Mohamed v. Holder et al

Filing 189

MEMORANDUM OPINION. Signed by District Judge Anthony J Trenga on 7/16/15. Order to follow(gwalk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

GULET MOHAMED,

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)
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Plaintiff,

V.

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ERIC H. HOLDER, JR., et al,
Defendants.

Civil Action No. 1:1l-cv-50 (AJT/MSN)

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MEMORANDUM OPINION

Plaintiff Gulet Mohamed (Plaintiff or "Mohamed") has challenged his alleged placement
on the No Fly List. The No Fly List is a list of persons who are precluded from flying on
commercial aircraft because they are suspected terrorists. Compiled by the Terrorism Screening

Center (TSC) and enforced against travelers by the Transportation Security Administration

(TSA) through commercial airlines, the No Fly List is intended to ensure aircraft safety as well
as to restrict the ability of suspected terrorists to move freely in furtherance of terrorist activities,
within the United States and internationally. Mohamed is an American citizen who was denied

boarding on an international flight by an American carrier. He has not been convicted of,

charged with or alleged to have committed a criminal offense related to terrorism or otherwise;
and when applied to such an American citizen, the No Fly List represents, as the United States
concedes, an unprecedented application of Executive branch authority in the name of national

security through secret administrative proceedings based on undisclosed information according
to undisclosed criteria.

This litigation centrally concerns what information must be made available to an
American citizen in order to provide a constitutionally adequate opportunity to challenge a

placement on the No Fly List. That constitutional inquiry presents unsettled issues that are
complicated in their resolution by the criteria used to compile the No Fly List and the classified
information that, of necessity, is used to determine whether a person satisfies that criteria.

Presently pending are the parties' cross-motions for summary judgment with respect to

Mohamed's claim in Count 3 of his Fourth Amended Complaint that he was denied a meaningful
opportunity to challenge his inability to fly on commercial aircraft, in violation of his Fifth

Amendment procedural due process rights. ^Specifically, Mohamed claims that he has not been
providednotice of his placement on the No Fly List, either before or after he was denied

boarding, or a meaningful opportunity to refute any derogatory information that was used to

place him on theNo Fly List. He claims, in effect, thathe hasbeendenied the opportunity to
establish that he poses no threat to commercial aviation. He further claimsthat as result of these
constitutional violations, he has been denied his liberty interests in (1) traveling by air, (2) being
able to return to the United States after travelling abroad; and (3) being free from false

govemmental stigmatization as a terrorist. See Fourth Amended Complaint, Doc. No. 85, K64.
In their summary judgment motion, defendants claim that the Department of Homeland

Security's Traveler Redress Inquiry Program (DHS TRIP), the review process by which a person
denied boarding may request a review of his status, was constitutionallyadequate, any
constitutional infirmities with that process have been cured through revised review procedures,

' The Fourth Amended Complaint setsforth three causes of action titled: (1) Violation of U.S.
Citizens' Right to Reside in United States and to Reenter the United States from Abroad in
violation of the Fourteenth Amendment (Count 1 - Right to Citizenship); (2) Unlawful Agency
Action in violation of 5 U.S.C. §§ 702, 706 (Count 2 - Unlawful Agency Action); and (3)
Failure to Provide Pre or Post Deprivation Notice and Hearing in violation of the Fifth
Amendment (Count 3 - procedural due process). The Court previously dismissed Count 1 in

part as it related to Plaintiffs specific claim that he was unconstitutionally denied reentry into
the United States in January 2011. See Mohamed v. Holder^ 995 F. Supp. 2d 520 (E.D.Va.
2014).

and Mohamed's procedural due process claims are therefore moot. They also contend in the
alternative that should the Court not grant summary judgment in their favor, Mohamed's
procedural due process claims should nevertheless be dismissed on the basis of the state secrets
privilege. Doc. No. 159.

For the reasons stated herein, the defendants' Motion for Partial Summary Judgment is
DENIED and Plaintiffs Motion for Partial Summary Judgment as to Count 3 is GRANTED in

part and DENIED in part. Briefly summarized, the Court first concludes that DHS TRIP, as that
process existed at the time that Mohamed was denied boarding, did not provide a constitutionally

adequate opportunityto challenge his denial of boarding. Second, after a review of documents
and information submitted by the defendants in camera and exparte, the Court concludes that

there is no information protected from disclosure under the state secrets privilege that is

necessary either for Mohamed to establish liability under his procedural due process claims or
for the defendants to establish an available defense to that claim. Third, based on the current

record, the Court cannot conclude as a matter of law whether the revised DHS TRIP process now
available to Mohamed is constitutionally adequate.

The Court further concludes that the constitutional adequacy of the revised DHS TRIP

cannot be made until after Mohamed requests a review of his status under that revised process,
the TSC and TSA respond, and an administrative record is compiled that allows a reviewing
court to assess, to the extent it deems appropriate: (1) whether Mohamed has received notice

that he is, in fact, on the No Fly List; (2) if on the No Fly List, the level of factual detail provided
to Mohamed concerning the reasons for his inclusion on the No Fly List, including whether he

has been provided the specific criteria relied on and the specific factual findings used to satisfy
that specific criteria; (3) whether the factual information provided allow a reasonable opportunity

to rebut any derogatory information used for his placement on the No Fly List; (4) what factual
information was withheld from Mohamed concerning the reasons for his inclusion, the reasons
for withholding that information and whether additional material information could have been
provided, either directly or through alternative means, such as summaries or redacted documents;

(5) what information Mohamed provided or had an opportunity to provide, and in what form,
including whether he appropriately responded to any specific requests for information; and (6)
whether Mohamed's status is at the appropriate level of security restrictions for the level of

threat sufficiently established by that administrative record.
I. Background

The factual and procedural history of this case are set forth in detail in this Court's

January 22, 2014Memorandum Opinion. See Mohamed v. Holder, 995 F. Supp. 2d 520, 522-27
(E.D.Va. 2014).

