U.S. District Court Eastern District of Michigan (Ann Arbor) CIVIL DOCKET FOR CASE #: 5:14-cv-13812-JEL-MJH

Beydoun v. HOLDER JR et al Assigned to: District Judge Judith E. Levy Referred to: Magistrate Judge Michael J. Hluchaniuk Case in other court: U.S. Court of Appeals - Sixth
Circuit, 16-02168
U.S. Court of Appeals - Sixth Circuit, 16-02168/16-02406 Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 10/03/2014 Date Terminated: 07/14/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Nasser Beydoun

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
ATTORNEY GENERAL ERIC H HOLDER JR

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

Defendant Director of TSC Christopher M. Piehota
Defendant Director James B. Comey

Branch 20 Massachusetts Ave., NW Washington, DC 20001 202-305-4968 Fax: 202-616-8470 Email: Joseph.Folio@usdoj.gov ATTORNEY TO BE NOTICED
Stephen M. Elliott U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachussetts Ave, N.W., Room 7318 Washington, DC 20530 202-305-8177 Email: stephen.elliott@usdoj.gov ATTORNEY TO BE NOTICED
represented by Brigham Bowen (See above for address) ATTORNEY TO BE NOTICED
Joseph C. Folio , III (See above for address) ATTORNEY TO BE NOTICED
Stephen M. Elliott (See above for address) ATTORNEY TO BE NOTICED
represented by Brigham Bowen (See above for address) ATTORNEY TO BE NOTICED
Joseph C. Folio , III (See above for address) ATTORNEY TO BE NOTICED
Stephen M. Elliott (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/03/2014
10/03/2014
10/03/2014 10/03/2014 10/20/2014 11/17/2014 11/18/2014
11/20/2014 11/20/2014
12/05/2014

# Docket Text
1 COMPLAINT filed by Nasser Beydoun against Nasser Beydoun. Plaintiff requests summons issued. Receipt No: 06454843946 - Fee: $ 400. County of 1st Plaintiff: Wayne - County Where Action Arose: Wayne - County of 1st Defendant: USA. [Previously dismissed case: No] [Possible companion case(s): None] (Ayad, Nabih) (Entered: 10/03/2014)
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 (KKra) (Entered: 10/03/2014)
2 SUMMONS Issued for * All Defendants * (KKra) (Entered: 10/03/2014)
3 SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (KKra) (Entered: 10/03/2014)
4 NOTICE of Appearance by Joseph C. Folio, III on behalf of All Defendants. (Folio, Joseph) (Entered: 10/20/2014)
5 CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney on behalf of ERIC H HOLDER JR served on 10/7/2014, answer due 12/8/2014. (Ayad, Nabih) (Entered: 11/17/2014)
6 MOTION to Stay by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A - Kadura v. Holder, Order Staying Case, # 3 Exhibit B - Plaintiff's DHS TRIP Response Letter, # 4 Exhibit C - Mokdad v. Holder, Order Dismissing Case) (Folio, Joseph) (Entered: 11/18/2014)
Minute Entry for proceedings before District Judge Judith E. Levy: Telephonic Status Conference held on 11/20/2014 with Nabih Ayad and Joseph Folio (FMos) (Entered: 11/20/2014)
TEXT-ONLY ORDER Setting Briefing Schedule as to Re 6 MOTION to Stay - ( Response due by 12/5/2014, Reply due by 12/15/2014). If the Motion to Stay is Denied, defendants will have 30 days to answer - Signed by District Judge Judith E. Levy. (FMos) (Entered: 11/20/2014)
7 RESPONSE to 6 MOTION to Stay filed by Nasser Beydoun. (Ayad, Nabih) (Entered: 12/05/2014)

12/15/2014

8 REPLY to Response re 6 MOTION to Stay filed by All Defendants. (Folio, Joseph) (Entered: 12/15/2014)

01/22/2015

9 Notice of Determination of Motion Without Oral Argument re 6 MOTION to Stay (FMos) (Entered: 01/22/2015)

01/22/2015

Text-Only Order of reassignment from Magistrate Judge Paul J. Komives to to Magistrate Judge Michael J. Hluchaniuk pursuant to Administrative Order 15-AO-010. (SSch) (Entered: 01/22/2015)

02/13/2015 10

OPINION and ORDER Granting Defendants' 6 MOTION to Stay Signed by District Judge Judith E. Levy. (FMos) (Entered: 02/13/2015)

02/13/2015

Case Stayed (FMos) (Entered: 02/13/2015)

11/23/2015

11 NOTICE of Appearance by Brigham Bowen on behalf of All Defendants. (Bowen, Brigham) (Entered: 11/23/2015)

11/23/2015

12 MOTION for Extension of Time to File Answer or Otherwise Respond (Unopposed) by All Defendants. (Bowen, Brigham) (Entered: 11/23/2015)

11/23/2015

13 ORDER Granting 12 MOTION for Extension of Time to File Answer - Signed by District Judge Judith E. Levy. (FMos) (Entered: 11/23/2015)

12/04/2015

14 NOTICE of Appearance by Stephen M. Elliott on behalf of James B. Comey, ERIC H HOLDER JR, Christopher M. Piehota. (Elliott, Stephen) (Entered: 12/04/2015)

01/19/2016

15 MOTION to Dismiss by James B. Comey, ERIC H HOLDER JR, Christopher M. Piehota. (Elliott, Stephen) (Entered: 01/19/2016)

01/21/2016

16 NOTICE OF HEARING on 15 MOTION to Dismiss . Motion Hearing set for 4/12/2016 at 2:00 PM before District Judge Judith E. Levy in Ann Arbor, MI (FMos) (Entered: 01/21/2016)

01/26/2016

17 MOTION for Extension of Time to File Response/Reply as to 15 MOTION to Dismiss by Nasser Beydoun. (Ayad, Nabih) (Entered: 01/26/2016)

01/27/2016

TEXT-ONLY ORDER Granting 17 MOTION for Extension of Time to File Response/Reply as to 15 MOTION to Dismiss filed by Nasser Beydoun - Issued by District Judge Judith E. Levy. (FMos) (Entered: 01/27/2016)

02/25/2016 03/01/2016
03/29/2016 03/30/2016 03/30/2016 04/28/2016 05/05/2016 05/13/2016 05/13/2016 05/17/2016 06/03/2016 06/03/2016

18 Second MOTION for Extension of Time to File Answer To Defendant's Motion to Dismiss For Good Cause by All Plaintiffs. (Ayad, Nabih) (Entered: 02/25/2016)
TEXT-ONLY ORDER Granting 18 Second MOTION for Extension of Time to File Answer To Defendant's Motion to Dismiss For Good Cause filed by Nasser Beydoun. Entered by District Judge Judith E. Levy. (FMos) (Entered: 03/01/2016)
19 Third MOTION for Extension of Time to File Response/Reply to Defendant's Motion to Dismiss by Nasser Beydoun. (Ayad, Nabih) (Entered: 03/29/2016)
20 ORDER Granting 19 Motion for Extension of Time to File Response/Reply. Signed by District Judge Judith E. Levy. (FMos) (Entered: 03/30/2016)
Reset Deadlines as to 15 MOTION to Dismiss . Motion Hearing reset for 6/21/2016 at 1:00 PM before District Judge Judith E. Levy in ANN ARBOR, MI (FMos) (Entered: 03/30/2016)
21 STIPULATION To Extend Response Deadline by Nasser Beydoun (Ayad, Nabih) (Entered: 04/28/2016)
TEXT-ONLY ORDER Granting 21 Stipulation filed by Nasser Beydoun. Issued by District Judge Judith E. Levy. (FMos) (Entered: 05/05/2016)
22 Ex Parte MOTION for Leave to File Excess Pages by Nasser Beydoun. (Ayad, Nabih) (Entered: 05/13/2016)
23 RESPONSE to 15 MOTION to Dismiss filed by Nasser Beydoun. (Ayad, Nabih) (Entered: 05/13/2016)
TEXT-ONLY ORDER Granting 22 Ex Parte MOTION for Leave to File Excess Pages filed by Nasser Beydoun - Issued by District Judge Judith E. Levy. (FMos) (Entered: 05/17/2016)
24 MOTION for Leave to File Excess Pages (Unopposed) by James B. Comey, ERIC H HOLDER JR, Christopher M. Piehota. (Elliott, Stephen) (Entered: 06/03/2016)
25 REPLY to Response re 15 MOTION to Dismiss filed by James B. Comey, ERIC H HOLDER JR, Christopher M. Piehota. (Elliott, Stephen) (Entered: 06/03/2016)

06/06/2016

26 ORDER granting 24 Unopposed Motion for Leave to File Excess Pages. Signed by District Judge Judith E. Levy. (FMos) (Entered: 06/06/2016)

06/21/2016

Minute Entry for proceedings before District Judge Judith E. Levy: Motion Hearing held on 6/21/2016 with Nabib Ayad and Stephen M. Elliott re 15 MOTION to Dismiss. Disposition: Motion taken under advisement (Court Reporter: Jeseca Eddington) (TMcg) (Entered: 06/22/2016)

07/14/2016 27

OPINION and ORDER GRANTING Defendant's re 15 MOTION to Dismiss Signed by District Judge Judith E. Levy. (KJac) (Entered: 07/14/2016)

07/14/2016

28 JUDGMENT - Signed by District Judge Judith E. Levy. (KJac) (Entered: 07/14/2016)

08/12/2016

29 NOTICE OF APPEAL by Nasser Beydoun. Receipt No: 06455824430 - Fee: $ 505 - Fee Status: Fee Paid. (Ayad, Nabih) (Entered: 08/12/2016)

