Adbi v. McCabe et al
Filing
35
MEMORANDUM DECISION and ORDER granting 18 Defendants' Motion to Dismiss. Signed by Judge Dee Benson on 4/20/2018. (blh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
YUSSUF AWADIR ABDI,
Plaintiff,
MEMORANDUM DECISION AND
ORDER
v.
CHRISTOPHER WRAY, Director of the
Federal Bureau of Investigation, in his
official capacity, et al.,
Case No. 2:17-cv-622-DB
District Judge Dee Benson
Defendants.
Before the court is Defendants’ Motion to Dismiss First Amended Complaint. (Dkt. No.
18.) The court held a hearing on the Motion on April 5, 2018. At the conclusion of the hearing,
the court took the Motion under advisement. Now being fully informed, the court issues this
Memorandum Decision and Order.
Background
In June of 2017, Plaintiff—a United States citizen—flew to Kenya to bring his wife and
children, who had recently received visa approval, with him to the United States. (First Amended
Complaint at ¶¶ 34-35.) On June 14, 2017, Plaintiff appeared at Jomo Kenyatta International
Airport in Nairobi, Kenya to board a commercial flight back to his home in the United States.
(Id. at ¶ 34.) Plaintiff tried to check in at a kiosk stationed at the airport, but was directed to an
airline representative to manually check him in for his flight. (Id. at ¶ 36.) Plaintiff’s wife and
children printed their boarding passes without difficulty, but the Qatar Airlines representative
told Plaintiff that the United States would not allow him to board his flight. (Id. at ¶ 39.)
The following day, Plaintiff went to the United States Embassy in Kenya to obtain
information as to why he was denied boarding. (Id. at ¶ 41.) The representatives at the embassy
did not provide Plaintiff with any information. (Id. at ¶ 42.) Plaintiff rescheduled his flight for
the following day, June 16, 2017, on which he was allowed to board. (Id. at ¶¶ 43-44.) When
Plaintiff arrived at the Los Angeles International Airport, he was subjected to a lengthy screening
process, which caused him to miss his connecting flight to Salt Lake City. (Id. at ¶ 44.) Plaintiff
rescheduled his flight to Salt Lake City for June 18, 2017, which he was allowed to board after
another lengthy screening process. (Id. at ¶ 45.)
Since then, Plaintiff has flown on three separate occasions: to San Jose, California in July
2017; to and from Mecca Saudi Arabia in August 2017; and to and from Virginia in October
2017. (Id. at ¶ 47.) On each trip, Plaintiff was required to obtain his boarding pass from a
ticketing agent rather than a kiosk. (Id. at ¶ 49.) Each time, it took about a half hour for Plaintiff
to obtain his boarding pass, after the ticketing agent called the Terrorist Screening Center and
stamped Plaintiff’s boarding pass with “SSSS”. (Id. at ¶¶ 49-50.) Each time, Plaintiff was
subjected to a lengthy screening process. (Id.at ¶ 51.)
In September of 2003, the Terrorist Screening Center (“TSC”) was established to
consolidate the government’s approach to terrorism screening. (Id. at ¶ 58.) The TSC, which is
administered by the FBI, develops and maintains the federal government’s consolidated
Terrorism Screening Database (the “watchlist”). (Id.) The watchlist has two primary
components: the Selectee List and the No Fly List. (Id. at ¶ 59.) Those placed on the Selectee
List are subject to extra screening at airports and land border crossings, and their boarding passes
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are often stamped with “SSSS”. (Id.) Those on the No Fly List are prevented from boarding
flights that fly into, out of, or through United States airspace. (Id.)
Plaintiff believes that he has been on the Selectee List component of the watchlist since
2014, because that is when he began to be subjected to extra security procedures when traveling
by airplane.1 (Id. at ¶ 26.) Sometime in 2016, Plaintiff filed a redress request through the
Department of Homeland Security Traveler Redress Inquiry Program (“DHS TRIP”). (Id. at ¶
32.) On May 22, 2017, Plaintiff received a standard form letter that neither confirmed nor denied
the existence of any watchlist records relating to him. (Id. at ¶¶ 33, 137.) The letter did not set
forth any basis for inclusion on the watchlist, nor did it state whether the government had
resolved the complaint at issue. (Id.)