Briefly summarized, Mohamed is a U.S. citizenof Somali descent, who alleges that in
2009, at the age of 16, he temporarily left the United States to travel to Yemen, Somalia and
Kuwait in order to meet family, study Arabic and attend school. Beginning on December 20,
2010, Kuwait authorities detained him at a deportation facility, during which time he alleges he

was interrogated, beaten and tortured. FBI agents visited him twice at the deportation facility,
once on December 28, 2010 and again on January 12, 2011. On January 16, 2011, Mohamed's

family purchased a ticket for him to return to the United States at the suggestion of Kuwaiti
officials, who delivered the ticket to Mohamed and transported him to the airport, where he was

denied boarding. On January 18, 2011, Mohamed filed this action against the defendants, which
include the heads of the Department of Justice (DOJ), Federal Bureau of Investigation (FBI),

Terrorist Screening Center (TSC), Department of Homeland Security (DHS), and the

Transportation SecurityAdministration (TSA) (hereafter "the defendants"), seeking, inter alia,
emergency relief to return to the United States. Doc. No. 1. On January 20,2011, the defendants
advised the Court that arrangements had been made for Mohamed to return to the United States.

Mohamed returned to the United States via commercial airliner on January 21,2011.

The process for inclusion on the No Fly List has also been discussed in previous

opinions.^ SeeMohamedv. Holder.^o. 1:1 l-CV-50 AJT/TRJ, 2011 WL3820711, at *10 (E.D.
Va. Aug. 26, 2011); Mohamed v. Holder, 995 F. Supp. 2d 520, 525-27 (E.D.Va. 2014). Briefly
summarized, the Terrorist Screening Center ("TSC") is responsible for maintaining the Terrorist

Screening Database (TSDB), of which the No Fly List is a subset. The standard for inclusion in
the TSDB is "reasonable suspicion to establish that the individual is a known or suspected

terrorist." Doc. No. 158-1,Grigg Decl. at H15. The defendants have alternatively phrased this

standard as "knownor appropriately suspected to be or to have engaged in conduct constituting,

in preparation for, in aid of, or related to terrorism." Doc. No. 158-2, Declaration of Michael
Steinbach, Assistant Director of FBI Counterterrorism Division, at K12. See HSPD-6. Certain

government agencies may nominate individuals to be included on the TSDB. Nominations must
^Congressional authorization for the No Fly Listhas been limited. Following 9/11, Congress
directed that the TSA, "in consultation with other appropriate Federal agencies and air carriers,

establish policies and procedures requiring air carriers (A) to use information from government
agencies to identify individuals on passenger listswho may be a threatto civil aviation or
national security; and (B) if such an individual is identified, notify appropriate law enforcement
agencies, preventthe individual from boarding an aircraft, or take other appropriate action with
respect to that individual." 49 U.S.C. § 114(h)(3). It mandated, however, that DHS "shall
establish a timely and fair process for individuals who believe they have been delayed or
prohibited from boarding a commercial aircraftbecausethey were wrongly identified as a threat
under the regimes utilized by the Transportation Security Administration, United States Customs
and Border Protection, or any other office or component of the Department of Homeland
Security." 49 U.S. § 44926(a). DHS is also required to "establish a procedure to enable airline
passengers, who are delayed or prohibited from boarding a flight because the advanced
passenger prescreening system determined that they might pose a security threat, to appeal such
determination and correct information contained in the system." 49 U.S. 44903(j)(2)(C)(iii).
DHS TRIP was established by the Executive branch in response to these congressional mandates.

be supported by sufficient identifying information as well as substantive criteria, also known as
"derogatory information."

To be included on the No Fly List subset, there must be a reasonable suspicion that the
individual meets additional, heightened derogatory criteria beyond that required for inclusion in
the TSDB, namely, reasonable suspicion that the individual is a known or suspected terrorist
based on meeting one of the following criteria:
The individual poses a threat of (1) committing an act of international terrorism (as
defined in 18 U.S.C. § 2331(1)) or an act of domestic terrorism (as defined in 18 U.S.C. §
2331(5)) with respect to an aircraft; (2) committing an act of domestic terrorism (as
defined in 18 U.S.C. § 2331(5)) with respect to the homeland; (3) committing an act of
international terrorism (as defined in 18 U.S.C. § 2331(1)) against any U.S. Government
facility abroad and associated or supporting personnel, including U.S. embassies,
consulates and missions, military installations, U.S. ships, U.S aircraft, or other auxiliary
craft owned or leased by the U.S. Government; or (4) engaging in or conducting a violent
act of terrorism and who is operationally capable of doing so.

Doc. No. 158-1, Declaration of G. Clayton Grigg, Deputy Director for Operations of TSC, at H

18. The reasonable suspicion must be supported by "articulable" intelligence and must be based

on the "totality of circumstances" and intelligence reviewed.
Over the course of the litigation, defendants have filed several motions to dismiss this

action in its entirety on a variety of grounds. See Doc. Nos. 10, 22, 58 (challenging Mohamed's

standingto bring the action, the Court's jurisdiction over the action, and the legal sufficiencyof
Mohamed's allegations). With respect to jurisdiction, by Order dated August 26, 2011, the Court
dismissed certain claims and transferred others to the Fourth Circuit Court of Appeals on the

grounds that the Fourth Circuit Court of Appeals had exclusive jurisdiction pursuant to 49 U.S.
C. §49110(a), See Mohamedv. Holder, No. 1:1l-CV-50 AJT/TRJ, 2011 WL 3820711, at *10

(E.D. Va. Aug. 26, 2011). On May 28, 2013, the Fourth Circuit concluded that its exclusive

jurisdiction pxirsuant to 49 U.S. C. §49110 did not extend to claims and remedies against TSC

and remanded the case for further proceedings. Doc. No. 45.^ On January 22, 2014, following
that remand, the Court held that Mohamed had standing to bring his remanded claims and that

his remanded claims were ripe for review, despite Mohamed's failure to request review of his
status under the DHS TRIP. It also granted the defendants' motion to dismiss Mohamed's claim,

asserted in Count 1, that he was prevented from re-entering the United States in January 2011in
violation of his constitutional right of return to the United States. It denied the motion to dismiss

any remaining substantive due process claims in Count 1, his Administrative Procedure Act

claim in Count 2, and his procedural due process claims in Count 3. 995 F. Supp. 2d. at 539.