08/12/2016

30 Certificate of Service re 29 Notice of Appeal. (BGar) (Entered: 08/12/2016)

11/05/2016

31 TRANSCRIPT of Motion Hearing held on 6/21/2016. (Court Reporter/Transcriber: Jeseca C. Eddington) (Number of Pages: 49) (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 11/28/2016. Redacted Transcript Deadline set for 12/6/2016. Release of Transcript Restriction set for 2/3/2017. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Eddington, J) (Entered: 11/05/2016)

09/12/2017

32 OPINION and JUDGMENT from U.S. Court of Appeals - Sixth Circuit re 29 Notice of Appeal filed by Nasser Beydoun [Appeal Case Number 16-2168] (Ahmed, N) (Entered: 09/12/2017)

12/06/2017

33 MANDATE from U.S. Court of Appeals - Sixth Circuit as to 32 Appeal Order/Opinion/Judgment [Appeal Case Number 162168/16-2406] (SKra) (Entered: 12/06/2017)

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

Case 5:14-cv-13812-JEL-MJH ECF No. 1, PageID.1 Filed 10/03/14 Page 1 of 15

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

NASSER BEYDOUN, individually, and on behalf of all similarly situated persons

Plaintiff, vs.
ERIC H. HOLDER, JR. in his official capacity as Attorney General of the United States of America; JAMES B. COMEY, in his official capacity as Director of the Federal Bureau of Investigation; and CHRISTOPHER M. PIEHOTA, in his official capacity as Director of the Terrorist Screening Center,
Defendants.

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

AYAD LAW, PLLC NABIH H. AYAD (P59518) Attorney for Plaintiff 2200 Canton Center Rd., Ste. 220 Canton, MI 48187 Phone: (734) 983-0500 Fax: (734) 983-0520 Email: nayad@ayadlaw.com

PLAINTIFF’S CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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

Case 5:14-cv-13812-JEL-MJH ECF No. 1, PageID.2 Filed 10/03/14 Page 2 of 15
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 Terrorist Watch List, also known as the Terrorist Screening Database, or TSDB contains information that is used to prevent individuals from boarding a commercial flight that depart or arrives in the United States, and/or subjects individuals to additional screening and harassment at airports.
2. The Terrorist Screening Center’s “Selectee List” and the “No Fly List” are subsets of the TSDB and represent the most visible and egregious impediments to this right to travel. Presently, the United States’ system of screening prospective travelers through the Selectee 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.
3. The Plaintiff to this action is a United States citizen who was, and continues to be, selected for secondary and additional screening at different domestic airports in the United States, and subjected to unwarranted and excessive delays at airports. This screening is long and grueling, and poses a great burden on the Plaintiff, resulting in great delays in travel and rising to the level of harassment and profiling.
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NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

Case 5:14-cv-13812-JEL-MJH ECF No. 1, PageID.3 Filed 10/03/14 Page 3 of 15
4. Plaintiff has made several attempts to board flights and to check into flights within the United States, but has been permitted to do so only after long, exhaustive screening, and secondary screenings, apparently due to the Transportation Security Administration’s representation that he is on the Selectee List.
5. Plaintiff does not know why he is allegedly on the Selectee List and government officials have been unable or unwilling to explain why he is on the Selectee List, or further, how Plaintiff can be removed from the Selectee List.
6. Plaintiff has made numerous, albeit unsuccessful, attempts to receive additional information and remove himself from the Selectee List.
7. 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 Watch List and the Selectee List or any other such list that would either prevent Plaintiff from boarding a commercial aircraft, or subject Plaintiff to additional screening, targeting, harassment, and scrutiny prior to boarding at airports.
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NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

Case 5:14-cv-13812-JEL-MJH ECF No. 1, PageID.4 Filed 10/03/14 Page 4 of 15
PARTIES 8. Plaintiff Nasser Beydoun is a 49 year old resident of Dearborn, Michigan. He is a proud citizen of the United States and is pursuing the much sought after American dream. 9. Plaintiff Nasser Beydoun frequently needs to travel several times per month for work purposes. 10. 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. 11. The FBI maintains and oversees the Terrorist Screen Center (hereinafter “TSC”). 12. The TSC develops and maintains the federal government’s consolidated Terrorist Screening Database and the Selectee List. 13. Defendant James B. Comey is the Director of the FBI and he is sued in his official capacity. 14. Defendant Christopher M. Piehota is the Director of the Terrorist Screening Center and is sued in his official capacity.
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NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

Case 5:14-cv-13812-JEL-MJH ECF No. 1, PageID.5 Filed 10/03/14 Page 5 of 15
JURISDICTION AND VENUE
15. Plaintiff incorporates each and every allegation above as though fully plead herein.
16. This Verified Complaint against the Federal Bureau of Investigation, the Terrorist Screening Center, and the United States Department of Justice is to bring redress for a violation under the Fifth Amendment to the United States Constitution and the Administrative Procedures Act (hereinafter “APA”).
17. Subject matter jurisdiction is established by and through 28 U.S.C § 1331 and 5 U.S.C § 702.
18. This Court has authority to grant declaratory relief pursuant to the Declaratory Judgment Act found at 28 U.S.C § 2201 and § 2202.
19. The APA, 5 U.S.C § 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.
20. Venue is properly before this Court. Pursuant to 28 U.S.C § 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
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NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

Case 5:14-cv-13812-JEL-MJH ECF No. 1, PageID.6 Filed 10/03/14 Page 6 of 15
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
21. Plaintiff incorporates each and every allegation above as though fully plead herein.
22. Upon information and belief the Selectee 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.
23. 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”).
24. 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.
25. Upon information and belief, an individual can be nominated for inclusion on the Watch List including the No Fly List or the Selectee List by either the National Counterterrorism Center or the FBI.
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NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

Case 5:14-cv-13812-JEL-MJH ECF No. 1, PageID.7 Filed 10/03/14 Page 7 of 15
26. 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 Selectee List.
27. Defendants have failed to provide a fair and transparent remedial mechanism that would allow affected individuals to challenge their inclusion on either the Selectee List or the Terrorist Watch List at large.
28. An individual aggrieved by their inclusion on the Selectee List or the No Fly List is afforded a single remedy – file a Traveler Redress Inquiry Program (TRIP) complaint with the Department of Homeland Security.
29. Upon information and belief, TRIP transfers the individual’s 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.
30. Upon information and belief, the TSC is the agency that determines the propriety of an individual’s inclusion on the Selectee 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 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.
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NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

Case 5:14-cv-13812-JEL-MJH ECF No. 1, PageID.8 Filed 10/03/14 Page 8 of 15
31. Plaintiff has made three such inquires with DHS, but the Defendants have failed to correct the matter. Plaintiff received the latest blanket generalized response to his TRIP complaint in late 2013.
32. Plaintiff has resided in or around the Metro-Detroit area since 1969. 33. Plaintiff is a successful entrepreneur and business owner and often needs to travel. 34. Plaintiff’s restriction on travel including, excess delays, secondary screening, being singled out at check points, and being singled out for additional screening at the gate has impeded Plaintiff’s business matters, and has humiliated Plaintiff. 35. Every time Plaintiff checks in at the airport he is subjected to secondary screening. 36. Plaintiff has missed countless flights because of delays caused by the extra, unwarranted scrutiny applied to Plaintiff.
CLASS ACTION ALLEGATIONS
37. Plaintiff incorporates each and every allegation above as though fully plead herein.
38. Plaintiff brings this action on behalf of himself and all those similarly situated pursuant to Rule 23 of the Federal Rules of Civil Procedure.
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NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

Case 5:14-cv-13812-JEL-MJH ECF No. 1, PageID.9 Filed 10/03/14 Page 9 of 15
39. Countless individuals in the Metro-Detroit area have been affected by the Defendants’ No Fly and Terrorist Watch List and have endlessly been wrongfully and unjustly harassed when trying to exercise their right to travel.
40. In fact, in a recently leaked government report, Dearborn, Michigan, a relatively small community outside of Detroit known to have the largest concentration of Arab-Americans in the county, was named as having the second highest concentration of suspected terrorists in the nation. Dearborn was only behind New York City, a city with a population over eighty times greater than Dearborn.
41. The class of individuals contains all those who are believed to be included on the No Fly and Terrorist Watch List, have been the victim of harassment and disparate treatment at airports when attempting to board their flights, and have not been given any legitimate means of redress.
42. The Class meets the requirements of Rule 23(a). Although the precise size of the class cannot be determined at this time, given the size of the ArabAmerican community in the Metro-Detroit Area and the fact that Dearborn, Michigan was recently named in a government document to possess the second highest concentration of suspected terrorists, the class is likely to be so numerous that joinder of all members is impracticable.
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NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

Case 5:14-cv-13812-JEL-MJH ECF No. 1, PageID.10 Filed 10/03/14 Page 10 of 15
43. Questions of law and/or fact predominate among all members of the Class in that any legal and/or factual issues relating to the rights of Plaintiff as an individual will be equally applicable to any and all class members.
44. Plaintiff’s claims are typical of the claims of the class because: (a) they are similarly situated as suspected persons included on the No Fly and Terrorist Watch lists, (b) have been similarly affected when attempting to exercise their right to travel by air, and (c) are all seeking relief for the violation of their due process and administrative rights.
45. Plaintiff will fairly and adequately represent the interests of all members of the proposed class because he seeks relief on behalf of the class as a whole and has no interests antagonistic to other members of the class. Plaintiff is represented by counsel with extensive expertise in class action litigation, including litigation regarding constitutional law and civil rights.
46. The maintenance of a class action is superior to other available methods of adjudication in promoting the convenient administration of justice because, inter alia:
(a) the prosecution of separate actions would create a risk of inconsistent or varying adjudications with respect to individual members of the class that would confront Defendant with incompatible standards of conduct;
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NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