Discussion
Plaintiff challenges his placement on the watchlist on several grounds: 1) procedural due
process, 2) substantive due process, 3) agency action in violation of the Administrative
Procedure Act (“APA”), 4) equal protection, and 5) non-delegation. (Id. at ¶¶ 143-190.) To
survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must
contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In deciding a motion to dismiss, “courts must consider the
complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule
12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007). The court must accept all well-pleaded allegations in the
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Plaintiff also believes that he may have been upgraded to the No Fly List for a short time while he was in Kenya in
June of 2017. (Id. at ¶ 1.)
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complaint as true and “construe them in the light most favorable to the plaintiff.” Williams v.
Meese, 926 F.2d 994, 997 (10th Cir.1991).
Jurisdiction
As a threshold matter, Defendant argues that this court lacks jurisdiction to the extent
Plaintiff challenges the adequacy of the DHS TRIP procedures. Counsel for Plaintiff stated at
oral argument that he is not challenging the DHS TRIP process, but rather the TSC determination
to place him on the watchlist in the first instance. Based on Plaintiff’s assertion that he does not
challenge the DHS TRIP process (arguably an order of TSA), and Defendant’s
acknowledgement that the TSC is not an agency covered by 49 U.S.C. § 46110, the court denies
Defendant’s request for dismissal on those grounds.
Procedural Due Process
Plaintiff’s first claim alleges that Defendants violated his procedural due process rights
by placing him on the watchlist without notice or a hearing. The Due Process Clause states that
“No person shall be * * * deprived of life, liberty, or property, without due process of law[.]”
U.S. Const. amend. V. “The requirements of procedural due process apply only to the
deprivation of interests encompassed by the [Constitution’s] protection of liberty and property.”
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). To determine whether
procedural due process has been violated, courts consider three factors: (1) “the private interest
that will be affected by the official action;” (2) “the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional or substitute
procedural safeguards;” and (3) “the Government's interest, including the function involved and
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the fiscal and administrative burdens that the additional or substitute procedural requirement
would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Here, Plaintiff identifies two private interests that are affected by his placement on the
watchlist: 1) the right of movement and 2) his reputational interests. Plaintiff argues that the right
of movement is “a fundamental right that can be traced back to the Magna Carta.” (Dkt. No. 23
at 21.) In support of his position that the freedom of movement is a constitutionally protected
right, Plaintiff cites to an Eastern District of Virginia case, Mohamed v. Holder, 995 F. Supp. 2d
520, 530 (E.D. Va. 2014), and general statements made by the Supreme Court in the context of
the right to travel in Kent v. Dulles, 357 U.S. 116, 126 (1958). Neither case supports the broad
adoption of a general freedom of movement suggested by Plaintiff.
The right to travel has been recognized by the Supreme Court as a constitutionally
protected interest. See id. This court has not been provided with any authority to extend that right
to travel to protect a right to movement generally. Plaintiff has been consistently inconvenienced
in his travel by his status on the watchlist. But the Supreme Court has not recognized a right to
convenient or unimpeded travel. Plaintiff has failed to show that the right to movement is a
liberty interest that is protected under the Constitution, particularly where, as here, Plaintiff has
been able to travel, albeit inconveniently.
Plaintiff also fails to show that any recognized reputational interest has been harmed.
Injury to reputation alone is “not a ‘liberty’ interest protected” under the Due Process Clause.
Siegert v. Gilley, 500 U.S. 226, 233 (1991). “For a plaintiff to prevail on a claim that the
government has violated the Due Process Clause by damaging its reputation, that plaintiff must
satisfy the ‘stigma-plus’ standard. That standard requires the plaintiff to demonstrate both “(1)
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governmental defamation and (2) an alteration in legal status.” Martin Marietta Materials, Inc. v.
Kansas Dep't of Transp., 810 F.3d 1161, 1184 (10th Cir. 2016). Plaintiff argues that the
publication of the watchlist and the additional public screening required of him at airports is
sufficient to satisfy this standard. The court disagrees.
Even assuming that Plaintiff has adequately alleged defamation, he has not suffered a
change of legal status. The types of deprivations which have been recognized under the “stigmaplus” standard include actions such as revocation of a driver’s license, Paul v. Davis, 424 U.S.
693, 711 (1976), being labeled as a sex offender and required to register as one, Gwinn v.
Awmiller, 354 F.3d 1211, 1224 (10th Cir. 2004), and defamation upon termination of
employment. Guttman v. Khalsa, 669 F.3d 1101, 1125 (10th Cir. 2012). Plaintiff’s repeated
screening at airports, while no doubt frustrating to Plaintiff, do not rise to the level of a change in
legal status. Plaintiff has not identified any constitutionally protected liberty or property interest.
Accordingly, Plaintiff’s procedural due process claim must be dismissed.