On May 28,2014, the defendants filed a motion to dismiss the case in its entirety based
on their invocation of the state secrets privilege. See Doc. Nos. 104-105. On September 15,2014,

after reviewing the declarations of certain high level officials from the TSC, as well as the

Attorney General, the Courtordered the defendants to submit for exparte, in camera review
those documents pertainingto the due process claims that they considered covered by the state

secrets privilege and law enforcement privilege. Doc. No. 139. The defendants complied and on
October 30, 2014, after reviewing those documents in camera, the Court concluded that those
documents were not "so related to [Mohamed]'s procedural due process claims as to prevent

either the plaintiffor the defendant from presenting or defending against those claims withoutthe
use of any of [those] documents." The Court therefore denied the defendants' motion to dismiss
Mohamed's procedural due process claims based on defendants' invocation of the state secrets

privilege. Doc. No. 144. The Court specifically advised, however, that "to the extent that the
defendants contend during the actual adjudication of these claims, within the context of either
summary judgment or any evidentiary hearing, that it cannot adequately defend against such

Its mandate became effective on July 22, 2013. Doc. No. 47.

claims without the use of a specific document claimed to be protected under the state secrets
privilege, the Court will consider that claim in that specific context." Id.
On December 9, 2014, cross-motions for summary judgment were filed as to Mohamed's

procedural due process claim. Doc. Nos. 158,161. In their motion for summary judgment,

defendants again invoked the state secrets privilege to dismiss the procedural due process claim
as an alternative grounds for their summary judgment motion. On January 30, 2015, the Court

heard oral argumenton those cross-motionsfor summaryjudgment. Following that hearing, it
scheduledan exparte, in camera closed hearing "to provide the defendants with the opportunity

to provide and the Court to consider additional information concerning the defendants' claims
concerning the existence of statesecrets andtheirrelevance to the pending procedural due

process claims." Doc. No. 173. The Court also identified in that Order specific issues to be

discussed in that closed hearing, which the Court held on March 17, 2015. See Id. at p. 2-3.''

The Court identified the following issues to be discussed in closed session:

(1) state secrets or national security information the defendants may wish to
present to the Court not reflected in the documents previously filed exparte, in camera
and under seal;

(2) how the under seal documents as to which the state secrets privilege is claimed
precludes adjudication of the procedural due process claimswithouttheir use and
disclosure;

(3) how the defendants apply the criteria for placement on the No Fly List
consistent with the restrictions listed in its publically disclosed criteria;
(4) any criteria other than those publicly disclosed for the purposes of placing
United States citizens on the No Fly List;

(5) how defendants distinguish between United States citizens that are placed on
the No Fly List and those placed on the Selectee List and the need to have a level of
security beyond those protections afforded through the Selectee List;
(6) whether, and if so, how national security considerations make it impractical or
otherwise undesirable to submit for exparte, in cawera judicial review and approval the
placement of United States citizens on the No Fly List, either before a citizen's placement
on the No Fly List or within a specific time period after placement on the No Fly List;
and
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II. Legal Standard

Summaryjudgment is appropriate only if the record shows that "there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., All U.S. 242, 247-48 (1986);

E\ans V. Techs. Apps. & Serv. Co.. 80 F.3d 954, 958-59 (4th Cir.1996). The party seeking

summary judgment has the initial burden to show the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material fact exists "if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248. Once a motion for summary judgment is properly made and

supported, the opposing party has the burden of showing that a genuine dispute exists.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The facts shall
be viewed, and all reasonable inferences drawn, in the light most favorable to the non-moving

party. Id. at 255; see also Lettieri v. Equant Inc., 478 F.3d 640, 642 (4thCir.2007). To defeat a

properly supported motion for summary judgment, the non-moving party "must set forth specific
facts showing that there is a genuine issue for trial."Anderson, 477 U.S. at 247^8. Whether a
fact is considered "material" is determined by the substantive law, and "[o]nly disputes over

facts that might affect the outcome of the suit underthe governing law will properly preclude the
entry of summary judgment." Id. at 248.
(7) whether, and if so, how national security considerations make it impractical or
otherwise undesirable for United States citizens who challenge their inability to board a
commercial aircraft to receive information concerning their placement on the No Fly List
under procedures comparable to those employed in criminal matters under the Classified
Information Procedures Act ("CIPA"); and
(8) any other national security information that the defendants believe is
necessary for the Court to consider in connection with its consideration of the procedural
due process claims and any remedies that may be ordered with respect to any
constitutional violations that the Court may ultimately find.

III. Analysis
A. The Procedural Due Process Claim (Count 3):

In Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the Supreme Court outlined the

applicable analysis for procedural due process claims as follows:
[I]dentification of the specific dictates of due process generally requires consideration of
three distinct factors: First, the private interest that will be affected by the official action;
second, 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
finally, the Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
entail.

See also Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) ("The Mathews calculus [] contemplates a

judicious balancing of these concerns, through an analysis of the risk of an erroneous deprivation

of the private interest if the process were reduced and the probable value, if any, of additional or
substituteprocedural safeguards.") (internal citations omitted).
For the purposes of the Mathews constitutional analysis, the Court concludes that
Mohamed's liberty interests implicated by any placement on the No Fly List are strong and the

government's interestin protecting the safety of commercial aircraft is compelling. The Court
also concludes that the administrative process used to place a person on the No Fly List has an
inherent, substantial risk of erroneous deprivation, particularly with respect to a total exclusion

through the No Fly List as opposed to heightened security screening through the Selectee List;
and that additional procedures, other than those under DHS TRIP, as originally structured, would

reduce the risk oferroneous placement onthe No Fly List. ^

^DHS TRIP, as it existed when Mohamed was denied boarding, provided no opportunity to learn
of or rebut any derogatory information or, indeed whether that person was, in fact, on the No Fly
List. Rather, when a person requested review of his status, DHS TRIP first determined whether
10

The Court previously wrote at length concerning the nature of these competing interests

within the context of defendants' motion to dismiss Plaintiffs procedural due process claim. See
Mohamed v. Holder, 995 F. Supp. 2d at 527-533, which is incorporated herein by reference. The
District Court in Latifv. Holder, 28 F. Supp. 3d 1134 (D. Oregon 2014) has also analyzed the
constitutional adequacy of the DHS TRIP process, as it existed at the time Mohamed was denied

boarding and filed this lawsuit. The Court adopts that analysis and can only marginally add to it
with respect to the following issues that remain relevant to an assessment of the revised DHS
TRIP.