Case 5:14-cv-13812-JEL-MJH ECF No. 1, PageID.11 Filed 10/03/14 Page 11 of 15
(b) in view of the complexity of the issues and the expense of litigation, the separate claims of individual class members are insufficient in amount to support separate actions;
(c) it is probable that the amount which may be recovered by individual class members will be able enough in relation to the expense and effort of administering the action to justify a class action;
(d) individual class members do not have a significant interest in controlling the prosecution or defense of separate actions;
(e) the action will be manageable as a class action; (f) the prosecution of separate actions would create a risk of adjunctions with respect to individual members of the class that would as a practical matter be dispositive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interest.
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
47. Plaintiff incorporates each and every allegation above as though fully plead herein.
48. Plaintiff has a constitutionally protected liberty interest in traveling free from unreasonable burdens within, to, or from the United States of America.
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NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

Case 5:14-cv-13812-JEL-MJH ECF No. 1, PageID.12 Filed 10/03/14 Page 12 of 15
49. Further, Plaintiff has the right to his reputation and 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.
50. 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 placing unwarranted and unjust additional screening and scrutiny on Plaintiff when attempting to fly through United States airspace, which has the effect of restricting Plaintiff’s ability to fly.
51. Plaintiff is entitled to a legal system that affords him post-deprivation notice and an opportunity to contest the deprivation of his right to travel free from unwarranted scrutiny.
52. The DHS TRIP process presently provides no meaningful opportunity for Plaintiff to provide exculpatory evidence in an effort to be taken off the No-Fly or Terrorist Watch Lists.
53. 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 anywhere.
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LAW OFFICES
NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

Case 5:14-cv-13812-JEL-MJH ECF No. 1, PageID.13 Filed 10/03/14 Page 13 of 15
SECOND CLAIM FOR RELIEF UNLAWFUL AGENCY ACTION
U.S.C. § 706 54. Plaintiff incorporates each and every allegation above as though fully plead herein. 55. 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(2)(A) and (2)(B). 56. Congress has instructed that procedures be established to “enable airline passengers who are delayed or prohibited from boarding a flight because the advanced passenger prescreening system determined that they might post a security threat, to appeal such determination and correct information contained in the system. 49 U.S.C. § 44903(J)(2)(C)(iii)(I). 57. Further, Congress instructed the Executive to “establish a timely and fair process for individuals identified as a threat . . . to appeal to the [TSA] the determination and correct any erroneous information.” 49 U.S.C. § 44903(J)(2)(G)(i). 58. The DHS TRIP process does not provide a meaningful mechanism for travelers who have been denied boarding or subjected to unwarranted additional screenings to correct erroneous information in the government’s
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NABIH H. AYAD & ASSOCIATES 2200 Canton Center Road, Suite 220 CANTON, MICHIGAN 48187 (734) 983-0500

Case 5:14-cv-13812-JEL-MJH ECF No. 1, PageID.14 Filed 10/03/14 Page 14 of 15
terrorism databases as the travelers are not given any indication of the information that may be in the record.
59. As a result, the DHS TRIP system fails to consider an important aspect of Congress’s instructions and violates § 706(2)(A) of the APA.
60. Further, for the reasons cited in Plaintiff’s First Claim of Relief, the DHS TRIP process violates § 706(2)(B) of the APA as it violates Plaintiff’s procedural due-process rights.
61. 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 selectee list after being targeted and harassed at the airport 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;
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P.C.

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

B. Enjoining Defendants and requiring them to remedy the constitutional and statutory violations by removing Plaintiff from the Selectee List or any other list that prevents Plaintiff from exercising his constitutionally guaranteed right to travel;

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 Selectee List and a meaningful opportunity to contest their inclusion on said list;

D. Certify the case as described herein;

E. Award attorney’s fees, costs, and expenses of all litigation pursuant to 28 U.S.C. § 2412; and

F. Enter any and all other relief as this Court deems just and equitable.

Dated: October 3, 2014

Respectfully Submitted,
AYAD LAW, PLLC.
/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

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Nasser Beydoun,

Plaintiff,

Case No. 14-cv-13812

Hon. Judith E. Levy

v.

Eric Holder, Jr., et al.,

Defendants.

________________________________/

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO STAY [6]

Plaintiff Nasser Beydoun brought this class action complaint

against defendants Eric Holder, Jr., James B. Comey, and Christopher

M. Piehota (collectively “defendants”) alleging unlawful agency action

and violations of the Fifth Amendment due process clause for failure to

provide post-deprivation notice and hearing. These allegations stem

from (1) the plaintiff’s placement on the Selectee List, which results in

additional screening by the Transportation Security Administration

(“TSA”) prior to boarding an airplane, and (2) the defendants’ alleged

5:14-cv-13812-JEL-MJH Doc # 10 Filed 02/13/15 Pg 2 of 10 Pg ID 97
failure to provide a constitutionally adequate remedy to challenge plaintiff’s inclusion on the Selectee List. (Dkt. 1).
Before the Court is defendants’ motion to stay the case pending the Sixth Circuit’s decision in Mokdad v. Holder, Case No. 14-1094, a case defendants argue will provide controlling precedent regarding the Court’s subject matter jurisdiction to consider claims like those in this case. Defendants further move the Court to permit their answer or response to this complaint to be filed thirty days after the Sixth Circuit issues its decision in Mokdad. Plaintiff opposes the motion arguing that the matter before the Sixth Circuit is distinguishable from this case.
For the reasons set forth below, the Court grants defendants’ motion to stay and orders that defendants’ answer or response to the complaint be filed within thirty days of the Sixth Circuit’s ruling in Mokdad.
I. Background The TSA has established Security Directives with respect to two
groups of people it has determined to pose a potential risk to aviation safety. The first group is made up of individuals who are placed on a No Fly List and are entirely prohibited from flying. The second group
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includes those placed on the Selectee List who must undergo additional screening before they are allowed to fly. Both of these lists are subsets of the Terrorist Screening Database (“TSDB”). (Dkt. 6-4).
For those individuals who believe they have been wrongly placed on either of these lists, Congress developed the Department of Homeland Security Traveler Inquiry Program (“DHS TRIP”), which it describes as “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. Once an inquiry is made by an individual regarding his or her placement on either of the lists, the “TSA, in coordination with the TSC and other appropriate federal law enforcement or intelligence agencies, if necessary, will review all the documentation and information requested from the individual, correct any erroneous information, and provide the individual with a timely written response.” 49 C.F.R. § 1560.205(d). Upon completion of the review, DHS TRIP sends a final determination letter describing the agency’s findings to the complainant.
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In Mokdad, the plaintiff challenged his alleged placement on the
No Fly List as well as the constitutionality of DHS TRIP. Defendants
moved to dismiss, arguing that the Sixth Circuit had original
jurisdiction over the plaintiff’s claims.
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 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.
**** 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 (emphasis added).
The District Court dismissed the case on jurisdictional grounds,
finding that, since any claim related to the No Fly list required review
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of statutory mandates imposed upon the TSA, the law granted exclusive jurisdiction of the claim with the courts of appeals. See Dkt. 6-4; 49 U.S.C. § 46110.
The question before the Sixth Circuit in Mokdad is whether 49 U.S.C. § 46110, a statute vesting the courts of appeals with exclusive jurisdiction to consider challenges of final orders of the TSA, governs challenges to an alleged denial of boarding an airplane as well as challenges to the administrative redress process afforded by DHS TRIP. The Sixth Circuit heard oral argument on this question on October 8, 2014. (Dkt. 6 at 9).
In this case, plaintiff alleges due process violations and unlawful agency action due to his placement on the Selectee List, and defendants’ failure to provide a constitutionally adequate remedy to challenge his inclusion on that list. (Dkt. 1). Beydoun argues that his placement on the Selectee List has resulted in excessive delays in his travel. (Id.) He further alleges that he made three redress inquiries with DHS TRIP. In response to plaintiff’s most recent inquiry, the DHS issued a final agency decision recommending that he provide his redress number
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when reserving airline tickets and when travelling to help avoid future delays. (Dkt. 6-3).
II. Standard of Review A district court may stay a case in order to allow a higher court in
a separate case to settle issues of law that have bearing on the matter to be stayed. See Marshel v. AFW Fabric Corp., 552 F.2d 471, 472 (2d Cir. 1977); Bechtel Corp. v. Local 215, Laborers’ Int’l Union of N. Am., 544 F.2d 1207, 1215 (3d Cir. 1976). See also LaSala v. Needham & Co., Inc., 399 F. Supp.2d 421, 427 n.39 (S.D.N.Y. 2005) (noting that a stay is appropriate “where a higher court is close to settling an issue of law bearing on the action”).
To determine whether a stay is warranted, a court must “weigh competing interests and maintain an even balance.” Landis v. North Am. Co., 299 U.S. 248, 254-55 (1936). The party seeking a stay “must make out a clear case of hardship or inequity in being required to go forward[] if there is even a fair possibility that the stay [requested] will work damage to some one else.” Id. at 255. “Especially in cases of extraordinary public moment, the [plaintiff] may be required to submit to delay not immoderate in extent and not oppressive in its
6

