive with [the plaintiffs’] constitutional claims.”32 In the government’s words:
“[T]he only claims remaining in this terrorism watchlisting case are due process and
coextensive Administrative Procedure Act [] claims based on Plaintiffs’ alleged
‘liberty interest in nonattainder,’”33 and “the Court has recognized that Plaintiffs’
[Administrative Procedure Act ] claims are coextensive with their due process
claims.”34 The plaintiffs respond that their Administrative Procedure Act claims “are
not dependent on the existence of” their claims predicated on a liberty interest in
nonattainder.35 In other words, the Administrative Procedure Act claims and the
constitutional claims are isolated, independent claims. The Court agrees with the
plaintiffs.
The government is arguing a logically untenable position. In its current
motion, the government argues that the “Bill of Attainder Clause applies to

31 See DeLoach v. Woodley, 405 F.2d 496, 496–97 (5th Cir. 1968) (“The liberal amendment
rules of F.R.Civ.P. 15(a) do not require that courts indulge in futile gestures. Where a complaint, as
amended, would be subject to dismissal, leave to amend need not be granted.”).
32

Doc. No. 8 at 34.

33

Doc. No. 47 at 8.

34

Doc. No. 47 at 11 n.4.

35

Doc. No. 54 at 17.
10

legislative enactments, not agency actions.”36 As noted above, the Court agrees with
this originalist view. But unlike the Nonattainder Clause, under the Administrative
Procedure Act, “[a] person suffering a legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof.”37
The plaintiffs make arguments under their Administrative Procedure Act
Claim that are not limited to nonattainder. Kovac I ruled that: “Plaintiffs’ factual
allegations make plausible their claim that Defendants’ actions were arbitrary and
capricious, an abuse of discretion, or otherwise not in accordance with law.”38 And
the Administrative Procedure Act claim also alleges nominations were solely based
on such factors as race, ethnicity, national origin, religious affiliation, or First
Amendment protected activities. These allegations are not necessarily dependent on
the attainder arguments and would require further development. Thus, the Court
will defer to its prior ruling that the plaintiffs’ Administrative Procedure Act claims
survive this pleadings stage of litigation because “development of the factual record”39
is necessary.
VI. Conclusion
For these reasons, the Court GRANTS IN PART AND DENIES IN PART the
government’s Motion for Judgment on the Pleadings [Doc. No. 47].

36

See Doc. No. 47 at 13–17.

37

5 U.S.C. § 702 (emphases added).

38

Kovac I, 363 F. Supp. 3d at 759.

39

Id.
11

The Court

DISMISSES WITH PREJUDICE the plaintiffs’ procedural and substantive due
process claims relating to an asserted liberty interest in nonattainder (Counts I and
II). The plaintiffs retain their Administrative Procedure Act claims (Count III).
The parties previously conferred in April 2020 and filed proposed scheduling
orders on June 12, 2020. Given that the Court has now ruled on the government’s
Rule 12(c) motion, the Court orders the parties to meet and confer and submit an
updated proposed scheduling order to Court within 14 days of the date of this order.
The Court administratively closes this case and will reopen it once the Court issues
an amended scheduling order.
IT IS SO ORDERED this 6th day of November 2020.

BRANTLEY STARR
UNITED STATES DISTRICT JUDGE

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