1. Plaintiffs claimed travel related rights:

Central to the Mathews analysis in this case is the parties' dispute over the nature of the

travel related liberty issues at stake. Mohamed refers to his right to travel as a "bundle of rights"
that includes his right to "exit and return to the United States." Doc. No. 161 at p. 8. Mohamed
asserts that the No Fly List has had the practical effect of preventing international travel.
Defendants characterize Mohamed's liberty interest in international travel as "weak" and

therefore subject to reasonable government regulation and subordinate to national security
concerns. They distinguish international travel from the fundamental right to interstate travel, as

recognized in Saenz v. Roe, 526 U.S. 489,498 (1999) ("the *constitutional right to travel from
one State to another' is firmly embedded in our jurisprudence."). They point to decisions that
have recognized that a traveler does not have a constitutional right to "the most convenient mode

the traveler's identity is an identity listed in the TSDB. If it were a match, the TSC Redress Unit
then reviewed available information to determine whether the traveler is an exact match to a

TSDB identity and whether the traveler's status should be modified or maintained. DHS TRIP
then would send the traveler a determination letter, which did not disclose whether the traveler is

in fact on the No Fly List or any reasons why the person may be on the No Fly List, The letter
constituted final agency action subject to judicial review in the U.S. Court of Appeals pursuant to
49 U.S.C. §46110.
11

of travel." See, e.g., Gilmore v. Gonzalez, 435 F.3d 1125,1137 (9th Cir. 2006) (plaintiff "does

not possess a fundamental right to travel by airplane even though it is the most convenient mode

of travel for him."); Town ofSouthold v. Town ofEast Hampton, 477 F.3d 38, 54 (2d Cir. 2007)
("travelers do not have a constitutional right to the most convenient form of travel[, and] minor
restrictions on travel simply do not amount to the denial of a fundamental right"); Cramer v.

Skinner, 931 F.2d 1020, 1031 (5^"^ Cir. 1991) ("Minor restrictions ontravel simply do not amount
to the denial of a fundamental right that can be upheld only if the Government has a compelling
justification.").

The general right of free movement is a long recognized, fundamental liberty. See Kent v.
Dulles, 357 U.S. 116,125 (1958) ("The right to travel is a part of the 'liberty' of which the

citizen cannot be deprived without the due process of lawunder the FifthAmendment"); Zemel
V. Rusk, 381 U.S. 1, 15 (1965). See also Kerry v. Din, 135 S. Ct. 2128, 2133 (2015) (plurality

opinion, Scalia, J) (referencing Blackstone's recognition that "the"personal liberty of
individuals" protected under the Magna Carta "consist[ed] in the power of locomotion, of
changing situation, or removing one's person to whatsoever place one's owninclination may
direct; without imprisonment or restraint.").

Mohamed also has a protected liberty interest in traveling internationally. "Travel abroad,
like travel within the country, may be necessary for a livelihood. It may be as close to the heart
of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic

to our scheme of values." Kent v. Dulles, supra, 357 U.S. at 126. It must be recognized that a

meaningful right of travel in today's world cannot be understood as cleanly divided between
interstate and international travel or a right without any correlative rights with respect to the
usual and available means in a modem society. To the extent courts have discussed the lack of

12

rights with respect to the "the most convenient mode" of transportation, they have done so, not
within the context of a total ban, but with respect to reasonable regulations that still facilitated

access and use. See, e.g. Gilmore, supra, 435 F.3d at 1137. Given the wide ranging impact on a
person, previously discussed in this case, see 995 F. Supp. 2d at 528, the rights implicated by
Mohamed's presumed placement on the No Fly List are strong and deserving of strong

protections against unnecessary governmental restrictions.
2. Plaintiffs Reputational Interests:

Coupled with Mohamed's travel related rights are his reputational interests and his claims

of reputational harm. A person has certain rights with respect to governmental action that alters
or extinguishes a right or status previously recognized by state law, known as a "stigma-plus."
Paul V. Davis, 424 U.S. 693, 711 (1976). See Evans v. Chalmers, 703 F.3d 636, 654 (4th Cir.

2012) ("[A] plaintiff bringing a "stigma-plus" claim under Paul must allege both a stigmatic
statement and a "state action that 'distinctly altered or extinguished' " his legal status."). The

Court previously discussed "the broad range of consequences that might be visited upon such a

person if that stigmatizing designation were known by the general public." 995 F. Supp. 2d at
529.

The Court has previously ruled that a person's listing on the No Fly List, in itself, does
not infringe any protected liberty interest. See Id. at 528. There is also a substantial question
whether the dissemination of the No Fly List within or among government agencies or to

airlines, standing alone, would satisfy the public disclosure prong of a stigma-plus claim. ^See
Johnson v. Martin, 943 F.2d 15,17 (7th Cir. 1991) (Intra- and inter-govemmental

communications are not public statements for the purposes of showing stigmatization); Tarhuni

^Mohamed points to the No Fly List's dissemination to agencies throughout the U.S.
government, to 22 foreign governments, and to ship captains. Doc. No. 161 at p. 13.
13

V. Holder, 8 F. Supp. 3d 1253, 1275 (D. Or. 2014). Nevertheless, a person's placement on the
No Fly List would likely become known over time to persons beyond government agencies or

the airlines, with accompanying adverse consequences visited upon a restricted person. For
example, any member of the general public who would actually witness a person being excluded
from boarding might draw an adverse inference concerning that person's reputation. More likely

to inflict reputational harm are other scenarios not hard to imagine where a person's inability to

fly would become known to those outside of government and have adverse consequences, such

as to a person's actual or prospective employer who would call upon that personto travel by air,
or to extended family members whom a person might not be able to visit except through air
travel, or to members of religious, professional or social organizations in which participation

might require air travel. Thus, while Mohamed's constitutionally protected reputational interests

are not as strong as his travel related interests, and both are subject to appropriate restrictions,^
they underscore the need overall for strong procedural protections for Mohamed's travel related
rights.