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consequences if the public welfare or convenience will thereby be promoted.” Landis, 299 U.S. at 256.
In making its determination, the Court weighs: “[1] the potentiality of another case having a dispositive effect on the case to be stayed, [2] the judicial economy to be saved by waiting on a dispositive decision, [3] the public welfare, and [4] the hardship/prejudice to the party opposing the stay, given its duration.” Michael v. Ghee, 325 F. Supp. 2d 829, 831 (N.D. Ohio 2004) (citing Landis, 299 U.S. at 255).
III. Analysis A stay is warranted in this matter. The potentially dispositive
impact of Mokdad, combined with the efficiency of waiting for the Sixth Circuit’s ruling, weighs heavily in favor of granting the stay.
Plaintiff contends that the allegations before the Court are sufficiently distinguishable from those in Mokdad. He argues that the Selectee List, unlike the No Fly List, also affects a traveler dealing with travel where the TSA is not involved, such as land border crossings, which are administered by the TSC and the FBI. Plaintiff argues that his complaint should be construed as a broader constitutional challenge
7

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to the administration of the Selectee List and the TSDB, rather than a narrow challenge to a final decision of the TSA.
Construing plaintiff’s complaint in the broadest light possible, it is indisputable that a significant portion of his complaint challenges TSA final orders as well as claims inextricably intertwined with those orders. Plaintiff, for example, challenges his placement on the Selectee List and the failure to provide adequate post-deprivation notice and hearing, which are both arguably related to TSA final orders, as the TSA is responsible for passenger prescreening and administers the redress process for travelers complaining of delayed boarding. See 49 U.S.C. § 44903(j)(2)(C)(ii)-(iii) ([the TSA] “shall… assume the performance of the passenger prescreening function of comparing passenger information to the automatic selectee list” and “shall establish a procedure to enable airline passengers, who are delayed…, to appeal such determination…”); 49 C.F.R. § 1560.105(b)(2) & 1560.201-207. Even if the Court were to adopt the argument that administration of the Selectee List extends beyond TSA’s control, it is indisputable that the TSA is responsible for the redress process. Plaintiff does not provide authority to counter this view. See 49 U.S.C.
8

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§ 46110; Dkt 7. Indeed, the redress process plaintiff engaged in concluded with a letter from DHS TRIP, a final order subject to 49 U.S.C. § 46110.
If the Sixth Circuit’s decision in Mokdad fails to be dispositive of all issues in this case, its ruling is still likely to significantly simplify this case. See Landis, 299 U.S. 248. Indeed, the Mokdad decision is likely to have precedential effect on questions of subject matter jurisdiction and to resolve at least some of the claims before the Court. This weighs in favor of granting a stay. See Ghee, 325 F.Supp.2d at 831; Bandit Indus., Inc. v. Blue Cross & Blue Shield of Mich., 2013 WL 5651444, at *1-2 (E.D. Mich. 2013).
Furthermore, the alleged harm to the public welfare and alleged prejudice to plaintiff do not outweigh the benefits of a stay. In light of the fact that the Sixth Circuit held oral argument on Mokdad in October 2014, the delay caused by granting the stay should not be significant.
Accordingly, IT IS HEREBY ORDERED that: Defendants’ Motion for Stay is GRANTED.
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Defendants shall have thirty days to answer or respond to plaintiff’s complaint following the Sixth Circuit’s decision in Mokdad.

Dated: February 13, 2015 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on February 13, 2015.
s/Felicia M. Moses FELICIA M. MOSES Case Manager

10

 
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Nasser Beydoun,

Plaintiff,

Case No. 14-cv-13812

v.
Loretta Lynch, Christopher M. Piehota, and James B. Comey,

Judith E. Levy United States District Judge

Defendants.

________________________________/

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS [15]

Nasser Beydoun brought suit against Loretta E. Lynch, Attorney

General of the United States, Christopher M. Piehota, Director of the

Terrorist Screening Center, and James B. Comey, Director of the FBI,

alleging that the redress process by which he may challenge his

purported placement on the Selectee List, a subset of the Terrorist

Screening Database, violates the Due Process Clause of the Fifth

Amendment and the Administrative Procedure Act. Defendants filed a

motion to dismiss on January 19, 2016, and a hearing was held on June

21, 2016. For the reasons set forth below, plaintiff’s complaint is

5:14-cv-13812-JEL-MJH Doc # 27 Filed 07/14/16 Pg 2 of 18 Pg ID 261
dismissed for failure to name a necessary party, and plaintiff’s oral motion for leave to amend is denied as futile.
I. Background a. Overview of the Selectee List and redress procedures
Both the No-Fly List and the Selectee List are subsets of the Terrorist Screening Database, which is maintained by the Terrorist Screening Center (“TSC”), an agency overseen by the FBI. (Dkt. 15 at 15, 17-19.) “The [Terrorist Screening Database] is a consolidated database containing identifying information of persons about whom there is a reasonable suspicion that they are known or suspected terrorists.” (Id. at 18; see Dkt. 1 at 2, 7.) Individuals on the No-Fly List are not permitted to fly, while those on the Selectee List are subject to “enhanced screening,” after which they may board a commercial flight and travel by air. (Dkt. 15 at 19-20.)
The Transportation Security Administration is responsible for implementing the No-Fly and Selectee Lists and must “perform[] . . . the passenger prescreening function of comparing passenger information to the automatic [S]electee and [N]o[-F]ly [L]ists and utilize all appropriate records in the consolidated and integrated terrorist watch
2

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list maintained by the [TSC] in performing that function.” (Id. at 19 (quoting 49 U.S.C. § 44903(j)(2)(C)(ii)).)
Individuals who wish to challenge their suspected inclusion on the Selectee or No-Fly List may seek redress through the Department of Homeland Security’s Redress Inquiry Program (“DHS TRIP”). (Dkt. 15 at 15 (citing 49 C.F.R. §§ 1560.201–.207); see Dkt. 23 at 18.) After a redress inquiry form is submitted, the “TSA, in coordination with the TSC and other appropriate Federal law enforcement or intelligence agencies, if necessary, will review all the documentation and information requested from the individual, correct any erroneous information, and provide the individual with a timely written response.” (Dkt. 15 at 21 (quoting 49 C.F.R. § 1560.205(d)).) These written responses vary in content, “but generally state whether corrections have been made as a result of the redress inquiry and DHS TRIP’s review.” (Id. at 21-22 (citing Dkt. 6-3).)
b. Plaintiff’s allegations Plaintiff Nasser Beydoun is an American citizen and resident of the state of Michigan, who “frequently needs to travel several times per month for work purposes.” (Dkt. 1 at 3-4.) During these travels,
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plaintiff has been “selected for secondary and additional screening at different domestic airports” and “subjected to unwarranted and excessive delays.” (Id. at 2.) The restrictions placed on plaintiff’s travel include “excess delays, secondary screening, being singled out at check points, and being singled out for additional screening at the gate,” all of which have “impeded Plaintiff’s business matters, . . . humiliated Plaintiff,” and caused plaintiff to miss “countless flights.” (Id. at 8.) These delays and restrictions on plaintiff’s travel are “apparently due to the [TSA]’s representation that he is on the Selectee List.” (Id. at 3.)
Plaintiff brings two claims against Loretta E. Lynch, Christopher M. Piehota, and James B. Comey, in their official capacities. (See id. at 4.)1 Plaintiff also purports to represent a class of “all those who are believed to be included on the No[-]Fly and Terrorist Watch List, have been the victim of harassment and disparate treatment at airports when attempting to board their flights, and have not been given any legitimate means of redress.” (Id. at 9-11.)
1 Former Attorney General of the United States Eric H. Holder, Jr., was named in the complaint, but current Attorney General of the United States Loretta E. Lynch has been substituted as the proper party pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
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Plaintiff first claims that his inclusion on the Selectee List violates the Due Process Clause of the Fifth Amendment of the United States Constitution. (See id. at 11-12.) Plaintiff alleges that he has been deprived of his due process interests “in traveling free from unreasonable burdens within, to, or from the United States of America,” “to be free from the false allegation that he is a terrorist or that he is associated with terrorist activities,” and in “not being singled out for punishment,” all without adequate post-deprivation process. (Id.) According to plaintiff, the DHS TRIP process lacks sufficient “postdeprivation notice and an opportunity to contest the deprivation of his right[s],” because it “presently provides no meaningful opportunity for Plaintiff to provide exculpatory evidence in an effort to be taken off the No-Fly or Terrorist Watch Lists.”2 (Id.)
Plaintiff next claims that defendants’ actions violate Sections 706(2)(A) and (2)(B) of the Administrative Procedure Act (“APA”). (Dkt. 1 at 13-14 (citing 5 U.S.C. §§ 706(2)(A)–(2)(B).) Plaintiff alleges that
2 Plaintiff says he can still fly, so he cannot be on the No-Fly List. If plaintiff intends this allegation to be on behalf of purported class members who are on the No-Fly List, the Court notes that plaintiff would be an inadequate class representative. Because plaintiff otherwise refers to his placement on the Selectee List throughout his complaint and response, the Court interprets plaintiff’s allegation here to mean that there is “no meaningful opportunity for Plaintiff to provide exculpatory evidence in an effort to be taken off the [Selectee]” List.
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because defendants failed to provide him, “at a minimum, notice and opportunity to contest his placement on the [S]electee [L]ist after being targeted and harassed at the airport,” defendants’ actions were “arbitrary, capricious, an abuse of discretion, otherwise not in accordance with the law, and contrary to constitutional rights, power, privilege, or immunity, and should set aside as unlawful.” (Id.)
At the hearing, the Court noted that defendants had argued that plaintiff’s constitutional and APA claims were “coextensive,” and asked plaintiff’s counsel, “is your APA claim limited to stating that the administrative decision violated the Constitution?” Plaintiff’s counsel responded: “Yes, your Honor. In a nutshell, yes.” II. Standard
When deciding a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must “construe the complaint in the light most favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
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plausible claim need not contain “detailed factual allegations,” but it must contain more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). III. Analysis
Plaintiff failed to name the TSA as a defendant, a necessary party when challenging the DHS TRIP redress process, so his due process and APA claims must be dismissed. At the hearing, plaintiff’s counsel asked that plaintiff be granted leave to amend the complaint if the Court were inclined to dismiss the case, so that plaintiff could directly challenge his placement on the Selectee List. Because plaintiff fails to establish that his purported placement on the list deprives him of a constitutionally protected life, liberty, or property interest, leave to amend is denied.
a. Plaintiff failed to name the TSA, a necessary party, as a defendant
As alleged, plaintiff brings due process and APA challenges to the DHS TRIP redress procedures, not his placement on the Selectee List. According to the Sixth Circuit in Mokdad v. Lynch, a challenge to the DHS TRIP redress process is a challenge to a TSA order. Mokdad v. Lynch, 804 F.3d 807, 811 (6th Cir. 2015) (“To the extent that [plaintiff]
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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.”) (quoting 49 U.S.C. §§ 44926(a), 44903(j)(2)(C)(iii)(I), (G)(i)). Plaintiff failed to name the TSA as a defendant, a necessary party to challenge a TSA order, so his claims must be dismissed. See id. at 812 (“TSA is, therefore, a required party to [plaintiff]’s litigation about the adequacy of the redress procedures. . . . We dismiss without prejudice [plaintiff]’s claims challenging the adequacy of the redress process.”).
Plaintiff argues that he is “not challenging the TRIP determination letter or the letter issued by the TSA, but instead, the determination of the DHS via the TRIP letter [and] . . . his apparent placement on the Selectee List itself.” (Dkt. 23 at 17.) Essentially, plaintiff argues that he is directly challenging his placement on the Selectee List, which would only implicate the TSC, not the TSA. See Mokdad, 804 F.3d at 811 (noting that the “TSC determines ‘. . . whether the status should be changed[, ]for example, No Fly to Selectee[]’”). Defendants reply that plaintiff “restyles his claims altogether, now
8

