P.C.

LAW OFFICES
NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

2:13-cv-12038-VAR-RSW Doc # 1 Filed 05/08/13 Pg 1 of 10 Pg ID 1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAEB MOKDAD,
Plaintiff,
vs.
ERIC H. HOLDER, JR. in his official capacity as Attorney General of the United States of America; ROBERT S. MUELLER, III, in his official capacity as Director of the Federal Bureau of Investigation; and TIMOTHY J. HEALY, in his official capacity as Director of the Terrorist Screening Center,
Defendants.
NABIH H. AYAD & ASSOCIATES, P.C. NABIH H. AYAD (P59518) Attorney for Plaintiff 2200 Canton Center Rd., Ste. 220 Canton, MI 48187 (734) 983-0500

Case No.: Hon.
PLAINTIFF’S VERIFIED COMPLAINT FOR INJUNCTIVE AND
DECLARATORY RELIEF

PLAINTIFF’S VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Violation of the Fifth Amendment to the United States Constitution And
The Administrative Procedures Act

NOW COMES, Plaintiff by and through undersigned counsel and respectfully submits the following as Plaintiff’s Verified Complaint:

1 | Page

P.C.

LAW OFFICES
NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

2:13-cv-12038-VAR-RSW Doc # 1 Filed 05/08/13 Pg 2 of 10 Pg ID 2
PRELIMINARY STATEMENT
1. Free and unabridged access to commercial air travel is an integral component to a citizen’s modern exercise of their fundamental right to movement and travel. The “No Fly List” represents the most visible and egregious impediment to this right. Presently, the United State’s system of screening prospective travelers through the No Fly List is clandestine; forestalling prospective travelers from obtaining any information about their inclusion on the list or providing any cognizable process for challenging the same.
2. The Plaintiff to this Action is a United States citizen who was, and continues to be, denied boarding flights to and from the United States to his home country of Lebanon.
3. Plaintiff has made several unsuccessful attempts to board flights within the United States but has been denied, apparently due to the Transportation Security Administration’s representation that he is on the No Fly List.
4. Plaintiff does not know why he is allegedly on the No Fly List and government officials have been unable or unwilling to explain why he is on the No Fly List, or further, how Plaintiff can be removed from the No Fly List.
5. Plaintiff has made numerous, albeit unsuccessful, attempts to receive additional information and remove himself from the no fly list.
6. The government’s inability or unwillingness to cooperate in any meaningful fashion has caused Plaintiff to file the present action seeking declaratory and injunctive relief. Namely, the removal of his name from the No Fly List or any other such list that would prevent Plaintiff from boarding a commercial aircraft.
2 | Page

P.C.

LAW OFFICES
NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

2:13-cv-12038-VAR-RSW Doc # 1 Filed 05/08/13 Pg 3 of 10 Pg ID 3
PARTIES
7. Plaintiff Saeb Mokdad is a forty six year old male and resident of Dearborn, Michigan. He has been residing within the United States for over twenty-six (26) years was proud to receive his United States Citizenship on or about 1991.
8. Plaintiff is a successful concert promoter and entrepreneur in Dearborn, and has a number of active business matter in Beirut that need to be concluded. Specifically, Mr. Mokdad needs to conclude a lawsuit in Beirut in which he is the Plaintiff, set to settle on May 8, 2013.
9. Defendant Eric Holder, Jr. is the Attorney General of the United States of America and leads the Department of Justice (hereinafter “DOJ”), a department of the United States that oversees the Federal Bureau of Investigations (hereinafter “FBI”). Defendant Holder is sued in his official capacity.
10. The FBI maintains and oversees the Terrorist Screen Center (hereinafter “TSC”). 11. The TSC develops and maintains the federal government’s consolidated Terrorist
Screening Database and the No Fly List. 12. Defendant Robert S. Mueller is the Director of the FBI and he is sued in his official
capacity. 13. Defendant Timothy J. Healy is the Director of the Terrorist Screening Center and is sued
in his official capacity.
JURISDICTION AND VENUE
14. This Verified Complaint against the Federal Bureau of Investigations, the Terrorist Screening Center, and the United States Department of Justice is to bring redress for a
3 | Page

P.C.

LAW OFFICES
NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

2:13-cv-12038-VAR-RSW Doc # 1 Filed 05/08/13 Pg 4 of 10 Pg ID 4
violation had under the Fifth Amendment to the United States Constitution and the Administrative Procedures Act (hereinafter “APA”).
15. Subject matter jurisdiction is established by and through 28 USC 1331 and 5 USC 702.
16. This Honorable Court has authority to grant declaratory relief pursuant to the Declaratory Judgment Act found at 28 USC 2201 and 2202.
17. The APA, 5 USC 706, vests this Honorable Court with the power to challenge and review agency actions that are unlawfully withheld or unreasonably delayed and to set aside the challenged agency action. Further authority for this action for injunctive relief is found in the Due Process Clause of the United States Constitution.
18. Venue is properly before this Court. Pursuant to 28 USC 1391(e) the above named Defendants are officers of agencies of the United States of America and are sued in their official capacities as such. Further, Plaintiff resides within this district and a substantial part of the events, acts, and omissions giving rise to this action occurred within this district.
STATEMENT OF FACTS
19. Upon information and belief the No Fly List finds its beginnings with the “Terrorist Screening Center” (hereinafter “TSC”) established in 2003 to consolidate the government’s approach to identifying and tracking individuals suspected of terrorist activities and/or those individuals that are known associates of the same.
20. Upon information and belief, the TSC is managed by the FBI, which develops, maintains, and amends the consolidated Terrorist Screening Database (colloquially known as the “Terrorist Watch List”).
4 | Page

P.C.

LAW OFFICES
NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

2:13-cv-12038-VAR-RSW Doc # 1 Filed 05/08/13 Pg 5 of 10 Pg ID 5
21. The TSC shares information with other law enforcement agencies such as the Transportation Security Administration (hereinafter “TSA”), and U.S. Customs and Border Protection (hereinafter “CBP”) for use in screening travelers entering the United States.
22. Upon information and belief, an individual can be nominated for inclusion on either the No Fly List or the Terrorist Watch List by either the National Counterterrorism Center or the FBI.
23. Upon information and belief, following nomination by either the NCC or the FBI, the TSC determines whether or not the subject individual qualifies as a “known or suspected terrorist.” Individuals determined to be known or suspected terrorists are placed on the Terrorist Watch List. It is presently unknown what standards are applied to placing an individual on the No Fly List.
24. Further Defendants have failed to provide a fair and transparent remedial mechanism that would allow affected individuals to challenge their inclusion on either the No Fly List or the Terrorist Watch List.
25. An individual aggrieved by their inclusion on the No Fly List is afforded a single remedy – file a Traveler Redress Inquiry Program (TRIP) complaint with the Department of Homeland Security.
26. Upon information and belief, TRIP transfers the individuals complaint to the TSC which, in secret, determines whether any action should be taken. Upon information and belief TSC provides no publicly available information about its decision making process.
27. Upon information and belief, the TSC is the agency that determines the propriety of an individual’s inclusion on the No Fly List. The TSC then informs DHS of its decision. DHS TRIP then responds to the individual with a vague and confusing letter that neither confirms nor
5 | Page

P.C.

LAW OFFICES
NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

2:13-cv-12038-VAR-RSW Doc # 1 Filed 05/08/13 Pg 6 of 10 Pg ID 6
denies the existence of any terrorist watch list records relating to the individual, nor does the letter provide a factual basis for the determination, or the criteria considered.
28. Plaintiff has made three (3) such inquires with DHS, on or about September 22, 2012, October 22, 2012, and January 4, 2013; but the Defendants have failed to correct the matter.
29. Plaintiff has continuously resided in or around the Dearborn area since 1986. He is married to a United States citizen and has four (4) children; all United States Citizens. His family is currently residing in Lebanon and has been prevented from traveling to the US to live with Plaintiff.
30. Plaintiff has been unable to see his family for over seven months due to the restriction on his travel.
31. On or about September 22, 2012, Plaintiff, attempted to travel to Detroit, as he was in Beirut for a visit with his family and was prevented from flying to Detroit from Paris. On or about this date, he was sent back to Beirut from Paris and notified by authorities he could not return to the US.
32. Upon learning about this apparent restriction of his travel, Plaintiff inquired with the American Embassy in Paris, was told to head back to Beirut, and had to wait two weeks before he could be cleared for travel back to the United States.
33. On Friday January 4, 2013, Plaintiff attempted to board a Lufthansa Airlines flight with connections to Beirut, Lebanon. Plaintiff attempted to travel to Beirut to visit with his family for ten days. Plaintiff was restricted from boarding the flight by law enforcement personnel at Metro Airport.
34. Last week, on Wednesday May 1, 2013 Plaintiff attempted to board a Delta Airlines flight to Beirut, Lebanon. Plaintiff needed to be physically present in Beirut for his
6 | Page

P.C.

LAW OFFICES
NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

2:13-cv-12038-VAR-RSW Doc # 1 Filed 05/08/13 Pg 7 of 10 Pg ID 7
ongoing civil suit and settlement set for May 8, 2013. Plaintiff was again prevented from boarding the flight by law enforcement personnel at Metro Airport.
FIRST CLAIM FOR RELIEF FAILURE TO PROVIDE POST-DEPRIVATION NOTICE AND HEARING Violation of the Fifth Amendment Due Process Clause of the United States Constitution 35. Plaintiff incorporates each and every allegation above as though fully plead herein. 36. Plaintiff has a liberty interest in traveling free from unreasonable burdens within, to or from the United States of America. 37. Further, Plaintiff has the right to be free from the false allegation that he is a terrorist or that he is associated with terrorist activities when such harm arises in conjunction with the deprivation of his constitutionally protected right to travel pursuant to the Fifth Amendment Due Process Clause. 38. Plaintiff has a liberty interest in not being singled out for punishment without trial or without due process of law. Defendants’ actions have singled out Plaintiff for such punishment, by way of example, by preventing Plaintiff from traveling by air through United States airspace, effectively preventing Plaintiff from traveling to Lebanon. 39. Plaintiff is entitled to a legal system that affords him notice and an opportunity to contest the deprivation of his right to travel. 40. Defendants have violated Plaintiff’s rights without affording him due process of law and will continue to do so into the future so long as Plaintiff intends upon traveling to Lebanon.
7 | Page

P.C.