3. Pre-deprivation notice or judicial review.
Mohamed argues that the nature of the defendants' procedures will necessarily lead to
mistaken determinations and erroneous placements on the No Fly List and that additional

procedures wouldreduce that risk, without impairing legitimate governmental interests, even
where there are national security concerns, reflecting the sentiments expressed in such cases as

^See, e.g., ZemeU supra, 381 U.S. at 15 (the petitioner's due process rights were notviolated
when the Secretary of State refused to validate his visa for travel to Cuba); Haig v. Agee, 453
U.S. 280, 306 ("the freedom to travel abroad with a.... passport issued by the sovereign is
subordinate to national security and foreign policy considerations; as such, it is subject to
reasonable governmental regulation."). See also Califano v. Aznavorian, 439 U.S. 170,176-77
(1978) ("legislation which is said to infringe the freedom to travel abroad is not to be judged by
the same standard applied to laws that penalize the right of interstate travel").
14

Hamdi v. Rumsfeld, 542 U.S. at 528 (holding unconstitutional the government procedures used to
determine whether an American citizen may be detained as an "enemy combatant" since they did

not sufficiently provide notice of the facts for that classification and an opportunity to rebutthose
factual assertions before a neutral decision maker); Joint Anti-Fascist Refugee Comm. v.
McGrath, 341 U.S. 123, 171 (1951) (Frankfurter, J., concurring) ("Secrecy is not congenial to
truth-seeking and self-righteousness gives too slender an assurance of rightness. No better
instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss
notice of the case against him and opportunity to meet if); Hernandez v. Cremer, 913 F.2d 230,

238 (5th Cir. 1990) ("The extremely broad discretion delegated to the [government] concerning
control over our nation's borders and the lack of any written guidelines regarding the exercise of
that discretion render the decision-making process virtually standardless."); Gete v. LN.S.,\2\

F.3d 1285,1297 (9th Cir. 1997) ("v^thout knowing the exact reasons ... as well as the particular
statutory provisions and regulations they are accused of having violated, they may not be able to

clear up simple misunderstandings or rebut erroneous inferences drawn by [the government]");
see also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) ("An

elementary and fundamental requirement of due process in any proceeding which is to be
accorded finality is notice reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them an opportunity to present their

objections."). More specifically, Mohamed contends that under Fourth Circuit law some predeprivation process is required, relying on Sciolino v. City ofNewport News, 480 F.3d 642, 652
(4th Cir. 2007), where the court ruled that a post-deprivation hearing is not sufficiently

"meaningful" to allow a dismissed public employee to clear his name. See also Rusu v. INS, 296

F.3d 316, 321 (4th Cir. 2002) (asylum petitioners must be afforded an opportunity to be heard);

15

Perry v. Norfolk, No. 98-2284, 1999 WL 731100 (4th Cir. Sept. 20, 1999) (placement on child
abuser registry must be preceded by notice and hearing). In response to these positions, the
defendants contend that even under the pxQ-Latif DHS TRIP there are sufficient safeguards to
make the risk of erroneous deprivation low since two agencies - the nominating agency and
TSC - must review the nomination to ensure that there is sufficient supporting information, and

the supporting information requires concrete, "appropriately restrictive" criteria to be met. See
Hodel V. Va. Surface Mining & Reclamation Ass % 452 U.S. 264, 301 (1981). They further

contend that any constitutional inadequacies in those procedures have been eliminated under the
currently operating DHS TRIP.

The lack of any independentreview of No Fly List placements by a neutral decision-

maker, coupled with the limited disclosures and opportunity to respond by a person who requests
that his status be reviewed, raise a substantial risk of erroneous deprivation, regardless of the

internal procedures used to determine placement on theNo Fly List. Onthe other hand, predeprivation notice andhearing would alertan individual, andthrough him or her, others, whom
the government suspects of terrorist activity, and thereby compromise on-going investigations
and endanger those persons involved in those investigations. SeeIbrahim v. DHS, — F.Supp.2d -, 2014 WL 6609111, at *18 (N.D. Cal. Jan. 14, 2014) ("the Executive Branch must be free to
maintain its watchlists in secret, just as federal agents must be able to maintain in secret its

investigations into organized crime, drug trafficking organizations, prostitution, child-

pornography rings, and so forth. To publicize such investigative details would ruin them.").^

^The defendants point out that in 2013 "a substantial number of U.S. persons onthe No Fly List
never attempted to board a commercial aircraft" and the Court generally agrees with their
assessment that such notice might cause suspects to "lower their profile, change their location, or
take other countermeasures to avoid detection and circumvent surveillance," long before the
16

Given the effects pre-deprivation notice would have on the government's compelling
interests, the Court concludes that a balancing of the respective interests does not weigh in favor

ofpre-deprivation notice. See GRF v. O'Neill, 315 F.3d 748, 754 (7^ Cir. 2002) ("Risks oferror
rise when hearings are deferred, but these risks must be balanced against the potential for loss of
life if assets should be put to violent use."). The Court therefore concludes that so long as post-

deprivation notice and hearing are sufficiently robust, pre-deprivation notice and hearing are not
constitutionally required. See Gilbert v. Homar, 520 U.S. 924, 930 (1997) ("on many occasions,

[] where a State must act quickly, or where it would be impractical to provide pre-deprivation

process, post-deprivationprocess satisfies the requirements of the Due Process Clause"); Fields

V. Durham, 909 F.2d 94, 97 (4^ Cir. 1990) (to determine whether a procedural due process
violation has occurred, courts must consult the entire panoply of pre-deprivation and post-

deprivation process provided by the state). See also Holy Land Found. For Relief& Dev. v.
Ashcroft, 219 P. Supp. 2d 57 (D.D.C. 2002), aff'd, 333 F,3d 156,163-64 (D.C. Cir. 2003)
(holding that pre-deprivation process is not constitutionally required within the contextof
immediate asset blocking to prevent financial assistance to terrorism); but cf. Haramain Islamic

Found. V. Dep't ofTreasury, 686 F.3d 965 (9th Cir. 2011) (where there are no national security
concerns, OFAC must provide a Specially Designated Global Terrorist(SDGT) designee a
"timely" statement of reasons for the investigation); Nat'l Council ofResistance ofIran v. Dep't
ofState, 251 F.3d 192 (D.C. Cir. 2001) (absent adequate showing to the court that earlier
notification would impinge on security and foreign policy goals, target organizations for Foreign
Terrorist Organization (FTO) designation must receive pre-deprivation notice that they are under

government's interest in their activity might otherwise have come to their attention. Doc. No.
159atp.l7.
17

consideration for designation, the unclassified portions of the administrative record relied on in
making the determination and an opportunity to rebut the administrative record).
The Court has also considered the constitutional need for pre-deprivation judicial review,
or review by some other independent decision maker comparable, in effect, to those

constitutionally required exparte, in camera procedures associated with the Fourth
Amendment's warrant requirement for searches and seizures. See, e.g., United States v. Jones,
132 S. Ct. 945, 947 (2012). Given the liberty interests at stake and the substantial and enduring

impacta No Fly List placementhas on those liberty interests, much recommends a pre-

deprivation exparte, in camerajudicial review, either before or within a reasonable time aftera

person is listed on theNo Fly List. Forexample, unlike a Title III wiretap, or GPS vehicle
tracking, the No Fly List represents the imposition of an openended disability, the effects of
which can be far reaching and not undone easily, even after one is removed from the List. The

prospects for disclosure through that sealed process to affected individuals would be
exceptionally low.

The defendants strongly objectto pre-deprivation judicial reviewprincipally on the

grounds that it would distract them from theirmission and compromise their ability to best assess
and protect against terrorists threats. But the Court sees in the substance of many of their
objections claims that reduce to administrative inconvenience and insufficient resources, and a
concern that such oversight would induce an undesirably cautious approach to No Fly List

placement. See Doc. No. 184-1, Declaration of Michael Steinbach, Assistant Directorof the
Counterterrorism Division, FBI, at fl 8-10, 13-16 (describing the "significant burden" ofjudicial

approval, either before placement or soon after, would impose, including "hinder[ing] the FBI's
ability to act quickly to address and possibly prevent threats, and shifting the "focus of concern"

18

away from "making predictive judgments as to the risk a person may pose," to "whether the

basis of the determmation would be clear to a judicial officer, who lacks similar expertise"). The
Court is not in a position to assess adequately the merits of many of defendants' objections. In
any event, and notwithstanding that pre-deprivation judicial review would effectively address

many of the substantial objections to a placement on the No Fly List, there is no express statutory

authorization for such pre-listing judicial review; and there are substantial constitutional and

practical issueswith respectto imposing such a requirement. In the absence of additional
evidence concerning the revised DHS TRIP, the Court cannot conclude that pre-deprivation

judicial review and approval is constitutionally required, appropriate or even available. ^
B. Defendants' alternative motion to dismiss based on the State Secrets Privilege

The defendants have renewed their assertion of the state secrets privilege in the context of

the cross motions for summary judgment on Plaintiff's procedural due process claims.'® In
assessing defendants' invocation of the state secrets privilege, the Courtengages in a three-step
process. First, the Courtmust determine whether the assertion of the privilege is procedurally
proper. Second, the Court must independently determine whether the information claimedto be

privileged is, in fact, protected under the state secrets privilege. Third, the Court must determine
whether the case can proceed if the information is protected by the state secrets privilege. See
Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070,1080 (9th Cir.2010); United States v.

^The No Fly List, as it presently exists, has been in effect for over ten years, with extensive
experience under it. Substantial constitutional and other objections have been raised and, to some
extent, sustained with respect to it. Those objections have raised challenging and unresolved
issues concerning the rights of American citizens within the context of the War on Terrorism. It
may be helpful to the courts' dealing with these issues for Congress, at this point, to assess
further that experience and further clarify its expectations for the constitutionally adequate
treatment of affected travelers, particularly those who are American citizens.
See infra at p. 7-8, Doc. No. 144 at p. 2-3.
19

Reynolds, 345 U.S. 1, 10 (1953));

alsoAbilt v. C.LA., No. 1:14-CV-01031-GBL-ID, 2015

WL 566712, at *5 (E.D. Va. Feb. 10,2015).

1. Procedural Requirements for Invoking the Privilege
Defendants' assertion of the state secrets privilege must satisfy three procedural

requirements. "First, the state secrets privilege must be asserted by the United States. It 'belongs
to the Government and ... can neither be claimed nor waived by a private party.' Second, '[tjhere

must be a formal claim of privilege, lodged by the head of the department which has control over

the matter.' Third,the department head's formal privilege claim may be made only 'after actual

personal consideration by that officer.'" El-Masri v. United States^ 479 F.3d296, 304(4thCir.

2007) (quoting Reynolds, supra, 345 U.S. at 7-8). The Court concludes that the defendants have

properly asserted the privilege procedurally. The defendants have all been sued intheir official
capacity as heads of various departments of the United States government. The defendants'
assertion of the privilege has been accompanied by a publicly filed sworn declaration by former
Attorney General Eric H. Holder, Jr., filed in connection with defendants' May 28,2014 motion
to dismiss. Doc. No. 104-1 ("AG Declaration"). The AG Declaration fiirther declares that "after

carefiil and personal consideration of the matter,... disclosure of the three categories of
information [described in the Declaration]... couldreasonably be expected to cause significant

harm to national security". M atH5."

" The AG Declaration also states that the invocation of the state secrets privilege is consistent

with Executive Branch policy issued on September 23, 2009 that the "Department will not
defend an invocation of the privilege in order to ... conceal violations of the law, inefficiency,
or administrative error ... prevent embarrassment... or prevent or delay the release of
information the release of which would not reasonably be expected to cause significant harm to
national security." Doc. No. 104-1 at p. 8.
20

2. Evaluation of the Privilege Claim and How the Case Should Proceed

"After a court has confirmed that the Reynolds procedural prerequisites are satisfied, it
must determine whether the information that the United States seeks to shield is a state secret,

and thus privileged from disclosure. This inquiry is a difficult one, for it pits the judiciary's
search for truth against the Executive's duty to maintain the nation's security —" El Masri,

supra, 479 F.3d at 304-05. This balancing leaves the judiciary "firmly in control of deciding
whether an executive assertion of the state secrets privilege is valid, but subject to a standard

mandating restraint in the exercise of its authority." Id. Nevertheless, "[a] court is obliged to
honor the Executive's assertion of the privilege if it is satisfied, 'from all the circumstances of

the case, that there is a reasonable danger that compulsion of the evidence will expose military
matters which, in the interests of national security, should not be divulged." Idat 305 (quoting

Reynolds, 345 U.S. at 10).'^
In their motion for summary judgment on the procedural due process claim, the

defendants identify two specific types of evidence over which they assert the state secrets

privilege: first, "evidence underlying Plaintiffs alleged placement on the No Fly List" and
second, "information about the process provided to Plaintiff in order to evaluate the risk of

erroneous deprivation in the value of substitute procedures." Doc. No. 159 at p. 38-39. In
support of this position, they have provided both a publically filed unclassified summary and an
exparte, in camera classified summary.

Since Reynolds, Courts have expanded the state secrets privilege to matters related to "foreignaffairs," El Masri, 479 F.3d at 303, and "generally to national security concerns" such as
information that could cause "impairment of the nation's defense capabilities, disclosure of
intelligence-gathering methods or capabilities, and disruption of diplomatic relations with
foreign governments." Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983).
21

The public summary references three categories of information protected under the state

secrets privilege: (1) subject identification (i.e. information that could tend to confirm or deny
whether a particular individual was or was not the subject of an FBI investigation or intelligence
operation); (2) reasons for investigation and results; and (3) sources and methods. The summary

does not identify or describe any specific information but rather generally describes why
information within these categories would be protected. The reasons include:
•

Disclosure "would alert those subjects to the Government's interest in them and
could cause them to attempt to flee, destroy evidence, or alter their conduct so as
to avoid detection ... [and] would seriously impede law enforcement and
intelligence officers' ability to determine their whereabouts or gain further
intelligence on their activities." Doc. No. 104-1 at ^ 8;

•

"[K]nowledge that [subjects of government interest]were under investigation
could enable subjects to anticipate the actions of law enforcement and intelligence
officers,possibly leading to counter-surveillance that could place federal agents at
higher risk, and to ascertainthe identities of confidential informants or other
intelligence sources, placing those sources at risk." Id. H8;

•

"[I]f the fact that some persons are not subject to investigation is disclosed, while
the status of others is left unconfirmed, the disclosure would reveal that the FBI

has had an investigative interest as to those other particular persons ... [which]
would enable individuals and terrorist groups alike to manipulate the system to
discover whether they or their members are subject to investigation." Id. at H9;
•

Individuals who discover that they are not being monitored could be motivated to
commit terrorist acts. Id. at H9;

•

Disclosing reasons for and results from an FBI counterterrorism investigation or
an intelligence activity would "reveal to subjects who are involved in or planning
to undertake terrorist activities what the FBI or the intelligence community knows
or does not know about their plans and the threat they post to national security."
Id.dX\\\\

•

Even for those subjects without terrorist intentions, disclosure of the reasons
could "reveal sensitive intelligence information about them, their associates, or a

particular threat that would harm other investigations" and "could provide insights
to persons intent on committing terrorist attacks as to what type of information is
sufficient to trigger an inquiry by the United States Government, and what
sources and methods the FBI may employ to obtain information about a person."
Id at^f 11;
22

•

Disclosure of sources and methods "could reveal not only the identities of
particular subjects but also the steps taken by the FBI in counterterrorism
matters." /of. at ^ 12;

•

"Any effort to draw distinctions between disclosures that would and would not
cause harm to national security interests would itself reveal sensitive FBI
counterterrorism investigative or intelligence information," and disclosure of
information as to one individual but not another, "then the very act of resisting
disclosure would itself reveal the information that the Government seeks to

protect." /c/. at II13.

Defendants argue that this case cannot proceed because privileged information is at the
heart of the case and is required to litigate both Mohamed's claims and the defendants'

defenses.'^ Claiming that defendants are attempting to invoke theprivilege for purely tactical
reasons, Mohamed emphasizes that "the record [] already ... provides the facts needed to sustain
his claims now." Doc. No. 119 at p. 4. He points to his willingness to litigate without further

discovery from the defendants and "that the government has litigated to the merits claims similar
to Mohamed's, at trial and on summary judgment, without inadvertent disclosure of state

secrets," id. at p. 7, referring to the Latifcase, in whichthe state secrets privilege did not prevent
the adjudication of similar due process claims.
The Court has reviewed and considered all of the submitted information in each of these

categories, including the classified declarations, the underlying classified documents themselves,
and the government's representations and explanations provided to the Court in its closed
hearing on March 17, 2015. Based on that review, the Court concludes that there are aspects of
the information and documents at issue that are protected under the state secrets privilege. The

The defendants point specifically to Mohamed's discovery requests, "seeking information
related to his claims and allegations, namely, information concerning the watchlisting program
generally and his situation individually." Doc. No. 105 at p. 5; see also Doc. No. 168 at p. 19
(where defendants argue for dismissal on the basis that "exclusion of evidence pursuant to the
privilege prevents Defendants from fully litigating several aspects of the procedural due process
claim, as well as from presenting a harmless error defense.").
23

Court also concludes that some of that information may be relevant and necessary for an

adjudication of Mohamed's damages claims. However, even were all the information protected
under the state secrets privilege, as the defendants claim (which the Court does not find), none of
that information is necessary to establish either Mohamed's claim that he was denied

constitutionally required procedural due process in connection with his denial of boarding or an
available defense to that claim.

The information claimed to be protected by the state secrets

privilege in this action is not so central to Mohamed's procedural due process claims so as to

prevent the adjudication of those claims on the merits. That procedural due process claim does
not require reliance on any protected fact specific analysis that may have resulted in any

placement on the No Fly List; rather, it requires an analysis of the procedures afforded to any
U.S. citizen who is denied boarding on an aircraft, procedures that the defendants describe in

detail in their public filings. For these reasons, the Court again concludes that the case need not
be dismissed since the Court can adjudicate whether Mohamed had a constitutionally adequate

opportunity to contest his status without any information claimed to be protected under the state
secrets privilege.
C, Plaintiffs remedy

Mohamed seeks as a remedy for this constitutional violation that he be removed from the

No Fly List, as well as an award of compensatory and punitive damages. However, at this point,
Mohamed's remedy is limited to a constitutionally adequate opportimity to contest any

The Court reaches this conclusion without the need to consider whether a level of protection
short of the complete non-disclosure provided under the state secrets privilege would be
adequate to protect information without endangering national security, such as the type of
protective orders, redactions and summaries routinely used for highly sensitive information in
other types of cases, both civil and criminal.
24

placement on the No Fly List, with an adjudication of any damages claims subject to further
consideration following the outcome of that process or Mohamed's choice to forego that process.
On June 24,2014, the District Court in Latifv. Holder, supra, a case involving a similar

challenge to the No Fly List, ordered the government to "fashion new procedures that provide
Plaintiffs with the requisite due process described herein without jeopardizing national security"
which must include "notice .. .to permit each Plaintiff to submit evidence relevant to the reasons

for their respective inclusions on the No-Fly List" and "any responsive evidence that Plaintiffs

submit in the record to be considered at both the administrative and judicial stages of review,"
which may involve providing the plaintiffs "with unclassified summaries of the reasons for their
respective placement on the No-Fly List or disclose the classified reasons to properly-cleared

counsel." 28 F. Supp. 3d at 1161-62. On April 13, 2015, the government reported to the Court
that it was adopting for all persons seeking a review of their status those revisions to the DHS
TRIP made in response to the Zfl/z/Court's order. See Doc. No. 188.
Under the newly revised procedures, individuals who are denied boarding and apply for
redress through DHS TRIP will now receive a letter stating whether or not a person is listed on

the No Fly List, with the option to receive and/or submit additional information. If the
individual elects to receive additional information, DHS TRIP will provide a second, more

detailed letter identifying the specific criterion under which the individual has been placed on the
No Fly List as well as "an unclassified summary of information supporting the individual's No

Fly List status, to the extent feasible, consistent with the national security and law enforcement
interests at stake." Id. The government explains that the amount and type of information

provided will vary on a case-by-case basis, and in some circumstances, an unclassified summary
may not be possible. The second letter will also invite the individual to submit written responses.

25

including exhibits and other materials that the individual deems relevant. The ISA
Administrator or his or her designee will review such submissions, together with the unclassified
and classified information that is being relied upon to support the No Fly listing, and then will

issue a fmal determination. TSA will provide the individual with a final written determination

containing the basis for the decision and notifying the individual of the ability to seek further
judicial review under 49 U.S.C. § 46110.
The Court cannot conclude based on the present record whether the revised DHS TRIP,

as described above, will provide a constitutionally adequate opportunity for Mohamed to have
his status reviewed. Rather, the revised DHS TRIP process, as described to the Court, would

appear to allow for both a constitutionally adequate post-deprivation review and also a

reviewing court to be presented with an administrative record that allows a sufficient assessment
concerning whether Mohamed was, in fact, given a constitutionally adequate opportunity to
challenge any placement on the No Fly List. More specifically, the Court sees nothing in the
revised DHS TRIP that would preclude an adequate post deprivation process and the creation of
an administrative record that reflects (1) whether, if on the No Fly List, Mohamed was provided

the specific criteria relied on and the specific factual findings used to satisfy that specific criteria,
such that he was in a position to respond to the substance of any derogatory information relied
upon for the purposes of that placement; (2) whether there was a reasonable opportunity for
Mohamed to submit evidence that he does not satisfy the No Fly List criteria; (3) what
information was relied on for the No Fly List placement but withheld fi-om Mohamed, the

reasons for withholding that information and the reasonableness of any such decisions, including
whether additional material information could have been provided, either directly or through
alternative means, such as summaries or redacted documents; (4) the extent to which Mohamed

26

provided information, or could have provided information, that met the substance of any reasons
advanced by the government for his placement on the No Fly List and the TSA's response to any
explanatory, clarifying, or exculpatory information; and (5) whether Mohamed's status is at the

appropriate level of security restrictions for the level of threat sufficiently established by that
administrative record, including why measures short of a total ban on air travel is warranted.

In short, how the revised DHS TRIP would in fact operate with respect to Mohamed's request
for review of his status cannot be assessed with any certainty at this time; and the Court cannot

therefore conclude as a matter of law, based on the present record, that Mohamed would not have
a constitutionally adequate post-deprivation remedy through the revised DHS TRIP. That

process would also allow the Court of Appeals for the Fourth Circuit to consider whether it has

appropriate subject matter jurisdiction pursuant to 49U.S.C. § 46110,'^ orwhether further
agency review would occur in this Court pursuant to the Administrative Procedure Act, 5 U.S.C.
§703.

D. Remaining claims.

The specific criteria that would place someone on the Selectee List, whereby air travel is
permitted under heightened security screening, as opposed to the No Fly List and its total ban on
air travel, is not clear from the public record and that issue remains unclear to the Court even in
light of the totality of the information provided to the Court.

Substantial issues exist concerning whether and in what form DHS TRIP adequately provides
for judicial review of a decision to place someone on the No Fly List. See Ege v. United States
Department ofHomeland Security, 2015 WL 1903206, — F.3d — (D.C. Cir. 2015) (Court of
Appeals has no jurisdiction pursuant to 49 U.S.C. § 46110 to order a person removed from the
No Fly List); Latifv. Holder, 686 F.3d 1122,1129 (9th Cir. 2012) (in action against TSA and
TSC pursuant to 49 U.S.C. § 46110, Court of Appeals lacked subject matter jurisdiction to
address the plaintiffs' procedural challenge to the DHS TRIP process). See also Doc. No. 45, in
which the Fourth Circuit ruled that it did not have exclusive jurisdiction pursuant to 49 U.S.C. §
46110 because Mohamed's requested relief, removal from the No Fly List, would require orders
against TSC as well as TSA. The Court does not believe it appropriate at this point to address
this issue, which should be decided in the first instance by the Fourth Circuit upon review of a
DHS TRIP decision.

27

The parties are directed to file with the Court no later than August 7, 2015 a report
concerning what issues remain to be decided following the Court's rulings herein. Mohamed
should also state whether at this point he wishes to request review of his status under the revised
DHS TRIP, and if so, whether this action should be stayed pending the completion of that

process. The parties should also state whether the Court's rulings herein should be certified
under Fed. R. Civ. P. 54(b) as a final judgment.
IV. Conclusion

For the above reasons, the Court finds and concludes that Plaintiff is entitled to judgment
as a matter of law on Count 3 of his Fourth Amended Complaint, and Plaintiffs Partial Motion

for Summary Judgment [Doc. No. 161] will therefore be GRANTED in part and DENIED in
part, and the defendant's Motion for Partial Summary Judgment [Doc. No. 158] will be
DENIED.

An appropriate Order will issue.

Anthony J. Tj
United States/District Judge
Alexandria, Virginia
July 16, 2015

28