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alleging that the lawsuit only intends to challenge ‘his apparent placement on the Selectee List itself.’”3 (Dkt. 25 at 8.)
On the face of the complaint, plaintiff does not directly challenge his placement on the Selectee List. Plaintiff alleges in his due process claim that he “is entitled to a legal system that affords him postdeprivation notice and an opportunity to contest the deprivations of his rights,” and “[t]he DHS TRIP process presently presents no meaningful opportunity for Plaintiff to provide exculpatory evidence in an effort to be taken off the [Selectee] or Terrorist Watch Lists.” Plaintiff’s due process claim explicitly concerns the alleged lack of notice and hearing, and is thus a challenge to the DHS TRIP redress procedures.
And plaintiff alleges in his APA claim that the “DHS TRIP process does not provide a meaningful mechanism for travelers who have been denied boarding or subjected to unwarranted additional screenings to correct erroneous information in the government’s terrorism databases,” and “fails to consider an important aspect of Congress’s instructions and violates § 706(2)(A) of the APA.” (Dkt. 1 at 13-14.) According to plaintiff, “Defendants’ failure to provide Plaintiff with a constitutionally
3 Defendants neither admit nor deny that plaintiff is on the Selectee List.
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adequate remedy that affords, at a minimum, notice and an opportunity to contest his placement on the selectee list” violates the APA. (See Dkt. 1 at 14 (emphasis added).) As with plaintiff’s due process claim, his APA claim is a challenge to the DHS TRIP redress process.
Even plaintiff’s requested relief involves the DHS TRIP redress procedure. Plaintiff requests that the Court “[e]njoin[] Defendants and requir[e] them to provide a valid legal mechanism that affords notice of the factual basis for the placement of individuals on the Selectee List and a meaningful opportunity to contest their inclusion onto said list.” (Dkt. 1 at 15.) Put differently, plaintiff seeks a new redress process. Plaintiff’s due process and APA claims are thus dismissed for failure to name a necessary party, the TSA. See Mokdad, 804 F.3d at 812.
b. Leave to amend is denied as futile At the hearing on this motion, plaintiff’s counsel made an oral motion for leave to amend his complaint if the Court were in any way inclined to grant defendants’ motion to dismiss. Because amending the complaint as requested would be futile, plaintiff’s oral motion is denied. The Court specifically noted at the hearing that plaintiff had not sought “to amend to include TSA as a defendant.” Plaintiff’s counsel
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responded: “We don’t want to include TSA, your Honor.” In Mokdad, the Sixth Circuit “dismiss[ed] without prejudice [plaintiff]’s claims challenging the adequacy of the redress process” because the plaintiff “failed to join TSA as a defendant.” Id. at 812. Here, plaintiff would not join the TSA as a defendant if leave to amend were granted, so granting plaintiff leave to amend his claims challenging the adequacy of the DHS TRIP redress process would be futile.
Plaintiff amending his complaint to directly challenge his placement on the Selectee List would also be futile. Plaintiff’s requested amendment would fail to establish that his placement on the list violates a life, liberty, or property interest protected by the Due Process Clause, and thus would not state a claim.
To establish a procedural due process violation under 42 U.S.C. § 1983, plaintiff must show: (1) that he had a protected life, liberty, or property interest; (2) that the federal government deprived him of that protected interest; and (3) “that the state did not afford [him] adequate procedural rights before depriving [him] of [his] protected interest.” Wedgewood L.P. I v. Twp. of Liberty, 610 F.3d 340, 349 (6th Cir. 2010). Plaintiff argues that he was deprived of his right to “travel[] free from
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unreasonable burdens within, to, or from the United States of America,” his “right to his reputation and to be free from the false allegation that he is a terrorist or . . . associated with terrorist activities,” and his “liberty interest in not being singled out for punishment without trial or without due process of law.” (Dkt. 1 at 11-12; see Dkt. 23 at 20-33.)
First, under existing case law, plaintiff fails to sufficiently allege that he was deprived of his right to travel. Government action implicates the right to travel under the Due Process Clause when it “actually deters travel, when impeding travel is its primary objective, or when it uses a classification that serves to penalize the exercise of the right.” Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986) (internal quotations and citations omitted). “[T]ravelers do not have a constitutional right to the most convenient form of travel[, and] minor restrictions on travel simply do not amount to the denial of a fundamental right.” Town of Southold v. Town of East Hampton, 477 F.3d 38, 54 (2d Cir. 2007); see Gilmore v. Gonzales, 435 F.3d 1125, 1136 (9th Cir. 2006) (“[T]he Constitution does not guarantee the right to travel by any particular form of transportation.”); Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir. 1991) (“Minor restrictions on travel
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simply do not amount to the denial of a fundamental right that can be upheld only if the Government has a compelling justification.”).
Thus a law that has an “incidental or negligible” burden on the right to travel does not rise to the level of a due process violation, because such a burden could “hardly be said to deter or penalize travel.” See, e.g., LULAC v. Bredesen, 500 F.3d 523, 535 (6th Cir. 2007) (“The state’s denial of state-issued photograph identification to temporary resident aliens may arguably result in inconvenience, requiring the bearer of a certificate for driving to carry other personal identification papers, but this inconvenience can hardly be said to deter or penalize travel. To the extent this inconvenience burdens exercise of the right to travel at all, the burden is incidental and negligible, insufficient to implicate denial of the right to travel.”).
Plaintiff argues that “the burdens imposed by the restrictions placed on Plaintiff by virtue of being placed on the Selectee List are far greater than any of the burdens imposed by the restrictions placed on the plaintiffs” in those cases. (Dkt. 23 at 14 (citing Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or. 2014)).) Plaintiff cites Latif v. Holder, in which the district court “conclude[d] . . . that [p]laintiffs have constitutionally-
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protected liberty interests in traveling internationally by air, which are significantly affected by being placed on the No[-]Fly List,” because placement on the No-Fly List resulted in the plaintiffs being “denied boarding on flights over United States airspace.” See Latif, 28 F. Supp. 3d at 1143, 1149.
But here, plaintiff does not allege that he has been denied boarding because of his purported inclusion on the Selectee List. Nor does he allege that enhanced screening has deterred him from flying. Rather, plaintiff alleges that he has suffered “excess delays, secondary screening, being singled out at check points, and being singled out for additional screening at the gate.” According to plaintiff, he has still “been permitted to [board flights].” (Dkt. 1 at 3.)
At the hearing, plaintiff’s counsel argued that these incidents of additional screening and questioning unfairly harassed and humiliated his client, because he should never have been on the Selectee List. The Court fully acknowledges this harm. However, plaintiff’s allegations do not rise to the level of a due process violation, because he alleges that he can still fly after additional screening and has not been deterred from flying.
14