LAW OFFICES
NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

2:13-cv-12038-VAR-RSW Doc # 1 Filed 05/08/13 Pg 8 of 10 Pg ID 8
SECOND CLAIM FOR RELIEF UNLAWFUL AGENCY ACTION
5 USC 702, 706 41. Plaintiff incorporates each and every allegation above as though fully plead herein. 42. Defendants’ actions as described herein were arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity, and should be adjudicated as unlawful and set aside as such pursuant to 5 U.S.C. § 706. 43. Defendants’ failure to provide Plaintiff with a constitutionally adequate remedy that affords, at a minimum, notice and an opportunity to contest his placement on the No Fly List after being denied access to commercial flights 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.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order:
A. Declaring that Defendants’ policies, practices, and customs violate the Fifth Amendment of the United States Constitution and the Administrative Procedure Act;
B. Enjoining Defendants and requiring them to remedy the constitutional and statutory violations by removing Plaintiff from the No Fly List or any other list that prevents Plaintiff from exercising his constitutionally guaranteed right to travel;
8 | Page

2:13-cv-12038-VAR-RSW Doc # 1 Filed 05/08/13 Pg 9 of 10 Pg ID 9
C. Enjoining Defendants and requiring them to provide a valid legal mechanism that affords notice of the factual basis for the placement of individuals on the No Fly List and a meaningful opportunity to contest their inclusion on said list;
D. Award attorney’s fees, costs, and expenses of all litigation pursuant to 28 USC 2412; and
E. Enter any and all other relief as this Court deems just and equitable.

Dated: May 8, 2013

Respectfully Submitted
NABIH H. AYAD & ASSOCIATES P.C.
/s/ Nabih H. Ayad __________________________________ Nabih H. Ayad (P59518) Attorney for Plaintiff 2200 Canton Center Road, Suite 220 Canton, MI 48187 Phone: (734) 983-0500 Fax: (734) 983-0520

P.C.

LAW OFFICES
NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

9 | Page

P.C.

LAW OFFICES
NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

2:13-cv-12038-VAR-RSW Doc # 1 Filed 05/08/13 Pg 10 of 10 Pg ID 10
VERIFICATION I, the undersigned, hereby swear under oath, that I have read the entire complaint and I am in agreement to its contents in its entirety and that it is my understanding and knowledge to the best of my recollection, at this time, that all information contained therein is true and accurate.
/S/ SAEB MOKDAD ___________________________________
SAEB MOKDAD
10 | P a g e

 
 2:13-cv-12038-VAR-RSW Doc # 34 Filed 12/05/13 Pg 1 of 9 Pg ID 422

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Saeb Mokdad,

Plaintiff,

Vs

Case No: 13-12038

Honorable Victoria A. Roberts

Eric Holder, et al,

Defendants

_______________________________/

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

I. Introduction

Saeb Mokdad (“Plaintiff”), a United States citizen, filed an action seeking injunctive and

declaratory relief after he was denied boarding on commercial flights between the United States

and Lebanon by the Transportation Security Administration (“TSA”). Plaintiff challenges the

constitutionality of the No-Fly List maintained by Defendants to identify passengers as potential

threats to aviation security.

Plaintiff claims that he was placed on the No-Fly List without reason and the

Government is violating his constitutional right by not allowing him to travel to Lebanon.

Plaintiff asks the Court to issue an Order giving him an emergency travel waiver which would

effectively remove his name from the No-Fly list pending: (1) resolution of his civil lawsuit in

Lebanon and (2) registration of his divorce with the Lebanese government; this would allow his

children to travel to the United States.

The Government says that this Court does not have subject-matter jurisdiction under 49

U.S.C. § 46110; this statute prohibits direct review of a TSA order by district courts. Under this

1

2:13-cv-12038-VAR-RSW Doc # 34 Filed 12/05/13 Pg 2 of 9 Pg ID 423
statute, an individual denied travel can only seek review of a TSA order through the United States Court of Appeals. The Government makes additional arguments regarding Plaintiff’s claim; they need not be addressed because the Court finds that it lacks subject-matter jurisdiction of this matter.
Defendants’ Motion to Dismiss is GRANTED. Plaintiff’s complaint is DISMISSED. This action must be filed with the Court of Appeals. II. Background Facts
The Department of Homeland Security (“DHS”) is primarily responsible for preventing terrorist attacks within the United States and reducing its vulnerability to terrorism. The TSA, an agency within the DHS, is responsible for security in all modes of transportation. 49 U.S.C. 114(d). The TSA is required to implement procedures which allow law enforcement agencies to quickly identify individuals who pose a risk or threat to airline or passenger safety. 49 U.S.C. §114(h)(2).
The TSA established Security Directives relating to two groups of people determined to pose a risk to aviation safety: the first group, identified on a “No-Fly List,” consists of individuals who are prohibited from flying at all. The No-Fly List is maintained by the Terrorist Screening Center (“TSC”); the second group, identified on a “Selectee List,” consists of individuals who must be “selected” by air carriers for additional screening before they are permitted to fly.
The TSC, created in 2003 by Executive Order, was formed to provide the Government with an effective consolidated approach to terrorism screening. The TSC develops and maintains the federal government’s consolidated Terrorist Screening Database (“TSDB”). The TSC receives sensitive unclassified information to be included in the TSDB from the National
2

2:13-cv-12038-VAR-RSW Doc # 34 Filed 12/05/13 Pg 3 of 9 Pg ID 424
Counterterrorism Center and the Federal Bureau of Investigation; this information allows the TSC to create the Lists. The No-Fly List is a subset of the TSDB.
Based on preliminary information collected about an individual, a person is “nominated” to be included on one of the two lists by a government agency. If a person is nominated for either list, additional “derogatory” information must exist which demonstrates the individual meets the criteria for placement on a list. The government does not define the term “derogatory.” The No-Fly List identifies individuals suspected of involvement in terrorist activities. Placement on the No-Fly List requires more than general reasonable suspicion, and cannot be based solely upon race, ethnicity, national origin, or religious affiliation. Each list has distinct requirements which must be met before an individual can be placed on it. The lists contain sensitive security information and are not available to the public. If a person is prevented from boarding and wishes to file an inquiry he or she may do so using the Department of Homeland Security Traveler Inquiry Program. (“DHS TRIP”).
TRIP was created in response to Congress’s statutory mandate to “establish a timely and fair redress process for individuals who believe they were delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat.” 49 U.S.C. §44926. This process is available to people who believe they were wrongly placed on either the No-Fly List or Selectee List.
An inquiry is forwarded to the appropriate agency for review. Upon review, if it is determined that a person with the same or similar name is on either list, the inquiry will be forwarded to the TSC to ensure the problem is not one of misidentification. The TSC does not directly accept inquiries from the public. During its review, the “TSA, in coordination with the TSC and other appropriate federal law enforcement or intelligence agencies, if necessary, will
3

2:13-cv-12038-VAR-RSW Doc # 34 Filed 12/05/13 Pg 4 of 9 Pg ID 425
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).
After the review is complete, DHS TRIP sends a determination letter to the individual indicating the agency’s findings and the complainant’s right to file an administrative appeal with the TSA. The determination letter neither confirms nor denies placement on the No-Fly List. In some cases, the TRIP letter informs the recipient that he or she can seek judicial review of the order in a United States Court of Appeals under §46110.
Here, Plaintiff says that the TSA prevented him from boarding three flights between Lebanon and the United States. He used the TRIP process after he was informed that he was on the No-Fly List; he requested permission to board a flight to Lebanon.
In accordance with the procedures outlined in 49 C.F.R. 1560.205, TSA reviewed Plaintiff’s inquiry. DHS issued a final determination letter stating that “no changes or corrections are warranted at this time.” While the letter did not confirm or deny his placement on a list, it did indicate that he could file an administrative appeal with the TSA; or, seek judicial review of the TSA order after thirty days, in the Court of Appeals. Instead, Plaintiff filed a Complaint in this Court against the TSC, among others, alleging constitutional violations stemming from his inclusion on the No-Fly List.
Plaintiff’s Complaint alleges violations of his Fifth Amendment right to due process and infringement upon his right to travel. Specifically, Plaintiff contends that the process used by the “TSC” to place people on the No-Fly List is arbitrary and capricious.
Defendants filed a motion to dismiss claiming that the Court does not have subject-matter jurisdiction under 49 U.S.C. § 46110. Plaintiff moved for a preliminary injunction, seeking an
4

2:13-cv-12038-VAR-RSW Doc # 34 Filed 12/05/13 Pg 5 of 9 Pg ID 426
Emergency Travel Waiver which would allow him to take at least one commercial flight to Lebanon to resolve a pending civil lawsuit and to properly register his divorce with the Lebanese government. III. Standard of Review
Defendants move to dismiss Plaintiff's Complaint for lack of subject-matter jurisdiction under FED. R. CIV. P. 12(b)(1), and also under12(b)(6) for failure to state a claim for which relief may be granted. The Court must first decide the jurisdictional question; the Court cannot dispose of the Rule 12(b)(6) motion on the merits if the Court lacks subject-matter jurisdiction. Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 267 (6th Cir. 1990). IV. Analysis
A. Jurisdiction Plaintiff argues his placement on the No-Fly List can be challenged in any federal district court because the TSC is not governed by § 46110. He sues TSC because he says it is the only agency with authority to remove him from the No-Fly List. Plaintiff makes the nuanced argument that he is not challenging the TSA order; rather, he is challenging the TSC’s decision and the procedures used to place him on the No-Fly List. Defendants says that under § 46110, any action for judicial review of a TSA order must be filed with the court of appeals; they also argue that the TSC is inescapably intertwined with the TSA order. The relevant portion of 49 U.S.C. § 46110 states:
[A] person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security with respect to security duties and powers designated to be carried out by the Under Secretary or the Administrator of the Federal Aviation Administration with respect to aviation duties and powers designated to be carried out by the
5

2:13-cv-12038-VAR-RSW Doc # 34 Filed 12/05/13 Pg 6 of 9 Pg ID 427
Administrator) in whole or in part under this part, part B, or subsection (l) or (s) of section 114 may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. 49 U.S.C. § 46110.
When the petition is sent to the Secretary, Under Secretary, or Administrator, the court [of appeals] has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order and may order the Secretary, Under Secretary, or Administrator to conduct further proceedings…the court may grant interim relief by staying the order or taking other appropriate action when good cause for its action exists. 49 U.S.C. § 46110(c).
Plaintiff requests this Court to rule as the court did in Latif v. Holder, 686 F.3d. 1122 (9th
Cir. 2012), and find jurisdiction over his substantive and procedural constitutional claims. In
Latif, plaintiffs challenged the inclusion of their names on the No-Fly List. The court held that
because TSC, not TSA, compiled the actual list of names placed on the No-Fly List, § 46110 did
not strip the district court of federal question jurisdiction over the plaintiffs’ substantive
challenges. The Latif court held as Plaintiff urges here: TSC is not governed by Section 46110.
The court also concluded that the district court had jurisdiction over plaintiffs’ broad procedural
claims, and held the claims were not inescapably intertwined with a review of the procedures
and merits surrounding the agency's order. Id. at 1127-29.
The Latif decision is largely based on the Ninth Circuit’s holding in Ibrahim v. Dep’t of
Homeland Security, 538 F.3d 1250 (9th Cir. 2008). In Ibrahim, the majority concluded that
because the TSC - an agency within the FBI - compiled the No-Fly List, that placement on the
No-Fly List was an order from an agency not named in Section 46110. Id. at 1255. In each case,
the Ninth Circuit appears to apply a narrow reading of the statute to reach its decision. The
Court respectfully declines to adopt Latif’s inescapable intertwinement analysis.
6