Substantive Due Process
Plaintiff’s substantive due process claim similarly fails. The Supreme Court has set forth
an “established method of substantive-due process analysis” which has “two primary features.”
Washington v. Glucksberg, 521 U.S. 702, 721 (1997). First, a court must “carefully formulat[e]
the interest at stake.” Id. at 722. Second, the court must determine whether the interest at stake is
among those “fundamental rights and liberties” rooted in our country’s history. Id. at 720-721.
Plaintiff asserts that the right of movement is a fundamental right embedded as an
unenumerated right in the Constitution. Plaintiff does not provide case law precedent that
supports his position. Rather, Plaintiff would have this court rely on quotes from the colonists
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and dicta from right to travel cases. This court is unwilling to create a new unenumerated right
under the Constitution. Accordingly, Plaintiff’s substantive due process claim fails.
Agency Action under the APA
Plaintiff’s APA claim alleges that he was stigmatized “without a constitutionally
adequate legal mechanism” to challenge his placement on the watchlist. (Compl. at ¶ 169.)
Plaintiff seems to have abandoned this claim by asserting that he is not challenging the adequacy
of the DHS TRIP procedures. However, even if Plaintiff maintains this claim—and assuming
this court has jurisdiction to hear it—Plaintiff’s APA claim fails because he has failed to identify
a constitutionally protected interest, as discussed in the Procedural Due Process section above.
Equal Protection
The Equal Protection Clause prohibits the government from “deny[ing] to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, §1. To
demonstrate a deprivation of this constitutional guarantee, a plaintiff must demonstrate that the
challenged action “intentionally discriminates between groups of persons.” SECSYS, LLC v.
Vigil, 666 F.3d 678, 685 (10th Cir. 2012). Where, as here, the challenged action “is generally
applicable to all persons, no presumption of intentional discrimination arises; proof is required.”
Id. It is insufficient to allege only disparate impact. Pers. Adm’r of Mass. v. Feeney, 442 U.S.
256, 274 (1979). The Plaintiff must show a discriminatory purpose, which “implies more than
intent as volition or intent as awareness of consequences” and instead requires Plaintiff to show
that unequal treatment is “an intended consequence” of the government action. Vigil, 666 F.3d at
685 (quoting Feeney, 442 U.S. at 279).
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The Complaint with its attachments fails to demonstrate intentional discrimination by the
government. Plaintiff alleges a disparate impact on Muslim Americans, but disparate impact is
insufficient to establish intentional discrimination in violation of the Equal Protection Clause
under Tenth Circuit precedent. Plaintiff also argues that the government uses “impermissible and
inaccurate religious profiles in compiling the federal watch list.” (Dkt. No. 23 at 34.) Plaintiff’s
conclusory statements lack factual support, even considering the purportedly leaked government
documents attached to Plaintiff’s Complaint. Plaintiff has failed to sufficiently allege intentional
discrimination by the government in violation of the Equal Protection Clause.
Non-Delegation
“Congress may not constitutionally delegate its legislative power to another branch of
Government.” Touby v. United States, 500 U.S. 160, 165 (1991). But when Congress “lay[s]
down by legislative act an intelligible principle to which the person or body authorized to [act] is
directed to conform, such legislative action is not a forbidden delegation of legislative power.’”
Mistretta v. United States, 488 U.S. 361, 372 (1989) (quoting J.W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394, 409 (1928)). To set forth a constitutionally permissible “intelligible
principle” while delegating authority, Congress need only “clearly delineate[] the general policy,
the public agency which is to apply it, and the boundaries of this delegated authority.’” Mistretta,
488 U.S. at 372–73 (quoting Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)).
Here, Congress has charged TSA with overall responsibility for airline security. See 49
U.S.C. § 114(d). Together with the FBI, TSA must “assess current and potential threats to the
domestic air transportation system,” and “decide on and carry out the most effective method for
continuous analysis and monitoring of security threats to that system.” 49 U.S.C. § 44904(a). In
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consultation with other federal agencies, TSA must “establish policies and procedures requiring
air carriers [to] … prevent the individual from boarding an aircraft, or take other appropriate
action with respect to that individual.” 49 U.S.C. § 114(h)(1)–(3). This delegation of authority
provides a general policy, the agencies which are to apply it, and the bounds within which it is to
be applied. Accordingly, it sufficiently sets forth an “intelligible principle” and does not violate
the non-delegation doctrine.
Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is hereby GRANTED.
DATED this 20th day of April, 2018.
BY THE COURT:
Dee Benson
United States District Judge
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