5:14-cv-13812-JEL-MJH Doc # 27 Filed 07/14/16 Pg 15 of 18 Pg ID 274
Second, plaintiff fails to sufficiently allege that his placement on the Selectee List has caused him reputational harm that rises to the level of a constitutional violation. For a reputational harm to infringe on a protected liberty interest, plaintiff must meet the “stigma-plus” test, that is, plaintiff must demonstrate that the government’s action “damaged his . . . reputation (the stigma) and that it ‘deprived [him] of a right previously held under [the] law’ (the plus).” See Doe v. Michigan Dept. of State Police, 490 F.3d 491, 502 (6th Cir. 2007) (quoting Paul v. Davis, 424 U.S. 693, 708 (1976)).
Assuming that plaintiff sufficiently alleges the stigma element, he fails to sufficiently allege that he was deprived of a right previously held under the law. To satisfy this part of the test, plaintiff must allege that he “legally could not do something that []he could otherwise do.” See Miller v. California, 355 F.3d 1172, 1179 (9th Cir. 2004); Latif, 28 F. Supp. 3d at 1150 (inclusion on the No-Fly List sufficient under the plus prong because plaintiffs could no longer fly). Here, plaintiff says that he can still fly, albeit after enhanced screening. He thus fails to allege that he was deprived of a right he previously held.
15

5:14-cv-13812-JEL-MJH Doc # 27 Filed 07/14/16 Pg 16 of 18 Pg ID 275
Third, plaintiff fails to sufficiently allege that his purported placement on the Selectee List singles him out for punishment without trial or due process in violation of the Due Process Clause. Courts first look to legislative intent to determine whether a “restriction on liberty constitutes impermissible punishment or permissible regulation.” United States v. Salerno, 481 U.S. 739, 747 (1987). “Unless Congress expressly intended to impose punitive restrictions, the punitive/regulatory distinction turns on ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].’” Id. (quoting Schall v. Martin, 467 U.S. 253, 269 (1984)) (alterations in original).
Plaintiff alleges that “Defendants’ actions have singled out Plaintiff for punishment . . . by placing unwarranted and unjust additional screening and scrutiny on Plaintiff when attempting to fly.” (Dkt. 1 at 12.) But Congress charged the TSA with managing the dayto-day security functions of air transportation for the purpose of preventing terrorist attacks, and granted the TSA authority to “issue . . . such regulations as are necessary to carry out [its] functions.” 49
16

5:14-cv-13812-JEL-MJH Doc # 27 Filed 07/14/16 Pg 17 of 18 Pg ID 276
U.S.C. § 114(l)(1). “There is no doubt that preventing danger to the community is a legitimate regulatory goal.” Salerno, 481 U.S. at 747. And regulations that provide for additional security screening at airports under certain circumstances are rationally related to the goal of preventing danger to the community. In this case, plaintiff does not sufficiently allege that the additional screening would be “excessive in relation to” that general goal.
Even if plaintiff were granted leave to amend his complaint to directly challenge his placement on the Selectee List, he fails to plead the deprivation of a constitutionally protected life, liberty, or property interest. Plaintiff’s APA claim would similarly fail, because Plaintiff’s counsel stated at the hearing that the APA claim is based solely on the alleged constitutional violation. Leave to amend plaintiff’s complaint would be futile, and his oral motion is denied.
17

5:14-cv-13812-JEL-MJH Doc # 27 Filed 07/14/16 Pg 18 of 18 Pg ID 277

IV. Conclusion

For the reasons set forth above, defendants’ motion to dismiss

(Dkt. 15) is GRANTED. Plaintiff’s oral motion for leave to amend is

DENIED.

IT IS SO ORDERED.

Dated: July 14, 2016 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on July 14, 2016.

s/Felicia M. Moses FELICIA M. MOSES Case Manager

18

 
 Case 5:14-cvC-1a3s8e1:21-6J-E2L1-6M8JH DEoCcuFmNeon.t:3326, -P1ageFIDile.3d3:009/F1i2le/2d00197/12/P17ageP:a1ge 1 of 15 (1 of 15)

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
Filed: September 12, 2017

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

Mr. Nabih H. Ayad 645 Griswold Street Suite 2202 Detroit, MI 48226
Ms. Sharon Swingle Mr. Joshua Paul Waldman U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Re: Case Nos. 16-2168/16-2406, Beydoun et al. v. Sessions, et al. Originating Case Nos. : 5:14-cv-13812; 2:16-cv-10123
Dear Counsel,
The court today announced its decision in the above-styled cases.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

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

Cathryn Lovely Deputy Clerk

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0214p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

NASSER BEYDOUN (16-2168); MAAN BAZZI (16-2406), ┐

Plaintiffs-Appellants, │

v.

││>

│

JEFFERSON B. SESSIONS, III, Attorney General, et al.,

│ │

Defendants-Appellees. │

┘

Nos. 16-2168/2406

16-2168

Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

No. 5:14-cv-13812—Judith E. Levy, District Judge.

16-2406 Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:16-cv-10123—Sean F. Cox, District Judge.
Argued: August 2, 2017
Decided and Filed: September 12, 2017
Before: CLAY, GRIFFIN, and THAPAR, Circuit Judges. _________________

COUNSEL
ARGUED: Nabih H. Ayad, AYAD LAW, P.L.L.C., Detroit, Michigan, for Appellants. Joshua Waldman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Nabih H. Ayad, AYAD LAW, P.L.L.C., Detroit, Michigan, for Appellants. Joshua Waldman, Sharon Swingle, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

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_________________
OPINION _________________
CLAY, Circuit Judge. Plaintiffs Nasser Beydoun and Maan Bazzi each separately sued various federal government officials challenging their placement on the federal government’s “Selectee List,” which designates them for enhanced screening at the airport. Asserting that their Fifth Amendment right to due process was violated, Plaintiffs sought declaratory and injunctive relief, with the ultimate aim of having their names removed from the government’s enhanced screening list. However, in both cases, the district court dismissed their complaints and, in Beydoun’s case, determined that any amendment would be futile. Plaintiffs appealed, and we consolidated the cases for purposes of oral argument, given the similarity of the facts and arguments presented in both cases. For the reasons set forth below, we AFFIRM the judgments of the district court.
BACKGROUND
Plaintiff Nasser Beydoun is a United States citizen and resident of Dearborn, Michigan. According to his complaint, every time Beydoun attempts to board an airplane, he is subjected to “excessive delays, secondary screening, being singled out at check points, and being singled out for additional screening at the gate.” As a result, Beydoun “has missed countless flights.” He also claims that he has been humiliated and that his business ventures have suffered because he is subjected to extra security measures.
Plaintiff Maan Bazzi, who is also a United States citizen, similarly claims that he is only allowed to board flights after undergoing additional screening and experiencing excessive delays. For example, when Bazzi was flying from Brazil to Texas, he “was subjected to extra screening for approximately 10 minutes after receiving a boarding pass and was told to wait as [he] was going to be the last person boarded on the flight.” After arriving in Texas, Bazzi underwent an additional hour of questioning and had his bags searched for explosives. Bazzi also had his passport “confiscated” for an hour at the Las Vegas airport and was taken for additional screening that lasted thirty minutes. At least once, Bazzi canceled one of his planned trips in order to avoid the “the stress and embarrassment of extra screening.”

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Based on their experiences going through airport security and boarding airplanes, Beydoun and Bazzi believe that they are on the Selectee List, which designates individuals for enhanced security screening due to the threat they may pose to “civil aviation or national security.” See U.S. Gov’t Accountability Office, GAO-08-110, Terrorist Watchlist Screening: Opportunities Exist to Enhance Management Oversight, Reduce Vulnerabilities in Agency Screening Processes, and Expand Use of the List 35 (2007). For example, individuals on the Selectee List “are to receive additional security screening prior to being permitted to board an aircraft, which may involve a physical inspection of the person and a hand-search of the passenger’s luggage.” Id.
The Selectee List is a subset of the government’s Terrorist Screening Database (“TSDB”). The TSDB “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.” Mokdad v. Lynch, 804 F.3d 807, 809 (6th Cir. 2015). Officials from multiple agencies staff the TSC, including individuals from the FBI, the Department of Homeland Security (“DHS”), the Department of State, Customs and Border Protection, and the Transportation Security Administration (“TSA”). Id. “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 Selectee List. Id. at 810. “TSC also decides whether to remove a name from the TSDB after it receives a redress request that has been submitted through” DHS’s Traveler Redress Inquiry Program (“DHS TRIP”). Id.
According to their complaints, Beydoun and Bazzi have both attempted to use the procedure established by DHS TRIP to challenge their inclusion on the Selectee List. However, each time, the government failed to remove them from the list and has only sent them generalized responses to their inquiries. In addition, in both cases, the government has neither confirmed nor denied that Plaintiffs are on the Selectee List.
Beydoun filed a complaint in federal district court on October 3, 2014, naming the Attorney General of the United States, the Director of the Federal Bureau of Investigation, and the Director of the Terrorist Screening Center, as Defendants. Beydoun asserted two claims against Defendants: one for failing to provide notice and a hearing to allow him to challenge his

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alleged inclusion on the Selectee List, in violation of the Fifth Amendment; and the other for unlawful agency action, pursuant to the Administrative Procedure Act (“APA”) and 5 U.S.C. § 706. In addition to asserting these claims on his own behalf, Beydoun indicated that he was filing his complaint as a class action. Beydoun’s case was held in abeyance while this Court decided another appeal, Mokdad v. Lynch, inasmuch as the holdings in that case directly implicated Beydoun’s claims. After the opinion in Mokdad was issued and Beydoun’s case was returned to active status, Defendants filed a motion to dismiss the complaint. The district court held a hearing on the motion and, on July 14, 2016, issued an opinion dismissing Beydoun’s complaint and denying him leave to amend.
Bazzi filed his complaint asserting the same two causes of action as Beydoun on January 14, 2016. In addition to naming the same Defendants as in Beydoun’s case, Bazzi also named the Administrator of the TSA as a Defendant. Just as in Beydoun’s case, Defendants filed a motion to dismiss Bazzi’s complaint. After conducting a hearing on the motion, the district court ruled in Defendants’ favor. In so doing, the district court relied heavily on the reasoning already provided in Beydoun’s case. These timely appeals followed.1
DISCUSSION
Plaintiffs present two issues on appeal. First, they assert that the district court erred in construing their complaints as challenging the redress procedures available to have their names removed from the Selectee List. Plaintiffs insist that they were not, in fact, claiming that the redress procedures violate the Fifth Amendment. Instead, they were challenging the inclusion of their names on the Selectee List in the first place. Second, Plaintiffs contend that the district court erred in determining that their alleged inclusion on the Selectee List does not implicate a liberty interest protected by the Fifth Amendment. We address each issue in turn.
A. Jurisdiction
The district court had jurisdiction over these declaratory judgment actions pursuant to 28 U.S.C. § 2201 and 28 U.S.C. § 1331 inasmuch as Plaintiffs asserted claims under the Fifth
1The appeals are timely because the notices of appeal were filed within sixty days of the district court’s entry of judgment in each case. Fed. R. App. P. 4(a)(1)(B).