2:13-cv-12038-VAR-RSW Doc # 34 Filed 12/05/13 Pg 7 of 9 Pg ID 428
B. Inescapable Intertwinement Doctrine District courts are precluded from hearing matters that are inescapably intertwined with orders that fall within the purview of §46110. See, Merritt v. Shuttle, Inc., 245 F. 3d 182, 187 (2d Cir. 2001). Courts have held that Security Directives issued by the TSA are “orders” within the meaning of § 46110. Green v. Transportation Security Administration, 351 F.Supp.2d 1119, 1125 (W.D.Wash.2005). Accordingly, the Court must consider the relationship that exists between the TSA Security Directives and the No-Fly List. “A claim is inescapably intertwined ... if it alleges that the plaintiff was injured by [the] order and that the court of appeals has authority to hear the claim on direct review of the agency order.” Merritt, at 178. The inescapable-intertwinement doctrine gives the court of appeals jurisdiction over direct and indirect challenges to final agency orders. The Court must also determine whether a review and adjudication by the court of appeals could provide Plaintiff with the relief sought. Id. Although the TSC maintains the No-Fly List, there is a relationship between the No-Fly List and the Security Directives issued by TSA; Congress delegated the authority to create regulations and directives relating to the No-Fly List to the TSA under 49 U.S.C. §114(h)(3) and 44903(j). Section 44903(j)(2)(E)(iii), provides:
“[t]he Secretary of Homeland Security, in consultation with the Terrorist Screening Center, shall design and review, as necessary, guidelines, policies, and operating procedures for the collection, removal, and updating of data maintained, or to be maintained, in the no fly and automatic selectee lists. 49 U.S.C. 44903(j)(2)(E)(iii). Moreover, the TSA is required to use information developed by other government agencies, including the TSC, to identify individuals on passenger lists who may be a threat to
7

2:13-cv-12038-VAR-RSW Doc # 34 Filed 12/05/13 Pg 8 of 9 Pg ID 429
civil aviation or national security and take appropriate action; such action includes preventing certain individuals from boarding aircraft. 49 U.S.C. 114(h). The Court of Appeals has the power to amend, modify, set aside and order further proceedings.
The purpose of the inescapably-intertwinement doctrine is to prevent plaintiffs from avoiding special review statutes through creative pleading. United Transp. Union v. Norfolk & W. Ry. Co., 822 F.2d 1114, 1120 (D.C.Cir.1987). The No-Fly List is a direct result of the statutory mandates imposed upon the TSA by Congress; and, the two lists are given operational effect based on the TSA Security Directives, which are subject to review under §46110. Thus, at minimum, any claim related to the No-Fly List requires review of TSA policies and regulations. If a plaintiff can ignore the process and proceed to district court merely by seeking injunctive relief preventing the agency from enforcing the order in question, that purpose would be defeated.
Additionally, the TRIP redress process is administered by DHS, but the final determination letter indicates that an administrative appeal could be filed with the TSA. The fact that the TSC does not directly accept grievances concerning inclusion on a watch list demonstrates the intertwinement between the agencies. Moreover, Plaintiff’s determination letter explicitly says that the determination becomes final unless an administrative appeal is filed within thirty days, and that final determinations are reviewable by the United States Court of Appeals.
This Court holds that it does not have subject-matter jurisdiction over this matter under §46110; plaintiff’s claim is inescapably intertwined with a TSA order. The court of appeals must hear plaintiff’s constitutional challenges. “The Sixth Circuit has also found that § 1486(a) [predecessor to §46110] provides significant procedural safeguards with ultimate review in the
8

2:13-cv-12038-VAR-RSW Doc # 34 Filed 12/05/13 Pg 9 of 9 Pg ID 430

court of appeals where a litigant is free to raise any constitutional issues.” Thompson v. Stone, Case 05-cv-70825, 2006 WL 770449 *3 (E.D. Mich. 2006); Robinson v. Dow, 522 F.2d 855, 858 (6th Cir.1975).
II. CONCLUSION Defendants’ Rule 12(b)(1) Motion to Dismiss is GRANTED. The Court has no
jurisdiction to consider either the Government’s 12(b)(6) Motion To Dismiss or Plaintiff’s Motion for Emergency Travel.
IT IS ORDERED.

Dated: December 5, 2013

S/Victoria A. Roberts Victoria A. Roberts United States District Judge

The undersigned certifies that a copy of this document was served on the attorneys of record by electronic means or U.S. Mail on December 5, 2013.
S/Linda Vertriest Deputy Clerk

9

 
 Case: 14-1094 Document: 36-2 Filed: 10/26/2015 Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0256p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

SAEB MOKDAD,

┐

Plaintiff-Appellant,

│ │

│

v.

││>

LORETTA E. LYNCH, Attorney General, et al.

│

Defendants-Appellees. │ ┘

No. 14-1094

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:13-cv-12038—Victoria A. Roberts, District Judge.

Argued: October 8, 2014

Decided and Filed: October 26, 2015

Before: BATCHELDER, GILMAN, and GIBBONS, Circuit Judges.

_________________

COUNSEL
ARGUED: Nabih H. Ayad, AYAD LAW, PLLC, Canton, Michigan, for Appellant. Joshua Waldman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Nabih H. Ayad, AYAD LAW, PLLC, Canton, Michigan, for Appellant. Joshua Waldman, Sharon Swingle, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

GIBBONS, J., delivered the opinion of the court in which GILMAN, J., joined, and BATCHELDER, J., joined in Sections I through III. BATCHELDER, J. (pg. 13), delivered a separate opinion concurring in part and dissenting Section IV.

1

Case: 14-1094 Document: 36-2 Filed: 10/26/2015 Page: 2

No. 14-1094

Mokdad v. Lynch, et al.

Page 2

_________________
OPINION _________________
JULIA SMITH GIBBONS, Circuit Judge. This case presents issues of first impression in this circuit: whether a district court has subject-matter jurisdiction to hear (1) a plaintiff’s direct challenge to his placement on the No Fly List, a placement that is made by an agency called the Terrorist Screening Center, and (2) his challenge to the adequacy of the procedures to contest his inclusion on the No Fly List, a process that is governed by the Transportation Security Administration (TSA). On the former, we hold that the district court does have subject-matter jurisdiction; we reverse the district court’s contrary holding and remand for further proceedings. On the latter, we decline to reach the question and dismiss the plaintiff’s claims without prejudice because he failed to join a necessary party (TSA) as a defendant.
I.
Saeb Mokdad is a naturalized United States citizen and resident of Dearborn, Michigan who alleges that on at least three occasions since September 2012, he has been denied boarding on commercial airline flights between the United States and his native country of Lebanon. Mokdad alleges that he has been placed on the federal government’s No Fly List.
Mokdad alleges that on three occasions he applied for redress under the Department of Homeland Security (DHS) Traveler Redress Inquiry Program (TRIP). On November 19, 2012, Mokdad received a letter from DHS that did not confirm or deny whether he was on the No Fly List but informed him that “[i]n response to [your] request, we have conducted a review of any applicable records in consultation with other federal agencies, as appropriate. It has been determined that no changes or corrections are warranted at this time.” Compl. Ex. 2, 3, ECF No. 6-2. The letter notified him of his right to “file a request for administrative appeal with the Transportation Security Administration (TSA)” within 30 days, and further informed him that the DHS TRIP determination would become final if he did not do so. Id. The letter stated that “[f]inal determinations are reviewable by the United States Court of Appeals pursuant to 49 U.S.C. § 46110.” Id.

Case: 14-1094 Document: 36-2 Filed: 10/26/2015 Page: 3

No. 14-1094

Mokdad v. Lynch, et al.

Page 3

Mokdad did not file an administrative appeal with the TSA or a petition with the Court of
Appeals but instead filed a complaint, dated May 8, 2013, in the United States District Court for
the Eastern District of Michigan seeking injunctive and declaratory relief against the Attorney
General of the United States, the Director of the Federal Bureau of Investigation, and the
Director of the Terrorist Screening Center. Mokdad did not name TSA or any TSA officer as a
defendant. Mokdad requested, in part, that the district court order Defendants to remove him
from the No Fly List and order Defendants to provide “notice of the factual basis for the
placement of individuals on the No Fly List and a meaningful opportunity to contest their
inclusion on said list.” Compl., 8-9, ECF No. 1.
The government moved to dismiss Mokdad’s complaint on the basis that 49 U.S.C.
§ 46110 stripped the district court of subject-matter jurisdiction. Section 46110 makes clear that
the federal courts of appeals have exclusive jurisdiction to review the orders of certain federal
agencies, including the Transportation Security Administration (TSA):
[A] person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security with respect to security duties and powers designated to be carried out by the Under Secretary or the Administrator of the Federal Aviation Administration with respect to aviation duties and powers designated to be carried out by the Administrator) in whole or in part under this part, part B, or subsection (l) or (s) of section 114 may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business.
49 U.S.C. § 46110(a). (The Under Secretary of Transportation for Security was the head of TSA
when TSA was created in 2001 as part of the Department of Transportation; TSA and its
“functions, personnel, assets, and liabilities” were moved to DHS in 2002. See 6 U.S.C.
§ 203(2).)
[T]he court has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order and may order the Secretary, Under Secretary, or Administrator to conduct further proceedings. . . . [T]he court may grant interim relief by staying the order or taking other appropriate action when good cause for its action exists. Findings of fact by the Secretary, Under Secretary, or Administrator, if supported by substantial evidence, are conclusive.
49 U.S.C. § 46110(c).

Case: 14-1094 Document: 36-2 Filed: 10/26/2015 Page: 4

No. 14-1094

Mokdad v. Lynch, et al.

