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PARKER & McCONKIE JAMES W. McCONKIE (Bar # 2156) BRADLEY H. PARKER (Bar # 2519) Attorneys for Plaintiff 5664 South Green Street Salt Lake City, Utah 84123 Telephone: (801) 264-1950 Facsimile (801) E-mail: jwmcconkie@utahlawhelp.com E-mail: bparker@utahlawhelp.com
COUNCIL ON AMERICAN-ISLAMIC RELATIONS LENA F. MASRI (DC: 1000019)* GADEIR I. ABBAS (VA: 81161)* Attorneys for Plaintiff National Litigation Director 453 New Jersey Ave, SE Washington, DC 20003 Phone: (202) 488-8787 Facsimile: (202) E-mail: lmasri@cair.com E-mail: gabbas@cair.com
*Licensed in VA, not in Utah. A motion has been filed to admit Lena Marsi and Gadeir I. Abbas to appear in the matter.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

YUSSUF AWADIR ABDI,

)

)

Plaintiff,

)

)

v.

)

)

ANDREW MCCABE, Acting Director of the

Federal Bureau of Investigation, in his official )

capacity;

)

)

CHRISTOPHER M. PIEHOTA, Director of the )

Terrorism Screening Center, in his official

)

capacity;

)

)

Case No. Hon.
)

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HUBAN A. GOWADIA, Acting Administrator, )

Transportation Security Administration

)

(TSA), United States Department of

)

Homeland Security (DHS), in his official

)

capacity;

)

)

KEVIN K. MCALEENAN, Acting Commissioner )

United States Customs and Border Protection; )

in his official capacity, and,

)

)

NICHOLAS J. RASMUSSEN, Director of the )

National Counterterrorism Center, in

)

his official capacity;

)

)

Defendants.

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________________________________________________________________________

_______________________________/

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Plaintiff, Yusuf Awadir Abdi, by and through his attorneys, CAIR National

Legal Defense Fund, Inc. (“Council on American-Islamic Relations” or “CAIR”) and

Parker & McConkie, states as follows:

Introduction

1. Through its No Fly List, the federal government is preventing an

American citizen who is in Kenya now from returning to Utah where he lives.

2. To make matters worse, by preventing this citizen—who is a religious

leader of his community—from flying back to the United States, the Defendants are

preventing him from providing religious services to Muslims in Utah during the holy

month of Ramadan.

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3. These injuries are attributable to the Defendants systematically compiling a terrorist watch list, inventing consequences to inflict on listees, and disseminating this list to anyone willing to receive it.
4. It is why there is no exaggeration in stating that our federal government is imposing an injustice of historic proportions upon people such as Plaintiff Yusuf Awadir Abdi —who has not been arrested, charged, or convicted of any type of terrorism-related offense—as well as thousands of other Americans. Through extra-judicial and secret means, the federal government is ensnaring innocent Americans into an invisible web of consequences that are imposed indefinitely and without recourse because of the shockingly large federal terror watch list that now includes hundreds of thousands of individuals.
5. Indeed, many Americans, including children, end up on this secret federal terror watch list – which the Defendants have named the Terrorist Screening Database (“TSDB”) – based on mere guesses, hunches, and conjecture, and even simply based on matters of race, ethnicity, national origin, religion or the exercise of their constitutional rights.
6. These consequences include the inability to fly on airplanes, to go through security without having all screeners receive a message for the remainder of a listee’s life that he or she is a "known or suspected terrorist," to obtain licenses, to exercise their Second Amendment right to own a firearm, and to be free from the unimaginable indignity and real-life danger of having their own government communicate to hundreds of thousands of federal agents, private contractors, businesses, state and local police, the

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captains of sea-faring vessels, and foreign governments all across the world that they are a violent menace.
7. And unfortunately, the federal government has designed its No Fly List to be accountability-free. Persons placed on the federal terror watch list have no means of challenging the constitutionality of their listing. Indeed, people on the federal terror watch lists only learn of their placement when they feel the web of consequences burdening their lives and aspirations, and they never learn the circumstances that led to their listing.
8. Media accounts have made clear that the secret federal terror watch list is the product of bigotry and misguided, counterproductive zeal. Americans are dumped onto the watch list without being charged, convicted, or in some stomach-churning cases, even subject to an ongoing investigation.
9. Instead, two leaked government documents and a governmental report, which include the March 2013 Watchlisting Guidance (Exhibit 2), the Directorate of Terrorist Identities (DTI): Strategic Accomplishments 2013 (Exhibit 3), and the Department of Justice's March 2014 Audit of the Federal Bureau of Investigation's Management of Terrorist Watchlist (Exhibit 4) reveal that the care the federal government takes in creating its federal terror watch list is void of proper processing, which in turn results in life-altering consequences that flow from these illegal actions.
10. In fact, upon information and belief, Dearborn, a city of less than 100,000 and a place Arab Americans and Muslim Americans have called home for generations, contains the second highest concentration of Americans on the federal government's watch list. Moreover, there have been more than 1.5 million nominations to the federal

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terror watch list since 2009 and that, in 2013 for example, the Terrorist Screening Center converted 98.96 percent of those nominations into watch list placements.
11. Upon information and belief, evidence also shows that the federal government uses guilt-by-association presumptions to place family members and friends of listed persons on the watch list.
12. Moreover, travel to Muslim majority countries—travel that American Muslims are very likely to engage in—is also a basis for watch list placement.
13. In 2009, the federal government made 227,932 nominations to its federal terror watch list. In 2013, that number more than doubled at an alarming and dangerous rate to 468,749.
14. Recently, a federal court judge observed in Gulet Mohamed v. Eric R. Holder, Jr., et al. (United States District Court, Eastern District of Virginia, Case No. 11cv-00050 (2011)), that “[a] showing of past or ongoing unlawful conduct does not seem to be required,… But the Court has little, if any, ability to articulate what information is viewed by TSC as sufficiently ‘derogatory’ beyond the labels it has provided the Court. In sum, the No Fly List assumes that there are some American citizens who are simply too dangerous to be permitted to fly, no matter the level of pre-flight screening or onflight surveillance and restraint, even though those citizens cannot be legally arrested, detained, or otherwise restricted in their movements or conduct.” See United States District Court, Eastern District of Virginia, Case No. 11-cv-00050 (2011); Dkt. 70 at 19; attached as Memorandum Opinion (Exhibit 1).
15. Moreover, the Court went on to find that “[i]nclusion on the No Fly List also labels an American citizen a disloyal American who is capable of, and disposed

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toward committing, war crimes, and one can easily imagine the broad range of consequences that might be visited upon such a person if that stigmatizing designation were known by the general public… The process of nomination to the No Fly List is based on a suspected level of future dangerousness that is not necessarily related to any unlawful conduct.” See United States District Court, Eastern District of Virginia, Case No. 11-cv-00050 (2011); Dkt. 70 at 14, 17; attached as Memorandum Opinion (Exhibit 1).
Parties 16. Plaintiff Yusuf Awadir Abdi is a United States Citizen and a Muslim residing in Salt Lake County, Utah. 17. Defendant Andrew McCabe is the Director of the Federal Bureau of Investigation (“FBI”). Defendant McCabe is responsible for the nominations of Plaintiff and other similarly situated American citizens to the federal terror watch list. Defendant McCabe is being sued in his official capacity, only. 18. Defendant Christopher M. Piehota is the Director of the Terrorist Screening Center (“TSC”). Defendant Piehota was appointed in April, 2013. Defendant Piehota develops and maintains the federal government’s consolidated Terrorism Screening Database (the “watch list”), and accepted the nominations of Plaintiff and other similarly situated American citizens to the federal terror watch list. Defendant Piehota also oversees the dissemination of the stigmatizing label attached to Plaintiff and other similarly situated American citizens of “known or suspected terrorists” to state and local authorities, foreign governments, corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among

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other official and private entities and individuals. Defendant Piehota is being sued in his official capacity, only.
19. Defendant Huban A. Gowadia is Acting Administrator of the Transportation Security Administration (“TSA”). Defendant Gowadia oversaw the dissemination of the stigmatizing label attached to Plaintiff and other similarly situated American citizens of “known or suspected terrorists” to state and local authorities, foreign governments, corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private entities and individuals. Defendant Gowadia is being sued in his official capacity, only.
20. Defendant Kevin K. McCaleenan is Acting Commissioner of the National Counterterrorism Center (“NCTC”). Defendant McCaleena is responsible for the nominations that resulted in the placement of Plaintiff and other similarly situated American citizens on the federal terror watch list. Defendant McCaleenan is being sued in his official capacity, only.
Jurisdiction and Venue 21. Under U.S. Const. Art. III §2, this Court has jurisdiction because the rights sought to be protected herein are secured by the United States Constitution. Jurisdiction is proper pursuant to 28 U.S.C. § 1331, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), et seq., 5 U.S.C. § 702, 5 U.S.C. § 706, the United States Constitution, and federal common law.

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22. This action seeks declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § § 2201-02, Rules 57 and 65 of the Federal Rules of Civil Procedure, and pursuant to the general, legal, and equitable powers of this Court.
23. A substantial part of the unlawful acts alleged herein were committed within the jurisdiction of the United States District Court for the District of Utah.
24. Venue is proper under 42 U.S.C. § 1391(e) as to all Defendants because Defendants are officers or employees of agencies of the United States sued in their official capacities and because this judicial district is where Plaintiff resides and where a substantial part of the events or omissions giving rise to the claims occurred.
Factual Background Plaintiff Yussuf Awadir Abdi’s Inability to Return to the United States 25. Plaintiff Yussuf Awadir Abdi (hereinafter “Imam Abdi”) is a Muslim religious leader and Imam of Madina Masjid Mosque in Salt Lake City, Utah. 26. Some time in 2014, the federal government placed Imam Abdi on the Selectee List component of the federal terror watch list, having secretly concluded that officials had a “reasonable suspicion” that Imam Abdi was “associated with terrorism.” See Exhibit 2. 27. Imam Abdi knows that he was on the Selectee List because, for approximately the last three years, every time he travels by air, he is unable to check in to his flights online or at the kiosks stationed at the airports. 28. Rather, he is directed to check in manually with an airline representative in order to print his boarding pass.

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29. The airline representative, after pulling up his name on the computer system, would contact the Department of Homeland Security in order to obtain clearance so that he could fly.
30. Once clearance from the Department of Homeland Security is obtained, the airline representative would then print his boarding pass, which would be stamped with the “SSSS” designation, indicating that he has been designated as a “known or suspected terrorist.”
31. Imam Abdi was then subjected to routine secondary inspections, prolonged searches and questioning every time he traveled by air.
32. Imam Abdi filed a redress request through DHS TRIP some time in 2016. 33. On May 22, 2017, Imam Abdi received a letter as described in paragraph 133 below and was assigned a Redress Control Number. While that letter contained many words, it provided no information—not notice of his placement nor some means by which to challenge his designation—about Imam Abdi’s status as a listee. 34. On June 14, 2017, Imam Abdi appeared at Jomo Kenyatta International Airport in Nairobi, Kenya to board a commercial flight back to his home in the United States. 35. Because his visa petitions that he filed for his wife and two of his children had just been approved, Imam Abdi had traveled to Kenya to bring his wife and five children with him to the United States. His remaining three children are United States Citizens. 36. Imam Abdi tried to check in at a kiosk stationed at the airport, however, he was directed to an airline representative to manually check him in for his flight.

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37. Imam Abdi then presented himself at the Qatar Airlines ticket counter. 38. Although his wife and children were able to print their boarding passes, the Qatar Airlines representative told Imam Abdi that the United States would not allow him to board his flight in order to return to his home in the United States. 39. The following day, on June 15, 2017, Imam Abdi appeared at the United States Embassy in Nairobi, Kenya to obtain information as to why he was denied boarding and being prevented from returning to his home in the United States. 40. However, the United States Embassy did not provide him with any information. 41. Imam Abdi rescheduled his flight to the United States to leave later this evening on this date, June 16, 2017. 42. Upon information and belief, Imam Abdi was upgraded from the Selectee List to the No Fly List after he arrived in Kenya. 43. As a result, he was extrajudicially exiled from his country of citizenship, the United States. 44. Moreover, in the event that Imam Abdi is not removed from the No Fly List, he will be unable to board his flight rescheduled for tonight back home to the United States. 45. As a result of being denied boarding, Imam Abdi was unable to return home in time for the last ten nights of the holy month of Ramadan, the most important and blessed nights of Ramadan, when he is expected to lead prayers throughout each night at his mosque. The last ten nights of Ramadan began on the night of June 15, 2017.

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46. Ramadan is a holy month of spirituality and devotion observed by Muslims worldwide, whereby Muslims fast from sunrise to sunset.
47. Moreover, Imam Abdi is designated to lead a group of Muslims to perform the Hajj, or religious pilgrimage in Saudi Arabia, which is scheduled to begin on August 30, 2017.
48. In the event Imam Abdi is not removed from the No Fly List, he will be unable to travel to Saudi Arabia to perform the Hajj, nor will he be able to lead the group that he is scheduled to lead.
49. At no time was Imam Abdi given notice of the factual basis for his placement on the federal terror watch list, and at no time was he offered a meaningful opportunity to contest his designation.
50. Moreover, at no time was Imam Abdi given notice of the deprivation of his liberty interests or violation of his constitutional rights.
51. Upon information and belief, Imam Abdi’s nomination to and designation on the federal terror watch list was made based solely upon a hunch (based upon his race, ethnicity, national origin, religious affiliation, guilt-by-association, or First Amendment protected activities).
52. Upon information and belief, because Imam Abdi is included on the federal terror watch list, and specifically the No Fly List, Defendants disseminated and are continuing to disseminate his designation as a “known or suspected terrorist” to state and local authorities (including the local police officers above), foreign governments, corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, among other official and private entities and individuals.

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53. Upon information and belief, because Imam Abdi is still included on the No Fly List, he remains unable to board a flight and return to his home in the United States.
The Federal Government’s Terrorist Watch List 54. In September, 2003, Attorney General John Ashcroft established the Terrorist Screening Center (“TSC”) to consolidate the government’s approach to terrorism screening. The TSC, which is administered by the FBI, develops and maintains the federal government’s consolidated Terrorism Screening Database (the “watch list”). TSC’s consolidated watch list is the federal government’s master repository for suspected international and domestic terrorist records used for watch list related screening. 55. The watch list has two primary components: the Selectee List and the No Fly List. Persons on the Selectee List are systematically subject to extra screening at airports and land border crossings, and often find “SSSS” on their boarding passes printed by airline employees which is marked to indicate a passenger’s watch list status to airline employees and screeners. Persons on the No Fly List, including Plaintiff, are prevented from boarding flights that fly into, out of, or even through United States airspace. 56. Defendant TSC disseminates records from its terrorist watch list to other government agencies that in turn use those records to identify suspected terrorists. For example, applicable TSC records are provided to TSA for use by airlines in pre-screening passengers and to CBP for use in screening travelers entering the United States by land. 57. Upon information and belief, Defendants disseminated the records of Plaintiff from their terrorist watch list to other government agencies, including Defendant

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TSA for use by airlines in pre-screening Plaintiff, and Defendant CBP for use in screening Plaintiff upon entering the United States.
58. Upon information and belief, Defendants disseminated the records pertaining to Plaintiff from their terrorist watch list to foreign governments with the purpose and hope that those foreign governments will constrain the movement of Plaintiff in some manner.
59. Upon information and belief, Defendants’ intention in disseminating watch list records, including those of Plaintiff and similarly situated American citizens, as widely as possible is to constrain their movements, not only within the United States, but abroad as well. For example, some countries detain individuals listed on the federal terror watch list who enter their borders, question those individuals at the behest of United States officials, or altogether prevent those individuals from even entering those countries.
60. Thus, while the TSC maintains and controls the database of suspected terrorists, it is the front-line agencies like the TSA that carry out the screening function. In the context of air travel, when individuals make airline reservations and check in at airports, the front-line screening agency, like TSA and CBP, conducts a name-based search of the individual, including that of Plaintiff, to determine whether he or she is on a watch list.
61. While agencies throughout the federal government utilize the federal terror watch list to conduct screening, listed persons are subject to a comprehensive portfolio of consequences that cover large aspects of their lives.

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62. Indeed, Defendants disseminated the federal terror watch list to government authorities, private corporations and individuals with the purpose and hope that these entities and/or individuals will impose consequences on those individuals Defendants have listed, including Plaintiff.
63. Upon information and belief, the status of Plaintiff and similarly situated American citizens as known or suspected terrorists on the federal terror watch list diminishes and even imperils their ability to access the financial system.
64. Banks have closed the bank accounts of individuals listed on the federal terror watch list and financial companies have declined to allow some listed individuals to make wire transfers.
65. Moreover, upon information and belief, family-based immigration applications filed by Plaintiff and similarly situated American citizens are delayed indefinitely due to an “FBI name check” and not adjudicated, thereby denying Plaintiff and similarly situated American citizens of the rights that flow from citizenship, including the ability to sponsor for lawful permanent residency immediate relatives living abroad.
66. Among the entities and individuals that the federal government disseminates its federal terror watch list are state and local authorities, foreign governments, corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among others.
67. In fact, in 2015, Defendant Piehota, Director of the Terrorist Screening Center, gave an exclusive interview to CNN and stated the following, in relevant part:
It's concerning that our partners don't use all of our data. We provide them with tools. We provide them with

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support, and I would find it concerning that they don't use these tools to help screen for their own aviation security, maritime security, border screening, visas, things like that for travel.1 68. Defendant Piehota went on to state that the United States shares its federal terror watch list with the European Union, but that European Union countries do not systematically utilize it to identify suspected terrorists or screen migrants coming. 69. Upon information and belief, because the names of Plaintiff and similarly situated American citizens are included on the federal terror watch list, their names were disseminated to state and local authorities, foreign governments, corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private entities and individuals. 70. Because the federal government disseminates its federal terror watch list to foreign governments, listed persons, including Plaintiff and similarly situated American citizens, are often not allowed to enter other nations. This is because the United States is telling other nations, without any modicum of due process, that thousands of its own citizens are “known or suspected terrorists.” 71. The federal government, through Defendants, disseminates its federal terror watch list to state and local police officers which allows those officers to query the names of persons, including Plaintiff, if for example, the listed individual is pulled over for routine traffic violations. 72. Disseminating the federal terror watch list to state and local police officers creates a dangerous situation insofar as the federal terror watch list effectively directs
1 First on CNN: Top U.S. intel official: Europe not taking advantage of terror tracking tools, CNN, available at: http://www.cnn.com/2016/04/07/politics/christopher-piehota-us-intel-europe-terror-tracking/

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state and local officers to treat thousands of Americans, including Plaintiff, charged or convicted with no crime yet listed as a “known or suspected terrorist” as extremely dangerous.
73. With the advent and deployment of automatic license plate readers by police departments across the country, local and state authorities have relied heavily upon a driver’s watch list status as the basis of a traffic stop, including Plaintiff and similarly situated American citizens.
74. Being on the federal terror watch list can prevent listed persons, including Plaintiff and similarly situated American citizens, from purchasing a gun. For example, New Jersey passed a law in 2013 that banned persons on the federal terror watch list from owning guns.
75. Accordingly, Plaintiff and similarly situated American citizens are unable to purchase guns in states that ban persons on the federal terror watch list from owning guns.
76. Because the federal government conducts a security risk assessment that includes querying the federal terror watch list prior to issuing a license to commercial drivers to transport hazardous materials, being on the federal terror watch list can prevent listed persons, including Plaintiff and similarly situated American citizens, from obtaining or renewing their Hazmat license.
77. Being on the federal terror watch list can also prevent listed persons, including Plaintiff and similarly situated American citizens, from accompanying minors or passengers with disabilities to their gate, from working at an airport, or working for an

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airline insofar as listed persons are not allowed to enter so-called “sterile areas” of airports.
78. Being on the federal terror watch list can also result in the listing of the false stigmatizing label of “known or suspected” terrorist on the criminal records of Plaintiff and similarly situated American citizens, information that is publicly accessible to the general public.
79. Being on the federal terror watch list can also result in the denial or revocation of a Federal Aviation Administration (FAA) license of Plaintiff and similarly situated American citizens.
80. Although TSA, CBP, and other agencies may use the records provided by the TSC, it is the TSC that maintains and controls the database of suspected terrorists.
81. Two government entities are primarily responsible for “nominating” individuals for inclusion in the terrorist watch list—Defendants NCTC and FBI. The NCTC, which is managed by the Office of the Director of National Intelligence, relies on information from other federal departments and agencies when including alleged known or suspected international terrorists in its Terrorist Identities Datamart Environment (“TIDE”) database. The NCTC reviews TIDE entries and recommends specific entries to the TSC for inclusion in the watch list. TIDE is the main source of all international terrorist information included in the watch list.
82. Defendant FBI, in turn, nominates to the watch list individuals with what it characterizes as suspected ties to domestic terrorism.
83. Defendant TSC makes the final decision on whether a nominated individual meets the minimum requirements for inclusion into the watch list as a known

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or suspected terrorist. TSC also decides which screening systems will receive the information about that individual.
84. Former Director of the Terrorism Screening Center Healy has testified that in evaluating whether an individual meets the criteria for inclusion on the consolidated watch list, the TSC determines whether the nominated individual is “reasonably suspected” of having possible links to terrorism. According to the TSC, “reasonable suspicion requires articulable facts which, taken together with rational inferences, reasonably warrant the determination that an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in and of or related to terrorism and terrorist activities.”
85. Defendants have not stated publicly what standards or criteria are applied to determine whether an American citizen on the consolidated watch list will be placed on the No Fly List, Selectee List (“SSSS”) or other list that is distributed to the TSA, CBP or other screening agencies.
86. The standards for watch list inclusion do not evince even internal logic. Defendants define a “suspected terrorist” as an “individual who is reasonably suspected to be, or have been, engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities based on articulable and reasonable suspicion.” In other words, Defendants place American citizens on the federal terror watch list based upon a “reasonable suspicion” that they are “reasonably suspected” of nefarious activities. This “reasonable suspicion” based on a “reasonable suspicion” standard does not even contain internal logic.

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87. The federal government utilizes guilt-by-association as a basis for watch list inclusion. For example, the immediate relative of listed persons can be listed without any derogatory information—other than the bonds of family. Nonetheless, such designation suggests that the immediate relative is him or herself engaged in nefarious activities.
88. Being a known associate—a friend, colleague, fellow community member, etc.—of a listed individual can also provide a basis for watch list inclusion.
89. Even if an American citizen is acquitted of terrorism charges or those charges are otherwise dismissed, the federal government retains for itself the authority to continue to include them in the watch list.
90. For reasons unknown, Defendants also place what they call “noninvestigatory subjects” on the federal terror watch list, American citizens that they have chosen not to investigate.
91. Under these practices and standards, the number of records in the consolidated watch list has swelled. Over 1.5 million nominations to the watch list have been submitted by federal agencies since fiscal 2009.
92. In 2013, Defendant TSC accepted 98.96 percent of all nominations made. 93. Because of these loose standards and practices, the federal terror watch list’s rate of growth has increased. In fiscal 2009, there were 227,932 nominations to the watch list. In fiscal 2013, there were 468,749 nominations. 94. Upon information and belief, in 2001, there were 16 people who the federal government systematically prevented from flying. In 2013, that number increased to 47,000.

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95. Once an American citizen has been placed on the watch list, the individual remains on the list until the agency that supplied the initial information in support of the nomination determines the individual should be removed.
96. A 2007 GAO report found that TSC rejects only approximately one percent of all nominations to the watch list.2 As such, the watch list is growing at a rate of approximately 20,000 entries per year.
97. At a March 10, 2010 Senate Homeland Security Committee hearing, Russel E. Travers, Deputy Director of the National Counterterrorism Center, stated that “[t]he entire federal government is leaning very far forward on putting people on list,” and that the watch list is “getting bigger, and it will get even bigger.”
98. The federal terror watch list disproportionately targets American Muslims. 99. Almost all publicly known instances of Americans being placed on the watch list regard Muslims or persons who could be mistaken for Muslims. 100. Defendants have utilized the watch list, not as a tool to enhance aviation and border security, but as a bludgeon to coerce American Muslims into becoming informants or forgoing the exercise of their rights, such as the right to have an attorney present during law enforcement questioning. 101. Public examples of this phenomenon abound. See Latif v. Holder, 2014 U.S. Dist. LEXIS 85450, *19 (D. Or. June 24, 2014) (an FBI agent told Steven Washburn that he “would help remove Washburn's name from the No Fly List if he agreed to speak to the FBI”); Id. at *21-22 (FBI agents told Ibraheim Mashal that “his name would be
2 See United States Government Accountability Office Report to Congressional Requesters entitled Terrorist Watch List Screening: Opportunities Exist to Enhance Management Oversight, Reduce Vulnerabilities in Agency Screening Processes, and Expand Use of the List, GAO-08-110, October 2007, at 22.

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removed from the No Fly List and he would receive compensation if he helped the FBI by serving as an informant.”): Id at *22-23 (FBI agents offered Amir Meshal “the opportunity to serve as a government informant in exchange for assistance in removing his name from the No Fly List.”). See also Fikre v. FBI, 2014 U.S. Dist. LEXIS 73174 (D. Or. May 29, 2014) (Emirati officials told Yonas Fikre that he “could not travel to the United States by air because he is on the No Fly List” and an FBI agent told Fikre that “the FBI could take steps to remove [him] from the No Fly List if he agreed to be an informant.”); Tanveer v. Holder, et. al., No. 13-cv-6951, Dkt. 15 (April 22, 2014) (Naveed Shinwari “declined to act as an informant for the Federal Bureau of Investigation and to spy on [his] own American Muslim communities and other innocent people.”).
102. Additionally, government records show that Dearborn, Michigan—which is 40 percent Arab—is disproportionately represented on the federal terror watch list. In fact, Dearborn is among the top five cities in the country, alongside Chicago, Houston, New York, and San Diego, represented on the federal terror watch list.
103. Due to Dearborn’s significant population of Muslims, it has earned a reputation as the “Muslim Capital of America.”
104. Defendants’ 2013 Watchlisting Guidance also indicates that “[t]ravel for no known lawful or legitimate purpose to a locus of terrorist activity” can be a basis for being listed. While a “locus of Terrorist Activity” is not defined by the document, upon information and belief, it likely includes any place where many Muslims reside.

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105. The federal terror watch list’s inclusion standards are so permissive and pliable and the selectee list's efficacy is at best fleetingly marginal that the inclusion standards themselves violate Plaintiff procedural and substantive due process.
106. The federal terror watch list diminishes, rather than enhances, our national security because the number of innocent Americans on the list is becoming so voluminous that the purpose of having a list is significantly undermined as all are being treated as the same.
107. The consequences of being on the federal terror watch list are meted out publicly. Members of the public can witness the extra screening to which individuals on the federal terror watch list are subject, oftentimes in front of family and colleagues, including being pulled out of their car at gunpoint, being ordered to leave their vehicle with their hands held above their head, among other stigmatizing measures.
108. In practice, frontline screeners disclose the status of individuals on the federal terror watch list to state and local authorities, as well as airline employees.
109. The operation of the federal terror watch list enlists air carriers to assist the federal government in tracking the passenger on the federal terror watch list.
110. Defendants apply the federal terror watch list against Muslim Americans in a manner that is different from how they use their list against people of other faith backgrounds.
111. Defendants use impermissible and inaccurate religious profiles in compiling the federal terror watch list.

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112. Defendants who contributed to the placement of Plaintiff and similarly situated American citizens on the federal terror watch list knew that their actions violated clearly established federal law.
113. Defendants knew at the time they acted unlawfully that Supreme Court precedent required that, whenever a citizen is deprived of a liberty interest, the federal government must at least provide the deprived with some form of notice that a deprivation occurred.
The Federal Government’s Terrorist Watch List Is No More Effective Than a List of Randomly Selected Individuals 114. Defendants’ ability to watch list persons who pose a threat of terrorism, can be measured and described using a quantitative analysis based on factual allegations made in this Complaint as well as publicly available information describing the current operation of the federal terror watch list. 115. Upon information and belief, the federal government has placed approximately one million persons on the federal terror watch list over the last ten years. 116. Moreover, based on the University of Maryland’s Global Terrorism Database, a project funded in part by the Department of Homeland Security, there have been less than 250 terrorist acts inside the United States over the last decade. These terrorist acts were perpetrated by less than 250 persons. 117. Only one of these perpetrators was designated on the federal terror watch list by the federal government prior to their criminal conduct. This single person designated on the federal terror watch list, however, was removed from the federal terror watch list prior to perpetrating the terrorist attack.

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118. Upon information and belief, in order to designate a person on the federal terror watch list, the federal government must first have information about that person. Because the federal government does not possess information on every person in the world, existing law enforcement and intelligence practices produce a subset of persons who the federal government can then screen against the federal terror watch list’s inclusion standards.
119. The precise size of this subset is unknown, however a survey of law enforcement and intelligence practices indicates that the size of this subset is greater than 50 million people.
120. Upon information and belief, the practices that produce this subset exclude some persons who do pose a threat of terrorism and include some persons who do not pose a threat of terrorism.
121. Upon further information and belief, the federal government does not screen the entire subset of people known to it. Moreover, Defendants do not make individual determinations as to whether each person about whom they know should be placed on the federal terror watch list.
122. In order to designate a person on the federal terror watch list, a federal government official must make a nomination and a TSC official must accept the nomination.
123. Upon information and belief, TSC officials accept nominations at a rate above 95 percent.

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124. Based on the facts alleged in this Complaint and the publicly known processes of the federal terror watch list, a quantitative analysis can be constructed to measure and describe the performance of the federal terror watch list.
125. A quantitative analysis demonstrates that, in order to accomplish the federal terror watch list’s stated objectives, Defendants must have at least some greaterthan-random ability to identify future terrorists. This is due to the nature of the processes Defendants utilize to place persons on the federal terror watch list and the size of the population Defendants can—if they so choose—screen against the federal terror watch list’s inclusion standards.
126. A quantitative analysis also demonstrates that Defendants’ watch listing system would perform similarly if inclusion on the watch list was done via random selection instead of the existing inclusion standards Defendants utilize.
127. A quantitative analysis therefore indicates that Defendants have no ability to watch list persons whose placement on the watch list would further Defendants’ stated objectives.
Inadequacy of the DHS Traveler Redress Inquiry Program Process 128. The government entities and individuals involved in the creation, maintenance, support, modification and enforcement of the federal terror watch list, including Defendants, have not provided travelers, including Plaintiff and similarly situated American citizens, with a fair and effective mechanism through which they can challenge the TSC’s decision to place them on the terrorist watch list. 129. An individual, including Plaintiff and similarly situated American citizens, who has been prevented or hindered from travel by being placed on the federal terror

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watch list has no clear avenue for redress, because no single government entity is responsible for removing an individual from the list. The TSC, which is administered by the FBI, does not accept redress inquiries from the public, nor does it directly provide final disposition letters to individuals on the selectee list or similarly situated American citizens, who have submitted redress inquiries. The NCTC which manages the TIDE list does not accept redress inquiries from the public.
130. Individuals who seek redress after having been included in the terrorist watch list must submit an inquiry through the DHS Traveler Redress Inquiry Program (“DHS TRIP”). DHS TRIP provides individuals with a “Redress Control Number.”
131. DHS TRIP is the only redress “process” available to individuals included on the terrorist watch list.
132. DHS TRIP submits traveler complaints to the TSC, which determines whether any action should be taken. The TSC has not provided any publicly available information about how it makes that decision. The TSC is the final arbiter of whether an individual’s name is retained on or removed from the watch list, including those of Plaintiff and similarly situated American citizens.
133. The TSC makes a determination regarding a particular individual’s status on the watch list, including Plaintiff and similarly situated American citizens, and DHS in turn responds to the individual with a standard form letter that neither confirms nor denies the existence of any terrorist watch list records relating to the individual. The letters do not set forth any basis for inclusion in a terrorist watch list, do not state whether the government has resolved the complaint at issue.

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134. The government does not provide an American citizen with any opportunity to confront, or to rebut, the grounds for his or her possible inclusion on the watch list. As such, DHS TRIP offers no meaningful review of the watch list designation and in effect shields the TSC’s actions with respect to the individual nominations or classes of nominations from meaningful review by any independent authority.
135. Moreover, the government’s own internal audits of the system point to serious flaws. For example, a March 2008 DOJ Office of the Inspector General report entitled Audit of the U.S. Department of Justice Terrorism Watchlist Nomination Processes found significant problems with the nomination and removal process.
136. Thus, the only “process” available to such individuals is to submit their names and other identifying information to a government entity that has no authority to provide redress and to hope that an unspecified government agency corrects an error or changes its mind.
137. Plaintiff is a United States citizen. 138. Plaintiff has not been arrested, charged, nor convicted of a terrorismrelated offense.
COUNT I FAILURE TO PROVIDE POST-DEPRIVATION NOTICE AND HEARING IN VIOLATION OF THE FIFTH AMENDMENT RIGHT TO PROCEDURAL DUE
PROCESS (Jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702)
139. The foregoing allegations are realleged and incorporated herein. 140. Plaintiff and other similarly situated American citizens learned that he was placed on the federal terror watch list subsequent to being added on the federal terror watch list and sought to challenge such placement.

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141. Defendants’ actions as described above in refusing to provide Plaintiff and other similarly situated American citizens with any notice at all of their placement which deprived Plaintiff and other similarly situated American citizens of constitutionally protected liberty interests.
142. Defendants’ actions in nominating Plaintiff and other similarly situated American citizens to the federal terror watch list blatantly violate the requirement that “’nominations’ must not be solely based on race, ethnicity, national origin, religious affiliation, or First Amendment protected activities.” 49 U.S.C. § 114(h)(3).
143. Plaintiff and other similarly situated American citizens have a liberty interest in traveling free from unreasonable burdens that are not reasonably tailored within, to, and from the United States, through land border crossings and over U.S. air space.
144. Plaintiff and other similarly situated American citizens have a right to be free from false government stigmatization as individuals who are “known or suspected to be” terrorists, or who are otherwise associated with terrorist activity, when such harm arises in conjunction with the additional consequences that follow from being listed as well as the deprivation of their right to travel on the same terms as other travelers and/or the deprivation of their liberty interest under the Fifth Amendment in travel free from unreasonable burdens.
145. Plaintiff and other similarly situated American citizens have a liberty interest in nonattainder (ie: the interest against being singled out for punishment without trial). Defendants’ actions have singled out Plaintiff and others similarly situated for punishments that include, but are not limited to, inability to travel by air and

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unreasonable burdens placed upon traveling by air to and from the United States, over U.S. air space and at land border crossings, and false association with a list of individuals suspected of terrorism.
146. Plaintiff and other similarly situated American citizens, having been burdened or prevented from boarding on commercial flights or entering the United States at land border crossings, having had their bank accounts closed, having been prevented from making wire transfers at financial institutions, having had their citizenship applications delayed indefinitely due to an “FBI name check,” having lost lucrative economic opportunities and suffering from other forms of financial harm, having been prevented from test driving or purchasing vehicles at a car dealership, and having sought to challenge their placement on the federal terror watch list, are entitled to a constitutionally adequate legal mechanism that affords them notice of the reasons and bases for their placement on the federal terror watch list and a meaningful opportunity to contest their continued inclusion on the federal terror watch list. Defendants have even failed to provide the most basic ingredient of due process, which is notice that the government has deprived a person of their protected rights.
147. Moreover, Defendants have officially imposed on Plaintiff and other similarly situated American citizens the stigmatizing label of “known or suspected terrorists” without a constitutionally adequate legal mechanism.
148. Further, Defendants disseminated the stigmatizing label attached to Plaintiff and other similarly situated American citizens of “known or suspected terrorists” to state and local authorities, foreign governments, private corporations, private

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contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private entities and individuals.
149. By imposing on Plaintiff and other similarly situated American citizens the stigmatizing label of “known or suspected terrorists” and by failing to provide Plaintiff and others similarly situated with a constitutionally adequate legal mechanism, Defendants have deprived Plaintiff and other similarly situated American citizens of their protected liberty interests, including but not limited to their liberty interests in traveling, freedom from false stigmatization, and nonattainder, and thus violated the constitutional rights of Plaintiff and other similarly situated American citizens without affording them due process of law and will continue to do so into the future if Plaintiff and other similarly situated American citizens are not afforded the relief demanded below.
WHEREFORE, Plaintiff requests this Honorable Court grant declaratory and injunctive relief in the form described in the Prayer for Relief below, plus all such other relief this Court deems just and proper including costs and attorneys’ fees incurred in this action.
COUNT II DEPRIVATION OF PROTECTED LIBERTIES IN VIOLATION OF FIFTH
AMENDMENT RIGHT TO SUBSTANTIVE DUE PROCESS (Jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702)
150. The foregoing allegations are realleged and incorporated herein. 151. Because Plaintiff and other similarly situated American citizens were listed by Defendants in a manner not narrowly tailored to a compelling interest, Defendants’ actions as described above in including Plaintiff and other similarly situated American citizens on a watch list that unreasonably burdens or prevents them from boarding commercial flights or entering the United States at land border crossings, are

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arbitrary and capricious, lack even a rational relationship to any legitimate government interest, and have unduly deprived Plaintiff of constitutionally protected rights, including his liberty interests in travel, freedom from false stigmatization, and nonattainder.
152. Defendants’ actions in nominating Plaintiff and other similarly situated American citizens to the No Fly List blatantly violate the requirement that “’nominations’ must not be solely based on race, ethnicity, national origin, religious affiliation, or First Amendment protected activities.” 49 U.S.C. § 114(h)(3).
153. By placing Plaintiff and other similarly situated American citizens on the federal terror watch list, Defendants have placed an undue burden on their fundamental right of movement.
154. By placing Plaintiff and other similarly situated American citizens on the federal terror watch list, Defendants have treated them like second-class citizens.
155. Defendants’ watch list lacks a compelling interest insofar as their true purpose is to provide law enforcement with a tool to coerce American Muslims into becoming informants.
156. Defendants’ watch list is also not narrowly tailored insofar as the federal terror watch list are entirely and demonstrably ineffectual and obvious alternatives exist.
157. Defendants’ actions in placing Plaintiff and other similarly situated American citizens on the federal terror watch list, officially imposing on Plaintiff and other similarly situated American citizens the stigmatizing label of “known or suspected terrorists,” and disseminating the stigmatizing label to state and local authorities, foreign governments, corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private

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entities and individuals, without a constitutionally adequate legal mechanism, are arbitrary and capricious, shock the conscience, violate the decencies of civilized conduct and are so brutal and offensive that they do not comport with the traditional ideas of fair play and decency.
158. Because Plaintiff and other similarly situated American citizens have not been charged with any crimes and are United States Citizens, Plaintiff challenges his placement and the placement of others similarly situated American citizens on the federal terror watch list on a broad, as-applied basis.
159. Plaintiff’s substantive due process challenge is also facial, as there are no circumstances where his placement or the placement of others similarly situated on the federal terror watch list is narrowly tailored to achieve any compelling government interest.
160. Defendants have thus violated Plaintiff’s constitutional rights and the constitutional rights of other similarly situated American citizens without affording them due process of law and will continue to do so into the future if Plaintiff and other similarly situated American citizens are not afforded the relief demanded below.
161. By placing Plaintiff and other similarly situated American citizens on the federal watch list, Defendants caused them an actual, imminent and irreparable injury that cannot be undone through monetary remedies.
WHEREFORE, Plaintiff requests this Honorable Court grant declaratory and injunctive relief in the form described in the Prayer for Relief below, plus all such other relief this Court deems just and proper including costs and attorneys’ fees incurred in this action.

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COUNT III UNLAWFUL AGENCY ACTION IN VIOLATION OF THE ADMINISTRATIVE
PROCEDURE ACT, 5 U.S.C. §§ 702, 706 (Jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702) 162. The foregoing allegations are realleged and incorporated herein. 163. Defendants’ actions in placing Plaintiff and other similarly situated American citizens on the federal terror watch list, officially imposing on Plaintiff and other similarly situated American citizens the stigmatizing label of “known or suspected terrorists,” and disseminating the stigmatizing label to state and local authorities, foreign governments, corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private entities and individuals, without a constitutionally adequate legal mechanism, were and are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity, and should be set aside as unlawful pursuant to 5 U.S.C. § 706. 164. Defendants’ actions in nominating Plaintiff and other similarly situated American citizens to the federal terror watch list blatantly violate the requirement that “’nominations’ must not be solely based on race, ethnicity, national origin, religious affiliation, or First Amendment protected activities.” 49 U.S.C. § 114(h)(3). 165. Defendants’ failure to provide Plaintiff and other similarly situated American citizens, who have been unreasonably burdened or denied boarding on commercial flights or entering the United States across the border and sought to challenge their placement on the federal terror watch list, with a constitutionally adequate mechanism that affords them notice of the reasons and bases for their placement on the

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federal terror watch list and a meaningful opportunity to contest their continued inclusion on the federal terror watch list is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity, and should be set aside as unlawful pursuant to 5 U.S.C. § 706.
166. Because Plaintiff and other similarly situated American citizens do not present a security threat to commercial aviation, Defendants’ actions as described above in including Plaintiff and other similarly situated American citizens on the federal terror watch list that unreasonably burdens or prevents them from boarding commercial flights or entering the United States across the border, are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity, and should be set aside as unlawful pursuant to 5 U.S.C. § 706.
167. By placing Plaintiff and other similarly situated American citizens on the federal watch list, Defendants caused them an actual, imminent and irreparable injury that cannot be undone through monetary remedies.
168. Plaintiff and other similarly situated American citizens are not required to exhaust the DHS TRIP process, under the holding in Darby v. Cisneros, 509 U.S. 137 (1993). See United States District Court, Eastern District of Virginia, Case No. 11-cv00050 (2011); Dkt. 70 at 22; attached as Memorandum Opinion (Exhibit 4).
WHEREFORE, Plaintiff requests this Honorable Court grant declaratory and injunctive relief in the form described in the Prayer for Relief below, plus all such other relief this Court deems just and proper including costs and attorneys’ fees incurred in this action.

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COUNT IV VIOLATION OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION (Jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702)
(Equal Protection) 169. The foregoing allegations are realleged and incorporated herein. 170. Defendants’ actions in placing Plaintiff and other similarly situated American citizens on the federal terror watch list, officially imposing on Plaintiff and other similarly situated American citizens the stigmatizing label of “known or suspected terrorists,” and disseminating the stigmatizing label to state and local authorities, foreign governments, private corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private entities and individuals, without a constitutionally adequate legal mechanism are discriminatory and constitute an action that targets religious conduct for distinctive treatment. 171. Defendants’ actions in nominating Plaintiff and other similarly situated American citizens to the federal terror watch list blatantly violate the requirement that “’nominations’ must not be solely based on race, ethnicity, national origin, religious affiliation, or First Amendment protected activities.” 49 U.S.C. § 114(h)(3). 172. By placing Plaintiff and other similarly situated American citizens on the federal terror watch list, Defendants have treated Plaintiff and other similarly situated American citizens like second-class citizens. 173. Defendants’ above-described actions were motivated by the religious status of Plaintiff and other similarly situated American citizens and on the basis of the

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constitutionally-protected free exercise of religion of Plaintiff and other similarly situated American citizens.
174. Defendants’ above-described actions have had a discriminatory effect upon and have disparately impacted Plaintiff and other similarly situated American citizens who are Muslim American travelers, and not travelers of other faiths.
175. Defendants’ above-described actions, policies, course of conduct, or pattern of practice that mandate or permit the above-described treatment of Plaintiff and other similarly situated American citizens does not serve a compelling state interest or a legitimate or public purpose, nor are they the least restrictive means or narrowly tailored to achieve any such interest.
WHEREFORE, Plaintiff requests this Honorable Court grant declaratory and injunctive relief in the form described in the Prayer for Relief below, plus all such other relief this Court deems just and proper including costs and attorneys’ fees incurred in this action.
COUNT V VIOLATION OF THE UNITED STATES CONSTITUTION
(Non-Delegation) 176. The foregoing allegations are realleged and incorporated herein. 177. Congress has not provided the Executive Branch with intelligible principles from which the Executive can implement its watch list schemes regarding civil aviation and national security. 178. Congress has not directed the Executive Branch to create either a No Fly List or a Selectee List.

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179. Congress has not authorized the Executive Branch to utilize the federal terror watch list to encourage financial institutions to close bank accounts or ban wire transfers, to encourage car dealerships to restrict test drives or purchases of vehicles, or state and local law enforcement to detain individuals based on their watch list status.
180. Congress has not authorized the Executive Branch to disseminate the terror watch list to local and state authorities, foreign countries, private corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private entities and individuals.
181. The Executive Branch’s assignment of the watch listing function to TSC violates Congress’ directive that TSA determine who belongs on federal terror watch lists and the consequences that flow from being on those lists.
182. Congress has not delegated to TSA the authority to create a process that can culminate in the removal of individuals from the TSDB.
183. In the alternative, Congress’s delegation to TSA to create a redress process is defective because the Executive Branch has allocated watch list authority in a manner that prevents TSA from creating a redress process.
184. As a result, Defendants have illegally acted beyond their authority.
WHEREFORE, Plaintiff requests this Honorable Court grant declaratory and injunctive relief in the form described in the Prayer for Relief below, plus all such other relief this Court deems just and proper including costs and attorneys’ fees incurred in this action.

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Prayer for Relief
WHEREFORE, Plaintiff respectfully requests:
1. A declaratory judgment that Defendants’ policies, practices, and customs violate the Fifth Amendment to the United States Constitution and the Administrative Procedure Act;
2. An injunction that: a. requires Defendants to remedy the constitutional and statutory violations identified above, including the removal of Plaintiff from any watch list or database that burdens or prevents him from flying or entering the United States across the border; and, b. requires Defendants to provide individuals designated on the federal terror watch list with a legal mechanism that affords them notice of the reasons and bases for their placement on the federal terror watch list and a meaningful opportunity to contest their continued inclusion on the federal terror watch list;
3. A trial by jury; 4. An award of attorneys’ fees, costs, and expenses of all litigation, pursuant to
28 U.S.C. § 2412; and, 5. Such other and further relief as the Court may deem just and proper.

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Dated June 16, 2017

Respectfully submitted,
PARKER & McCONKIE
BY: /s/ James W. McConkie JAMES W. MCCONKIE Utah State Bar # 2156 Attorney For Plaintiff 5664 South Green Street Salt Lake City, Utah 84123 Phone: (801) 264-1950
PARKER & McCONKIE
BY: /s/ Bradley H. Parker BRADLEY H. PARKER Utah State Bar # 2519 Attorney For Plaintiff 5664 South Green Street Salt Lake City, Utah 84123 Phone: (801) 264-1950
COUNCIL ON AMERICANISLAMIC RELATIONS
BY: /s/ Lena Masri LENA F. MASRI (DC: 1000019)* Attorney for Plaintiff National Litigation Director 453 New Jersey Ave, SE Washington, DC 20003 Phone: (202) 488-8787
COUNCIL ON AMERICANISLAMIC RELATIONS
BY: /s/ Gadeir Abbas GADEIR I. ABBAS (VA: 81161)* Attorney for Plaintiff National Litigation Director 453 New Jersey Ave, SE

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Washington, DC 20003 Phone: (202) 488-8787 *Licensed in VA, not in Utah. A motion has been filed to admit Lena Masri and Gadeir I. Abbas to appear in the matter.
Counsel for Plaintiff

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

YUSSUF AWADIR ABDI,
Plaintiff,
v.
CHRISTOPHER WRAY, Director of the Federal Bureau of Investigation, in his official capacity, et al.,
Defendants.

MEMORANDUM DECISION AND ORDER
Case No. 2:17-cv-622-DB District Judge Dee Benson

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
2

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
1 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.)
3

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
4

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)
5

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
6

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).
7

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
8

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
9

 
 Case 2:17-cv-00622-DB Document 16 Filed 11/10/17 PageID.662 Page 1 of 41

PARKER & McCONKIE JAMES W. McCONKIE (Bar # 2156) BRADLEY H. PARKER (Bar # 2519) 5664 South Green Street Salt Lake City, Utah 84123 Telephone: (801) 264-1950 Email:jwmcconkie@utahlawhelp.com Email: bparker@utahlawhelp.com Attorneys for Plaintiff

Council on American-Islamic Relations Lena F. Masri (DC: 1000019) Gadeir I. Abbas (VA: 81161)* 453 New Jersey Avenue, SE Washington, DC20003 Phone: (202) 488-8787 Email: lmasri@cair.com Email: abbas@cair.com Attorneys for Plaintiff

*licensed in VA; not in DC; Practice limited to federal matters

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

YUSSUF AWADIR ABDI,

)

)

SECOND AMENDED COMPLAINT

Plaintiff,

)

FOR INJUNCTIVE AND

)

DECLARATORY RELIEF

v.

)

)

Case No.: 2:17-cv-00622-DB

ANDREW MCCABE, et al.,

)

Hon. Dee Benson

)

Defendants.

)

_______________________________________________________________________

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Plaintiff, Yusuf Awadir Abdi, by and through his attorneys, CAIR National Legal

Defense Fund, Inc. (“Council on American-Islamic Relations” or “CAIR”) and Parker &

McConkie, states as follows:

Case 2:17-cv-00622-DB Document 16 Filed 11/10/17 PageID.663 Page 2 of 41
Introduction 1. Subsequent to the filing of this case, the federal government removed Plaintiff Yussuf Abdi from the No Fly List. But while the plaintiff is now able to fly, he is still in the Terrorist Screening Database and has been placed back on the Selectee list, which is simply another subset of the government’s terrorist watchlist. 2. Because he is on the Selectee List, Plaintiff Abdi—who has not been arrested, charged, or convicted of any type of terrorism-related offense—has been subjected to humiliating searches at airports and ports of entry that leave other travelers fearful of him. The scrutiny the plaintiff receives is stigmatizing insofar as it communicates to his fellow travelers that Plaintiff Abdi is dangerous and somehow deserving of the invasive screening he receives. 3. The defendants’ rationale for placing Plaintiff Abdi on the Selectee List is arbitrary at best and discriminatory at worst. Indeed, many Americans, including children, end up on this secret federal terror watch list based on mere guesses, hunches, and conjecture, and even simply based on matters of race, ethnicity, national origin, religion or the exercise of their constitutional rights. 4. The consequences of being on the Selectee List to Plaintiff Abdi include the burden of having to go through security with ticketing agents and all screeners receiving a message for the remainder of a listee’s life that he or she is a "known or suspected terrorist," an inability to obtain licenses, to exercise their Second Amendment right to own a firearm, and to be free from the unimaginable indignity and real-life danger of having their own government communicate to hundreds of thousands of federal agents, private contractors, businesses, state
2

Case 2:17-cv-00622-DB Document 16 Filed 11/10/17 PageID.664 Page 3 of 41
and local police, the captains of sea-faring vessels, and foreign governments all across the world that they are a violent menace.
5. And unfortunately, the federal government has designed its Selectee List to be accountability-free. Persons placed on the federal terror watch list have no means of challenging the constitutionality of their listing. Indeed, people on the federal terror watch lists only learn of their placement when they feel the web of consequences burdening their lives and aspirations, and they never learn the circumstances that led to their listing.
6. With regards to the Selectee list, the federal government will not, via the administrative process called DHS TRIP, even confirm that a person has been listed.
7. Media accounts have made clear that the secret federal terror watch list is the product of bigotry and misguided, counterproductive zeal. Americans are dumped onto the watch list without being charged, convicted, or in some stomach-churning cases, even subject to an ongoing investigation.
8. Instead, two leaked government documents and a governmental report, which include the March 2013 Watchlisting Guidance (Exhibit 2), the Directorate of Terrorist Identities (DTI): Strategic Accomplishments 2013 (Exhibit 3), and the Department of Justice's March 2014 Audit of the Federal Bureau of Investigation's Management of Terrorist Watchlist (Exhibit 4) reveal that the care the federal government takes in creating its federal terror watch list is void of proper processing, which in turn results in life-altering consequences that flow from these illegal actions.
9. In fact, upon information and belief, Dearborn, a city of less than 100,000 and a place Arab Americans and Muslim Americans have called home for generations, contains the
3

Case 2:17-cv-00622-DB Document 16 Filed 11/10/17 PageID.665 Page 4 of 41
second highest concentration of Americans on the federal government's watch list. Moreover, there have been more than 1.5 million nominations to the federal terror watch list since 2009 and that, in 2013 for example, the Terrorist Screening Center converted 98.96 percent of those nominations into watch list placements.
10. Upon information and belief, evidence also shows that the federal government uses guilt-by-association presumptions to place family members and friends of listed persons on the watch list.
11. Moreover, travel to Muslim majority countries—travel that American Muslims are very likely to engage in—is also a basis for watch list placement.
12. In 2009, the federal government made 227,932 nominations to its federal terror watch list. In 2013, that number more than doubled at an alarming and dangerous rate to 468,749.
13. Recently, a federal court judge observed in Gulet Mohamed v. Eric R. Holder, Jr., et al. (United States District Court, Eastern District of Virginia, Case No. 11-cv-00050 (2011)), that “[a] showing of past or ongoing unlawful conduct does not seem to be required,… But the Court has little, if any, ability to articulate what information is viewed by TSC as sufficiently ‘derogatory’ beyond the labels it has provided the Court. In sum, the No Fly List assumes that there are some American citizens who are simply too dangerous to be permitted to fly, no matter the level of pre-flight screening or on-flight surveillance and restraint, even though those citizens cannot be legally arrested, detained, or otherwise restricted in their movements or conduct.” See United States District Court, Eastern District of Virginia, Case No. 11-cv-00050 (2011); Dkt. 70
4

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at 19; attached as Memorandum Opinion (Exhibit 1). While Mohamed dealt with the No Fly List, its rationale is applicable to the Selectee List as well.
14. In another case, a federal court held that the allegations similar to the ones made below “plausibly allege that the dissemination of the Watch List may be so widespread that it is tantamount to public disclosure, even if only distributed to other government and private entities that need the information for official objectives. See United States District Court, Eastern District of Virginia, Case No. 1:16-cv-000375 (2017); Dkt. 47 at 14-15,; attached as Memorandum Opinion (Exhibit 5).
Parties 15. Plaintiff Yusuf Awadir Abdi is a United States Citizen and a Muslim residing in Salt Lake County, Utah. 16. Defendant Andrew McCabe is the Director of the Federal Bureau of Investigation (“FBI”). Defendant McCabe is responsible for the nominations of Plaintiff and other similarly situated American citizens to the federal terror watch list. Defendant McCabe is being sued in his official capacity, only. 17. Defendant Christopher Wray is the Director of the Terrorist Screening Center (“TSC”). Defendant Wray was appointed on August 2, 2017. Defendant Wray develops and maintains the federal government’s consolidated Terrorism Screening Database (the “watch list”), and accepted the nominations of Plaintiff and other similarly situated American citizens to the federal terror watch list. Defendant Wray also oversees the dissemination of the stigmatizing label attached to Plaintiff and other similarly situated American citizens of “known or suspected terrorists” to state and local authorities, foreign governments, corporations, private contractors,
5

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airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private entities and individuals. Defendant Wray is being sued in his official capacity, only.
18. Defendant Huban A. Gowadia is Acting Administrator of the Transportation Security Administration (“TSA”). Defendant Gowadia oversaw the dissemination of the stigmatizing label attached to Plaintiff and other similarly situated American citizens of “known or suspected terrorists” to state and local authorities, foreign governments, corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private entities and individuals. Defendant Gowadia is being sued in his official capacity, only.
19. Defendant Kevin K. McCaleenan is Acting Commissioner of U.S. Customs and Border Protection. In this role, Defendant McCaleenam is responsible for the application of the watch list to CBP agents at ports of entry, where a person’s watch list status determines how they are treated at the border. Defendant McCaleenam is being sued in his official capacity, only.
20. Defendant Nicholas Rasmussen is the Director of the National Counterterrorism Center (“NCTC”). Defendant Rasmussen, alongside other agencies, is responsible for the nominations that resulted in the placement of Plaintiff and other similarly situated American citizens on the federal terror watch list. Defendant Rasmussen is being sued in his official capacity, only.
Jurisdiction and Venue 21. Under U.S. Const. Art. III §2, this Court has jurisdiction because the rights sought to be protected herein are secured by the United States Constitution. Jurisdiction is proper
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pursuant to 28 U.S.C. § 1331, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), et seq., 5 U.S.C. § 702, 5 U.S.C. § 706, the United States Constitution, and federal common law.
22. This action seeks declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § § 2201-02, Rules 57 and 65 of the Federal Rules of Civil Procedure, and pursuant to the general, legal, and equitable powers of this Court.
23. A substantial part of the unlawful acts alleged herein were committed within the jurisdiction of the United States District Court for the District of Utah.
24. Venue is proper under 42 U.S.C. § 1391(e) as to all Defendants because Defendants are officers or employees of agencies of the United States sued in their official capacities and because this judicial district is where Plaintiff resides and where a substantial part of the events or omissions giving rise to the claims occurred.
Factual Background Plaintiff Yussuf Awadir Abdi’s Inability to Return to the United States 25. Plaintiff Yussuf Awadir Abdi (hereinafter “Imam Abdi”) is a Muslim religious leader and Imam of Madina Masjid Mosque in Salt Lake City, Utah. 26. Sometime in 2014, the federal government placed Imam Abdi on the Selectee List component of the federal terror watch list, having secretly concluded that officials had a “reasonable suspicion” that Imam Abdi was “associated with terrorism.” See Exhibit 2. 27. Imam Abdi knows that he was on the Selectee List because, for approximately the last three years, every time he travels by air, he is unable to check in to his flights online or at the kiosks stationed at the airports.
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28. Rather, he is directed to check in manually with an airline representative in order to print his boarding pass.
29. The airline representative, after pulling up his name on the computer system, would contact the Department of Homeland Security in order to obtain clearance so that he could fly.
30. Once clearance from the Department of Homeland Security is obtained, the airline representative would then print his boarding pass, which would be stamped with the “SSSS” designation, indicating that he has been designated as a “known or suspected terrorist.”
31. Imam Abdi was then subjected to routine secondary inspections, prolonged searches and questioning every time he traveled by air.
32. Imam Abdi filed a redress request through DHS TRIP some time in 2016. 33. On May 22, 2017, Imam Abdi received a letter as described in paragraph 133 below and was assigned a Redress Control Number. While that letter contained many words, it provided no information—not notice of his placement nor some means by which to challenge his designation—about Imam Abdi’s status as a listee. 34. On June 14, 2017, Imam Abdi appeared at Jomo Kenyatta International Airport in Nairobi, Kenya to board a commercial flight back to his home in the United States. 35. Because his visa petitions that he filed for his wife and two of his children had just been approved, Imam Abdi had traveled to Kenya to bring his wife and five children with him to the United States. His remaining three children are United States Citizens. 36. Upon information and belief, the immigration application, submitted in 2012, that Imam Abdi filed for his wife and two of his children was processed differently because of his
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status on the terrorist watch list. After that immigration application was approved in 2013, Imam Abdi’s family’s visas were not approved for several years—not until May 2017—an adjudication process that was also lengthened because of his status as a listee.
37. Imam Abdi tried to check in at a kiosk stationed at the airport, however, he was directed to an airline representative to manually check him in for his flight.
38. Imam Abdi then presented himself at the Qatar Airlines ticket counter. 39. Although his wife and children were able to print their boarding passes, the Qatar Airlines representative told Imam Abdi that the United States would not allow him to board his flight in order to return to his home in the United States. 40. Upon information and belief, Imam Abdi was upgraded from the Selectee List to the No Fly List after he arrived in Kenya. 41. The following day, on June 15, 2017, Imam Abdi appeared at the United States Embassy in Nairobi, Kenya to obtain information as to why he was denied boarding and being prevented from returning to his home in the United States. 42. However, the United States Embassy did not provide him with any information. 43. Imam Abdi rescheduled his flight to the United States to leave on June 16, 2017. 44. The federal government allowed him to board this flight to the United States. However, upon arriving at the Los Angeles International Airport’s port of entry, the defendants detained Imam Abdi for lengthy screening which forced him to miss his flight to Salt Lake City. 45. On June 18, 2017, after another lengthy screening at Los Angeles International Airport, Imam Abdi again was almost prevented from boarding his flight. The pilot, however, refused to depart without the plaintiff and his family and they were allowed on the plane.
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46. Imam Abdi and his family arrived in Salt Lake City on June 18, 2017 by plane. 47. Since then, Imam Abdi has flown on three separate occasions: (i) to San Jose, California in July 2017 (ii) to and from Mecca Saudi Arabia in August 2017, and (iii) to and from Virginia in October 2017. 48. On each trip, though the plaintiff was allowed to fly, he confronted humiliating and stigmatizing treatment. 49. Because the defendants placed him on the Selectee List, he could not print his boarding pass at a kiosk and instead would proceed to a ticketing agent. The ticketing agent also could not simply print his boarding pass, but instead had to call the Terrorist Screening Center to seek their permission to print the plaintiff’s boarding pass. On each occasion, it would take the plaintiff about half an hour to obtain a boarding pass. 50. Each boarding pass Imam Abdi has received since returning to the United States was stamped with “SSSS,” a clear indication that he is on the Selectee List. 51. When Imam Abdi would proceed to the security checkpoint with his boarding pass, TSA officials would shut down an entire screening line and the plaintiff would proceed through the line by himself, several TSA officers would each check his luggage, and then TSA officers would huddle amongst themselves and make a phone call prior to allowing Imam Abdi to proceed to his gate. 52. When Imam Abdi would proceed to his gate, there would be about half a dozen TSA officers waiting for him and he would again be screened in front of everyone.
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53. Each time the defendants caused Imam Abdi to be screened, he could see that this caused other passengers to be fearful of him. It was also stigmatizing to Imam Abdi that fellow travelers would have to see differential treatment he faces at airports and ports of entry.
54. At no time was Imam Abdi given notice of the factual basis for his placement on the federal terror watch list, and at no time was he offered a meaningful opportunity to contest his designation.
55. Moreover, at no time was Imam Abdi given notice of the deprivation of his liberty interests or violation of his constitutional rights.
56. Upon information and belief, Imam Abdi’s nomination to and designation on the federal terror watch list was made based solely upon a hunch (based upon his race, ethnicity, national origin, religious affiliation, guilt-by-association, or First Amendment protected activities).
57. Upon information and belief, because Imam Abdi is included on the federal terror watch list, and specifically the Selectee List, Defendants disseminated and are continuing to disseminate his designation as a “known or suspected terrorist” to state and local authorities (including the local police officers above), foreign governments, corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, among other official and private entities and individuals.
The Federal Government’s Terrorist Watch List 58. In September, 2003, Attorney General John Ashcroft established the Terrorist Screening Center (“TSC”) to consolidate the government’s approach to terrorism screening. The TSC, which is administered by the FBI, develops and maintains the federal government’s
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consolidated Terrorism Screening Database (the “watch list”). TSC’s consolidated watch list is the federal government’s master repository for suspected international and domestic terrorist records used for watch list related screening.
59. The watch list has two primary components: the Selectee List and the No Fly List. Persons on the Selectee List are systematically subject to extra screening at airports and land border crossings, and often find “SSSS” on their boarding passes printed by airline employees which is marked to indicate a passenger’s watch list status to airline employees and screeners. Persons on the No Fly List are prevented from boarding flights that fly into, out of, or even through United States airspace.
60. Defendant TSC disseminates records from its terrorist watch list to other government agencies that in turn use those records to identify suspected terrorists. For example, applicable TSC records are provided to TSA for use by airlines in pre-screening passengers and to CBP for use in screening travelers entering the United States by land.
61. Upon information and belief, Defendants disseminated the records of Plaintiff from their terrorist watch list to other government agencies, including Defendant TSA for use by airlines in pre-screening Plaintiff, and Defendant CBP for use in screening Plaintiff upon entering the United States.
62. Upon information and belief, Defendants disseminated the records pertaining to Plaintiff from their terrorist watch list to foreign governments with the purpose and hope that those foreign governments will constrain the movement of Plaintiff in some manner.
63. Upon information and belief, Defendants’ intention in disseminating watch list records, including those of Plaintiff and similarly situated American citizens, as widely as
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possible is to constrain their movements, not only within the United States, but abroad as well. For example, some countries detain individuals listed on the federal terror watch list who enter their borders, question those individuals at the behest of United States officials, or altogether prevent those individuals from even entering those countries.
64. Thus, while the TSC maintains and controls the database of suspected terrorists, it is the front-line agencies like the TSA that carry out the screening function. In the context of air travel, when individuals make airline reservations and check in at airports, the front-line screening agency, like TSA and CBP, conducts a name-based search of the individual, including that of Plaintiff, to determine whether he or she is on a watch list.
65. While agencies throughout the federal government utilize the federal terror watch list to conduct screening, listed persons are subject to a comprehensive portfolio of consequences that cover large aspects of their lives.
66. Indeed, Defendants disseminated the federal terror watch list to government authorities, private corporations and individuals with the purpose and hope that these entities and/or individuals will impose consequences on those individuals Defendants have listed, including Plaintiff.
67. Upon information and belief, the status of Plaintiff and similarly situated American citizens as known or suspected terrorists on the federal terror watch list diminishes and even imperils their ability to access the financial system.
68. Banks have closed the bank accounts of individuals listed on the federal terror watch list and financial companies have declined to allow some listed individuals to make wire transfers.
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69. Moreover, upon information and belief, family-based immigration applications filed by Plaintiff and similarly situated American citizens are delayed indefinitely due to an “FBI name check” and not adjudicated, thereby denying Plaintiff and similarly situated American citizens of the rights that flow from citizenship, including the ability to sponsor for lawful permanent residency immediate relatives living abroad.
70. Among the entities and individuals that the federal government disseminates its federal terror watch list are state and local authorities, foreign governments, corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among others.
71. In fact, in 2015, Christopher Piehota, then Director of the Terrorist Screening Center, gave an exclusive interview to CNN and stated the following, in relevant part:
It's concerning that our partners don't use all of our data. We provide them with tools. We provide them with support, and I would find it concerning that they don't use these tools to help screen for their own aviation security, maritime security, border screening, visas, things like that for travel.1 72. Defendant Piehota went on to state that the United States shares its federal terror watch list with the European Union, but that European Union countries do not systematically utilize it to identify suspected terrorists or screen migrants coming.
1 First on CNN: Top U.S. intel official: Europe not taking advantage of terror tracking tools, CNN, available at: http://www.cnn.com/2016/04/07/politics/christopher-piehota-us-intel-europeterror-tracking/
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73. Upon information and belief, because the names of Plaintiff and similarly situated American citizens are included on the federal terror watch list, their names were disseminated to state and local authorities, foreign governments, corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private entities and individuals.
74. Because the federal government disseminates its federal terror watch list to foreign governments, listed persons, including Plaintiff and similarly situated American citizens, are often not allowed to enter other nations. This is because the United States is telling other nations, without any modicum of due process, that thousands of its own citizens are “known or suspected terrorists.”
75. The federal government, through Defendants, disseminates its federal terror watch list to state and local police officers which allows those officers to query the names of persons, including Plaintiff, if for example, the listed individual is pulled over for routine traffic violations.
76. Disseminating the federal terror watch list to state and local police officers creates a dangerous situation insofar as the federal terror watch list effectively directs state and local officers to treat thousands of Americans, including Plaintiff, charged or convicted with no crime yet listed as a “known or suspected terrorist” as extremely dangerous.
77. With the advent and deployment of automatic license plate readers by police departments across the country, local and state authorities have relied heavily upon a driver’s watch list status as the basis of a traffic stop, including Plaintiff and similarly situated American citizens.
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78. Being on the federal terror watch list can prevent listed persons, including Plaintiff and similarly situated American citizens, from purchasing a gun. For example, New Jersey passed a law in 2013 that banned persons on the federal terror watch list from owning guns.
79. Accordingly, Plaintiff and similarly situated American citizens are unable to purchase guns in states that ban persons on the federal terror watch list from owning guns.
80. Because the federal government conducts a security risk assessment that includes querying the federal terror watch list prior to issuing a license to commercial drivers to transport hazardous materials, being on the federal terror watch list can prevent listed persons, including Plaintiff and similarly situated American citizens, from obtaining or renewing their Hazmat license.
81. Being on the federal terror watch list can also prevent listed persons, including Plaintiff and similarly situated American citizens, from accompanying minors or passengers with disabilities to their gate, from working at an airport, or working for an airline insofar as listed persons are not allowed to enter so-called “sterile areas” of airports.
82. Being on the federal terror watch list can also result in the listing of the false stigmatizing label of “known or suspected” terrorist on the criminal records of Plaintiff and similarly situated American citizens, information that is publicly accessible to the general public.
83. Being on the federal terror watch list can also result in the denial or revocation of a Federal Aviation Administration (FAA) license of Plaintiff and similarly situated American citizens.
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84. Although TSA, CBP, and other agencies may use the records provided by the TSC, it is the TSC that maintains and controls the database of suspected terrorists.
85. Two government entities are primarily responsible for “nominating” individuals for inclusion in the terrorist watch list—Defendants NCTC and FBI. The NCTC, which is managed by the Office of the Director of National Intelligence, relies on information from other federal departments and agencies when including alleged known or suspected international terrorists in its Terrorist Identities Datamart Environment (“TIDE”) database. The NCTC reviews TIDE entries and recommends specific entries to the TSC for inclusion in the watch list. TIDE is the main source of all international terrorist information included in the watch list.
86. Defendant FBI, in turn, nominates to the watch list individuals with what it characterizes as suspected ties to domestic terrorism.
87. Defendant TSC makes the final decision on whether a nominated individual meets the minimum requirements for inclusion into the watch list as a known or suspected terrorist. TSC also decides which screening systems will receive the information about that individual.
88. Former Director of the Terrorism Screening Center Healy has testified that in evaluating whether an individual meets the criteria for inclusion on the consolidated watch list, the TSC determines whether the nominated individual is “reasonably suspected” of having possible links to terrorism. According to the TSC, “reasonable suspicion requires articulable facts which, taken together with rational inferences, reasonably warrant the determination that an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in and of or related to terrorism and terrorist activities.”
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89. Defendants have not stated publicly what standards or criteria are applied to determine whether an American citizen on the consolidated watch list will be placed on the Selectee List (“SSSS”) that is distributed to the TSA, CBP or other screening agencies. However, there is some publicly available information regarding inclusion in the TSDB, of which the Selectee List is a subset.
90. The standards for TSDB inclusion do not evince even internal logic. Defendants define a “suspected terrorist” as an “individual who is reasonably suspected to be, or have been, engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities based on articulable and reasonable suspicion.” In other words, Defendants place American citizens on the federal terror watch list based upon a “reasonable suspicion” that they are “reasonably suspected” of nefarious activities. This “reasonable suspicion” based on a “reasonable suspicion” standard does not even contain internal logic.
91. The federal government utilizes guilt-by-association as a basis for watch list inclusion. For example, the immediate relative of listed persons can be listed without any derogatory information—other than the bonds of family. Nonetheless, such designation suggests that the immediate relative is himself or herself engaged in nefarious activities.
92. Being a known associate—a friend, colleague, fellow community member, etc.— of a listed individual can also provide a basis for watch list inclusion.
93. Even if an American citizen is acquitted of terrorism charges or those charges are otherwise dismissed, the federal government retains for itself the authority to continue to include them in the watch list.
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94. For reasons unknown, Defendants also place what they call “non-investigatory subjects” on the federal terror watch list, American citizens that they have chosen not to investigate.
95. Under these practices and standards, the number of records in the consolidated watch list has swelled. Over 1.5 million nominations to the watch list have been submitted by federal agencies since fiscal 2009.
96. In 2013, Defendant TSC accepted 98.96 percent of all nominations made. 97. Because of these loose standards and practices, the federal terror watch list’s rate of growth has increased. In fiscal 2009, there were 227,932 nominations to the watch list. In fiscal 2013, there were 468,749 nominations. 98. Upon information and belief, in 2001, there were 16 people who the federal government systematically prevented from flying. In 2013, that number increased to 47,000. 99. Once an American citizen has been placed on the watch list, the individual remains on the list until the agency that supplied the initial information in support of the nomination determines the individual should be removed. 100. A 2007 GAO report found that TSC rejects only approximately one percent of all nominations to the watch list.2 As such, the watch list is growing at a rate of approximately 20,000 entries per year. 101. At a March 10, 2010 Senate Homeland Security Committee hearing, Russel E. Travers, Deputy Director of the National Counterterrorism Center, stated that “[t]he entire 2 See United States Government Accountability Office Report to Congressional Requesters entitled Terrorist Watch List Screening: Opportunities Exist to Enhance Management Oversight, Reduce Vulnerabilities in Agency Screening Processes, and Expand Use of the List, GAO-08110, October 2007, at 22.
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federal government is leaning very far forward on putting people on list,” and that the watch list is “getting bigger, and it will get even bigger.”
102. The federal terror watch list disproportionately targets American Muslims. 103. Almost all publicly known instances of Americans being placed on the watch list regard Muslims or persons who could be mistaken for Muslims. 104. Defendants have utilized the watch list, not as a tool to enhance aviation and border security, but as a bludgeon to coerce American Muslims into becoming informants or forgoing the exercise of their rights, such as the right to have an attorney present during law enforcement questioning. 105. Public examples of this phenomenon abound. See Latif v. Holder, 2014 U.S. Dist. LEXIS 85450, *19 (D. Or. June 24, 2014) (an FBI agent told Steven Washburn that he “would help remove Washburn's name from the No Fly List if he agreed to speak to the FBI”); Id. at *21-22 (FBI agents told Ibraheim Mashal that “his name would be removed from the No Fly List and he would receive compensation if he helped the FBI by serving as an informant.”): Id at *2223 (FBI agents offered Amir Meshal “the opportunity to serve as a government informant in exchange for assistance in removing his name from the No Fly List.”). See also Fikre v. FBI, 2014 U.S. Dist. LEXIS 73174 (D. Or. May 29, 2014) (Emirati officials told Yonas Fikre that he “could not travel to the United States by air because he is on the No Fly List” and an FBI agent told Fikre that “the FBI could take steps to remove [him] from the No Fly List if he agreed to be an informant.”); Tanveer v. Holder, et. al., No. 13-cv-6951, Dkt. 15 (April 22, 2014) (Naveed Shinwari “declined to act as an informant for the Federal Bureau of Investigation and to spy on [his] own American Muslim communities and other innocent people.”).
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106. Additionally, government records show that Dearborn, Michigan—which is 40 percent Arab—is disproportionately represented on the federal terror watch list. In fact, Dearborn is among the top five cities in the country, alongside Chicago, Houston, New York, and San Diego, represented on the federal terror watch list.
107. Due to Dearborn’s significant population of Muslims, it has earned a reputation as the “Muslim Capital of America.”
108. Defendants’ 2013 Watchlisting Guidance also indicates that “[t]ravel for no known lawful or legitimate purpose to a locus of terrorist activity” can be a basis for being listed. While a “locus of Terrorist Activity” is not defined by the document, upon information and belief, it likely includes any place where many Muslims reside.
109. The federal terror watch list’s inclusion standards are so permissive and pliable and the selectee list's efficacy is at best fleetingly marginal that the inclusion standards themselves violate Plaintiff procedural and substantive due process.
110. The federal terror watch list diminishes, rather than enhances, our national security because the number of innocent Americans on the list is becoming so voluminous that the purpose of having a list is significantly undermined as all are being treated as the same.
111. The consequences of being on the federal terror watch list are meted out publicly. Members of the public can witness the extra screening to which individuals on the federal terror watch list are subject, oftentimes in front of family and colleagues, including being pulled out of their car at gunpoint, being ordered to leave their vehicle with their hands held above their head, among other stigmatizing measures.
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112. In practice, frontline screeners disclose the status of individuals on the federal terror watch list to state and local authorities, as well as airline employees.
113. The operation of the federal terror watch list enlists air carriers to assist the federal government in tracking the passenger on the federal terror watch list.
114. Defendants apply the federal terror watch list against Muslim Americans in a manner that is different from how they use their list against people of other faith backgrounds.
115. Defendants use impermissible and inaccurate religious profiles in compiling the federal terror watch list.
116. Defendants who contributed to the placement of Plaintiff and similarly situated American citizens on the federal terror watch list knew that their actions violated clearly established federal law.
117. Defendants knew at the time they acted unlawfully that Supreme Court precedent required that, whenever a citizen is deprived of a liberty interest, the federal government must at least provide the deprived with some form of notice that a deprivation occurred.
The Federal Government’s Terrorist Watch List Is No More Effective Than a List of Randomly Selected Individuals 118. Defendants’ ability to watch list persons who pose a threat of terrorism, can be measured and described using a quantitative analysis based on factual allegations made in this Complaint as well as publicly available information describing the current operation of the federal terror watch list. 119. Upon information and belief, the federal government has placed approximately one million persons on the federal terror watch list over the last ten years.
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120. Moreover, based on the University of Maryland’s Global Terrorism Database, a project funded in part by the Department of Homeland Security, there have been less than 250 terrorist acts inside the United States over the last decade. These terrorist acts were perpetrated by less than 250 persons.
121. Only one of these perpetrators was designated on the federal terror watch list by the federal government prior to their criminal conduct. This single person designated on the federal terror watch list, however, was removed from the federal terror watch list prior to perpetrating the terrorist attack.
122. Upon information and belief, in order to designate a person on the federal terror watch list, the federal government must first have information about that person. Because the federal government does not possess information on every person in the world, existing law enforcement and intelligence practices produce a subset of persons who the federal government can then screen against the federal terror watch list’s inclusion standards.
123. The precise size of this subset is unknown, however a survey of law enforcement and intelligence practices indicates that the size of this subset is greater than 50 million people.
124. Upon information and belief, the practices that produce this subset exclude some persons who do pose a threat of terrorism and include some persons who do not pose a threat of terrorism.
125. Upon further information and belief, the federal government does not screen the entire subset of people known to it. Moreover, Defendants do not make individual determinations as to whether each person about whom they know should be placed on the federal terror watch list.
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126. In order to designate a person on the federal terror watch list, a federal government official must make a nomination and a TSC official must accept the nomination.
127. Upon information and belief, TSC officials accept nominations at a rate above 95 percent.
128. Based on the facts alleged in this Complaint and the publicly known processes of the federal terror watch list, a quantitative analysis can be constructed to measure and describe the performance of the federal terror watch list.
129. A quantitative analysis demonstrates that, in order to accomplish the federal terror watch list’s stated objectives, Defendants must have at least some greater-than-random ability to identify future terrorists. This is due to the nature of the processes Defendants utilize to place persons on the federal terror watch list and the size of the population Defendants can—if they so choose—screen against the federal terror watch list’s inclusion standards.
130. A quantitative analysis also demonstrates that Defendants’ watch listing system would perform similarly if inclusion on the watch list was done via random selection instead of the existing inclusion standards Defendants utilize.
131. A quantitative analysis therefore indicates that Defendants have no ability to watch list persons whose placement on the watch list would further Defendants’ stated objectives.
Inadequacy of the DHS Traveler Redress Inquiry Program Process 132. The government entities and individuals involved in the creation, maintenance, support, modification and enforcement of the federal terror watch list, including Defendants, have not provided travelers, including Plaintiff and similarly situated American citizens, with a
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fair and effective mechanism through which they can challenge the TSC’s decision to place them on the terrorist watch list.
133. An individual, including Plaintiff and similarly situated American citizens, who has been prevented or hindered from travel by being placed on the federal terror watch list has no clear avenue for redress, because no single government entity is responsible for removing an individual from the list. The TSC, which is administered by the FBI, does not accept redress inquiries from the public, nor does it directly provide final disposition letters to individuals on the selectee list or similarly situated American citizens, who have submitted redress inquiries. The NCTC which manages the TIDE list does not accept redress inquiries from the public.
134. Individuals who seek redress after having been included in the terrorist watch list must submit an inquiry through the DHS Traveler Redress Inquiry Program (“DHS TRIP”). DHS TRIP provides individuals with a “Redress Control Number.”
135. DHS TRIP is the only redress “process” available to individuals included on the terrorist watch list.
136. DHS TRIP submits traveler complaints to the TSC, which determines whether any action should be taken. The TSC has not provided any publicly available information about how it makes that decision. The TSC is the final arbiter of whether an individual’s name is retained on or removed from the watch list, including those of Plaintiff and similarly situated American citizens.
137. The TSC makes a determination regarding a particular individual’s status on the watch list, including Plaintiff and similarly situated American citizens, and DHS in turn responds to the individual with a standard form letter that neither confirms nor denies the existence of any
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terrorist watch list records relating to the individual. The letters do not set forth any basis for inclusion in a terrorist watch list, do not state whether the government has resolved the complaint at issue.
138. The government does not provide an American citizen with any opportunity to confront, or to rebut, the grounds for his or her possible inclusion on the watch list. As such, DHS TRIP offers no meaningful review of the watch list designation and in effect shields the TSC’s actions with respect to the individual nominations or classes of nominations from meaningful review by any independent authority.
139. Moreover, the government’s own internal audits of the system point to serious flaws. For example, a March 2008 DOJ Office of the Inspector General report entitled Audit of the U.S. Department of Justice Terrorism Watchlist Nomination Processes found significant problems with the nomination and removal process.
140. Thus, the only “process” available to such individuals is to submit their names and other identifying information to a government entity that has no authority to provide redress and to hope that an unspecified government agency corrects an error or changes its mind.
141. Plaintiff is a United States citizen. 142. Plaintiff has not been arrested, charged, nor convicted of a terrorism-related offense.
COUNT I FAILURE TO PROVIDE POST-DEPRIVATION NOTICE AND HEARING IN VIOLATION OF THE FIFTH AMENDMENT RIGHT TO PROCEDURAL DUE
PROCESS
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(Jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702) 143. The foregoing allegations are realleged and incorporated herein. 144. Plaintiff and other similarly situated American citizens learned that he was placed on the federal terror watch list subsequent to being added on the federal terror watch list and sought to challenge such placement. 145. Defendants’ actions as described above in refusing to provide Plaintiff and other similarly situated American citizens with any notice at all of their placement which deprived Plaintiff and other similarly situated American citizens of constitutionally protected liberty interests. 146. Defendants’ actions in nominating Plaintiff and other similarly situated American citizens to the federal terror watch list blatantly violate the requirement that “’nominations’ must not be solely based on race, ethnicity, national origin, religious affiliation, or First Amendment protected activities.” 49 U.S.C. § 114(h)(3). 147. Plaintiff and other similarly situated American citizens have a liberty interest in traveling free from unreasonable burdens that are not reasonably tailored within, to, and from the United States, through land border crossings and over U.S. air space. 148. Plaintiff and other similarly situated American citizens have a right to be free from false government stigmatization as individuals who are “known or suspected to be” terrorists, or who are otherwise associated with terrorist activity, when such harm arises in conjunction with the additional consequences that follow from being listed as well as the deprivation of their right to travel on the same terms as other travelers and/or the deprivation of their liberty interest under the Fifth Amendment in travel free from unreasonable burdens.
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149. Plaintiff and other similarly situated American citizens have a liberty interest in nonattainder (ie: the interest against being singled out for punishment without trial). Defendants’ actions have singled out Plaintiff and others similarly situated for punishments that include, but are not limited to, inability to travel by air and unreasonable burdens placed upon traveling by air to and from the United States, over U.S. air space and at land border crossings, and false association with a list of individuals suspected of terrorism.
150. Plaintiff and other similarly situated American citizens, having been burdened or prevented from boarding on commercial flights or entering the United States at land border crossings, having had their bank accounts closed, having been prevented from making wire transfers at financial institutions, having had their citizenship applications delayed indefinitely due to an “FBI name check,” having lost lucrative economic opportunities and suffering from other forms of financial harm, having been prevented from test driving or purchasing vehicles at a car dealership, and having sought to challenge their placement on the federal terror watch list, are entitled to a constitutionally adequate legal mechanism that affords them notice of the reasons and bases for their placement on the federal terror watch list and a meaningful opportunity to contest their continued inclusion on the federal terror watch list. Defendants have even failed to provide the most basic ingredient of due process, which is notice that the government has deprived a person of their protected rights.
151. The Selectee List’s inclusion standard, because it is so permissive and wildly inaccurate, violates the plaintiff’s procedural due process rights irrespective of the postdeprivation process the defendants create.
28