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Amendment challenging their placement on the Selectee List. See Mokdad, 804 F.3d at 815 (holding that the district court has “subject-matter jurisdiction to hear [plaintiff’s] claim directly challenging his placement by TSC on the No Fly List . . . under 28 U.S.C. § 1331[, which] has not been displaced by 49 U.S.C. § 46110”). This Court has jurisdiction to hear these appeals pursuant to 28 U.S.C. § 1291.
B. Standard of Review
“We review de novo a district court’s dismissal of a plaintiff’s complaint for failure to state a claim.” Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006) (citing Marks v. Newcourt Credit Grp., Inc., 342 F.3d 444, 451 (6th Cir. 2003)). In addition, this Court “review[s] the denial of a motion to amend under the abuse-of-discretion standard, ‘unless the motion was denied because the amended pleading would not withstand a motion to dismiss, in which case the standard of review is de novo.’” Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010) (quoting Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 437 (6th Cir. 2008)).
C. Failure to State a Claim
Plaintiffs first contend the district court incorrectly determined that their complaints fail to challenge their placement on the Selectee List, and instead only assert a claim based on the allegedly inadequate redress procedures of DHS TRIP. The district court, in Beydoun’s case, held that, “[o]n the face of the complaint, [Beydoun] does not directly challenge his placement on the Selectee List.” The district court explained:
[Beydoun] alleges in his due process claim that he is “entitled to a legal system that affords him post-deprivation notice and an opportunity to contest the deprivations of his rights,” and “[t]he DHS TRIP process presently presents no meaningful opportunity for [Beydoun] to provide exculpatory evidence in an effort to be taken off the [Selectee] or Terrorist Watch Lists.” [Beydoun]’s due process claim explicitly concerns the alleged lack of notice and hearing, and is thus a challenge to the DHS TRIP redress procedures.
And [Beydoun] alleges in his APA claim that the “DHS TRIP process does not provide a meaningful mechanism for travelers who have been denied boarding or subjected to unwarranted additional screenings to correct erroneous information in the government’s terrorism databases,” and “fails to consider an

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important aspect of Congress’s instructions and violates § 706(2)(A) of the APA. . . .” As with [Beydoun]’s due process claim, his APA claim is a challenge to the DHS TRIP redress process.
In Bazzi’s case, the district court noted that Bazzi “filed a complaint that is virtually identical to the complaint filed in Beydoun.” The court agreed with the analysis in Beydoun and held:
This Court also finds that [Bazzi]’s Complaint did not directly challenge[] his placement on the Selectee List . . . . That is because although Plaintiff’s requested relief includes an injunction requiring Defendants to remove [Bazzi] from the Selectee List, the two actual counts included in the Complaint are based only on challenges to the DHS TRIP redress process.
On appeal, Plaintiffs argue that the district court erred in holding that they never asserted claims directly challenging their placement on the Selectee List. In support of their arguments, Plaintiffs point to this Court’s opinion in Mokdad, in which we interpreted a complaint that was also almost identical to the two complaints at issue here, with the notable exception being that it involved the No Fly List, not the Selectee List. 804 F.3d at 810–11. Indeed, the same lawyer is responsible for writing all three complaints.
We began our inquiry in Mokdad by “focus[ing] closely on what exactly Mokdad has alleged and against whom.” Id. On the face of the complaint, we noted that Mokdad asserted two claims: the first of which “alleged that defendants violated the Fifth Amendment Due Process Clause by harming his reputation and depriving him of his right to travel while failing to provide post-deprivation notice and a hearing,” and the second of which “alleged that defendants had engaged in unlawful agency action under the Administrative Procedure Act.” Id. at 811. In examining Mokdad’s APA claim, we noted that such a claim:
is premised on [Mokdad’s] 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.
Id. (second alteration in original).

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Based on the above language in the complaint, we held that Mokdad’s challenges fell 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): 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.
Id.
Because we interpreted the complaint in Mokdad as asserting claims challenging both the redress process and the plaintiff’s inclusion on the No Fly List, we now hold that, in these cases, the district court erred in concluding that Plaintiffs failed to directly challenge their placement on the Selectee List. While the district court’s interpretation may have been reasonable, we are bound by this Court’s previous interpretation of the exact same language. Therefore, the district court should have considered Plaintiffs as asserting a separate claim that their inclusion on the Selectee List violated the APA.2
However, because this Court is free to affirm the judgment of a district court on any basis presented by the record, Angel v. Kentucky, 314 F.3d 262, 264 (6th Cir. 2002), and because Plaintiffs have failed to state a claim upon which relief can be granted, we nevertheless affirm the district court’s judgments. Indeed, even though the district court determined that Plaintiffs’ complaints did not assert claims directly challenging their placement on the Selectee List, it nevertheless analyzed the merits of the claims in denying Plaintiffs leave to amend their complaints. Specifically, the district court determined that the “requested amendment would fail to establish that [Plaintiffs’] placement on the list violates a life, liberty or property interest protected by the Due Process Clause . . . .”
Plaintiffs are asserting a claim that Defendants violated the APA by acting arbitrarily and capriciously. However, Plaintiffs’ counsel confirmed that the APA claims are coextensive with

2Unlike in Mokdad, we have no occasion to consider Plaintiffs’ challenge to the redress procedures, as both
Plaintiffs expressly abandoned that claim in front of the district court and on appeal. For the same reason, we do not need to address whether 49 U.S.C. § 46110 would bar Plaintiffs from filing a challenge to the redress procedures in the district court.

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their constitutional claims. Before addressing whether Plaintiffs have asserted a viable claim, we first must clarify what, exactly, Plaintiffs are not claiming. While the complaints can be read as asserting a procedural due process claim stating that Plaintiffs’ Fifth Amendment rights were violated because Defendants have not provided Plaintiffs with any post-deprivation notice or any meaningful opportunity to contest their continued inclusion on the Selectee List, Plaintiffs’ counsel expressly abandoned that claim both in front of the district court and on appeal. Plaintiffs also could, theoretically, be intending to assert an equal protection claim; however, nowhere in the complaints or in the appellate briefs have Plaintiffs actually addressed such a claim. Given the statements Plaintiffs’ counsel made at oral argument, we can only logically construe the complaints as asserting a substantive due process claim. To that end, Plaintiffs have alleged that Defendants infringed upon two different fundamental rights: (1) the right to “travel[] free from unreasonable burdens within, to or from the United States of America,” and (2) the “right to [their] reputation and to be free from the false allegation that [they are] terrorist[s] or . . . associated with terrorist activities.”3
Substantive due process “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997). As we have often observed, “[t]he interests protected by substantive due process are of course much narrower than those protected by procedural due process.” Bell v. Ohio State Univ., 351 F.3d 240, 249–50 (6th Cir. 2003). Indeed, substantive due process only “protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 720–21 (internal quotations and citations omitted). In order to adequately assert a substantive due process claim, a plaintiff generally must allege “that a statute or government action burdens a fundamental right and cannot withstand strict scrutiny.” Bangura v. Hansen, 434 F.3d 487, 494 (6th Cir. 2006) (citing Kallstrom v. City of Columbus, 136 F.3d 1055, 1065 (6th Cir. 1998)). Because we find that

3Plaintiffs have also claimed that they have a right not to be singled out for punishment without due
process. However, Plaintiffs’ argument essentially appears to be about the redress process and the alleged lack of necessary procedural protections. Because Plaintiffs have expressly abandoned their argument challenging the redress process, we need not further address this argument.