Page 4

The No Fly List, however, is developed and maintained by the Terrorist Screening Center (TSC), a multi-agency center that was created in 2003 and is administered by the Federal Bureau of Investigation (FBI), which in turn is part of the Department of Justice. TSC is staffed by officials from multiple agencies, including the FBI, DHS, Department of State, Customs and Border Protection, and TSA. The No Fly List is a subset of the Terrorist Screening Database (TSDB), the U.S. government’s consolidated terrorist watchlist that is also maintained by TSC. Inclusion on the No Fly List “requires heightened derogatory criteria over and above the general reasonable suspicion standard for inclusion in the TSDB.” Lubman Decl., 7, ECF No. 24-2. TSC personnel decide whether to accept or reject the “nomination” of a person by the FBI or the National Counterterrorism Center (NCTC) to the TSDB or the No Fly List. TSC also decides whether to remove a name from the TSDB after it receives a redress request that has been submitted through DHS TRIP.1
Mokdad thus argued that § 46110 does not divest the district court of subject-matter jurisdiction over his claims, because he sought to challenge not TSA’s redress letter issued to him but rather his underlying placement on the No Fly List—a placement made by TSC, which is not one of the agencies enumerated in § 46110. Mokdad relied on Ibrahim v. Department of Homeland Security, 538 F.3d 1250, 1256 (9th Cir. 2008), which held that the district court had subject-matter jurisdiction over the plaintiff’s claim regarding placement of her name on the No Fly List because “[t]he No Fly List is maintained by the Terrorist Screening Center, and section 46110 doesn’t apply to that agency’s actions.” Ibrahim also suggested that the doctrine of “inescapable intertwinement”—under which a special review statute such as § 46110 applies not only to challenges to orders by a covered agency, but to claims inescapably intertwined with an order by a covered agency—does not extend to orders (such as TSC’s order placing a person on the No Fly List) that are intertwined with orders of agencies that fall under the special review statute (such as TSA). See id. at 1255–56. Latif v. Holder, 686 F.3d 1122, 1130 (9th Cir. 2012), on which Mokdad also relied, extended Ibrahim to plaintiffs’ claim “that the government failed

1According to TSC Acting Deputy Director for Operations Debra I. Lubman, this is true “unless the legal
authority to make such a determination resides, in whole or in part, with another government agency. In such cases, TSC will only prepare a recommendation for the decision-making agency and will implement any determination once made.” Lubman Decl., 19, ECF No. 24-2. No one—including Lubman in her declaration, or the government in its brief before this court—has suggested that TSA is one of the special agencies with statutory authority to make its own decision, separate from TSC, about whether someone belongs in the TSDB or on the No Fly List.

Case: 14-1094 Document: 36-2 Filed: 10/26/2015 Page: 5

No. 14-1094

Mokdad v. Lynch, et al.

Page 5

to afford them an adequate opportunity to contest their apparent inclusion on the [No Fly] List”—a claim challenging the adequacy of the redress process.
The district court in this case declined to follow Ibrahim and Latif, finding that the Ninth Circuit had “appl[ied] a narrow reading of the statute.” Mokdad v. Holder, No. 13-12038, 2013 WL 8840322, at *4 (E.D. Mich. Dec. 5, 2013). The district court found that TSC’s alleged order placing Mokdad on the No Fly List was inescapably intertwined with TSA orders. Id. at *4–5. The district court thus concluded that it lacked subject-matter jurisdiction over Mokdad’s claims and dismissed his complaint pursuant to Fed. R. Civ. P. 12(b)(1). Id. at *5.
Mokdad timely appealed. We have jurisdiction to hear this appeal under 28 U.S.C. § 1291, and we review de novo a district court’s dismissal of a cause of action for lack of subject-matter jurisdiction. Portsmouth Ambulance, Inc. v. United States, 756 F.3d 494, 498 (6th Cir. 2014).
II.
At the outset we must focus closely on what exactly Mokdad has alleged and against whom. Mokdad styled his complaint to raise two claims, each against three defendants: the Attorney General, the Director of the FBI, and the Director of the TSC. First, Mokdad alleged that defendants violated the Fifth Amendment Due Process Clause by harming his reputation and depriving of him of his right to travel while failing to provide post-deprivation notice and a hearing. Second, Mokdad alleged that defendants had engaged in unlawful agency action under the Administrative Procedure Act (APA). Mokdad’s APA claim is premised on his contention that “defendants’ actions as described herein”—namely, allegedly placing him on the No Fly List, and “fail[ing] to provide a fair and transparent remedial mechanism that would allow affected individuals to challenge their inclusion”—“were arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights,” in violation of 5 U.S.C. § 706. Compl., 1, 8, ECF No. 1.
For the purposes of the exclusive-review statute, § 46110, it is significant that Mokdad’s arguments fall into two groups. First, Mokdad challenges the adequacy of the procedures established for him to contest his alleged inclusion on the No Fly List (i.e., the redress process):

Case: 14-1094 Document: 36-2 Filed: 10/26/2015 Page: 6

No. 14-1094

Mokdad v. Lynch, et al.

Page 6

he argues that the procedures are unlawful under the APA and unconstitutional under the Fifth Amendment. Second, Mokdad challenges his alleged placement on the No Fly List: he argues that defendants’ actions were unlawful under the APA. We consider these two types of challenges in turn.
III.
To the extent that Mokdad challenges the adequacy of the redress process, his claims amount to a challenge to a TSA order. Congress has specifically directed DHS and TSA—not TSC—to establish a redress process for travelers who believe they have been wrongly included on the No Fly List. “The Secretary of Homeland Security shall establish a timely and fair process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat under the regimes utilized by the Transportation Security Administration, United States Customs and Border Protection, or any other office or component of the Department of Homeland Security.” 49 U.S.C. § 44926(a). The head of TSA is required to “establish a procedure to enable airline passengers, who are delayed or prohibited from boarding a flight because the advanced passenger prescreening system determined that they might pose a security threat, to appeal such determination and correct information contained in the system.” 49 U.S.C. § 44903(j)(2)(C)(iii)(I). TSA is additionally required to “establish a timely and fair process for individuals identified as a threat under [the passenger screening system] to appeal to the Transportation Security Administration the determination and correct any erroneous information.” 49 U.S.C. § 44903(j)(2)(G)(i).
TSA has issued regulations carrying out its responsibilities under these statutory authorities. 49 C.F.R. §§ 1560.201–.207. Under § 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” who is seeking redress, “correct any erroneous information, and provide the individual with a timely written response.” However, according to Lubman, TSC determines “whether the identity should continue to be in the TSDB or whether the status should be changed (for example, No Fly to Selectee).” Lubman Decl., 18, ECF No. 24-2. Mokdad complains that “[a]s TSA cannot make corrections or changes in the TSDB, the current system for redress is meaningless and futile,”

Case: 14-1094 Document: 36-2 Filed: 10/26/2015 Page: 7

No. 14-1094

Mokdad v. Lynch, et al.

Page 7

such that it constitutes a “complete and utter denial of due process.” R. 17, Appellant Br., 38. Whether or not Mokdad is correct about the futility of the redress system, it is clear that he is complaining about the adequacy of the redress procedures established by TSA pursuant to its statutory authorities outlined above.
TSA is, therefore, a required party to Mokdad’s litigation about the adequacy of the redress procedures. See Fed. R. Civ. P. 19. But Mokdad failed to join TSA as a defendant. Failure to join a required party is an issue that may be raised for the first time on appeal and that the court may raise sua sponte. Boles v. Greeneville Hous. Auth., 468 F.2d 476, 479 n.4 (6th Cir. 1972) (citing Provident Tradesmens Bank and Trust Co. v. Patterson, 390 U.S. 102, 111 (1969)). We dismiss without prejudice Mokdad’s claims challenging the adequacy of the redress process. See id. We decline to opine at this time whether § 46110 would deprive the district court of subject-matter jurisdiction over Mokdad’s claims challenging the adequacy of the redress process, including any broad constitutional claims, if he were to file a new suit naming TSA as a defendant. Cf. Burdue v. FAA, 774 F.3d 1076 (6th Cir. 2014).
IV.
To the extent that Mokdad brings a direct challenge to his placement by TSC on the No Fly List, however, he is challenging a TSC order, not a TSA order. As discussed above, although Congress has given TSA the responsibility of establishing redress procedures for travelers who believe they have been wrongly included on the No Fly List, TSA does not determine who is placed on the No Fly List; TSC does. Notwithstanding the government’s attempts to characterize his claim as a challenge to TSA’s decision to deny him boarding, Mokdad makes clear that he is “challeng[ing] his actual placement on the No Fly List by the TSC.” R. 17, Appellant Br., 11. TSC is administered by the FBI. The fact that TSC is an interagency center that is staffed by officials from multiple agencies, including the FBI, DHS, Department of State, Customs and Border Protection, and also TSA, does not transform TSC’s order placing an individual on the No Fly List into an order of the TSA. See Ibrahim, 538 F.3d at 1254–56.
The district court found that even if Mokdad’s claim challenging his placement on the No Fly List is a challenge to a TSC order, that claim is “inescapably intertwined” with a TSA order

Case: 14-1094 Document: 36-2 Filed: 10/26/2015 Page: 8

No. 14-1094

Mokdad v. Lynch, et al.

Page 8

and therefore the court of appeals has exclusive jurisdiction under § 46110. 2013 WL 8840322,
at *4–5. We find this to be a misreading of the doctrine of inescapable intertwinement and we
reject it, consistent with the Ninth Circuit’s holding in Ibrahim. 538 F.3d at 1255–56. Under the
doctrine of inescapable intertwinement, “statutes such as Section 46110(c) that vest judicial
review of administrative orders exclusively in the courts of appeals also preclude district courts
from hearing claims that are ‘inescapably intertwined’ with review of such orders.” Merritt v.
Shuttle, Inc. (Merritt II), 245 F.3d 182, 187 (2d Cir. 2001). The purpose of the inescapable-
intertwinement doctrine is to prevent a plaintiff from “circumvent[ing] the exclusive jurisdiction
of the court of appeals by collaterally attacking an administrative order in a federal district
court.” Ligon v. LaHood, 614 F.3d 150, 155 (5th Cir. 2010) (citing Green v. Brantley, 981 F.2d
514, 521 (11th Cir. 1993)).
The leading Supreme Court case discussing the scope of exclusive-jurisdiction provisions such as § 46110 is City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958).2 There, the statutory provision at issue was section 313(b) of the Federal Power Act, which vested in the
court of appeals exclusive jurisdiction for judicial review of orders of the Federal Power
Commission. 357 U.S. at 335. The Court ruled that this provision
necessarily precluded de novo litigation between the parties of all issues inhering in the controversy, and all other modes of judicial review. Hence, upon judicial review of the Commission’s order, all objections to the order, to the license it directs to be issued, and to the legal competence of the licensee to execute its terms, must be made in the Court of Appeals or not at all.
Id. at 336 (footnote omitted). The Second Circuit observed that the “inhering in the controversy”
language in City of Tacoma, although broad on its face,
must be read in relation to the Supreme Court’s other statements that, under Section 313(b), a party aggrieved by an administrative order may seek judicial review of the order in the courts of appeals, that the courts of appeals have exclusive jurisdiction to affirm, modify or set aside such orders, and that all objections to such orders must be made in the courts of appeals or not at all. We thus read City of Tacoma as holding that Section 313(b) precludes (i) de novo litigation of issues inhering in a controversy over an administrative order, where

2Our sister circuits have characterized City of Tacoma as the leading case on this issue. See, e.g., Merritt II, 245 F.3d at 187 (citing Williams Natural Gas Co. v. City of Oklahoma City, 890 F.2d 255, 261 (10th Cir. 1989)).

Case: 14-1094 Document: 36-2 Filed: 10/26/2015 Page: 9

No. 14-1094

Mokdad v. Lynch, et al.

Page 9

one party alleges that it was aggrieved by the order, and (ii) all other modes of judicial review of the order.
Merritt II, 245 F.3d at 188. Later decisions of the Supreme Court have reiterated that exclusivejurisdiction provisions bar litigants from “requesting the District Court to enjoin action that is the outcome of the agency’s order,” FCC v. ITT World Commc’ns, Inc., 466 U.S. 463, 468 (1984), but not claims that are “wholly collateral to a statute’s review provisions,” Thunder Basin, 510 U.S. at 212 (internal quotation marks omitted) (citing Heckler v. Ringer, 466 U.S. 602, 618 (1984)).
Consistent with these decisions, our sister circuits that have addressed inescapable intertwinement in the context of § 46110 have asked whether the claim that the plaintiff seeks to raise—typically a constitutional tort claim—is inescapably intertwined with an order of a covered agency. “A claim is inescapably intertwined [with an agency order] if it alleges that the plaintiff was injured by such an order and that the court of appeals has authority to hear the claim on direct review of the agency order.” Merritt II, 245 F.3d at 187 (citing City of Tacoma, 357 U.S. at 336, 339). “[D]istrict courts lack jurisdiction not only over direct challenges to FAA3 orders, but also over damages claims that are ‘inescapably intertwined with a review of the procedures and merits surrounding an FAA order.’” Ligon, 614 F.3d at 155 (quoting Zephyr Aviation, LLC v. Dailey, 247 F.3d 565, 572 (5th Cir. 2001)). An illustrative example is the Ninth Circuit’s decision in Tur v. FAA, 104 F.3d 290 (9th Cir. 1997). Tur was a helicopter pilot whose airman’s certificate had been revoked by the FAA, a revocation that was affirmed by the Ninth Circuit. Id. at 291. Tur then sued two FAA attorneys, “seek[ing] monetary damages . . . for depriving him of his property interest in his airman’s certificate without due process of law through their knowing use of false testimony against him before the ALJ.” Id. The Ninth Circuit dismissed, finding that “Tur’s claims are inescapably intertwined with the merits of the previous revocation order.” Id. at 292.
Here, by contrast, the government in effect urges that we find that a direct challenge to one agency’s order is inescapably intertwined with another agency’s order—that Mokdad’s challenge to TSC’s order placing him on the No Fly List is inescapably intertwined with both

3The FAA is also covered by § 46110. See 49 U.S.C. § 46110(a).

Case: 14-1094 Document: 36-2 Filed: 10/26/2015 Page: 10

No. 14-1094

Mokdad v. Lynch, et al.

Page 10

TSA’s order denying him boarding and TSA’s orders governing the redress process. This would be an unprecedented departure from the doctrine of inescapable intertwinement as applied in other circuits.
The government contends that this approach—namely, finding that a direct challenge to one agency’s order can be brought only in the court of appeals because the order of a second agency (which is covered by a special-review statute) is dependent on the first agency’s order— would be consistent with Americans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013). The government, however, misreads that case. Under 21 U.S.C. § 877, the courts of appeals have exclusive jurisdiction over final determinations of the Drug Enforcement Administration (DEA). Under 21 U.S.C. § 811, when DEA considers whether to reschedule a drug, DEA must request from the Department of Health and Human Services (HHS) “a scientific and medical evaluation” of the drug, and is bound by HHS’s evaluation “as to such scientific and medical matters.” The government reads Americans for Safe Access to hold that an attack on HHS’s “underlying evaluation of the scientific and medical evidence” cannot be brought as a district court action directed at HHS, but can be brought only in the court of appeals pursuant to the exclusive jurisdiction provision that applies to DEA. R. 20, Appellee Br., 27. This proposition lacks support in the text of the opinion, which simply reiterates that “DHHS’ recommendations are binding on the DEA insofar as they rest on scientific and medical determinations.” Ams. for Safe Access, 706 F.3d at 450. The plaintiff-appellants in that case chose to attack HHS’s finding as part of their case against DEA, but the court did not hold that they could not have separately attacked HHS’s finding in a direct challenge had they chosen to do so. Id.
Indeed, the D.C. Circuit has made clear in another case—a case about the very statute at issue in this case, § 46110—that the doctrine of inescapable intertwinement has never been construed in the way that the government urges. See Ege v. U.S. Dep’t of Homeland Security, No. 13-1110, 2015 WL 1903206, at *3 (D.C. Cir. Apr. 28, 2015) (“Although courts use the ‘inescapably intertwined’ doctrine to review a claim not expressly included in a jurisdictional grant, we are aware of no case—and neither party cites one—in which a court has used the ‘inescapably intertwined’ doctrine to enjoin a party not so included.”).

Case: 14-1094 Document: 36-2 Filed: 10/26/2015 Page: 11

No. 14-1094

Mokdad v. Lynch, et al.

Page 11

Nor does our decision in Shearson v. Holder, 725 F.3d 588 (6th Cir. 2013), compel us to conclude that Mokdad’s claims against the TSC are channeled by § 46110 exclusively to the court of appeals. Our holding in Shearson was simply that a plaintiff seeking to challenge her alleged inclusion on the No Fly List must first exhaust her administrative remedies, including the TSA’s redress program. Id. at 594. Here, the government conceded at oral argument that Mokdad has exhausted his administrative remedies. The government argues, however, that because plaintiffs are required to exhaust their administrative remedies through TSA’s redress process, any further claims related somehow to one’s alleged inclusion on the No Fly List— whether against TSA or TSC—must be brought only to the court of appeals, pursuant to § 46110. We disagree. The question of whether a plaintiff must exhaust administrative remedies before bringing suit is distinct from the question of in which court a plaintiff can sue after exhaustion. As we emphasized in Shearson, practical considerations of promoting judicial efficiency and giving agencies the first “opportunity to resolve problems with their procedures” undergird the exhaustion requirement. Id. These considerations were the basis for our holding that even a plaintiff seeking to bring claims against TSC must first exhaust her administrative remedies through TSA. By contrast, the purpose of the doctrine of inescapable intertwinement is to prevent plaintiffs from circumventing specialized review statutes set up by Congress. The practical rationale underlying our holding in Shearson does not extend to the context of inescapable intertwinement.
In sum, we decline to accept the government’s invitation to expand the inescapableintertwinement doctrine so as to find that Mokdad’s claim against the TSC is pulled within the ambit of the exclusive-review statute that applies to TSA. Doing so not only would be inconsistent with existing law but also would run the risk of inadvertently expanding the number and range of agency orders that might fall under exclusive-jurisdiction provisions that Congress did not intend to sweep so broadly. We therefore reverse the district court’s judgment that it lacked subject-matter jurisdiction to hear Mokdad’s claim directly challenging his placement by TSC on the No Fly List. That claim is remanded to the district court, which has subject-matter jurisdiction under 28 U.S.C. § 1331 that has not been displaced by 49 U.S.C. § 46110.

Case: 14-1094 Document: 36-2 Filed: 10/26/2015 Page: 12

No. 14-1094

Mokdad v. Lynch, et al.

Page 12

V.
For the foregoing reasons, we dismiss without prejudice Mokdad’s challenges to the adequacy of the redress process, because he failed to join TSA as a defendant. We reverse the judgment of the district court dismissing Mokdad’s challenge to his alleged placement on the No Fly List by TSC and remand for further proceedings in the district court.

Case: 14-1094 Document: 36-2 Filed: 10/26/2015 Page: 13

No. 14-1094

Mokdad v. Lynch, et al.

Page 13

_____________________________________________________
CONCURRING IN PART AND DISSENTING IN PART _____________________________________________________
ALICE M. BATCHELDER, Circuit Judge, concurring in part and dissenting in part. I concur in Sections I through III of this panel’s opinion, but I dissent from Section IV. I would hold that Mokdad’s challenge to the TSC’s inclusion of his name on the No-Fly List is inescapably intertwined with the actions of the TSA and DHS. Therefore, according to the broad language of 42 U.S.C. § 46110, original jurisdiction lies in this court, not in the district court.
As stated in the panel’s decision, “[a] claim is inescapably intertwined [with an agency order] if it alleges that the plaintiff was injured by such an order and that the court of appeals has authority to hear the claim on direct review of the agency order.” Merritt II, 245 F.3d at 187 (citing City of Tacoma, 357 U.S. at 336, 339). Here, Mokdad’s challenge to the TSC’s placement of his name on the No-Fly List implicates two other relevant agency actions. First, the TSA prevented Mokdad from boarding flights to and from the United States. Second, the DHS denied Mokdad’s request for relief in a TRIP determination, stating that no changes or corrections were warranted at that time. Both of these other agency actions are specifically mentioned in Mokdad’s complaint. In the absence of these other agency actions, Mokdad would not have suffered the damages he alleged and his challenge to the TSC’s action would be meaningless. The actions of the TSA and DHS give teeth to the actions of the TSC and therefore they must be considered together. Thus, Mokdad’s challenge to the No-Fly List is inescapably intertwined with the TSA’s decision to prevent him from boarding and the DHS’s determination to deny him relief.
For these reasons, I dissent from Section IV of this panel’s decision. Original jurisdiction properly lies in this court, not in the district court.

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SAEB MOKDAD,

Plaintiff, v. LORETTA E. LYNCH et al.,

Case No. 13-CV-12038 HONORABLE VICTORIA A. ROBERTS

Defendants. /

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

On August 9, 2016, the Court held a hearing regarding Defendants’ motion to

dismiss for lack of subject-matter jurisdiction and for failure to state a claim, pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated on the

record, Defendants’ motion to dismiss for lack of subject-matter jurisdiction is granted.

Plaintiff’s claims regarding his alleged inclusion on the No Fly List are moot as a result

of Defendants’ issuance of a letter stating that Mokdad is not on such a list. To the

extent that his claims implicate other lists, Plaintiff fails to identify those lists or name the

necessary defendants. Accordingly, because of the narrow scope of the case remanded

to this Court and Defendants’ declaration that Mokdad is not on the No Fly List, no live

case or controversy remains; Mokdad’s suit is moot and the Court lacks subject-matter

jurisdiction to continue to hear the matter.

Defendant Terrorist Screening Center has voluntarily agreed to issue Mokdad a

declaration that tracks the substance of the declarations referred to in Tarhuni v. Lynch,

129 F.Supp.3d 1052 (D. Oregon 2015) and referred to by Defendants in their reply brief

1

in footnote 5. The declaration must, at a minimum, state that Mokdad will not be placed back on the No Fly List based on the currently available information. Defendants must furnish this letter to Mokdad and file a copy of the letter with the Court by August 16, 2016.
IT IS ORDERED.

Dated: August 10, 2016

S/Victoria A. Roberts Victoria A. Roberts United States District Judge

The undersigned certifies that a copy of this document was served on the attorneys of record by electronic means or U.S. Mail on August 10, 2016.
s/Linda Vertriest Deputy Clerk

2

 
 2:13-cv-1C2a0s3e8: -1V6A-2R4-4R2SW DoDcoucm#en6t2: 29F-1iled F11ile/1d3:/117/13P/2g0117of 7 PaPgge:ID1 665

(1 of 7)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: November 13, 2017
Mr. Nabih H. Ayad Law Offices 645 Griswold Street Suite 2202 Detroit, MI 48226
Ms. Sharon Swingle U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Mr. Joshua Paul Waldman U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Re: Case No. 16-2442, Saeb Mokdad v. Jefferson B. Sessions, III, et al Originating Case No. : 2:13-cv-12038
Dear Counsel:
The Court issued the enclosed Opinion today in this case.
Sincerely yours,

cc: Mr. David J. Weaver Enclosure Mandate to issue

s/Amy E. Gigliotti Case Manager Direct Dial No. 513-564-7012

2:13-cv-1C2a0s3e8: -1V6A-2R4-4R2SW DoDcoucm#en6t2: 29F-2iled F11ile/1d3:/117/13P/2g0217of 7 PaPgge:ID1 666

(2 of 7)

NOT RECOMMENDED FOR PUBLICATION File Name: 17a0627n.06

No. 16-2442
UNITED STATES COURTS OF APPEALS FOR THE SIXTH CIRCUIT

FILED
Nov 13, 2017
DEBORAH S. HUNT, Clerk

SAEB MOKDAD, Plaintiff-Appellant,
v. JEFFERSON B. SESSIONS, III, et al.
Defendants-Appellees.

)

)

)

)

)

ON APPEAL FROM THE

)

UNITED STATES DISTRICT

)

COURT FOR THE EASTERN

)

DISTRICT OF MICHIGAN

)

)

)

BEFORE: GIBBONS, BATCHELDER, and GILMAN, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judge. Saeb Mokdad appeals the district court’s
decision to dismiss his suit for lack of subject matter jurisdiction after finding that Mokdad’s case is moot. Because we agree that Mokdad’s case is moot following the Terrorist Screening Center’s (TSC’s) declaration that Mokdad is not on the No Fly List and will not be placed on that list based on currently available information, we affirm.
I. A. Saeb Mokdad is a naturalized United States citizen who resides in Dearborn, Michigan. This case originated in May 2013, when Mokdad filed suit seeking injunctive and declaratory relief against the United States Attorney General, the Director of the FBI, and the Director of the Terrorist Screening Center based on three alleged instances where he was denied boarding on

2:13-cv-1C2a0s3e8: -1V6A-2R4-4R2SW DoDcoucm#en6t2: 29F-2iled F11ile/1d3:/117/13P/2g0317of 7 PaPgge:ID2 667 No. 16-2442, Mokdad v. Sessions

(3 of 7)

commercial airline flights between the United States and his native country of Lebanon. Claiming that his application for redress under the Department of Homeland Security Traveler Redress Inquiry Program (“DHS TRIP”) was not adequately resolved, he requested that the district court order the defendants to remove him from the No Fly List and any other such list that prevented him from traveling, and to order defendants to provide him notice and an opportunity to contest his placement on the No Fly List. The district court concluded that it lacked subject matter jurisdiction over Mokdad’s claims and dismissed his complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). Mokdad v. Holder, No. 13–12038, 2013 WL 8840322, at *5 (E.D. Mich. Dec. 5, 2013).
B. On appeal, we held that the district court had subject matter jurisdiction to hear Mokdad’s claim challenging his placement on the No Fly List and reversed and remanded for further proceedings to determine Mokdad’s status on the list. Mokdad v. Lynch, 804 F.3d 807, 808 (6th Cir. 2015). We declined to reach Mokdad’s claim about the adequacy of the procedures to contest inclusion on the No Fly List because Mokdad did not join a necessary party—the Transportation Security Administration (TSA)—as a defendant. Id. at 815. We noted that the sole issue remanded to the district court was “Mokdad’s claim directly challenging his placement by TSC on the No Fly List.” Id. On remand, TSC re-examined Mokdad’s DHS TRIP request and notified him in a December 22, 2015 letter that he was not on the No Fly List. TSC subsequently moved to dismiss Mokdad’s challenge to his No Fly List status, arguing that the case was moot. TSC also agreed to issue a declaration that Mokdad is not on the No Fly List and will not be placed back on the list based on the currently available information. The district court held a hearing on the motion to dismiss on August 9, 2016 and

-2-

2:13-cv-1C2a0s3e8: -1V6A-2R4-4R2SW DoDcoucm#en6t2: 29F-2iled F11ile/1d3:/117/13P/2g0417of 7 PaPgge:ID3 668 No. 16-2442, Mokdad v. Sessions

(4 of 7)

granted TSC’s motion. The district court ordered TSC to issue the declaration and file a copy of the letter with the court no later than August 16, 2016. Timothy Groh, TSC’s Deputy Director for Operations, executed the declaration on August 15, 2016, and it was filed with the court. Mokdad filed a timely notice of appeal to challenge the court’s determination that the case was moot.
II.

This court reviews de novo a district court’s decision to dismiss for lack of subject matter jurisdiction. Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 671 (6th Cir. 2013).
A. Under Article III of the United States Constitution, federal courts have the power to adjudicate only “Cases” and “Controversies.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013). “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’” Id. at 726–27 (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)). Parties lack a legally cognizable interest in a case’s outcome when “events . . . make it ‘impossible for the court to grant any effectual relief whatever to a prevailing party.’” Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 713 (6th Cir. 2011) (quoting Church of Scientology v. United States, 506 U.S. 9, 12 (1992)). Mokdad argues that his case still presents a live issue for the court because he continued to experience unreasonable delays in boarding even after receiving TSC’s letter stating that he is not on the No Fly List. He suggests that these injuries are “plausibly related to or caused by [his] initial inclusion on the No Fly List or some other watch list.” CA6 R. 20, Appellant Br., at 12. However, Mokdad’s new factual allegations do not save his case from mootness because the

-3-

2:13-cv-1C2a0s3e8: -1V6A-2R4-4R2SW DoDcoucm#en6t2: 29F-2iled F11ile/1d3:/117/13P/2g0517of 7 PaPgge:ID4 669 No. 16-2442, Mokdad v. Sessions

(5 of 7)

narrow issue remanded to the district court was “Mokdad’s challenge to his alleged placement on the No Fly List by TSC.” Mokdad, 804 F.3d at 815 (emphasis added). Mokdad’s placement on “some other watch list” was therefore not before the district court. When TSC agreed to stipulate that Mokdad was not on the No Fly List and would not be put on the list based on current information, it resolved the narrow issue before the court. After TSC’s stipulation, the district court could not “grant any effectual relief” to Mokdad because TSC’s declaration had resolved the only claim before the court. Thus, there was no live case or controversy, and the district court properly dismissed Mokdad’s claim for lack of subject matter jurisdiction.
Even if Mokdad has in fact been placed on another watch list, Mokdad did not identify any other lists or name other defendants in his complaint. There would still be no way for this court to grant effectual relief because Mokdad has not provided us with any basis on which to do so—there are no other named defendants against whom the court could enter a judgment and no other causes of action alleging a basis for relief.
Mokdad relies on a case from the Northern District of California, Ibrahim v. Dep’t of Homeland Sec., 62 F. Supp. 3d 909 (N.D. Cal. 2014), for his argument that his case has not yet been fully resolved.1 After finding that the plaintiff had been mistakenly entered on the No Fly List, the Ibrahim court ordered the government to “search and trace all of its terrorist watchlists and records . . . and the no-fly and selectee lists, for entries identifying Dr. Ibrahim” and to remove her from those lists. Ibrahim, 62 F. Supp. 3d at 936. Mokdad argues that the district

1 In Ibrahim, the plaintiff was a Malaysian citizen who had been admitted to the United States to study at Stanford University. Ibrahim, 62 F. Supp. 3d at 911. In 2005, she attempted to board a plane in San Francisco and was taken to a holding cell and informed that she was on the No Fly List. Id. She was eventually permitted to fly to Hawaii and ultimately to Malaysia. Id. Her student visa was revoked in Malaysia and she was unable to return to the United States. Id. After protracted litigation over whether or not the plaintiff, a nonimmigrant alien, had standing, the Ninth Circuit ruled that she did because she “had a ‘substantial voluntary connection’ to the United States.” Id. at 912 (quoting Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 993–94 (9th Cir. 2012)). The case was remanded to the district court and a bench trial was held. Id. at 914–15. It was determined at trial that the plaintiff had been entered on the No Fly List by mistake. Id. at 916.
-4-

2:13-cv-1C2a0s3e8: -1V6A-2R4-4R2SW DoDcoucm#en6t2: 29F-2iled F11ile/1d3:/117/13P/2g0617of 7 PaPgge:ID5 670 No. 16-2442, Mokdad v. Sessions

(6 of 7)

court in his case should have followed the Ibrahim court’s example and removed his name “from any list that prevents him from exercising his constitutionally guaranteed right to travel.” CA6 R. 20, Appellant Br., at 18.
Mokdad’s reliance on Ibrahim is misplaced for two reasons. First, in Ibrahim the plaintiff had been entered on the No Fly List by “human error.” Id. at 916. By contrast, Mokdad has not established that his placement on the No Fly List was due to human error. As the district court noted in the hearing on the defendants’ motion to dismiss, the government has not even admitted that Mokdad was ever on the No Fly List in the first place. Second, the plaintiff in Ibrahim presented evidence at trial showing her status on various watchlists and so the court granted relief specific to this evidence. In contrast, Mokdad has failed to even amend his complaint to add new defendants or new causes of action. Based on the “narrowness” of Mokdad’s claim, the district court could not grant any relief to Mokdad because the court could not “order what [TSC has] already agreed that they won’t do.” DE 61, Hearing Tr., Page ID 643. If Mokdad believes that he is on another type of government list, the proper way for him to remedy the situation, as the district court has stated, is to file a new action.
B. Mokdad also argues that his case cannot be moot because TSC’s actions fall under the voluntary cessation doctrine. “A defendant’s voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174 (2000). The reason for this, the Supreme Court has explained, is to prevent underhanded litigation tactics: “Otherwise, a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.” Already, 133 S. Ct. at 727.

-5-

2:13-cv-1C2a0s3e8: -1V6A-2R4-4R2SW DoDcoucm#en6t2: 29F-2iled F11ile/1d3:/117/13P/2g0717of 7 PaPgge:ID6 671 No. 16-2442, Mokdad v. Sessions

(7 of 7)

The voluntary-cessation doctrine does not apply here because the government’s actions were not voluntary. See Am. Bar Ass’n v. Trade Comm’n, 636 F.3d 641, 648 (D.C. Cir. 2011). In a December 16, 2015 order, the district court held that “Defendant must immediately reopen Plaintiff’s [DHS TRIP] request” and “[i]ssue a letter to Plaintiff and the Court, stating whether or not he is on the No Fly List.” DE 43, Order, Page ID 457. TSC complied with the order and issued Mokdad a letter dated December 22, 2015, informing him that he was not on the No Fly List. TSC thus made the determination that Mokdad is not currently on the No Fly List to comply with a court order—hardly a voluntary action.
Similarly, in the hearing on the defendants’ motion to dismiss, the district court asked if the government would be “willing” to make a supplemental declaration, which the government agreed to do. DE 61, Hearing Tr., Page ID 623. Although such a request is not mandatory (unlike a court order), it does suggest that TSC did not agree to issue the formal declaration entirely of its own free will. In fact, the defendants had initially argued that such a declaration was unnecessary. Moreover, in its order granting the motion to dismiss, the district court incorporated TSC’s offer to issue a formal declaration and ordered that “[t]he declaration must, at a minimum, state that Mokdad will not be placed back on the No Fly List based on the currently available information.” DE 57, Order Granting Mot. to Dismiss, Page ID 614 (emphasis added). Because TSC did not issue the declaration of its own volition, its actions do not fall under the voluntary cessation doctrine.
III. For the foregoing reasons, we affirm the district court’s dismissal of Mokdad’s case.

-6-

 
 Case: 2:13-cv-12038 As of: 03/31/2018 08:07 PM EDT 1 of 6
CLOSED,REOPENED
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:13−cv−12038−VAR−RSW

Mokdad v. Holder et al Assigned to: District Judge Victoria A. Roberts Referred to: Magistrate Judge R. Steven Whalen Case in other court: U.S. Court of Appeals − Sixth Circuit,
14−01094
U.S. Court of Appeals − Sixth Circuit, 14−01094
U.S. Court of Appeals − Sixth Circuit, 16−02442
U.S. Court of Appeals − Sixth Circuit, 16−02442 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 05/08/2013 Date Terminated: 08/10/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Saeb Mokdad

represented by Nabih H. Ayad Ayad Law, P.L.L.C. 645 Griswold Street Suite 2202 Detroit, MI 48226 313−983−4600 Fax: 313−983−4665 Email: ayadlaw@hotmail.com ATTORNEY TO BE NOTICED

V. Defendant Eric Holder
Defendant Robert S Mueller

represented by Brigham Bowen U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts, N.W. Washington, DC 20001 202−514−6289 Fax: 202−616−8470 Email: brigham.bowen@usdoj.gov ATTORNEY TO BE NOTICED
Joseph C. Folio , III U.S. Department of Justice Civil Divison, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20001 202−305−4968 Fax: 202−616−8470 Email: Joseph.Folio@usdoj.gov TERMINATED: 11/18/2015 ATTORNEY TO BE NOTICED
represented by Brigham Bowen (See above for address) ATTORNEY TO BE NOTICED
Joseph C. Folio , III (See above for address)

Case: 2:13-cv-12038 As of: 03/31/2018 08:07 PM EDT 2 of 6

TERMINATED: 11/18/2015 ATTORNEY TO BE NOTICED

Defendant Timothy J Healy

represented by Brigham Bowen (See above for address) ATTORNEY TO BE NOTICED

Joseph C. Folio , III (See above for address) TERMINATED: 11/18/2015 ATTORNEY TO BE NOTICED

Date Filed 05/08/2013
05/08/2013 05/08/2013 05/08/2013 05/08/2013 05/08/2013
05/09/2013 06/10/2013 06/10/2013 06/10/2013 06/10/2013 06/10/2013 07/10/2013 07/10/2013 07/12/2013 07/18/2013
07/22/2013

# Docket Text
1 COMPLAINT filed by Saeb Mokdad against All Defendants. Plaintiff requests summons issued. Receipt No: 0645−4083278 − Fee: $ 400. County of 1st Plaintiff: wayne − County Where Action Arose: Wayne − County of 1st Defendant: D.C.. [Previously dismissed case: No] [Possible companion case(s): None] (Ayad, Nabih) (Entered: 05/08/2013)
2 SUMMONS Issued for *Eric Holder* (DWor) (Entered: 05/08/2013)
3 SUMMONS Issued for *Robert S Mueller* (DWor) (Entered: 05/08/2013)
4 SUMMONS Issued for *Timothy J Healy* (DWor) (Entered: 05/08/2013)
5 SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (DWor) (Entered: 05/08/2013)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (DWor) (Entered: 05/08/2013)
6 INDEX of Exhibits re 1 Complaint, by Saeb Mokdad (Attachments: # 1 Exhibit Verification, # 2 Exhibit TRIP Inquiries) (Ayad, Nabih) (Entered: 05/09/2013)
7 CERTIFICATE of Service/Summons Returned Executed. Office of U.S. Attorney General served on 05/20/2013. (Ayad, Nabih) (Entered: 06/10/2013)
8 CERTIFICATE of Service/Summons Returned Executed. FBI served on 05/20/2013. (Ayad, Nabih) (Entered: 06/10/2013)
9 CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney General served on 05/20/2013. (Ayad, Nabih) (Entered: 06/10/2013)
10 CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney on behalf of All Plaintiffs. (Ayad, Nabih) (Entered: 06/10/2013)
11 CERTIFICATE of Service/Summons Returned Executed. FBI served on 05/20/2013. (Ayad, Nabih) (Entered: 06/10/2013)
12 NOTICE of Appearance by Joseph C. Folio, III on behalf of All Defendants. (Folio, Joseph) (Entered: 07/10/2013)
13 STIPULATION to Extend Time for Defendants to Answer or Otherwise Respond by All Parties (Folio, Joseph) (Entered: 07/10/2013)
14 ORDER Extending Time, (Responses due by 7/22/2013). Signed by District Judge Victoria A. Roberts. (Ciesla, C) (Entered: 07/12/2013)
15 STIPULATION AND ORDER ENLARGING PAGE LIMITS FOR BRIEFING ON MOTION TO DISMISS, Signed by District Judge Victoria A. Roberts. (Ciesla, C) (Entered: 07/18/2013)
16 MOTION to Dismiss by All Defendants. (Attachments: # 1 Exhibit Exhibit A) (Folio, Joseph) (Entered: 07/22/2013)

Case: 2:13-cv-12038 As of: 03/31/2018 08:07 PM EDT 3 of 6

07/23/2013 07/24/2013
07/25/2013 07/25/2013 07/26/2013 08/12/2013 08/14/2013 08/16/2013
08/20/2013 08/22/2013
08/23/2013 08/27/2013 08/28/2013 08/29/2013
09/03/2013 09/04/2013 10/25/2013

17 Emergency MOTION for Order Permitting Immediate Travel by All Plaintiffs. (Ayad, Nabih) (Entered: 07/23/2013)
18 **STICKEN** ORDER EXPEDITING BRIEFING ON PENDING MOTIONS re 16 MOTION to Dismiss filed by Timothy J Healy, Eric Holder, Robert S Mueller AND 17 Emergency MOTION for Order Permitting Immediate Travel filed by Saeb Mokdad. Set Motion and R&R Deadlines/Hearings as to 16 MOTION to Dismiss AND 17 Emergency MOTION: (Responses due by 7/29/2013, Replies due by 8/2/2013). Signed by District Judge Victoria A. Roberts. (Ciesla, C) Modified on 7/26/2013 (LVer). (Entered: 07/24/2013)
19 Emergency MOTION for Extension of Time to File Response/Reply as to 18 Order, Set Motion and R&R Deadlines/Hearings,,,, by Saeb Mokdad. (Ayad, Nabih) (Entered: 07/25/2013)
20 RESPONSE to 19 Emergency MOTION for Extension of Time to File Response/Reply as to 18 Order, Set Motion and R&R Deadlines/Hearings,,,, filed by All Defendants. (Folio, Joseph) (Entered: 07/25/2013)
21 ORDER Granting 19 Motion and Striking Briefing Schedule. Signed by District Judge Victoria A. Roberts. (see image for details and dates) (LVer) (Entered: 07/26/2013)
22 RESPONSE to 16 MOTION to Dismiss filed by Saeb Mokdad. (Ayad, Nabih) (Entered: 08/12/2013)
23 STIPULATED ORDER Enlarging Page Limits for Defendants' Response to Plaintiff's 17 Emergency MOTION for Order Permitting Immediate Travel. Signed by District Judge Victoria A. Roberts. (Loury, R) (Entered: 08/14/2013)
24 RESPONSE to 17 Emergency MOTION for Order Permitting Immediate Travel filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Lubman Declaration, # 3 Exhibit B − Allied Erecting and Dismantling Co., Inc. v. Genesis Equip. & Mfg., Inc., 511 F. App'x 398 (6th Cir. 2013)) (Folio, Joseph) (Entered: 08/16/2013)
25 REPLY to Response re 17 Emergency MOTION for Order Permitting Immediate Travel & MOTION TO STRIKE RESPONSE filed by Saeb Mokdad. (Ayad, Nabih) (Entered: 08/20/2013)
26 RESPONSE to 25 Reply to Response to Motion Defendants' Response to Plaintiff's Motion to Strike by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Stirton v. Mich. Tooling Ass'n, 2005 WL 3502153 (E.D. Mich. 2005), # 3 Exhibit Dearborn Lodging, Inc. v. City of Dearborn, 2012 WL 1658684 (E.D. Mich. 2012)) (Folio, Joseph) (Entered: 08/22/2013)
27 REPLY to Response re 17 Emergency MOTION for Order Permitting Immediate Travel With Request to Strike filed by Saeb Mokdad. (Ayad, Nabih) (Entered: 08/23/2013)
28 MOTION for Leave to File Excess Pages by All Defendants. (Folio, Joseph) (Entered: 08/27/2013)
29 ORDER Granting 28 Motion for Leave to File Excess Pages. Signed by District Judge Victoria A. Roberts. (Loury, R) (Entered: 08/28/2013)
30 REPLY to Response re 16 MOTION to Dismiss filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Thomson v. Stone (E.D. Mich.), # 3 Exhibit B − Latif v. Holder (D. Or.), # 4 Exhibit C − Bennafield v. City of Canton Police Dep't (6th Cir.), # 5 Exhibit D − Shearson v. Holder (6th Cir.)) (Folio, Joseph) (Entered: 08/29/2013)
31 MOTION to Strike 30 Reply to Response to Motion, by Saeb Mokdad. (Ayad, Nabih) (Entered: 09/03/2013)
32 ORDER Denying Motions to Strike 25 and 31 . Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 09/04/2013)
33 EXHIBIT re 25 Reply to Response to Motion, 17 Emergency MOTION for Order Permitting Immediate Travel by Saeb Mokdad (Attachments: # 1 Exhibit Letter from

Case: 2:13-cv-12038 As of: 03/31/2018 08:07 PM EDT 4 of 6

12/05/2013
12/05/2013 01/24/2014
01/24/2014 06/25/2014 10/26/2015 10/26/2015 10/29/2015
11/17/2015 11/18/2015 11/23/2015
11/24/2015
12/03/2015 12/14/2015 12/16/2015
12/18/2015
12/24/2015
01/12/2016
01/12/2016 04/04/2016

General Consulate of Lebanon) (Ayad, Nabih) (Entered: 10/25/2013)
34 ORDER granting 16 Motion to Dismiss; terminating 17 Motion for Order for Emergency Travel. See order for details. Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 12/05/2013)
35 JUDGMENT in favor of Defendants against Plaintiff Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 12/05/2013)
36 NOTICE OF APPEAL by Saeb Mokdad re 35 Judgment, 34 Order on Motion to Dismiss, Order on Motion for Order. Receipt No: 0645−4470669 − Fee: $ 505 − Fee Status: Fee Paid. (Ayad, Nabih) (Entered: 01/24/2014)
37 Certificate of Service re 36 Notice of Appeal. (TMcg) (Entered: 01/24/2014)
38 ORDER from U.S. Court of Appeals − Sixth Circuit re 36 Notice of Appeal filed by Saeb Mokdad [Appeal Case Number 14−1094] (KKra) (Entered: 06/26/2014)
41 OPINION from U.S. Court of Appeals − Sixth Circuit re 36 Notice of Appeal filed by Saeb Mokdad [Appeal Case Number 14−1094] (Ahmed, N) (Entered: 12/15/2015)
42 JUDGMENT from U.S. Court of Appeals − Sixth Circuit re 36 Notice of Appeal filed by Saeb Mokdad [Appeal Case Number 14−1094] (Ahmed, N) (Entered: 12/15/2015)
Set Deadlines/Hearings: TELEPHONIC Status Conference set for 11/17/2015 at 4:00 PM before District Judge Victoria A. Roberts. The Court will initiate the call. (LVer) (Entered: 10/29/2015)
39 NOTICE of Appearance by Brigham Bowen on behalf of Timothy J Healy, Eric Holder, Robert S Mueller. (Bowen, Brigham) (Entered: 11/17/2015)
40 STIPULATION AND ORDER of Attorney Withdrawal by Joseph Folio. Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 11/18/2015)
Set Deadlines/Hearings: TELEPHONIC Status Conference set for 12/3/2015 at 2:00 PM before District Judge Victoria A. Roberts. The Court will initiate the call. (LVer) (Entered: 11/23/2015)
Set Deadlines/Hearings: TELEPHONIC Status Conference reset for 12/3/2015 at 12:30 PM before District Judge Victoria A. Roberts. PLEASE NOTE THIS IS A TIME CHANGE ONLY. (LVer) (Entered: 11/24/2015)
Set Deadlines/Hearings: TELEPHONIC Status Conference set for 12/14/2015 at 10:00 AM before District Judge Victoria A. Roberts. (LVer) (Entered: 12/03/2015)
Minute Entry for proceedings before District Judge Victoria A. Roberts: Telephonic Status Conference held on 12/14/2015 (CPin) (Entered: 12/14/2015)
43 ORDER. TELEPHONIC Status Conference set for 1/12/2016 at 9:30 AM before District Judge Victoria A. Roberts. Signed by District Judge Victoria A. Roberts. (see image for details and dates) (LVer) (Entered: 12/16/2015)
44 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 42 Appeal Order/Opinion/Judgment [Appeal Case Number 14−1094] (Ahmed, N) (Entered: 12/18/2015)
45 NOTICE by All Defendants re 43 Order, Set Deadlines/Hearings − Notice of DHS TRIP Response (Attachments: # 1 Exhibit − DHS TRIP Response Letter) (Bowen, Brigham) (Entered: 12/24/2015)
Set Deadlines/Hearings: TELEPHONIC Status Conference set for 4/4/2016 at 10:00 AM before District Judge Victoria A. Roberts. The Court will initiate the call. (LVer) (Entered: 01/12/2016)
Minute Entry for proceedings before District Judge Victoria A. Roberts: Telephonic Status Conference held on 1/12/2016 (CPin) (Entered: 01/12/2016)
Set Deadlines/Hearings: TELEPHONIC Status Conference set for 4/14/2016 at 2:00 PM before District Judge Victoria A. Roberts. The Court will initiate the call. (LVer) (Entered: 04/04/2016)

Case: 2:13-cv-12038 As of: 03/31/2018 08:07 PM EDT 5 of 6

04/12/2016 04/27/2016 04/29/2016 05/18/2016 06/09/2016 06/10/2016 06/14/2016
06/24/2016 07/08/2016 07/11/2016 07/15/2016 07/19/2016
07/27/2016 07/27/2016 08/09/2016
08/10/2016 08/16/2016

Set Deadlines/Hearings: TELEPHONIC Status Conference reset for 4/26/2016 03:00 PM before District Judge Victoria A. Roberts (CPin) (Entered: 04/12/2016)
Minute Entry for proceedings before District Judge Victoria A. Roberts: Telephonic Status Conference held on 4/27/2016 (CPin) (Entered: 04/27/2016)
46 Order Setting Briefing Schedule. Signed by District Judge Victoria A. Roberts. (see image for details and dates) (LVer) (Entered: 04/29/2016)
47 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Upon Which Relief Can Be Granted by Timothy J Healy, Eric Holder, Robert S Mueller. (Bowen, Brigham) (Entered: 05/18/2016)
48 (STRICKEN)STIPULATION by Saeb Mokdad (Ayad, Nabih)[STIPULATION TO EXTEND RESPONSE DEADLINE] Modified on 6/10/2016 (DPer). Modified on 6/10/2016 (CPin). (Entered: 06/09/2016)
TEXT−ONLY ORDER STRIKING 48 Stipulation and Order filed by Saeb Mokdad Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 06/10/2016)
49 STIPULATION AND ORDER to Extend Time to Filre Response re 47 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Upon Which Relief Can Be Granted filed by Timothy J Healy, Eric Holder, Robert S Mueller. Response due by 6/24/2016 Reply due by 7/15/2016 Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 06/14/2016)
50 RESPONSE to 47 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Upon Which Relief Can Be Granted filed by Saeb Mokdad. (Ayad, Nabih) (Entered: 06/24/2016)
51 Ex Parte MOTION for Leave to File Excess Pages by All Defendants. (Bowen, Brigham) (Entered: 07/08/2016)
52 ORDER granting 51 Motion for Leave to File Excess Pages. Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 07/11/2016)
53 REPLY to Response re 47 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Upon Which Relief Can Be Granted filed by Timothy J Healy, Eric Holder, Robert S Mueller. (Bowen, Brigham) (Entered: 07/15/2016)
54 ORDER Requiring Briefing regarding 47 Motion to Dismiss Notice of Hearing on Motion 47 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Upon Which Relief Can Be Granted :( Motion Hearing set for 8/9/2016 at 2:30 PM before District Judge Victoria A. Roberts) Response due by 7/27/2016 Signed by District Judge Victoria A. Roberts. (see image for details and dates) (LVer) (Entered: 07/19/2016)
55 SUPPLEMENTAL BRIEF re 54 Order Requiring Responsive Pleading, Order Setting Hearing on Motion,, filed by Timothy J Healy, Eric Holder, Robert S Mueller. (Bowen, Brigham) (Entered: 07/27/2016)
56 SUPPLEMENTAL BRIEF re 54 Order Requiring Responsive Pleading, Order Setting Hearing on Motion,, 50 Response to Motion filed by All Plaintiffs. (Attachments: # 1 Exhibit) (Ayad, Nabih) (Entered: 07/27/2016)
Minute Entry for proceedings before District Judge Victoria A. Roberts: Motion Hearing held on 8/9/2016 re 47 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Upon Which Relief Can Be Granted filed by Timothy J Healy, Eric Holder, Robert S Mueller Disposition: Motion granted (Court Reporter: Janice Coleman) (CPin) (Entered: 08/15/2016)
57 ORDER Granting 47 Motion to Dismiss. Signed by District Judge Victoria A. Roberts. (see image for details and dates) (LVer) (Entered: 08/10/2016)
58 DECLARATION by Timothy P. Groh re 57 Order on Motion to Dismiss filed by Timothy J Healy, Eric Holder, Robert S Mueller (Bowen, Brigham) (Entered: 08/16/2016)

Case: 2:13-cv-12038 As of: 03/31/2018 08:07 PM EDT 6 of 6

10/06/2016 10/06/2016 12/13/2016
11/13/2017 11/21/2017 11/21/2017 01/10/2018

59 NOTICE OF APPEAL by Saeb Mokdad. Receipt No: 0645−5904639 − Fee: $ 505 − Fee Status: Fee Paid. (Ayad, Nabih) (Entered: 10/06/2016)
60 Certificate of Service re 59 Notice of Appeal. (SOso) (Entered: 10/06/2016)
61 TRANSCRIPT of Motion to Dismiss held on August 9, 2016. (Court Reporter/Transcriber: Janice Coleman) (Number of Pages: 43) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 1/3/2017. Redacted Transcript Deadline set for 1/13/2017. Release of Transcript Restriction set for 3/13/2017. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber at www.transcriptorders.com before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Coleman, J.) (Entered: 12/13/2016)
62 OPINION from U.S. Court of Appeals − Sixth Circuit re 59 Notice of Appeal filed by Saeb Mokdad [Appeal Case Number 16−2442] (DWor) (Entered: 11/13/2017)
63 ORDER from U.S. Court of Appeals − Sixth Circuit re 59 Notice of Appeal filed by Saeb Mokdad [Appeal Case Number 16−2442] (DWor) (Entered: 11/21/2017)
64 OPINION and JUDGMENT from U.S. Court of Appeals − Sixth Circuit re 62 Appeal Order/Opinion/Judgment, 59 Notice of Appeal filed by Saeb Mokdad [Appeal Case Number 16−2442] (DWor) (Entered: 11/21/2017)
65 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 62 Appeal Order/Opinion/Judgment [Appeal Case Number 16−2442] (SKra) (Entered: 01/10/2018)