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152. Moreover, Defendants have officially imposed on Plaintiff and other similarly situated American citizens the stigmatizing label of “known or suspected terrorists” without a constitutionally adequate legal mechanism.
153. Further, Defendants disseminated the stigmatizing label attached to Plaintiff and other similarly situated American citizens of “known or suspected terrorists” to state and local authorities, foreign governments, private corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private entities and individuals.
154. By imposing on Plaintiff and other similarly situated American citizens the stigmatizing label of “known or suspected terrorists” and by failing to provide Plaintiff and others similarly situated with a constitutionally adequate legal mechanism, Defendants have deprived Plaintiff and other similarly situated American citizens of their protected liberty interests, including but not limited to their liberty interests in traveling, freedom from false stigmatization, and nonattainder, and thus violated the constitutional rights of Plaintiff and other similarly situated American citizens without affording them due process of law and will continue to do so into the future if Plaintiff and other similarly situated American citizens are not afforded the relief demanded below.
WHEREFORE, Plaintiff requests this Honorable Court grant declaratory and injunctive relief in the form described in the Prayer for Relief below, plus all such other relief this Court deems just and proper including costs and attorneys’ fees incurred in this action.
COUNT II
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DEPRIVATION OF PROTECTED LIBERTIES IN VIOLATION OF FIFTH AMENDMENT RIGHT TO SUBSTANTIVE DUE PROCESS (Jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702)
155. The foregoing allegations are realleged and incorporated herein. 156. Because Plaintiff and other similarly situated American citizens were listed by Defendants in a manner not narrowly tailored to a compelling interest, Defendants’ actions as described above in including Plaintiff and other similarly situated American citizens on a watch list that unreasonably burdens or prevents them from boarding commercial flights or entering the United States at land border crossings, are arbitrary and capricious, lack even a rational relationship to any legitimate government interest, and have unduly deprived Plaintiff of constitutionally protected rights, including his liberty interests in travel, freedom from false stigmatization, and nonattainder. 157. Defendants’ actions in nominating Plaintiff and other similarly situated American citizens to the Selectee List blatantly violate the requirement that “’nominations’ must not be solely based on race, ethnicity, national origin, religious affiliation, or First Amendment protected activities.” 49 U.S.C. § 114(h)(3). 158. By placing Plaintiff and other similarly situated American citizens on the federal terror watch list, Defendants have placed an undue burden on their fundamental right of movement. 159. By placing Plaintiff and other similarly situated American citizens on the federal terror watch list, Defendants have treated them like second-class citizens.
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160. Defendants’ watch list lacks a compelling interest insofar as their true purpose is to provide law enforcement with a tool to coerce American Muslims into becoming informants.
161. Defendants’ watch list is also not narrowly tailored insofar as the federal terror watch list are entirely and demonstrably ineffectual and obvious alternatives exist.
162. Defendants have placed Imam Abdi on the Selectee List and distributed that list internationally for the purpose of deterring and constraining foreign travel. Indeed, the defendants know and encourage foreign governments to deny entry and visas to listees and disseminate the Selectee List to them in order for those foreign governments to do so.
163. Defendants’ actions in placing Plaintiff and other similarly situated American citizens on the federal terror watch list, officially imposing on Plaintiff and other similarly situated American citizens the stigmatizing label of “known or suspected terrorists,” and disseminating the stigmatizing label to state and local authorities, foreign governments, corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private entities and individuals, without a constitutionally adequate legal mechanism, are arbitrary and capricious, shock the conscience, violate the decencies of civilized conduct and are so brutal and offensive that they do not comport with the traditional ideas of fair play and decency.
164. Because Plaintiff and other similarly situated American citizens have not been charged with any crimes and are United States Citizens, Plaintiff challenges his placement and the placement of others similarly situated American citizens on the federal terror watch list on a broad, as-applied basis.
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165. Plaintiff’s substantive due process challenge is also facial, as there are no circumstances where his placement or the placement of others similarly situated on the federal terror watch list is narrowly tailored to achieve any compelling government interest.
166. Defendants have thus violated Plaintiff’s constitutional rights and the constitutional rights of other similarly situated American citizens without affording them due process of law and will continue to do so into the future if Plaintiff and other similarly situated American citizens are not afforded the relief demanded below.
167. By placing Plaintiff and other similarly situated American citizens on the federal watch list, Defendants caused them an actual, imminent and irreparable injury that cannot be undone through monetary remedies.
WHEREFORE, Plaintiff requests this Honorable Court grant declaratory and injunctive relief in the form described in the Prayer for Relief below, plus all such other relief this Court deems just and proper including costs and attorneys’ fees incurred in this action.
COUNT III UNLAWFUL AGENCY ACTION IN VIOLATION OF THE ADMINISTRATIVE
PROCEDURE ACT, 5 U.S.C. §§ 702, 706 (Jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702) 168. The foregoing allegations are realleged and incorporated herein. 169. Defendants’ actions in placing Plaintiff and other similarly situated American citizens on the federal terror watch list, officially imposing on Plaintiff and other similarly situated American citizens the stigmatizing label of “known or suspected terrorists,” and disseminating the stigmatizing label to state and local authorities, foreign governments,
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corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private entities and individuals, without a constitutionally adequate legal mechanism, were and are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity, and should be set aside as unlawful pursuant to 5 U.S.C. § 706.
170. Defendants’ actions in nominating Plaintiff and other similarly situated American citizens to the federal terror watch list blatantly violate the requirement that “’nominations’ must not be solely based on race, ethnicity, national origin, religious affiliation, or First Amendment protected activities.” 49 U.S.C. § 114(h)(3).
171. Defendants’ failure to provide Plaintiff and other similarly situated American citizens, who have been unreasonably burdened or denied boarding on commercial flights or entering the United States across the border and sought to challenge their placement on the federal terror watch list, with a constitutionally adequate mechanism that affords them notice of the reasons and bases for their placement on the federal terror watch list and a meaningful opportunity to contest their continued inclusion on the federal terror watch list is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity, and should be set aside as unlawful pursuant to 5 U.S.C. § 706.
172. Because Plaintiff and other similarly situated American citizens do not present a security threat to commercial aviation, Defendants’ actions as described above in including Plaintiff and other similarly situated American citizens on the federal terror watch list that unreasonably burdens or prevents them from boarding commercial flights or entering the United
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States across the border, are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity, and should be set aside as unlawful pursuant to 5 U.S.C. § 706.
173. By placing Plaintiff and other similarly situated American citizens on the federal watch list, Defendants caused them an actual, imminent and irreparable injury that cannot be undone through monetary remedies.
174. Plaintiff and other similarly situated American citizens are not required to exhaust the DHS TRIP process, under the holding in Darby v. Cisneros, 509 U.S. 137 (1993). See United States District Court, Eastern District of Virginia, Case No. 11-cv-00050 (2011); Dkt. 70 at 22; attached as Memorandum Opinion (Exhibit 4).
WHEREFORE, Plaintiff requests this Honorable Court grant declaratory and injunctive relief in the form described in the Prayer for Relief below, plus all such other relief this Court deems just and proper including costs and attorneys’ fees incurred in this action.
COUNT IV VIOLATION OF THE FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION (Jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702)
(Equal Protection) 175. The foregoing allegations are realleged and incorporated herein. 176. Defendants’ actions in placing Plaintiff and other similarly situated American citizens on the federal terror watch list, officially imposing on Plaintiff and other similarly situated American citizens the stigmatizing label of “known or suspected terrorists,” and
34

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disseminating the stigmatizing label to state and local authorities, foreign governments, private corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private entities and individuals, without a constitutionally adequate legal mechanism are discriminatory and constitute an action that targets religious conduct for distinctive treatment.
177. Defendants’ actions in nominating Plaintiff and other similarly situated American citizens to the federal terror watch list blatantly violate the requirement that “’nominations’ must not be solely based on race, ethnicity, national origin, religious affiliation, or First Amendment protected activities.” 49 U.S.C. § 114(h)(3).
178. By placing Plaintiff and other similarly situated American citizens on the federal terror watch list, Defendants have treated Plaintiff and other similarly situated American citizens like second-class citizens.
179. Defendants’ above-described actions were motivated by the religious status of Plaintiff and other similarly situated American citizens and on the basis of the constitutionallyprotected free exercise of religion of Plaintiff and other similarly situated American citizens.
180. Defendants’ above-described actions have had a discriminatory effect upon and have disparately impacted Plaintiff and other similarly situated American citizens who are Muslim American travelers, and not travelers of other faiths.
181. Defendants’ above-described actions, policies, course of conduct, or pattern of practice that mandate or permit the above-described treatment of Plaintiff and other similarly situated American citizens does not serve a compelling state interest or a legitimate or public purpose, nor are they the least restrictive means or narrowly tailored to achieve any such interest.
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WHEREFORE, Plaintiff requests this Honorable Court grant declaratory and injunctive relief in the form described in the Prayer for Relief below, plus all such other relief this Court deems just and proper including costs and attorneys’ fees incurred in this action.
COUNT V VIOLATION OF THE UNITED STATES CONSTITUTION
(Non-Delegation) 182. The foregoing allegations are realleged and incorporated herein. 183. Congress has not provided the Executive Branch with intelligible principles from which the Executive can implement its watch list schemes regarding civil aviation and national security. 184. Congress has not directed the Executive Branch to create either a No Fly List or a Selectee List. 185. Congress has not authorized the Executive Branch to utilize the federal terror watch list to encourage financial institutions to close bank accounts or ban wire transfers, to encourage car dealerships to restrict test drives or purchases of vehicles, or state and local law enforcement to detain individuals based on their watch list status. 186. Congress has not authorized the Executive Branch to disseminate the terror watch list to local and state authorities, foreign countries, private corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, the captains of sea-faring vessels, among other official and private entities and individuals.
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187. The Executive Branch’s assignment of the watch listing function to TSC violates Congress’ directive that TSA determine who belongs on federal terror watch lists and the consequences that flow from being on those lists.
188. Congress has not delegated to TSA the authority to create a process that can culminate in the removal of individuals from the TSDB.
189. In the alternative, Congress’s delegation to TSA to create a redress process is defective because the Executive Branch has allocated watch list authority in a manner that prevents TSA from creating a redress process.
190. As a result, Defendants have illegally acted beyond their authority. WHEREFORE, Plaintiff requests this Honorable Court grant declaratory and injunctive relief in the form described in the Prayer for Relief below, plus all such other relief this Court deems just and proper including costs and attorneys’ fees incurred in this action.
Prayer for Relief WHEREFORE, Plaintiff respectfully requests: 1. A declaratory judgment that Defendants’ policies, practices, and customs violate the
Fifth Amendment to the United States Constitution and the Administrative Procedure Act; 2. An injunction that: a. requires Defendants to remedy the constitutional and statutory violations
identified above, including the removal of Plaintiff from any watch list or database that burdens or prevents him from flying or entering the United States across the border; and,
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b. requires Defendants to provide individuals designated on the federal terror
watch list with a legal mechanism that affords them notice of the reasons and
bases for their placement on the federal terror watch list and a meaningful
opportunity to contest their continued inclusion on the federal terror watch
list;
3. A trial by jury;
4. An award of attorneys’ fees, costs, and expenses of all litigation, pursuant to 28
U.S.C. § 2412; and,
5. Such other and further relief as the Court may deem just and proper.
DATED November 10, 2017
Respectfully submitted,
s/ James W. McConkie James W. McConkie PARKER & McCONKIE 5664 South Green Street Salt Lake City, Utah 84123 Telephone: (801) 264-1950 Email:jwmcconkie@utahlawhelp.com Email: bparker@utahlawhelp.com Attorneys for Plaintiff
s/ Lena F. Masri Lena F. Masri COUNCIL ON AMERICAN-ISLAMIC RELATIONS 453 New Jersey Avenue, SE Washington, DC 20003 Phone: (202) 488-8787 Email: lmasri@cair.com Email: gabbas@cair.com Attorneys for Plaintiff
s/ Gadeir Abbas
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Gadeir I. Abbas (VA: 81161)* COUNCIL ON AMERICAN-ISLAMIC RELATIONS 453 New Jersey Avenue, SE Washington, DC 20003 Phone: (202) 488-8787 Email: lmasri@cair.com Email: gabbas@cair.com Attorneys for Plaintiff
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CERTIFICATE OF SERVICE I hereby certify that on November 10, 2017, I electronically filed the foregoing document with the Clerk of the Court, which will send notification to the registered participants of the ECF System as listed on the Court’s Notice of Electronic Filing.
s/ Marynell Hinton Marynell Hinton

{}

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Exhibit 1
Exhibit 2 Exhibit 3 Exhibit 4
Exhibit 5

Index of Exhibits
Mohamed v. Holder, et al. (United States District Court, Eastern District of Virginia, Case No. 11-cv-00050 (2011)).
March 2013 Watchlisting Guidance
Directorate of Terrorist Identities (DTI): Strategic Accomplishments 2013
Department of Justice's March 2014 Audit of the Federal Bureau of Investigation's Management of Terrorist Watchlist
Elhady, et al. v. Piehota, et al. (United States District Court, Eastern District of Virginia, Case No. 1:16-cv-000375 (2017)).

{}

4

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Exhibit 1
Exhibit 2 Exhibit 3 Exhibit 4
Exhibit 5

Index of Exhibits
Mohamed v. Holder, et al. (United States District Court, Eastern District of Virginia, Case No. 11-cv-00050 (2011)).
March 2013 Watchlisting Guidance
Directorate of Terrorist Identities (DTI): Strategic Accomplishments 2013
Department of Justice's March 2014 Audit of the Federal Bureau of Investigation's Management of Terrorist Watchlist
Elhady, et al. v. Piehota, et al. (United States District Court, Eastern District of Virginia, Case No. 1:16-cv-000375 (2017)).

Abdi v. McCabe, et al. Case No. 2:17-cv-00622-DB Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:17-cv-00622-DB Document 16-1 Filed 11/10/17 PageID.704 Page 2 of 34

Exhibit 1

Mohamed v. Holder, et al. (United States District Court, Eastern District of Virginia, Case No. 11-cv-00050 (2011)).

Abdi v. McCabe, et al. Case No. 2:17-cv-00622-DB Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:17-cv-00622-DB Document 16-1 Filed 11/10/17 PageID.705 Page 3 of 34

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Case 2:17-cv-00622-DB Document 16-2 Filed 11/10/17 PageID.737 Page 1 of 84

Exhibit 1
Exhibit 2 Exhibit 3 Exhibit 4
Exhibit 5

Index of Exhibits
Mohamed v. Holder, et al. (United States District Court, Eastern District of Virginia, Case No. 11-cv-00050 (2011)).
March 2013 Watchlisting Guidance
Directorate of Terrorist Identities (DTI): Strategic Accomplishments 2013
Department of Justice's March 2014 Audit of the Federal Bureau of Investigation's Management of Terrorist Watchlist
Elhady, et al. v. Piehota, et al. (United States District Court, Eastern District of Virginia, Case No. 1:16-cv-000375 (2017)).

Abdi v. McCabe, et al. Case No. 2:17-cv-00622-DB Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:17-cv-00622-DB Document 16-2 Filed 11/10/17 PageID.738 Page 2 of 84 Exhibit 2 March 2013 Watchlisting Guidance
Abdi v. McCabe, et al. Case No. 2:17-cv-00622-DB Second Amended Complaint for Injunctive and Declaratory Relief

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Case 2:17-cv-00622-DB Document 16-3 Filed 11/10/17 PageID.821 Page 1 of 14

Exhibit 1
Exhibit 2 Exhibit 3 Exhibit 4
Exhibit 5

Index of Exhibits
Mohamed v. Holder, et al. (United States District Court, Eastern District of Virginia, Case No. 11-cv-00050 (2011)).
March 2013 Watchlisting Guidance
Directorate of Terrorist Identities (DTI): Strategic Accomplishments 2013
Department of Justice's March 2014 Audit of the Federal Bureau of Investigation's Management of Terrorist Watchlist
Elhady, et al. v. Piehota, et al. (United States District Court, Eastern District of Virginia, Case No. 1:16-cv-000375 (2017)).

Abdi v. McCabe, et al. Case No. 2:17-cv-00622-DB Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:17-cv-00622-DB Document 16-3 Filed 11/10/17 PageID.822 Page 2 of 14 Exhibit 3 Directorate of Terrorist Identities (DTI): Strategic Accomplishments 2013
Abdi v. McCabe, et al. Case No. 2:17-cv-00622-DB Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:17-cv-00622-DB Document 16-3 Filed 11/10/17 PageID.823 Page 3 of 14

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Case 2:17-cv-00622-DB Document 16-4 Filed 11/10/17 PageID.835 Page 1 of 61

Exhibit 1
Exhibit 2 Exhibit 3 Exhibit 4
Exhibit 5

Index of Exhibits
Mohamed v. Holder, et al. (United States District Court, Eastern District of Virginia, Case No. 11-cv-00050 (2011)).
March 2013 Watchlisting Guidance
Directorate of Terrorist Identities (DTI): Strategic Accomplishments 2013
Department of Justice's March 2014 Audit of the Federal Bureau of Investigation's Management of Terrorist Watchlist
Elhady, et al. v. Piehota, et al. (United States District Court, Eastern District of Virginia, Case No. 1:16-cv-000375 (2017)).

Abdi v. McCabe, et al. Case No. 2:17-cv-00622-DB Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:17-cv-00622-DB Document 16-4 Filed 11/10/17 PageID.836 Page 2 of 61

Exhibit 4

Department of Justice's March 2014 Audit of the Federal Bureau of Investigation's Management of Terrorist Watchlist

Abdi v. McCabe, et al. Case No. 2:17-cv-00622-DB Second Amended Complaint for Injunctive and Declaratory Relief

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Case 2:17-cv-00622-DB Document 16-5 Filed 11/10/17 PageID.896 Page 1 of 22

Exhibit 1
Exhibit 2 Exhibit 3 Exhibit 4
Exhibit 5

Index of Exhibits
Mohamed v. Holder, et al. (United States District Court, Eastern District of Virginia, Case No. 11-cv-00050 (2011)).
March 2013 Watchlisting Guidance
Directorate of Terrorist Identities (DTI): Strategic Accomplishments 2013
Department of Justice's March 2014 Audit of the Federal Bureau of Investigation's Management of Terrorist Watchlist
Elhady, et al. v. Piehota, et al. (United States District Court, Eastern District of Virginia, Case No. 1:16-cv-000375 (2017)).

Abdi v. McCabe, et al. Case No. 2:17-cv-00622-DB Second Amended Complaint for Injunctive and Declaratory Relief

Case 2:17-cv-00622-DB Document 16-5 Filed 11/10/17 PageID.897 Page 2 of 22

Exhibit 5

Elhady, et al. v. Piehota, et al. (United States District Court, Eastern District of Virginia, Case No. 1:16-cv-000375 (2017)).

Abdi v. McCabe, et al. Case No. 2:17-cv-00622-DB Second Amended Complaint for Injunctive and Declaratory Relief

CaCsaese1:21:61-7c-vc-v0-00307652-2A-JDTB-JFDAocDumoceunmt 1e6n-t547FiFleidled110/91/00/51/717PaPgaegIeD.189o8f 20PPagaege3IDo#f 29248

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

ANAS ELHADY, et al., Plaintiffs,
v.

) ) )
) ) Civil Action No. 1 :16-cv-375 (AJT/JFA)

CHRISTOPHER M. PIEHOTA, et al., )

)

Defendants.

)

MEMORANDUM OPINION AND ORDER Plaintiffs are twenty-five United States citizens who claim they are included in the Government's Terrorism Screening Database, referred to colloquially as the Government's terrorist watch list (the "TSDB" or "Watch List"). They allege this status subjects them to additional screening when traveling by air or entering the country at a land border or port, and can impact other rights, such as the ability to buy a gun, to work in certain parts of an airport, or to obtain the necessary license to transport hazardous materials. In this action, Plaintiffs challenge their alleged inclusion in the TSDB on the grounds that it violates (1) procedural due process (Count I), (2) substantive due process (Count II), (3) the Administrative Procedure Act (Count III), (4) the Equal Protection Clause (Count IV), and (5) the non-delegation doctrine (Count V). Pending before the Court is Defendants' Motion to Dismiss the Amended Complaint [Doc. No. 28] (the "Motion"). Defendants contend that Plaintiffs' claims are not justiciable, and to the extent they are, Plaintiffs have failed to plead facts that make any of their claims plausible. For the reasons below, the Motion will be GRANTED IN PART and DENIED IN PART.

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I. BACKGROUND Briefly summarized, Plaintiffs allege the following facts in their Amended Complaint, which, together with all reasonable inferences, are taken as true for the purposes of the Motion: 1
In September 2003, the Attorney General, pursuant to a presidential directive,
established the Terrorism Screening Center (the "TSC") as a multi-agency center for
coordinating infonnation pertaining to terrorist activity. Am. Compl. (ECF No. 22), 51. The
TSC, which is administered by the Federal Bureau of Investigations (the "FBI"), manages the
Government's consolidated Terrorism Screening Database, sometimes referred to as the
Government's terrorist watch list (the "TSDB" or "Watch List"). Id. The TSC determines whether to place individuals in the TSDB based on "nominations" received from the National
Counterterrorism Center (the "NCTC") and the FBI. Two subsets of the TSDB are known as the
Selectee List and the No Fly List. Id. , 52. Individuals on the No Fly List are prohibited from boarding commercial flights, whereas individuals on the Selectee List are required to undergo
enhanced screening before doing so. Id. Plaintiffs are twenty-five United States citizens who are included in the TSDB.2
Plaintiffs are all Muslim (or, in the case of Baby Doe 2, born to a Muslim family). Id. ,i,i 13-37.
1 Certain of these facts, panicularly some of the statutory and regulatory background, are supplemented, where appropriate, with matters of public record. Further background on statutory and regulatory framework is also found i2nAthltehoMugohhatmheedAompeinnidoendsCcoitmedphlaeirnetinco. ntains claims and allegations based on the No Fly List, Plaintiffs do not currently contend that any Plaintiffis on the No Fly List. PlaintiffMark Amri alleges that he was on the No Fly List in January 2016 but that following his request for a review of his status, he received a letter from OHS in September 2016 stating, "the U.S. Government knows of no reason, related to your inquiry, that you should be unable to fly." Am. CompI. ,i,i 366-76. Plaintiffs also notifled the Court on January 12, 2017, that the other three Plaintiffs alleged to be included on the No Fly List, Ausama Elhuzayel, Donald Thomas, and John Doe No. 4, have received similar letters since Plaintiffs filed the Amended Complaint. See Notice of Recent Factual Developments Pertaining to Plaintiffs Ausama Elhuzeyel, Donald Thomas, and John Doe No. 4 (ECF No. 43). All four of these Plaintiffs have also been able to fly subsequently. Id. at 2 n.2; Am. Compl. ,r 375. It is plausible based on Plaintiffs' allegations in the Amended Complaint, however, that they remain on the Selectee List and/or the Watch List.

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An indeterminate number of Plaintiffs are also on the Selectee List.3 Id.� 52. Defendants are the Principal Deputy Director of the TSC, the Deputy Director of Operations of the TSC, the Administrator of the Department of Homeland Security's ("OHS") Transportation Security Administration (the "TSA"), the Director of TSA's Office of Redress, the Director of the NCTC, the Director of the FBI, and the Director of the U.S. Customs and Border Protection ("CPB"). Id. �� 38-45.
Plaintiffs, in general, are routinely subjected to additional screening when they fly on a commercial airplane and when they enter the country at a land border or port, although the frequency and invasiveness of that secondary screening varies. For example, Plaintiff Anas
Elhady ("Elhady") is subject to secondary inspection "every time" he flies. Id. 1 142. Elhady
also "is routinely referred to secondary inspection, handcuffed and detained by CBP at land border crossings when he attempts to re-enter the United States from Canada," which can last
"approximately four to twelve hours." Id. 1 159. Plaintiff Ahmad Al Halabi ("Halabi") is
subject to secondary screening "every time" he flies; "is frequently unable to board his flights until he is 'cleared' by DHS," which "oftentimes takes hours"; and has missed flights due to "prolonged searches and interrogations." Id. 11219-221. Halabi was also handcuffed by CBP officers when reentering the United States in 2014 through a land border following vacation in Canada and detained in a holding cell for approximately two to three hours, and in a waiting area for another three to four hours, during which time the officers confiscated cell phone. Id. �� 22223. Because of this treatment, "Halabi no longer travels by air nor does he travel to Canada by
3 Plaintiffs' allegations include references to both the Watch List and the Selectee List and do not precisely allege that each Plaintiffis on the Selectee List, although all Plaintiffs allege that they are on the Watch List and have had similar experiences when traveling. Given Plaintiffs' limited access to information concerning the Watch List and the Selectee List, and the Court's obligation to construe the Plaintiffs' allegations in a light most favorable to them, the Court will assume for the purposes of this Motion that all Plaintiffs are alleging the same constitutional deprivations as a result of being included in the TSDB.

CaCsaese1:21:61-7c-vc-v0-00307652-2A-JDTB-JFDAocDumoceunmt 1e6n-t547FiFleidled110/91/00/51/717PaPgaegIeD.490o1f 20PPagaege6IDo#f 29251
land unless absolutely necessary for business purposes." Id. , 225. In April 2014, Plaintiff Wael Hakmeh ("'Hakmeh") "was referred to secondary screening and subjected to a prolonged interrogation" after his flight home from a business trip to Turkey. Id.,, 250-51. Since then, Hakmeh sometimes, but not always, has been subjected to secondary screening when he flies. Id. ,1254-59. In August 2016,a TSA agent removed Plaintiff Hassan Fares ("Fares") from the plane after boarding for his flight and required him to go through security again, even though he had already gone through security, during which time he was ''subjected to extensive searches and pat downs." Id. 1� 454-56. These actions caused Fares to miss his flight. Id. 1457. Plaintiff Zuhair El-Shwehdi ("El-Shwehdi") has been subjected to secondary screening every time he flies since 2011 and "is frequently unable to board his flights until he is 'cleared' by OHS," which "can take hours." Id. 11464-65. "Frequently, upon returning from a flight," El­ Shwehdi "is escorted from the gate or, on at least two occasions off of the plane from his seat, by FBI and/or TSA agents, before he is detained and subjected to prolonged questioning and searches ofhis person and belongings," which has caused him to miss connecting flights. Id. ,, 466-69.
Based on their experiences, most of the Plaintiffs have submitted an inquiry with the Department of Homeland Security's Traveler Redress Inquiry Program ("OHS TRIP"), which is administered by the TSA. See, e.g., id. 11226, 239,305. Under OHS TRIP, travelers who have been referred for additional screening or delayed or denied airline boarding for any reason, including because he or she believes she was erroneously placed on the Watch List, can inform TSA and request that it review the situation. See 49 C.F.R. §§ 1560.201-207. If the traveler's name is a match or near match with a name on the Watch List, "TSA, in coordination with the TSC and other appropriate Federal law enforcement or intelligence agencies, if necessary, will

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review all the documentation and information requested from the individual, correct any erroneous information, and provide the individual with a timely written response." 49 C.F.R. § 1560.205(d). This process includes research and review of information on the Watch List and on related United States government information systems. At the conclusion of this review, DHS TRIP informs the traveler that the process has concluded. While the redress process can result in the correction of erroneous information, the concluding letter neither confirms nor denies whether the individual is on the Watch List or the Selectee List. However, pursuant to court orders requiring the Government to provide enhanced procedural protections for United States Citizens on the No Fly List, individuals can learn if they are on the No Fly List through the DHS TRIP process. Plaintiffs who have submitted DHS TRIP inquiries, other than those who have received letters informing them that there is no reason they should not be able to fly, have either received no response as of the filing of the Amended Complaint or have received acknowledgement letters neither confirming nor denying their status on the Watch List. See, e.g., id. ,i,i 187, 390.
In addition to enhanced screening, Plaintiffs have also experienced a number ofother consequences, which they have reason to believe are attributable to their inclusion on the Watch List. For example, Western Union does not allow Plaintiff Yaseen Kadura to conduct wire transfers, which, on information and belief, is because the TSC informed Western Union that he was on the Watch List. Id. 1 195. PlaintiffDoe 1's accounts at JPMorgan Chase Bank, TCF Bank, and PNC Bank were closed without explanation or notice soon after he was first subjected to secondary screening while flying, which he believes was based on the banks' being informed of his inclusion in the TSDB. Id ,i1491-93. On June 30, 2016, when Plaintiff Ibrahim Awad ("Awad") attempted to test drive a vehicle at a Chevrolet car dealership in Sterling Heights,

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Michigan, a sales associate infonned him that, "although he was 'not supposed to tell"' Awad, Awad's "name showed up as being designated on the federal terror watch list" when the associate input his infonnation in the dealership's system. Id. 11346-47. According to the sales associate, "Awad was not permitted to test drive or purchase any vehicles until the dealership obtain clearance from the FBI allowing him to do so." Id. , 348. Around thirty minutes later, the sales associate told Awad that the FBI sent an email clearing Awad to test drive the vehicle. Id. ,i 350. Plaintiff Osama Hussein Ahmed was "unable to apply for employment at the airport where his brother was employed," as a result of being added to the No Fly List. Id. ,i 211. The local police treated Plaintiff John Doe 4 ("Doe 4") as threatening, which he believes was based on the TSC disseminating his Watch List status to local police. In particular, Doe 4 saw a denotation, "Possible Terrorist," beside his name on a local police officer's screen when he was
giving the officer a witness statement following a minor traffic incident. Id. ,r,r 540-42. On two
other occasions, police officers approached Doe 4's car on traffic stops with guns drawn. Id. , 543. Doe 4 was also detained in jail overnight after an officer found an airsoft gun in his car. Id.
,r 546. While being fingerprinted at the jail, Doe 4 saw that his paperwork said, "FBI Hold" and
"no phone," and the fingerprinting officer told him "he must have 'done something really bad to
get the FBI involved,' and that he 'thinks something is going down."' Id. 1 548-49.
Plaintiffs also allege that inclusion in the Watch List impacts a number of other legal rights. For example, they note that under New Jersey law, individuals on the Watch List are prohibited from buying a gun, and other states are considering similar measures. Id. ,i 71. Inclusion on the Watch List can also prevent an individual from obtaining the HAZMAT license necessary to transport hazardous materials, as the Government's security screening includes a Watch List-cross reference. Id. 173. Similarly, Watch List status can prevent an individual

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from obtaining a job at an airport or with an airline, as there are restrictions on the ability to enter
the "sterile areas" of airports. Id. ,r 74. Watch List status is also given to courts when making
bail determinations and can result in the denial or revocation of a Federal Aviation Administration license. Id. 176-77.
Furthermore,based on Plaintiffs' personal experiences,the publicly available legal consequences ofbeing on the Watch List,government and other publications,and the public statements of government officials,Plaintiffs believe their Watch List status is distributed beyond just Defendants' agencies and airlines,including to other government agencies,state and local law enforcement,foreign governments,gun sellers,car dealers,financial institutions, and
courts. See, e.g., id ,r,r 62-77.
II. LEGAL STANDARD A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. See Randall v. United States, 30 F.3d 518,522 (4th Cir. 1994); Republican Party ofNC. v. Martin, 980 F.2d 943,952 (4th Cir. 1994). A claim should be dismissed "if, after accepting all well­ pleaded allegations in the plaintiffs complaint as true . .. it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. City of Goldsboro, 178 F.3d 231,244 (4th Cir. 1999); see also Trulock v. Freeh, 275 F.3d 391,405 (4th Cir. 2001). In considering a motion to dismiss,"the material allegations of the complaint are taken as admitted," Jenkins v. McKeithen, 395 U.S. 411,421 (1969) (citations omitted),and the court may consider exhibits attached to the complaint,Fayetteville Investors v. Commercial Builders, Inc., 936 F. 2d 1462,1465 (4th Cir. 1991). Moreover,"the complaint is to be liberally construed in favor of plaintiff." Id.; see also Bd. ofTrs. v. Sullivant Ave. Props., LLC, 508 F. Supp. 2d 473,475 (E.D. Va. 2007). In addition,
7

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a motion to dismiss must be assessed in light of Rule S's liberal pleading standards, which require only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8. Nevertheless, while Rule 8 does not require "detailed factual allegations," a plaintiff must still provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (the complaint "must be enough to raise a right to relief above the speculative level" to one that is ''plausible on its face"); see also Giarratano v. Johnson, 521 F.3d 298. 302 (4th Cir. 2008). As the Supreme Court stated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2008), "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the Court to draw a reasonable inference that the defendant is liable for the conduct alleged."
The party invoking the court's jurisdiction typically bears the burden of proving the existence of federal subject matter jurisdiction. See Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008). "[W]hen a defendant asserts that the complaint fails to allege sufficient facts to support subject matter jurisdiction, the trial court must apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged." Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).
III. ANALYSIS A. Justiciability
1. Lack ofJurisdiction Defendants contend that the Court lacks jurisdiction over Plaintiffs' claims to the extent that Plaintiffs challenge the adequacy of the OHS TRIP process, which Defendants contend amounts to a TSA order that the courts of appeals have exclusive authority to review under 49 U.S.C. § 46110. The Fourth Circuit, however, has rejected this same contention in connection

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with a challenge to the No Fly List. See Order, Mohamed v. Holder, No. 11-1924 (4th Cir.May 28, 2013). The Court finds no reason not to apply that holding to Plaintiffs' challenge to the Watch List. In that regard, the Fourth Circuit reasoned that placement on the No Fly List "necessarily requires scrutiny of both the TSC's and the TSA's actions," and "49U.S.C. § 46110 gives [the courts of appeals] broad powers of review over orders of the TSA" but not "similar independent authority over the TSC." Id at 5. Plaintiffs' claims also "challenge the inter­ agency actions of the TSC and the TSA" and are therefore within the scope of the Fourth Circuit's holding and reasoning. See id.; 49C.F.R.§ 1560.205(d) ("TSA, in coordination with the TSC and other appropriate Federal law enforcement or intelligence agencies, if necessary, will review all the documentation and information requested from the individual, correct any erroneous information, and provide the individual with a timely written response.").
2. Standing Defendants next contend that Plaintiffs have not adequately established their standing to bring these claims. In particular, Defendants argue that Plaintiffs have not adequately pleaded a real and immediate threat of injury because the facts alleged in the Amended Complaint do not contain sufficient detail from which to infer Plaintiffs' present status on the Watch List and the consequences flowing therefrom (e.g., additional screening when flying or reentering the country). To establish standing, a plaintiff must set forth specific facts to demonstrate that (1) he has "suffered an 'injury in fact' ... which is (a) concrete and particularized, and (b) 'actual or imminent, not conjectural or hypothetical"; ( 2) there exists "a causal connection between the injury and the conduct complained of'; and (3) "it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision."' Lujan v. Defenders of

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Wildlife, 504 U.S. 555, 560-61 (1992) (citations and footnote omitted). Plaintiffs must demonstrate standing for every claim, but a claim is justiciable ifeven only one plaintiffhas standing to raise it. Bostic v. Schaefer, 760 F.3d 352, 370-71 (4th Cir. 2014). Plaintiffs have adequately alleged a constitutional injury in fact. The Amended Complaint contains sufficient factual detail to infer at this stage that Plaintiffs are presently on the Watch List and face ongoing, real-world consequences as a result, such as additional screening when they fly or enter the country and the inability to obtain a job at an airport. Therefore, Plaintiffs have standing to assert their claims.4 B. Count 1: Plaintiffs' Procedural Due Process Claim
The Due Process Clause guarantees that "[n]o person shall be .. . deprived oflife, liberty, or property, without due process oflaw." U.S. Const. amend. V. "The procedural component of due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning ofthe Due Process Clause." D.B. v. Carda/I, 826 F.3d 721, 741 (4th Cir. 2016) (internal quotation marks omitted). A procedural due process claim requires a plaintiff to show "(1) a cognizable liberty or property interest; (2) the deprivation ofthat interest by some form ofstate action; and (3) that the procedures employed were constitutionally inadequate." Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 314 (4th Cir. 2012). As a threshold matter, therefore, the government action complained ofmust "deprive individuals of'liberty' or 'property' interests within the meaning ofthe Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332 (1976). If
4 The Court also finds that Plaintiffs have alleged facts that make their claims against the CBP plausible at this stage. Plaintiffs allege that the CBP enforces and implements the challenged actions of the other Defendants, including the detention of persons on the Watch List for additional screening when they reenter the country at a land border or port. and accordingly that the CBP has engaged in the actions that Plaintiffs challenge as illegal. Thus, it is plausible that the CBP may need to be included in any remedial orders.
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government deprivation concerns an interest protected by the Due Process Clause, a court must weigh three factors to determine what process is due: (I) "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 the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id. at 335; see also Washington v. Harper, 494 U.S. 210,229 (1990) ("The procedural protections required by the Due Process Clause must be determined with reference to the rights and interests at stake in the particular case.").
1. Government Deprivation ofa Cognizable Liberty Interest Plaintiffs contend that their inclusion on the Watch List deprives them of the following interests protected by procedural due process: (1) the right of movement, and (2) liberty interests under the stigma-plus test.5 When the Due Process Clause is invoked, the inquiry begins "with a determination of the precise nature of the private interest that is threatened." Lehr v. Robertson, 463 U.S. 248, 256 (1983). For that reason, and as an initial matter, Plaintiffs' broadly characterized "right of movement" fails to adequately describe the liberty interest at stake. Rather, Plaintiffs' movement-related liberty interests involve the right to travel by airplane or reenter the United States without being detained for additional screening.
a. Movement-Related Liberty Interest While it is undisputed that procedural due process is applicable to certain liberty interests created by statute, there is no clear test to determine those procedurally protected liberty interests
s The Amended Complaint also asserts that Plaintiffs have "a liberty interest in nonattainder (ie: the interest against being singled out for punishment without trial)." Am. Compl. � 565. But Plaintiffs have abandoned nonattainder as a liberty interest on which to base their procedural due process claim.
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that derive implicitly from the Due Process Clause itself. See Kerry v. Din, 135 S. Ct. 2128, 2136 (2015) (Scalia, J., plurality opinion); id. at 2142 (Breyer, J. dissenting).6 The three-justice plurality in Din found that procedurally protected liberty interests are those within the historic understanding of the Due Process Clause and, at most, also include implied fundamental liberty interests for the purposes ofsubstantive due process. See id. at 2133-38. In contrast, the four­ justice dissent favored a comparative approach, finding that procedurally protected liberty interests are those "sufficiently important" to "flow 'implicit[ly]' from the design, object, and nature of the Due Process Clause." Id. at 2142 (alteration in original). One district court to address whether inclusion on the Selectee List triggers procedural due process protections concluded that "[g]ovemment action implicates the right to travel under the Due Process Clause when it 'actually deters travel, when impeding travel is its primary objective, or when it uses a classification that serves to penalize the exercise of the right."' Beydoun v. Lynch, No. 14-cv13812, 2016 WL 3753561, at *4 (E.D. Mich. July 14, 2016) (quoting Attorney Gen. ofN.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986) (Brennan, J., plurality opinion)) (holding that plaintiffs had not adequately alleged a procedural due process claim because, among other reasons, they had not alleged that they were deterred from travel).
The Court need not decide at this stage precisely which test determines whether the travel-related liberty interest asserted here is entitled to procedural protection. No matter which judicially recognized test is used, Plaintiffs have adequately alleged a procedurally protected liberty interest. In that regard, Plaintiffs allege that their placement on the Watch List or the Selectee List subjects them to invasive additional screening and other liberty-constraining
6 The controlling concurrence in Din did not address this question but rather assumed a procedurally protected libeny interest in finding that the procedures at issues were constitutionally adequate. See 135 S. Ct. at 2139-41 (Kennedy, J., concurring).
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activities when they fly or reenter the country at a land border or port. Based on their personal experiences, Plaintiffs further allege that this additional screening can entail their being detained for hours while they are searched and questioned, and that such screening has caused them to avoid travel.
Taking these allegations as true, Plaintiffs have plausibly alleged at this stage that their inclusion in the Watch List or Selectee List caused them to suffer a deprivation of a liberty interest as that term is historically understood. The invasion of that liberty interest is no less tangible or unanchored in historical recognition than other interests previously found to deserve procedural protections. See, e.g., Din, 135 S. Ct. at 2143 (Breyer, J., dissenting) (listing procedurally protected liberty interests, including, for example, a student's right not to be suspended from class and a mentally ill prisoner's right not to take psychotropic drugs). Plaintiffs also allege that they have actually been deterred from traveling as a result of actual detentions. See Beydoun, No. 14-cv-13812, 2016 WL 3753561, at *4. Plaintiffs have therefore adequately alleged a cognizable liberty interest based on the consequences they suffer as a result of their travel.
b. Stigma-Plus Reputational Interest Procedural due process protections also extend to certain reputational injuries under the so-called "stigma-plus" test. To state a cognizable procedural due process claim under that test, "a plaintiff must demonstrate that his reputational injury was accompanied by a state action that "distinctly altered or extinguished' his legal status." Shirvinski, 673 F.3d at 315 (citing Paul v. Davis, 424 U.S. 693, 711 (1976)). With respect to the "stigma" prong-the reputational injury­ the Court previously noted:
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The Fourth Circuit has recognized in at least one case a •constitutional harm' based on the inclusion of defamatory information in a non-public government file if there is a 'likelihood' of dissemination to the public. Sciolino v. City ofNewport News, 480 F.3d 642,650 (4th Cir. 2007); but see Bishop v. Wood, 426 U.S. 341,384 (1976) (the due process clause of the Fourteenth Amendment is not implicated 'when there is no public disclosure' of the allegedly defamatory information and the defendant has no otherwise legally recognized interest at stake)." Mohamed v. Holder, No. 1:11-cv-50,2011 WL 3820711,at *7 (E.D. Va. Aug.26,2011) ("Mohamed f'). Here again,it is unsettled precisely how broadly defamatory information must be disseminated by the government to satisfy the stigma prong. See, e.g., Palka v. Shelton, 623 F.3d 447,454 (7th Cir.2010) ("The public-disclosure element requires that the defendant actually disseminate the stigmatizing comments in a way that would reach potential future employers or the community at large."); Johnson v. Martin, 943 F.2d 15, 17 (7th Cir.1991) (holding dissemination only within the proper chain of command does not constitute public disclosure). The ''plus" prong must be satisfied by a change in "a right or status previously recognized by ...law," Paul, 424 U.S. at 711,not simply damage that "flows from injury caused by the defendant to a plaintiff's reputation." Siegert v. Gilley, 500 U.S. 226,234 (1991). For example,there is no stigma-plus claim where the government's actions "may have affected [the plaintiff's] private employment prospects" in the future but did not result in a changed legal status such as losing a government job or formally being barred from government contracting. See Shirvinski, 673 F.3d at 315. Here,Plaintiffs allege,based on their personal experiences and government and other public reports,that their status in the TS DB has been disseminated to third parties outside the relevant federal agencies and airlines, including state and local authorities,courts,foreign governments,gun sellers,banks,and car dealers. Plaintiffs' factual allegations plausibly allege that the dissemination of the Watch List may be so widespread that it is tantamount to public
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disclosure, even if only distributed to other government and private entities that need the infonnation for official objectives. Accordingly, Plaintiffs have alleged facts that plausibly establish the stigma prong. Plaintiffs also plausibly allege that inclusion on the Watch List causes or substantially contributes to a number of tangible consequences to their legal rights or status, including, inter a/ia, foreclosing their ability to buy certain guns in certain states, to obtain the necessary license to transport hazardous materials, and to obtain certain jobs at an airport. Plaintiffs have therefore adequately alleged a cognizable, protectable interest under the stigma-plus test.
2. The Process Due The '"central meaning of procedural due process" is that "[p]arties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified." Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (internal quotation marks omitted); see Mathews, 424 U.S. at 333 ("The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner."') (quoting Armstrong v. Manzo, 380 U.S. 545,552 (1965)); D.B. v. Cardal/, 826 F.3d 721, 741 (4th Cir. 2016) ("And when the government deprives a person of a protected liberty or property interest, it is obliged to provide notice and opportunity for hearing appropriate to the nature ofthe case.") (internal quotation marks omitted). Plaintiffs contend that because the Government refuses to notify individuals whether they are included in the TSDB, and therefore denies them an opportunity to participate in challenging their status, there are effectively no procedural protections. The Government concedes that '"the existing process does not permit" individuals "to learn their status with respect to a watchlist" but contends that its internal process provides sufficient procedural
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protections from erroneous deprivations,without any opportunity to be heard. Defs.' Mem.of Law in Support of Defs.'Mot. to Dismiss the Am.Compl. (ECF No. 29),at 41.
Plaintiffs ' allegations plausibly allege a claim for a procedural due process violation. The Government's "trust us" approach is inconsistent with the fundamental procedural protections applicable to the deprivation of a protected liberty interest,including the right to be heard. Nevertheless,the ultimate merits of that claim are tethered to the Mathews factors, which are "fact-intensive consideration[s]," which "when considered within the context of [these] allegations,necessarily require an evidentiary record beyond that presented to the Court in connection with the defendants' motion to dismiss." Mohamed v. Holder, 995 F. Supp.2d 520, 538-39 (E.D.Va. 2014) ("Mohamed If'). C. Count 2: Plaintiffs' Substantive Due Process Claim
Unlike procedural due process,substantive due process "protects individual liberty against 'certain government actions regardless of the fairness of the procedures used to implement them."' Collins v. City ofHarker Heights, 503 U.S. 115,125 (1992) (citation omitted); Reno v. Flores, 507 U.S.292,301-02 (1993) ("[ S]ubstantive due process ...forbids the government to infringe certain fundamental liberty interests at all,no matter what process is provided,unless the infringement is narrowly tailored to serve a compelling state interest.") (internal quotation marks omitted). It "provides heightened protection against government interference with certain fundamental rights and liberty interests," which are held to a more exacting standard of strict scrutiny. Washington v. Glucksberg, 521 U.S.702,719 (1997). To survive strict scrutiny,the government must demonstrate that its interference is necessary to further a compelling governmental interest and has been narrowly tailored to achieve that
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interest. Hawkins v. Freeman, 195 F.3d 732, 739 (4th Cir. 1999). But the government only needs a rational basis for its interference with non-fundamental rights and liberty interests. Id.
For an asserted right to be deemed fundamental for the purposes of substantive due process, it must be "objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Glucksberg, 521 U.S. at 721-22 (internal quotation marks and citations omitted). As with the procedural due process inquiry, "a careful description of the asserted fundamental liberty interest" is required to make that determination. Id. at 722 (internal quotation marks omitted); Flores, 507 U.S. at 302 ("Substantive due process analysis must begin with a careful description of the asserted right, for the doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.") (internal quotation marks and alteration omitted).
While Plaintiffs also contend here that their substantive due process claim must be assessed based on the general "right of movement," the analysis again calls for a more precise articulation of the right at issue. Here, Plaintiffs claim that as United States citizens who have never been convicted of a crime and are not under indictment or subject to arrest for any identifiable conduct, they have the right, anchored in the right to travel, and protected under substantive due process, to board a commercial airline and enter the country free of predetermined additional screening. But however one characterizes the right at issue, the impact of enhanced screening upon that right does not make the government's action impermissible no matter how rigorous the procedural protections for determining who is subjected to such screening. For these reasons, and those previously stated in Mohamed v. Holder, No. 1:11cvSO, -
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-- F.Supp.3d ----,2017 WL 3086644,at 5-10 (E.D.Va.July 20,2017) ("Mohamed III"), Plaintiffs fail to state a claim for a violation of substantive due process. D. Count 3: Plaintiffs' Administrative Procedure Act Claim
Plaintiffs claim that Defendants violated the Administrative Procedure Act ("APA"),5 U.S.C.§ 706,by placing them in the TS DB "without a constitutionally adequate legal mechanism," which Plaintiffs contend was arbitrary,capricious,an abuse of discretion,or otherwise not in accordance with law. The issues in this APA claim essentially conflate with Plaintiffs' constitutional claims,and for the reasons stated above with respect to Plaintiffs' procedural due process claim,the Court concludes 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.
E. Count 4: Plaintiffs' Equal Protection Claim
The Equal Protection Clause prohibits the government from "deny[ing] to any person within its jurisdiction the equal protection ofthe laws." U.S. Const.amend.XIV,§ 1. "In order to survive a motion to dismiss an equal protection claim,a plaintiff must plead sufficient facts to demonstrate plausibly that he was treated differently from others who were similarly situated and that the unequal treatment was the result of discriminatory animus." Equity in Athletics, Inc. v. Dep 't ofEduc., 6 39 F.3d 91,108 (4th Cir.2011). To state a claim of unconstitutional discrimination based on a facially neutral law or policy,a plaintiff must allege facts that make it plausible that the law or policy "has been applied in an intentionally discriminatory manner " or "has an adverse effect on a protected group,and ...the adoption of the statute or policy was motivated by discriminatory animus." Williams v. Hansen, 326 F.3d 569,584 (4th Cir.200 3); Sylvia Dev. Corp. v. Calvert Cty., Md, 48 F.3d 810,819 (4th Cir.1995) (Even when a
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government "action disparately impacts members ofa particular [protected] group,it will not be found to violate the Equal Protection Clause unless the plaintiff demonstrates that the action was motivated, at least in part,by an 'invidiously discriminatory' intent.").
The publicly disclosed criteria used in connection with the Watch List are facially neutral. See Mohamed 11,995 F.Supp.2d at 525-26. Nevertheless, Plaintiffs contend that they have plausibly pleaded intentional discrimination with respect to the TSDB based on the disproportionate number of Muslims that are included in the Watch List. Plaintiffs only factual allegation in support of that contention is that persons living in Dearborn, Michigan,a town of approximately 100,000 residents with a high Arab and Muslim population, are disproportionately included in the Watch List. Even accepting as true this factual allegation,and recognizing that disparate impact can evidence discriminatory intent in certain circumstances,see Sylvia Dev. Corp., 48 F.3d at 819, Plaintiffs have failed to allege facts sufficient to plausibly allege that the Watch List was created based on,or operates through, intentional discrimination. Therefore, Plaintiffs have failed to state claim for a violation of the Equal Protection Clause. F. Count 5: Plaintiffs' Non-Delegation Claim
Plaintiffs finally contend that Congress violated the non-delegation doctrine and that TSA and TSC exceeded their authority by creating the Watch List. But Congress explicitly directed TSA,"in consultation with other appropriate Federal agencies and air carriers,establish policies and procedures requiring air carriers ...to identify individuals on passenger lists who may be a threat to civil aviation or national security," and ''take . ..appropriate action with respect to that individual." 49 U.S.C.§ 114(h)(3). As explained previously, "the Court concludes that Congress has provided 'intelligible principles' both as to the goals TSA should seek to achieve and also how it should go about achieving them, while leaving the day-to-day implementation of
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the scheme to TSA." Mohamed ill, 2017 WL 3086644, at*11. Therefore, Plaintiffs have failed to state a claim for a violation of the non-delegation doctrine.
IV. CONCLUSION For these reasons, the Court concludes that Plaintiffs' claims are justiciable, and that Plaintiffs have pleaded facts that make plausible their claims that Defendants violated their procedural clue process rights (Count I) and the APA (Count IJI), but have not sufficiently alleged that Defendants violated their substantive due process rights (Count II), the Equal Protection Clause (Count IV), or the non-delegation doctrine (Count V). Accordingly, it is hereby ORDERED that Defendants' Motion to Dismiss the Amended Complaint (Doc. No. 28) be, and the same hereby is, GRANTED lN PART and DENIED IN PART; it is GRANTED as to Plaintiffs claims for a violation of substantive due process (Count III), the Equal Protection Clause (Count TV), and the non-delegation doctrine (Count V), and these claims are hereby DTSM[SSED; and it is otherwise DENIED. The Clerk is directed to forward copies of this Order to all counsel of record.
Alexandria, Virginia September 5, 2017
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 Create an Alert for This Case on RECAP
US District Court Electronic Case Filing System District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:17-cv-00622-DB

CLOSED

Adbi v. McCabe et al Assigned to: Judge Dee Benson
Case in other court: USCA 10th Circuit, 18-04078
Cause: 28:1331 Fed. Question

Date Filed: 06/16/2017 Date Terminated: 04/30/2018 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff

Yussuf Awadir Adbi

represented by Carolyn M. Homer LATHAM & WATKINS 555 ELEVENTH STREET NW STE 1000 WASHINGTON, DC 20004 (202)637-2200 Email: carolyn.homer@lw.com LEAD ATTORNEY PRO HAC VICE

Gadeir I. Abbas CAIR 453 NEW JERSEY AVE SE WASHINGTON, DC 20003 (202)488-8787 Email: gabbas@cair.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James W McConkie , II PARKER & MCCONKIE 5664 S GREEN ST SALT LAKE CITY, UT 84123 (801)264-1950 Email: jwmcconkie@utahlawhelp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lena F. Masri CAIR

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V. Defendant Andrew McCabe Acting Director of the Federal Bureau of Investigation, in his official capacity
Defendant Christopher M. Piehota Director of the Terrorism Screening Center, in his official capacity

453 NEW JERSEY AVE SE WASHINGTON, DC 20003 (202)488-8787 Email: lmasri@cair.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bradley H. Parker PARKER & MCCONKIE 5664 S GREEN ST SALT LAKE CITY, UT 84123 (801)264-1950 Email: bparker@sjatty.com ATTORNEY TO BE NOTICED
represented by Brigham J. Bowen US DEPARTMENT OF JUSTICE FEDERAL PROGRAMS BRANCH 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530 (202)514-6289 Email: brigham.bowen@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey E. Nelson US ATTORNEY'S OFFICE 111 S MAIN ST STE 1800 SALT LAKE CITY, UT 84111-2176 (801) 325-3250 Email: Jeff.Nelson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brigham J. Bowen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey E. Nelson
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Defendant Huban A. Gowadia Acting Administrator, Transportation Security Administration (TSA), United States Department of Homeland Security (DHS), in his official capacity
Defendant Kevin K. McAleenan Acting Commissioner United States Customs and Border Protection; in his official capacity
Defendant Nicholas J. Rasmussen Director of the National Counterterrorism Center, in his official capacity

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brigham J. Bowen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey E. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brigham J. Bowen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey E. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brigham J. Bowen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey E. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/16/2017

# Docket Text 1 Case has been indexed and assigned to Judge Dee Benson. Plaintiff Yussuf Awadir Adbi is directed to E-File the Complaint and cover sheet (found under Complaints and Other Initiating Documents) and pay the filing fee of $ 400.00 by the end of the business day. NOTE: The court will not have jurisdiction until the opening document is
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06/16/2017 06/16/2017 06/16/2017 06/16/2017 06/23/2017
06/27/2017 06/27/2017 06/27/2017

electronically filed and the filing fee paid in the CM/ECF system. Civil Summons may be issued electronically. Prepare the summons using the courts PDF version and email it to utdecf_clerk@utd.uscourts.gov for issuance (alt) (Entered: 06/16/2017)
2 COMPLAINT against All Defendants (Filing fee $ 400, receipt number 1088-2777979) filed by Yussuf Awadir Adbi. Assigned to Judge Dee Benson (McConkie, James) (Entered: 06/16/2017)
3 Plaintiff's MOTION for Preliminary Injunction and Memorandum in Support , MOTION for Temporary Restraining Order and Memorandum in Support filed by Plaintiff Yussuf Awadir Adbi. (Attachments: # 1 Text of Proposed Order)(McConkie, James) (Entered: 06/16/2017)
4 Plaintiff's MOTION for Admission Pro Hac Vice of Gadeir I. Abbas , Registration fee $ 250, receipt number 1088-2778203, filed by Plaintiff Yussuf Awadir Adbi. (Attachments: # 1 Text of Proposed Order and Completed Application)(McConkie, James) (Entered: 06/16/2017)
5 Plaintiff's MOTION for Admission Pro Hac Vice of Lena F. Masri , Registration fee $ 250, receipt number 1088-2778207, filed by Plaintiff Yussuf Awadir Adbi. (Attachments: # 1 Text of Proposed Order and Completed Application)(McConkie, James) (Entered: 06/16/2017)
6 RESPONSE to Motion re 3 Plaintiff's MOTION for Preliminary Injunction and Memorandum in Support MOTION for Temporary Restraining Order and Memorandum in Support filed by Defendants Huban A. Gowadia, Kevin K. McAleenan, Andrew McCabe, Christopher M. Piehota, Nicholas J. Rasmussen. Attorney Jeffrey E. Nelson added to party Huban A. Gowadia(pty:dft), Attorney Jeffrey E. Nelson added to party Kevin K. McAleenan(pty:dft), Attorney Jeffrey E. Nelson added to party Andrew McCabe(pty:dft), Attorney Jeffrey E. Nelson added to party Christopher M. Piehota(pty:dft), Attorney Jeffrey E. Nelson added to party Nicholas J. Rasmussen(pty:dft)(Nelson, Jeffrey) (Entered: 06/23/2017)
7 ORDER granting 4 Motion for Admission Pro Hac Vice of Gadeir I. Abbas for Yussuf Awadir Adbi. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov. Signed by Judge Dee Benson on 6/26/2017. (blh) (Entered: 06/27/2017)
8 ORDER granting 5 Motion for Admission Pro Hac Vice of Lena F. Masri for Yussuf Awadir Adbi. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov. Signed by Judge Dee Benson on 6/26/2017. (blh) (Entered: 06/27/2017)
9 NOTICE of Appearance by Brigham J. Bowen on behalf of Huban A. Gowadia, Kevin K. McAleenan, Andrew McCabe, Christopher M. Piehota, Nicholas J. Rasmussen (Bowen, Brigham) (Entered: 06/27/2017)
4

08/14/2017 08/15/2017 10/24/2017 11/01/2017 11/03/2017
11/03/2017 11/10/2017
11/13/2017 12/01/2017

10 Consent MOTION for Extension of Time to File Answer re 2 Complaint and Memorandum in Support filed by Defendants Huban A. Gowadia, Kevin K. McAleenan, Andrew McCabe, Christopher M. Piehota, Nicholas J. Rasmussen. (Attachments: # 1 Text of Proposed Order)(Bowen, Brigham) (Entered: 08/14/2017)
11 ORDER granting 10 Motion for Extension of Time to Answer 2
Complaint. Answer deadline updated for Huban A. Gowadia, Kevin K. McAleenan, Andrew McCabe, Christopher M. Piehota, Nicholas J. Rasmussen. Answers due 10/16/2017. Signed by Judge Dee Benson on 8/15/2017. (blh) (Entered: 08/15/2017)
12 NOTICE of Joint Notice of Proposed Briefing Schedule by Yussuf Awadir Adbi (McConkie, James) (Entered: 10/24/2017)
13 Joint MOTION for Extension of Time Joint Notice of Proposed Briefing Schedule filed by Plaintiff Yussuf Awadir Adbi. (Attachments: # 1 Text of Proposed Order)(McConkie, James) (Entered: 11/01/2017)
14 AMENDED COMPLAINT against All Defendants. filed by Yussuf Awadir Adbi. (Attachments: # 1 Exhibit 1 - Mohamed v. Holder, et al. (United States District Court, Eastern District of Virginia, Case No. 11-cv00050 (2011))., # 2 Exhibit 3 - Directorate of Terrorist Identities (DTI): Strategic Accomplishments 2013, # 3 Exhibit 4 - Department of Justice's March 2014 Audit of the Federal Bureau of Investigation's Management of Terrorist Watchlist, # 4 Exhibit 5 - Elhady, et al. v. Piehota, et al. (United States District Court, Eastern District of Virginia, Case No. 1:16cv-000375 (2017)).) (McConkie, James) (Entered: 11/03/2017)
15 EXHIBITS filed by Yussuf Awadir Adbi re 14 Amended Complaint (Attachments: # 1 Exhibit 2 - March 2013 Watchlisting Guidance) (McConkie, James) (Entered: 11/03/2017)
16 AMENDED COMPLAINT Second Amended Complaint against All Defendants with Jury Demand. filed by Yussuf Awadir Adbi. (Attachments: # 1 Exhibit 1 - Mohamed v. Holder, et al. (United States District Court, Eastern District of Virginia, Case No. 11-cv-00050 (2011))., # 2 Exhibit 2 - March 2013 Watchlisting Guidance, # 3 Exhibit 3 - Directorate of Terrorist Identities (DTI): Strategic Accomplishments 2013, # 4 Exhibit 4 - Department of Justice's March 2014 Audit of the Federal Bureau of Investigation's Management of Terrorist Watchlist, # 5 Exhibit 5 - Elhady, et al. v. Piehota, et al. (United States District Court, Eastern District of Virginia, Case No. 1:16-cv-000375 (2017)).) (McConkie, James) (Entered: 11/10/2017)
17 ORDER granting 13 Motion for Extension of Time re Briefing Schedule. Signed by Judge Dee Benson on 11/13/2017. (blh) (Entered: 11/13/2017)
18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support , MOTION to Dismiss for Lack of Jurisdiction
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12/26/2017 01/02/2018 01/05/2018 01/05/2018 01/05/2018 01/17/2018
01/17/2018 01/26/2018

and Memorandum in Support filed by Defendants Huban A. Gowadia, Kevin K. McAleenan, Andrew McCabe, Christopher M. Piehota, Nicholas J. Rasmussen. (Attachments: # 1 Exhibit A - Mohamed v. Holder, No. 11-1924 (4th Cir. May 28, 2013))(Bowen, Brigham) (Entered: 12/01/2017)
19 Joint MOTION for Extension of Time Plaintiffs deadline to file a response to Defendants Motion to Dismiss and Memorandum in Support filed by Plaintiff Yussuf Awadir Adbi. (Attachments: # 1 Text of Proposed Order for Extension of Time)(McConkie, James) Modified on 12/27/2017 - modified event type to Motion for Extension of Time to File Response/Reply(jwt). (Entered: 12/26/2017)
20 ORDER granting 19 Motion for Extension of Time to File Response/Reply re 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, MOTION to Dismiss for Lack of Jurisdiction. Responses due by 1/5/2018. Replies due by 1/24/2018. Signed by Judge Dee Benson on 1/2/2018. (blh) (Entered: 01/02/2018)
21 Stipulated MOTION for Leave to File Excess Pages and Memorandum in Support filed by Plaintiff Yussuf Awadir Adbi. (Attachments: # 1 Text of Proposed Order Regarding Stipulation to Extend Length of Response and Reply Memoranda)(McConkie, James) (Entered: 01/05/2018)
22 ORDER granting 21 Motion for Leave to File Excess Pages. Signed by Judge Dee Benson on 1/5/2018. (blh) (Entered: 01/05/2018)
23 Plaintiff's MEMORANDUM in Opposition re 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support filed by Plaintiff Yussuf Awadir Adbi. (McConkie, James) (Entered: 01/05/2018)
24 Consent MOTION for Extension of Time to File Response/Reply as to 23
Memorandum in Opposition to Motion, 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support and Memorandum in Support filed by Defendants Huban A. Gowadia, Kevin K. McAleenan, Andrew McCabe, Christopher M. Piehota, Nicholas J. Rasmussen. (Attachments: # 1 Text of Proposed Order)(Bowen, Brigham) (Entered: 01/17/2018)
25 ORDER granting 24 Motion for Extension of Time to File Response/Reply re 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, MOTION to Dismiss for Lack of Jurisdiction. Replies due by 1/31/2018. Signed by Judge Dee Benson on 1/17/2018. (blh) (Entered: 01/17/2018)
26 Consent MOTION for Extension of Time to File Response/Reply as to 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support MOTION to Dismiss for Lack of Jurisdiction
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01/30/2018 02/07/2018 02/09/2018 02/21/2018 02/21/2018 02/28/2018 02/28/2018 04/05/2018

and Memorandum in Support and Memorandum in Support filed by Defendants Huban A. Gowadia, Kevin K. McAleenan, Andrew McCabe, Christopher M. Piehota, Nicholas J. Rasmussen. (Attachments: # 1 Text of Proposed Order)(Bowen, Brigham) (Entered: 01/26/2018)
27 ORDER granting 26 Motion for Extension of Time to File Response/Reply re 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, MOTION to Dismiss for Lack of Jurisdiction. Replies due by 2/7/2018. Signed by Judge Dee Benson on 1/30/2018. (blh) (Entered: 01/30/2018)
28 REPLY to Response to Motion re 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support filed by Defendants Huban A. Gowadia, Kevin K. McAleenan, Andrew McCabe, Christopher M. Piehota, Nicholas J. Rasmussen. (Bowen, Brigham) (Entered: 02/07/2018)
29 NOTICE OF HEARING ON MOTION re: 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support : (Notice generated by CHAMBERS) Motion Hearing set for 2/22/2018 at 02:30 PM in Rm 8.300 before Judge Dee Benson. (reb) (Entered: 02/09/2018)
30 NOTICE VACATING Motion to Dismiss HEARING set for Thursday 2/22/2018 at 2:30 p.m. before Judge Benson (Notice generated by CHAMBERS. This hearing will be reset. (reb) (Entered: 02/21/2018)
31 ***AMENDED***NOTICE OF HEARING ON MOTION re: 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and Memorandum in Support MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support : (Notice generated by CHAMBERS) Motion Hearing RESET FOR THURSDAY April 5, 2018 at 02:30 PM in Rm 8.300 before Judge Dee Benson. (reb) (Entered: 02/21/2018)
32 Plaintiff's MOTION for Admission Pro Hac Vice of Carolyn M. Homer , Registration fee $ 250, receipt number 1088-2949271, filed by Plaintiff Yussuf Awadir Adbi. (Attachments: # 1 Exhibit Application for Admission Pro Hac Vice, # 2 Text of Proposed Order re Pro Hac Vice Admission) (McConkie, James) (Entered: 02/28/2018)
33 ORDER granting 32 Motion for Admission Pro Hac Vice of Carolyn M. Homer for Yussuf Awadir Adbi. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov. Signed by Judge Dee Benson on 2/28/2018. (blh) (Entered: 02/28/2018)
34 Minute Order. Proceedings held before Judge Dee Benson: Cnsl present. After arguments were heard and discussion held on 18 Motion to Dismiss for Failure to State a Claim, Court takes the matter under advisement.
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04/23/2018 04/30/2018
05/29/2018 05/29/2018 05/30/2018 06/13/2018 01/06/2020

Written Order to follow oral order: Yes. Attorney for Plaintiff: Gadeir I. Abbas, Lena F. Masri, James W. McConkie and Carolyn M. Homer, Attorney for Defendant Brigham J. Bowen and Jeffrey E. Nelson. Court Reporter: Ed Young. (reb) (Entered: 04/05/2018)
35 MEMORANDUM DECISION and ORDER granting 18 Defendants' Motion to Dismiss. Signed by Judge Dee Benson on 4/20/2018. (blh) (Entered: 04/23/2018)
36 JUDGMENT - It is ORDERED AND ADJUDGED that Defendants' Motion to Dismiss is granted and the action is dismissed with prejudice. Case Closed. Signed by Judge Dee Benson on 4/30/2018. (blh) (Entered: 04/30/2018)
37 NOTICE OF APPEAL as to 36 Judgment filed by Yussuf Awadir Adbi. Appeals to the USCA for the 10th Circuit. Filing fee $ 505, receipt number 1088-3012961. (Masri, Lena) (Entered: 05/29/2018)
38 Transmission of Preliminary Record to USCA re 37 Notice of Appeal as to 10th Circuit (Attachments: # 1 Appendix) (blh) (Entered: 05/29/2018)
39 USCA Case Number Case Appealed to USCA 10th Circuit. Case Number 18-4078 for 37 Notice of Appeal filed by Yussuf Awadir Adbi. (jwt) (Entered: 05/30/2018)
40 Please be advised the Record is complete for purposes of appeal for USCA case number 18-4078 re 37 Notice of Appeal (blh) (Entered: 06/13/2018)
41 MANDATE of USCA as to 37 Notice of Appeal filed by Yussuf Awadir Adbi According to the USCA the Judgment of the USDC for the Dist of UT is Affrimed. Judgment included with mandate: Yes. (Attachments: # 1 Opinion, # 2 Mandate Letter)(jds) (Entered: 01/06/2020)

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 PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT _________________________________

FILED United States Court of Appeals
Tenth Circuit
November 12, 2019
Elisabeth A. Shumaker Clerk of Court

YUSSUF AWADIR ABDI,

Plaintiff - Appellant,

v.

No. 18-4078

CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; CHRISTOPHER M. PIEHOTA, Director of the Terrorism Screening Center, in his official capacity; HUBAN A. GOWADIA, Acting Administrator, Transportation Security Administration (TSA), United States Department of Homeland Security (DHS), in his official capacity; KEVIN K. MCALEENAN, Acting Commissioner United States Customs and Border Protection; NICHOLAS J. RASMUSSEN, Director of the Terrorism Screening Center, in his official capacity,

Defendants - Appellees. _________________________________

Appeal from the United States District Court for the District of Utah
(D.C. No. 2:17-CV-00622-DB) _________________________________

Gadeir Abbas, CAIR Legal Defense Fund, Washington, D.C. (Lena F. Masri, CAIR Legal Defense Fund, Washington, D.C., James W. McConkie and Bradley H. Parker, Parker & McConkie, Salt Lake City, Utah, on the brief), for Plaintiff-Appellant.

Joshua Waldman, (Joseph H. Hunt, Assistant Attorney General, John W. Huber, U.S. Attorney, Sharon Swingle, with him on the brief), U.S. Department of Justice, Washington, D.C., for Defendants-Appellees.
_________________________________ Before TYMKOVICH, Chief Judge, EBEL and PHILLIPS, Circuit Judges.
_________________________________ EBEL, Circuit Judge.
_________________________________ Yusuf Awadir Abdi sued the directors of several federal agencies challenging his placement on the “Selectee List,” a subset of the federal government’s terrorist watchlist, which he alleges subjects him to enhanced screening at the airport and requires the government to label him as a “known or suspected terrorist” and to disseminate that information to government and private entities. Abdi’s complaint asserts that, as a result of these alleged consequences, his placement on the Selectee List violates his Fifth Amendment rights to substantive and procedural due process and consequently the Administrative Procedure Act, 5 U.S.C. §§ 702, 706. Abdi seeks declarative and injunctive relief. The district court dismissed Abdi’s complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, we AFFIRM.
I. BACKGROUND A. Factual Background
The relevant facts, as set out in Abdi’s First Amended Complaint, are as follows. Abdi is a United States citizen and resident of Salt Lake City, Utah. Since 2014, Abdi has experienced several delays and extended security screenings at
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airports, which has led him to believe that he is on the federal government’s “Selectee List,” a subset of the government’s Terrorist Screening Database (“TSDB”). The TSDB is a master repository for suspected international and domestic terrorist records. The Terrorist Screening Center (“TSC”), which is administered by the FBI, develops and maintains the TSDB. The TSDB has two primary components: the Selectee List and the No Fly List. Persons on the No Fly List are prevented from boarding flights that intend to fly into, out of, or even through United States airspace. By contrast, persons on the Selectee List are not barred from flying but are systematically subject to extra screening at airports and land border crossings. Abdi challenges his placement on the Selectee List.
Abdi alleges that, since 2014, he has been subject to extended security screenings each time he travels by air due to his placement on the Selectee List. For example, he is unable to check in for flights online or at the self-service kiosks at the airport. Instead, he is directed to check in personally with an airline representative who is required to obtain clearance from the Department of Homeland Security before he or she can give Abdi his boarding pass. Abdi alleges that it takes about a half hour to obtain his boarding pass. Once he does, the boarding pass is stamped with an “SSSS” designation, which indicates that he is a “known or suspected terrorist.” Compl. ¶ 30. Then, at the airport security checkpoint, Abdi is routinely subjected to secondary inspections, questioning, and prolonged searches of his person and luggage. Sometimes, TSA agents shut down an entire screening line and require
3

Abdi to proceed through the line by himself. Finally, at the gate, Abdi is publicly searched again by TSA agents before he is allowed to board his plane.
In addition to regularly experiencing these extra security screenings as a result of his placement on the Selectee List, Abdi alleges that, on one occasion, he was prevented from flying for several days because he was “upgraded” to the No Fly List. Compl. ⁋ 40. On June 14, 2017, Abdi appeared at an international airport in Nairobi, Kenya, with his family, prepared to board a commercial flight back to the United States. Abdi was told by the ticketing agent that the United States would not allow him to board his flight, although his wife and children were permitted to fly home. Two days later, on June 16, 2017, Abdi was allowed to fly back to the United States. However, upon arriving at the Los Angeles International Airport’s port of entry, Abdi was subjected to another lengthy screening that caused him to miss his connecting flight to Salt Lake City. Abdi successfully flew home to Salt Lake City two days later, on June 18.
Since June 2017, Abdi has flown three times—twice domestically and once internationally. Each time, Abdi was permitted to fly, but he was subjected to the enhanced screening measures described above. He has not missed any more flights due to the length of his security screenings.
Finally, Abdi alleges that, in addition to subjecting him to extra security screenings, the defendant government officials have disseminated his status as a “known or suspected terrorist” to state and local authorities, foreign governments,
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corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, among other official and private entities and individuals. Compl. ⁋ 57. B. Procedural History
Abdi filed this lawsuit under the APA against the directors of the FBI, TSC, TSA, U.S. Customs and Border Protection, and National Counterterrorism Center (“NCTC”), alleging that, by placing Abdi and other similarly situated American citizens on the Selectee List, defendants violated his Fifth Amendment substantive and procedural due process rights. Abdi requested a declaratory judgment that defendants’ “policies, practices, and customs violate the Fifth Amendment” and an injunction requiring defendants to remove him “from any watch list or database that burdens or prevents him from flying or entering the United States” and to notify all individuals in the TSDB of “the reasons and bases for their placement” on the government’s various watchlists and provide them with an opportunity to contest their continued inclusion. Id. at 37–38. To support his substantive due process claim, Abdi alleged that the defendants’ decision to place him on the Selectee List unduly burdens his fundamental right of “movement” without a compelling justification. The district court dismissed that claim by declining to recognize his asserted right of “movement” as a fundamental right. To support his procedural due process claim, Abdi alleged that the defendants’ refusal to provide him with any notice that he was placed on the Selectee List—placement that deprived him of his liberty interests in travel and reputation—violates the procedural due process clause.
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The district court dismissed that claim for failing plausibly to allege the deprivation of a constitutionally protected liberty interest.
We affirm the district court but on somewhat different grounds. We affirm the district court’s dismissal of Abdi’s substantive due process claim because, although Abdi’s rights to travel interstate and internationally are both potentially implicated by his placement on the Selectee List, the government conduct alleged in the complaint has not substantially interfered with either right. Similarly, the district court’s dismissal of Abdi’s procedural due process claims was appropriate because Abdi has not been deprived of either his liberty interest in travel or his reputation.
II. STANDARD OF REVIEW We review de novo the district court’s dismissal of Abdi’s claims under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only if the complaint, viewed in the light most favorable to plaintiff, lacks enough facts to state a claim to relief that is plausible on its face.” United States ex rel. Reed v. KeyPoint Gov’t Solutions, 923 F.3d 729, 764 (10th Cir. 2019) (citations, internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Importantly, although “a complaint need not provide ‘detailed factual allegations,’ it must give just enough factual detail to provide ‘fair notice of what the . . . claim is and the grounds upon which it rests.’” Warnick v. Cooley, 895 F.3d 746, 751 (10th Cir. 2018) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In deciding
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whether the plaintiff has adequately stated a claim for relief, we view “the totality of the circumstances as alleged in the complaint in the light most favorable to [the plaintiff],” Jones v. Hunt, 410 F.3d 1221, 1229 (10th Cir. 2005), accepting the plaintiff’s well-pled facts as true and drawing all reasonable inferences in the nonmoving party’s favor, Sylvia v. Wisler, 875 F.3d 1307, 1313 (10th Cir. 2017).
III. DISCUSSION A. The complaint does not challenge Abdi’s placement on the No Fly List
Abdi first argues that the district court erred by “ignoring” his “No Fly List claims,” Aplt. Br. at 10. Essentially, Abdi asserts that he adequately alleged a claim challenging his placement on the No Fly List and that, even though his name has since been removed from the No Fly List, that claim cannot be dismissed as moot pursuant to the voluntary cessation doctrine because the government is free to place him on the No Fly List again at any time. We do not reach the question of mootness because the complaint failed to allege enough facts to place the defendants on notice that Abdi was challenging his placement on the No Fly List. Therefore, he waived that argument, and the district court did not err in dismissing the complaint by ignoring any supposed No Fly List claims.
The allegations in the complaint related to defendants’ wrongdoing can be categorized into two groups. First, the complaint includes allegations recounting the inconveniences that Abdi has experienced due to his placement on the Selectee List. See, e.g., Compl. ¶ 3 (“defendants’ rationale for placing Plaintiff Abdi on the Selectee List is arbitrary”), ¶ 4 (“The consequences of being on the Selectee List . . .
7

include the burden of having to go through security with ticketing agents”), ¶ 27 (“Imam Abdi knows that he was on the Selectee List”), ¶ 49 (“Because the defendants placed him on the Selectee List, [Abdi] could not print his boarding pass at a kiosk”), ¶ 57 (“because Imam Abdi is included on the federal terror watch list, and specifically the Selectee List, Defendants disseminated . . . his designation”), ¶ 157 (“Defendants’ actions in nominating Plaintiff and other similarly situated American citizens to the Selectee List blatantly violate [49 U.S.C. § 114(h)(3)]”).
Second, the complaint includes allegations recounting the inconveniences that all people in the TSDB experience, regardless of whether their name appears on the No Fly List or the Selectee List. See, e.g., Compl. ¶¶ 61–65 (alleging that defendants disseminate the names of everyone in the TSDB to government agencies and foreign governments), ¶ 68 (“Banks have closed the bank accounts of individuals listed on the federal terror watch list”), ¶ 78 (“Being on the federal terror watch list can prevent listed persons . . . from purchasing a gun.”), ¶ 80 (TSDB listees can be prevented “from obtaining or renewing their Hazmat license”), ¶ 81 (TSDB listees can be prevented “from working at an airport, or working for an airline”). These alleged inconveniences apply to both people on the No Fly List and people on the Selectee List, and Abdi did not allege that he or anyone similarly situated experienced any of these enumerated inconveniences because of their placement on the No Fly List in particular. Furthermore, Abdi did not allege that he in fact experienced any of these inconveniences. Instead, Abdi alleges only that he
8

personally has experienced various specific travel impediments because of his inclusion on the Selectee List.
The complaint does allege that Abdi was placed on the No Fly List for a short time. In the facts section, the complaint states that Abdi was prevented from boarding a plane from Nairobi to the United States on one occasion on June 14, 2017, because he was “upgraded from the Selectee List to the No Fly List.” Id. at ¶ 40. However, the complaint then states that, two days later, Abdi was allowed to fly back to the United States and has since been allowed to fly. Id. at ¶ 43–47. Several dozen paragraphs later, the complaint alleges that defendants’ “have unduly deprived Plaintiff of constitutionally protected rights” by “including Plaintiff and other similarly situated American citizens on a watch list that unreasonably burdens or prevents them from boarding commercial flights.” Id. at ¶ 156 (substantive due process claim). At most, these allegations place the defendants on notice that Abdi was challenging his temporary, forty-eight-hour placement on the No Fly List as having violated his constitutional rights. The district court acknowledged that Abdi was prevented from flying for forty-eight hours, Dist. Ct. Op. at 3 n.1, as do we in our analysis below. However, Abdi’s complaint does not allege that he was prohibited from flying indefinitely due to his placement on the No Fly List or that he believed he would be prohibited from flying in the future under a voluntary cessation theory. Therefore, we reject Abdi’s contention that the district court overlooked any such claims, and we construe Abdi’s claims for relief to relate solely to his placement on the Selectee List.
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B. Abdi’s complaint failed to allege a plausible substantive due process claim Abdi argues that the district court erred in dismissing his substantive due
process claim predicated upon his placement on the Selectee List. Applying the fundamental-rights analysis from Washington v. Glucksberg, 521 U.S. 702, 721–722 (1997), we affirm the district court’s dismissal of that claim because, although Abdi’s fundamental right to interstate travel and his right to international travel, whether fundamental or not, could potentially be implicated by placement on the Selectee List, the government conduct alleged in Abdi’s complaint has not violated those rights. To reach that conclusion, we (1) identify the applicable law, (2) define the fundamental rights at issue, to the extent we need to do so, and (3) conclude that those rights have not been infringed by the conduct alleged in the complaint.
1. Applicable substantive due process analysis “Substantive due process bars ‘certain government actions regardless of the fairness of the procedures used to implement them.’” Brown v. Montoya, 662 F.3d 1152, 1172 (10th Cir. 2011) (quotation omitted). It limits what the government may do in both its legislative and executive capacities. The Supreme Court has found substantive due process violations where government action has infringed a “fundamental” right without a “compelling” government purpose, Glucksberg, 521 U.S. at 721–722, as well as where government action deprives a person of life, liberty, or property in a manner so arbitrary it “shocks the conscience,” Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). This court held in Halley v. Huckaby that “we apply the fundamental-rights approach when the plaintiff
10

challenges legislative action, and the shocks-the-conscience approach when the plaintiff seeks relief for tortious executive action,” 902 F.3d 1136, 1153 (10th Cir. 2018). Both Abdi and the government frame their substantive due process arguments in fundamental-rights terms, even though Abdi’s alleged harm stems from executive agency action rather than an Act of Congress. For the following reasons, we agree that the Glucksberg analysis governs the unique circumstances presented in this case.
Abdi filed this lawsuit against the directors of the FBI, TSC, TSA, U.S. Customs and Border Protection, and NCTC, alleging that, “[b]y placing Plaintiff and other similarly situated American citizens on the federal terror watch list, Defendants have placed an undue burden on their fundamental right of movement,” Compl. ¶ 158, and seeking, in part, “[a] declaratory judgment that Defendants’ policies, practices, and customs violate the Fifth Amendment to the United States Constitution,” id. at 37. Accordingly, Abdi does not challenge the tortious conduct of an individual agency officer, like the TSA agents that screen him, nor does he challenge legislative action, because the TSC, which develops and maintains the TSDB, was not created by Congress. It was established by the Attorney General at the direction of the President through the issuance of Homeland Security Presidential Directive-6 (“HSPD-6”) on September 16, 2003, and it functions through the concerted efforts of several agency heads. See Staff of H. Comm. on Homeland Sec., 110th Cong., Compilation of Homeland Security Presidential Directives (HSPD) (Updated Through December 31, 2007) at 31 (Comm. Print 2008).
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In HSPD-6, the President mandated that the Attorney General “establish an organization to consolidate the Government’s approach to terrorism screening and provide for the appropriate and lawful use of Terrorist Information in screening processes” and “implement appropriate procedures and safeguards with respect to all such information about United States persons” in “coordination with the Secretary of State, the Secretary of Homeland Security, and the Director of Central Intelligence,” all in an effort to “[t]o protect against terrorism.” Id. Thus, Abdi’s complaint, which challenges his placement on the Selectee List, does not object to an independent, “specific act of a governmental officer,” Lewis, 523 U.S. at 846–49, which the Supreme Court has held should be analyzed under the shocks-the-conscience test, but to the concerted action of several agency employees, undertaken pursuant to broad governmental policies, that resulted in his name being included in the TSDB. This challenge is akin to a challenge to legislative action because, as with an act of a lawmaking body, the federal government here is attempting, through policy, to achieve a stated government purpose: to “protect against terrorism.” Thus, it is most appropriate to analyze under the Glucksberg framework whether the defendants’ implementation of the policies that govern their actions violates Abdi’s fundamental rights, and, if so, whether the policies are narrowly tailored to achieve a compelling government purpose.1
1 At least one other panel of this court has applied the fundamental-rights approach in a case where, as here, a government entity’s implementation of its official policy is alleged to have caused a substantive due process violation. Dawson v. Bd. of Cty. Comm’rs, 732 F. App’x 624, 630 (10th Cir. 2018) (unpublished) (applying fundamental-
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Substantive due-process analysis under Glucksberg proceeds in three steps. First, the reviewing court must determine whether a fundamental right is at stake either because the Supreme Court or the Tenth Circuit has already determined that it exists or because the right claimed to have been infringed by the government is one that is objectively among those “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” such that it is “fundamental.” Glucksberg, 521 U.S. at 720–21. Second, the court must determine whether the claimed right—fundamental or not—has been infringed through either total prohibition or “direct[] and substantial[]” interference. Zablocki v. Redhail, 434 U.S. 374, 387 (1978). Third, if the right infringed is a fundamental right, the court must determine whether the government has met its burden to show that the law or government action interfering with the right is narrowly tailored to achieve a compelling government purpose. Id. at 388. If the right is not fundamental, we apply rational basis review. Reno v. Flores, 507 U.S. 292, 305 (1993) (“[N]arrow tailoring is required only when fundamental rights are involved.”). We agree with Abdi that both his fundamental right to interstate travel and his right to travel abroad, whether fundamental or not, are at stake here (although we reject the novel “right of movement” that Abdi asserts), but the government action he alleged in the complaint has not substantially interfered with either right. Thus, we need not and do not analyze whether the government’s conduct passes the applicable level of scrutiny.
rights approach to assess the due process implications of a county jail’s pretrial detention policies), cert. denied, Dawson v. Bd. of Cty. Comm’rs, 139 S. Ct. 862 (2019).
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2. Scope of the rights to travel interstate and internationally Abdi asserts that we are required by Glucksberg to examine this country’s historical foundational documents and international treaties anew to formulate the interest at stake in this case and that, if we did, we would discover, rooted in our historical traditions, a “basic and far-reaching,” Aplt. Br. at 16., right of movement that permits “movement between the states, as well as between this country and others,” Aplt. Br. at 13. However, the Supreme Court has already recognized the fundamental right to travel “throughout the United States,” Dunn v. Blumstein, 405 U.S. 330, 338 (1972), and has recognized a different right to travel “outside the United States,” Haig v. Agee, 453 U.S. 280, 306 (1981) (“[T]he freedom to travel outside the United States must be distinguished from the right to travel within the United States.”). Through several cases, the Court has defined the scope of these rights. We are bound by the definitions established by those precedents, and, as a result, we cannot and do not create a new, more expansive right to “movement” as Abdi suggests. The Supreme Court has cautioned many times against creating new substantive due process rights. See Glucksberg, 521 U.S. at 720 (“[G]uideposts for responsible decision[-]making in this unchartered area are scarce and open-ended.”); see also Moore v. City of E. Cleveland, 431 U.S. 494, 544 (1977) (White, J., dissenting) (“That the Court has ample precedent for the creation of new constitutional rights should not lead it to repeat the process at will.”). Therefore, we rely on Supreme Court precedent to articulate the rights to travel interstate and internationally that are at stake.
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As for the right to travel interstate, the Supreme Court has held that the “[f]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution,” Dunn, 405 U.S. at 338 (internal quotation omitted). The right protects, among other things, “the right of a citizen of one State to enter and to leave another State.” Saenz v. Roe, 526 U.S. 489, 500 (1999). Although the textual source of the right has been the subject of some debate, the Supreme Court has recognized that this right of “free ingress and regress to and from” neighboring States was expressly mentioned in the Articles of Confederation and “may simply have been ‘conceived from the beginning to be a necessary concomitant of the strong Union the Constitution created.’” Id. at 501 (citation omitted).
The Supreme Court has distinguished between the right to travel interstate and the right to travel internationally. Whereas the “right of interstate travel is virtually unqualified,” the Court has stated that the right to travel abroad is an “aspect of the ‘liberty’ protected by the Due Process Clause.” Califano v. Torres, 435 U.S. 1, 4 n.6 (1978). But the Supreme Court has also recognized that “[t]ravel abroad, like travel within the country, may be necessary for a livelihood . . . [and] may be as close to the heart of the individual as the choice of what he eats, or wears, or reads.” Kent v. Dulles, 357 U.S. 116, 126 (1958). Because we conclude that Abdi’s placement on the Selectee List does not infringe his interstate or international travel rights, we do not need to determine here the scope of an individual’s right to international travel or the applicable standard of review.
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The Supreme Court has made clear that the rights to interstate and international travel are not unlimited. Although citizens have a right to travel throughout the United States “uninhibited by statutes, rules, or regulations which unreasonably burden or restrict movement,” Saenz, 526 U.S. at 499 (emphasis added), reasonable restrictions on the right to interstate travel are permissible. For example, when a “person has been convicted of a crime within a State[,] [h]e may be detained within that State, and returned to it if he is found in another State.” Jones v. Helms, 452 U.S 412, 419 (1981). Other circuits have found impositions like gasoline taxes and toll roads to be acceptable burdens on the right to travel interstate. Kansas v. United States, 16 F.3d 436, 442 (D.C. Cir. 1994). The Second Circuit has held that airport security that delays a traveler who checks a gun for “a little over one day” is “a minor restriction that d[oes] not result in a denial of the right to travel.” Torraco v. Port Auth. of New York & New Jersey, 615 F.3d 129, 141 (2d Cir. 2010). The Ninth Circuit has also held that “burdens on a single mode of transportation do not implicate the right to interstate travel.” Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999). In sum, government conduct that does not directly and substantially “impair the exercise of the right to free interstate movement” does not amount to a constitutional violation. Saenz, 526 U.S. at 501.
Like the freedom to travel interstate, the freedom to travel abroad is “subject to reasonable government regulation.” Haig v. Agee, 453 U.S. 280, 306 (1981); see also Kashem v. Barr, —F.3d—, 2019 WL 5303288, at *14 (9th Cir. Oct. 21, 2019). For example, in Haig, the Court held that the President could revoke the passport of a
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United States citizen if the passport-holder was engaging in activities abroad that were likely to cause serious damage to the national security or the foreign policy of the United States, such as divulging CIA secrets. Haig, 453 U.S. at 282.
Only a few federal courts have considered whether placement on the Selectee List infringes a citizen’s rights to travel interstate or internationally. In Beydoun v. Sessions, 871 F.3d 459, 467 (6th Cir. 2017), the Sixth Circuit held that the plaintiff’s placement on the Selectee List did not substantially interfere with his exercise of the right to travel interstate or internationally because the burdens that resulted from the placement were “negligible or incidental.” There, one plaintiff alleged that he had missed “countless flights” after being subjected to lengthy secondary security screenings and the delays deterred him from flying altogether. Id. A second plaintiff alleged that he had suffered delays of ten minutes and one hour and been deterred from flying once. Id. The Sixth Circuit held that “[w]hile Plaintiffs may have been inconvenienced by the extra security hurdles they endured in order to board an airplane, these burdens do not amount to a constitutional violation.” Id. at 468. The Sixth Circuit also found that it was important that the plaintiffs had not been prevented from “flying altogether or from traveling by means other than an airplane” which distinguished its case from “those in which plaintiffs claimed they could not fly at all because they were on the No Fly List.” Id. In Mohamed v. Holder, a federal district court held that the plaintiff’s allegation that he was prevented from boarding a plane from Kuwait to the United States due to his placement on the No Fly List failed to state a claim that his constitutional right of reentry was violated
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because he was allowed to board a flight four days later. 995 F. Supp. 2d 520, 537 (E.D. Va. 2014). The district court held that “the four to five-day delay that Mohamed experienced . . . did not constitute a constitutional deprivation.” Id. Thus, United States citizens have a fundamental right to travel interstate and a right to travel abroad, but neither is unlimited.
Having sufficiently defined the scope of the rights that are at stake, the final question before us is whether Abdi’s placement on the Selectee List substantially interfered with those rights. Zablocki, 434 U.S. at 388.
3. Abdi’s placement on the Selectee List has not infringed his travel rights Here, Abdi asserts that his status as a listee “deprives his liberty interest in travel—not because it absolutely prevents his ability to travel—but because it enacts a substantial cost anytime he does choose to exercise that right.” Aplt. Br. at 23. However, as the district court found, the burdens and delays alleged by Abdi do not substantially interfere with his travel rights. First, Abdi’s placement on the Selectee List affects only one mode of transportation throughout the country. It places no restrictions on Abdi’s ability to drive, bus, or otherwise commute interstate. Second, when the government prevented Abdi from boarding his plane on June 14, 2017, he was delayed for just two days before he was permitted to fly back to the United States. That delay is commensurate with the four-day delay in Mohamed and the one-day delay in Torraco, both of which were upheld. Third, the excessive security Abdi experiences is not unlike that of many air travelers. Abdi has missed one flight due to the length of his security screenings, but the Sixth Circuit upheld the use of
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security screenings that caused the plaintiff in Beydoun to miss “countless flights.” 871 F.3d at 467. Additionally, Abdi alleges that obtaining his boarding pass takes about a half hour, but he does not indicate how long his screenings take in total. Average air travelers often spend more than one hour in TSA lines and sometimes miss flights as a result of those delays. Delays of a few hours are not uncommon for many air travelers and do not amount to a substantial interference with the rights to travel interstate or internationally. Abdi has not alleged that his delays substantially exceed those experienced by many air travelers nor preclude his ability to travel.
Therefore, we conclude that neither Abdi’s allegation that the government prevented him from boarding his plane in Nairobi nor his allegation that his placement on the Selectee List subjects him to extra airport security states a substantive due process claim, because those impediments do not substantially interfere with his ability to travel. We affirm the district court’s dismissal of Abdi’s substantive due process claim. C. Abdi’s complaint failed to allege a plausible procedural due process claim
Abdi also argues that the district court erred by dismissing his procedural due process claim. The Fifth Amendment’s Due Process Clause forbids the federal government from depriving any person “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 deprivations of interests encompassed by the [constitutional] protection of liberty and property.” Al-Turki v. Tomsic, 926 F.3d 610, 614 (10th Cir. 2019). Therefore, to state a procedural due process claim, a plaintiff must establish (1) the
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deprivation of (2) a constitutionally cognizable liberty or property interest, (3) without adequate due process procedures. Abdi asserts that he was deprived of two liberty interests without due process. First, Abdi contends that defendants prevented him from traveling free from unreasonable burdens when they placed him on the Selectee List. Second, Abdi asserts under the stigma-plus doctrine that defendants deprived him of his liberty interest in his reputation when they labeled him a “known or suspected terrorist” on the Selectee List and when they disseminated that list to public and private entities. Abdi argues that both deprivations occurred in the absence of any process, because the defendants did not notify him of either occurrence.2 The allegations in the complaint are insufficient to plausibly state a procedural due process claim under either theory.
1. Government has not deprived Abdi of his liberty interest in travel Assuming the rights to travel interstate and internationally are cognizable liberty interests for purposes of procedural due process, Abdi was not deprived of those rights in this case. As explained above, the government may impose reasonable restrictions on both a citizen’s right to travel throughout the United States and a citizen’s right to travel internationally. Neither the extra security measures that Abdi endured due to
2 Abdi stated at oral argument before the district court that he is not challenging the Department of Homeland Security Traveler Redress Inquiry Program (“DHS TRIP”), a process that allows individuals who seek redress after having been included in the terrorist watch list to submit an inquiry about their listee status to DHS. Dist. Ct. Op. at 4. Abdi insisted instead that he challenges his placement on the watchlist in the first instance. Id. His brief to us emphasizes that it is only the government’s failure to notify him of his placement on the list that violates procedural due process.
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his placement on the Selectee List nor the forty-eight-hour delay he experienced
trying to fly home from Nairobi deprived him of a constitutional right; those
impediments merely reasonably encumbered his ability to travel interstate and
internationally and by only one mode of transportation. We agree with the district
court that the government’s conduct did not deprive Abdi of a liberty interest in travel.3
2. Government has not deprived Abdi of his liberty interest in reputation
Abdi also alleges that the government defendants deprived him of his liberty
interest in his reputation without due process. “Where a person’s good name,
reputation, honor, or integrity is at stake because of what the government is doing to
him, a protectable liberty interest may be implicated . . . .” Martin Marietta
Materials, Inc. v. Kansas Dep’t of Transp., 810 F.3d 1161, 1184 (10th Cir. 2016)
(internal quotation marks and citation omitted). For a plaintiff to prevail on a
reputation-based procedural due process claim, the plaintiff must satisfy the “stigma-
plus” standard by demonstrating both “(1) governmental defamation and (2) an
3 A district court recently concluded that inclusion in the TSDB (but not as a listee on the No Fly list) substantially interfered with the plaintiff’s rights to travel, resulting in the deprivation of a liberty interest. See Elhady v. Kable, 391 F.Supp. 3d 562, 571, 577-79 (E.D. Va. 2019). In Elhady, the plaintiffs produced evidence of more significant travel obstacles than are at issue here—for example, being detained at gunpoint at a border check, handcuffed in public view, and interrogated for seven to ten hours, on three separate occasions, see id. at 571-72—that actually deterred the plaintiffs from traveling at all, internationally or domestically, see id. at 577-79. Without expressing any views on the claims at issue in Elhady, we note that those circumstances are distinguishable from the case we consider here.
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alteration in legal status.” Id. (citation omitted). Even if Abdi’s complaint adequately pled governmental defamation, a conclusion we need not and do not reach, the complaint failed to allege facts that demonstrate the second element of the stigma-plus test, that he suffered a change in his legal status.
The “plus factor” of the stigma-plus standard requires a plaintiff to allege that he or she suffered the loss of a right or interest that has attained “constitutional status by virtue of the fact that [it was] initially recognized and protected by state law . . . [and] the State seeks to remove or significantly alter that protected status.” Paul v. Davis, 424 U.S. 693, 710–11 (1976). For example, in Wisconsin v. Constantineau, 400 U.S. 433, 434 (1971), a Wisconsin statute allowed local police to forbid the sale of liquor to any person that drinks alcohol excessively and as a result “misspend[s], waste[s] or lessen[s] his estate” or disturbs the peace. Id. at 445. The chief of police of Hartford, Wisconsin, without notice or hearing to Norma Grace Constantineau, posted a notice in all retail liquor outlets that sales or gifts of liquor to Constantineau were forbidden for one year. The Supreme Court held that the statute violated Constantineau’s procedural due process rights because—as the Court later explained in Paul v. Davis, 424 U.S. 693, 708–09 (1976)—she was given no process by which to challenge the accusations that both damaged her reputation and prevented her from engaging in an activity that is otherwise allowed under state law, namely, purchasing alcohol. Similarly, in Davis, 424 U.S. at 695, a local police chief distributed a list of “active shoplifters” that included Edward Charles Davis’s name and photo to local merchants without giving Davis notice or an opportunity to contest the accusations. However, unlike the flyer in Constantineau
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that prohibited merchants from selling liquor to Norma Grace, the flyer in Davis merely
defamed Davis, without mandating that any merchant refuse him service. Id. at 707–09.
The Supreme Court held that the state’s “defamatory publications, however seriously
they may have harmed [Davis’s] reputation, did not deprive him of any ‘liberty’ or
‘property’ interests protected by the Due Process Clause” because the defamation did not
“alter[] or extinguish[]” a “right or status previously recognized by state law.” Id. at 711-
12.
Here, Abdi’s Complaint asserts that the government violated his procedural
due process rights when it placed him on the Selectee list without notice, which
imposed on him the stigmatizing label of “known or suspected terrorist” and then
“disseminated the stigmatizing label . . . to state and local authorities, foreign
governments, private corporations, private contractors, airlines, gun sellers, car
dealerships, financial institutions, the captains of sea-faring vessels, among other
official and private entities and individuals.” Compl. ¶¶ 152–53. The complaint
alleges that, as a result of the wide dissemination of that stigmatizing label, Abdi
could, potentially, be prohibited from:
1. Accessing the financial system, 2. Opening or maintaining bank accounts, 3. Making wire transfers, 4. Sponsoring the permanent residency of immediate relatives, 5. Entering other nations, 6. Purchasing a gun, 7. Obtaining a commercial drivers’ license to transport hazardous
material, 8. Obtaining or renewing a Hazmat license, 9. Working for an airport or an airline, or 10. Obtaining an FAA license.
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Id. at ¶¶ 67–83. Abdi also alleges that his family’s visas were processed differently because of his placement on the Selectee List. Id. at ¶ 36.
The allegations in support of Abdi’s stigma-plus argument suffer from two infirmities. First, Abdi failed to specifically allege that he has actually been prevented from participating in any of the above activities. His allegations are entirely speculative. For example, he alleges that placement on the terrorist watchlist “can prevent listed persons . . . from purchasing a gun,” id. at ¶ 78 (emphasis added), “can prevent listed persons . . . from obtaining or renewing their Hazmat license,” id. at ¶ 80 (emphasis added), and “can also prevent listed persons . . . from working at an airport,” id. at ¶ 81 (emphasis added). Abdi’s brief to us likewise argues, in the future tense, that local police “may” pull him over without reasonable suspicion due to his listee status and that, if he attempted to buy a gun in certain states, he “would be” unable to do so. Aplt. Br. at 25. Furthermore, Abdi’s family’s alleged experience with the United States visa system is not his own.
Second, Abdi failed to allege that, in addition to distributing the list of “known of suspected” terrorists on which his name appears, the government mandates that the private and public entities in receipt of the list refuse to offer service or employment to the listed individuals, as in Constantineau. Abdi alleges that the government disseminates the watchlist “with the purpose and hope” that the entities and individuals
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that receive it “will impose consequences on those individuals.” Compl. ¶ 66. But a “purpose and hope” is not a mandate.4
For these reasons, Abdi has failed to allege that he was actually deprived of any right conferred by state or federal law because of his status on the Selectee List. Accordingly, we affirm the district court’s dismissal of Abdi’s procedural due process claim.
IV. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s dismissal of Abdi’s complaint with prejudice.
4 The district court in Elhady held that being on the TSDB deprived the plaintiffs of their reputational interest but, in reaching that conclusion, did not address Constantineau’s requirement that the challenged government conduct must mandate others’ action against the plaintiffs. See 391 F.Supp. 3d at 579-80.
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