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Plaintiffs have failed to adequately allege that their fundamental rights were violated, we affirm the judgments in both cases.
1. Right to Travel
The Supreme Court has recognized that “[f]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” Dunn v. Blumstein, 405 U.S. 330, 338 (1972) (internal quotation omitted); see also Kent v. Dulles, 357 U.S. 116, 125–26 (1958) (“The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under the Fifth Amendment. . . . Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.” (citations omitted)). Indeed, “[t]he constitutional right of interstate travel is virtually unqualified.” Califano v. Aznavorian, 439 U.S. 170, 176 (1978). However, “the freedom to travel outside the United States must be distinguished from the right to travel within the United States.” Haig v. Agee, 453 U.S. 280, 306 (1981). Therefore, “the freedom to travel abroad . . . is subject to reasonable governmental regulation.” Id.
A fundamental right will only be implicated by government action that, at a minimum, “significantly interferes with the exercise of a fundamental right.” Zablocki v. Redhail, 434 U.S. 374, 388 (1978) (emphasis added). Burdens that are incidental or negligible are “insufficient to implicate [the] denial of the right to travel.” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 535 (6th Cir. 2007) (citing Town of Southold v. Town of E. Hampton, 477 F.3d 38, 54 (2d Cir. 2007)). At issue in these cases is whether Plaintiffs’ alleged placement on the Selectee List has created more than an incidental burden on their right to travel. The district court found that the instances alleged by Plaintiffs do not rise to such a level as to implicate a constitutional right, and therefore that Plaintiffs have failed to state a claim.
On appeal, Plaintiffs argue that the district court erred in considering the burden placed on Plaintiffs by their inclusion on the Selectee List as negligible or incidental. Beydoun alleged that he has missed “countless flights” after being subjected to lengthy secondary screenings. According to Beydoun, these delays had the effect of deterring him from flying and taking away

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his right to travel. However, Beydoun has not attempted to provide any information about when those delays occurred, how long the delays were, what type of enhanced screening he was subjected to, or indeed any information beyond general allegations that he has been prevented from traveling.
Bazzi’s complaint provides a few more details. For example, Bazzi mentions several instances when he has been delayed or subjected to additional screening, with delays ranging from ten minutes to one hour in duration. Bazzi also points to the fact that, in his complaint, he specifically alleged that he had been deterred from flying on one occasion.
The district court correctly held that Plaintiffs did not allege that any protected interest was violated by them being on the Selectee List. While Plaintiffs may have been inconvenienced by the extra security hurdles they endured in order to board an airplane, these burdens do not amount to a constitutional violation. Importantly, Plaintiffs have not actually been prevented from flying altogether or from traveling by means other than an airplane. Therefore, Plaintiffs’ cases are distinguishable from those in which the plaintiffs claimed they could not fly at all because they were on the No Fly List. See, e.g., Latif v. Holder, 969 F. Supp. 2d 1293, 1303–04 (D. Or. 2013) (“Having to show identification to board a commercial aircraft and undergoing enhanced security screening for less than an hour does not rise to the same level of deprivation as being denied boarding on any flight for the indefinite future.”); Mohamed v. Holder, Civ. A. No. 11-0050, -- F. Supp. 3d --, 2017 WL 3086644 (E.D. Va. July 20, 2017).
The burdens alleged by Plaintiffs, to the extent they provided specific details about those incidents, can only be described as incidental or negligible and therefore do not implicate the right to travel. Plaintiffs point to no authority supporting their claim that a delay of ten minutes, thirty minutes, or even an hour at the airport violates their fundamental right to travel, and we are aware of none. Indeed, the Second Circuit rejected a claim that plaintiffs were impeded from exercising their right to travel when they were delayed for an entire day. Torraco v. Port Auth. of New York & New Jersey, 615 F.3d 129, 133–36, 141 (2d Cir. 2010). When Plaintiffs’ only allegations amount to delays that many individuals are likely to experience at the airport, it is hard to conclude that the fundamental right to travel has been implicated.

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Finally, we are not convinced by Plaintiffs’ contention that, because they were deterred from traveling, they have a constitutional claim. In support of their argument, Plaintiffs cite to Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898 (1986), in which a plurality of the Supreme Court remarked that “[a] state law implicates the right to travel when it actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which serves to penalize the exercise of that right.” Id. at 903 (plurality opinion) (internal quotations and citations omitted). However, we have recognized that burdens that are incidental or negligible can “hardly be said to deter or penalize travel.” League of United Latin Am. Citizens, 500 F.3d at 535; see also Pollack v. Duff, 793 F.3d 34, 45 (D.C. Cir. 2015) (remarking that if a law’s “effect upon [a plaintiff’s] willingness to travel, i.e., to exercise her right to travel, is ‘negligible[,]’ [it] does not warrant scrutiny under the Constitution”); Matsuo v. United States, 586 F.3d 1180, 1183 (9th Cir. 2009) (“[N]ot everything that deters travel burdens the fundamental right to travel.”). Indeed, even if Plaintiffs were, in fact, deterred from flying after being delayed for an hour, we cannot conclude that this minor disturbance actually resulted in denying Plaintiffs the right to travel. See Torraco, 615 F.3d at 141 (“Assuming that the actions the defendants took did in fact deter these plaintiffs . . . , the most-inconvenienced plaintiff was delayed a little over one day. This was a minor restriction that did not result in a denial of the right to travel.”). Therefore, the district court correctly concluded that Plaintiffs failed to state a claim that their right to travel was infringed upon by Defendants.
2. Reputational Harm
Plaintiffs also alleged that they suffered reputational harm by being on the Selectee List. Such a claim is only cognizable if the governmental action “both damaged [a plaintiff’s] reputation (the stigma) and . . . ‘deprived [him or her] of a right previously held under [the] law’ (the plus).” Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 502 (6th Cir. 2007) (quoting Paul v. Davis, 424 U.S. 693, 708 (1976)).
The district court rejected Plaintiffs’ reputational harm claims because, even “[a]ssuming that plaintiff[s] sufficiently allege[] the stigma element, [they] fail[] to sufficiently allege that [they] were deprived of a right previously held under the law.” Beydoun v. Lynch, No. 14-CV13812, 2016 WL 3753561, at *5 (E.D. Mich. July 14, 2016); Bazzi v. Lynch, No. 16-10123, 2016

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WL 4525240, at *7 (E.D. Mich. Aug. 30, 2016). Notably, because Plaintiffs could still fly, after passing enhanced screening and experiencing delays, they were not deprived of any previously held rights.
On appeal, Plaintiffs primarily focus on the “stigma” element of their reputational harm claims, arguing that they have been routinely humiliated by being singled out for screening, and that their reputation was harmed because those around them when they travel could infer that they were suspected of terrorism. As to the “plus” part, meaning the right previously held under the law that Plaintiffs were deprived of, Plaintiffs rely solely on the same argument they put forth regarding the right to travel. However, because Plaintiffs cannot show that their liberty interest in travel was infringed upon by being subject to relatively minor additional screening, Plaintiffs’ reputational harm claims also fail.
D. Leave to Amend the Complaint
Finally, Beydoun argues that the district court erred by denying him leave to amend his complaint.4 “Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend shall be freely given when justice so requires.” Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 520 (6th Cir. 2010). However, leave to amend a complaint “may be denied where there is ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party for virtue of allowance of the amendment, futility of amendment, etc.’” Id. (emphasis in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). “A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Id. (quoting Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000)).
While recognizing this general rule, we have also noted that “implicit in [Rule 15(a)] is that the district court must be able to determine whether ‘justice so requires,’ and in order to do this, the court must have before it the substance of the proposed amendment.” Roskam Baking Co., Inc. v. Lanham Machinery Co., Inc., 288 F.3d 895, 906 (6th Cir. 2002) (citation omitted). Thus, we have found that the district court did not abuse its discretion in denying a motion to
4Bazzi does not argue that he should have been allowed to amend his complaint.

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amend when a plaintiff “submitted none of th[e] facts to aid the court in deciding whether justice required the court to grant leave to amend.” Id. Indeed, “a bare request in an opposition to a motion to dismiss—without any indication of the particular grounds on which amendment is sought—does not constitute a motion within the contemplation of Rule 15(a).” PR Diamonds, Inc. v. Chandler, 364 F.3d 671, 699 (6th Cir. 2004) (quotation and citation omitted), abrogated on other grounds by Doshi v. Gen. Cable Corp., 823 F.3d 1032 (6th Cir. 2016). Thus, in these situations, we have found that “[t]here was no ‘motion’ to deny,” and, “[a]ccordingly, we . . . review the district court’s actions for abuse of discretion.” La. Sch. Emps.’ Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 485 (6th Cir. 2010) (citing PR Diamonds, Inc., 364 F.3d at 698).
In this case, we cannot conclude that the district court abused its discretion in denying Beydoun leave to amend his complaint. At the hearing on Defendants’ motion to dismiss, Beydoun made an oral motion asking for leave to amend his complaint if the district court “were in any way inclined to grant defendants’ motion to dismiss.” The district court denied the motion, finding that any amendment would be futile. Beydoun now challenges that decision, arguing that the district court should have allowed him to allege facts that would support his claims of reputational harm and infringement of the right to travel. However, Beydoun never informed the district court of what facts he would use to supplement his claim, thus allowing him to withstand a motion to dismiss. Indeed, even on appeal, Beydoun does not include any specific allegations that, if true, would allow us to conclude that Beydoun’s rights were violated. Given the absence of any indication that Beydoun’s amended complaint would survive a motion to dismiss, we conclude that the district court did not abuse its discretion in denying Beydoun’s unsupported motion.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgments of the district court.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Nos. 16-2168/2406

NASSER BEYDOUN (16-2168); MAAN BAZZI (16-2406), Plaintiffs - Appellants,
v.
JEFFERSON B. SESSIONS, III, Attorney General, et al., Defendants - Appellees.

FILED
Sep 12, 2017
DEBORAH S. HUNT, Clerk

Before: CLAY, GRIFFIN, and THAPAR, Circuit Judges.
JUDGMENT
On Appeals from the United States District Court for the Eastern District of Michigan at Ann Arbor and at Detroit.
THIS CAUSE was heard on the record from the district court and was argued by counsel. IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is AFFIRMED in both cases.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk