Case: 1:11-cv-50 As of: 07/02/2018 10:49 PM EDT 1 of 23
CLOSED,JURY
U.S. District Court Eastern District of Virginia − (Alexandria) CIVIL DOCKET FOR CASE #: 1:11−cv−00050−AJT−MSN

Mohamed v. Holder et al Assigned to: District Judge Anthony J Trenga Referred to: Magistrate Judge Michael S. Nachmanoff Case in other court: 4th Circuit, 17−07235 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 01/18/2011 Date Terminated: 07/20/2017 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Gulet Mohamed

represented by Gadeir Ibrahim Abbas The Law Office of Gadeir Abbas 1155 F St NW Suite 1050 Washington, DC 20004 720−251−0425 Fax: 202−204−0253 Email: gadeir@abbaslawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadhira Bint Faisal Al−Khalili Council on American Islamic Relations 453 New Jersey Avenue, SE Washington, DC 20003 202−646−6034 Fax: 202−488−3305 Email: nalkhalili@cair.com TERMINATED: 09/18/2013

Defendant
Eric H. Holder, Jr. in his official capacity as Attorney General of the United States

represented by Lauren A. Wetzler United States Attorney Office 2100 Jamieson Ave Alexandria, VA 22314 NA (703) 299−3752 Fax: (703) 299−3983 Email: lauren.wetzler@usdoj.gov ATTORNEY TO BE NOTICED

R. Joseph Sher United States Attorney's Office 2100 Jamieson Ave Alexandria, VA 22314 **NA** (703) 299−3700 Email: joe.sher@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Robert S. Mueller, III in his official capacity as Director of the Federal Bureau of Investigation TERMINATED: 03/07/2014

represented by Lauren A. Wetzler (See above for address) ATTORNEY TO BE NOTICED
R. Joseph Sher (See above for address) ATTORNEY TO BE NOTICED

Defendant

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Timothy J. Healy in his official capacity as Director of the Terrorist Screening Center

represented by Lauren A. Wetzler (See above for address) ATTORNEY TO BE NOTICED

R. Joseph Sher (See above for address) ATTORNEY TO BE NOTICED

Defendant
Unknown Agents TERMINATED: 08/29/2013

Defendant
Unknown TSC Agents in their individual Capacity

Defendant
Jeh C Johnson in his official capacity as Secretary of Homeland Security

represented by R. Joseph Sher United States Attorney's Office 2100 Jamieson Ave Alexandria, VA 22314 NA (703) 299−3700 Email: joe.sher@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren A. Wetzler (See above for address) ATTORNEY TO BE NOTICED

Defendant
John S. Pistole in his official capacity as Administrator of the Transportation Security Administration

represented by R. Joseph Sher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren A. Wetzler (See above for address) ATTORNEY TO BE NOTICED

Defendant
James B. Comey in his official capacity as Director of the Federal Bureau of Investigation

represented by R. Joseph Sher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren A. Wetzler (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/18/2011
01/18/2011

# Docket Text
1 COMPLAINT against Timothy J. Healy, Eric H. Holder, Jr, Robert S. Mueller, III ( Filing fee $ 350 receipt number 14683018860.), filed by Gulet Mohamed. (Attachments: # 1 Civil Cover Sheet, # 2 Receipt)(klau, ) (Entered: 01/18/2011)
2 Summons Issued and given to attorney for service by Certified Mail as to Timothy J. Healy, Eric H. Holder, Jr ( U.S. Attorney General), Robert S. Mueller, III, and U.S. Attorney (klau, ) (Entered: 01/18/2011)

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01/18/2011 01/18/2011 01/18/2011 01/18/2011 01/18/2011
01/18/2011 01/20/2011 01/20/2011
03/21/2011 03/21/2011 03/21/2011 03/22/2011

3 EMERGENCY MOTION for Temporary Restraining Order and Preliminary Injunction by Gulet Mohamed. (told to Notice) (Attachments: # 1 Proposed Order)(klau, ) (Entered: 01/18/2011)
4 Memorandum in Support re 3 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction filed by Gulet Mohamed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(klau, ) (Entered: 01/18/2011)
5 ORDER re 3 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction filed by Gulet Mohamed,ORDERED that this matter be, and the same hereby is, set for hearing on Tuesday, January 18, 2011, at 2:00 p.m.. Signed by District Judge Anthony J Trenga on 1/18/11. (klau, ) (Entered: 01/18/2011)
Set Deadlines as to 3 Emergency MOTION for Temporary Restraining Order and Preliminary Injunction. Motion Hearing set for 1/18/2011 at 02:00 PM before District Judge Anthony J Trenga. (klau, ) (Entered: 01/18/2011)
6 Minute Entry for proceedings held before District Judge Anthony J Trenga: Motion Hearing held on 1/18/2011 re 3 MOTION for Temporary Restraining Order filed by Gulet Mohamed: Appearance of Nadhira Al−Khalili and Gadeir Abbas (Pro Hac pending) for the Plaintiff and Joseph Sher, Diane Kelleher and Amy Powell for the Defendants. Motion argued and CONTINUED until 1/20/2011 at 02:00 PM before District Judge Anthony J Trenga. (Court Reporter A. Thomson) (kbro) (Entered: 01/18/2011)
7 ORDER granting application for Gadeir Ibrahim Abbas to appear Pro hac vice Filing fee $ 50, receipt number 14683018869.. Signed by District Judge Anthony J Trenga on 1/18/11. (Attachments: # 1 Receipt)(klau, ) (Entered: 01/18/2011)
8 AMENDED COMPLAINT Verified Complaint against Timothy J. Healy, Eric H. Holder, Jr, Robert S. Mueller, III, filed by Gulet Mohamed. (Attachments: # 1 Affidavit Affidavit of Liban Mohamed, # 2 Affidavit Affidavit of Mohad Mohamed Page 2 of 3)(Al−Khalili, Nadhira) (Entered: 01/20/2011)
9 Minute Entry for proceedings held before District Judge Anthony J Trenga: Motion Hearing held on 1/20/2011 re 3 MOTION for Temporary Restraining Order filed by Gulet Mohamed: Plaintiff appeared through: Gadeir Abbas (Pro Hac) and Nadhira Bint Faisal Al−Khalili. Defts appeared through: Joseph Sher, Paul Freeborne and Lily Fael. Motion argued and Gov't advised the Court that Mohamed is scheduled to leave the detention center in Kuwait today at 2 p.m. and fly out at 4:45 p.m. in route to the US. Pltf continued to request that the Court enter a TRO removing Mohamed from the Do Not Fly List and allow him to return to the US. Gov't to confirm to Pltf whether or not the Pltf was permitted to board the flight to the US. If Mohamed does not arrive by tomorrow a.m., Pltf to contact the Court and the Court will set a hearing for 9 a.m. tomorrow morning, 01/21/2011. (Court Reporter T. Westfall) (kbro) (Entered: 01/20/2011)
10 MOTION to Dismiss or for Summary Judgment by Timothy J. Healy, Eric H. Holder, Jr, Robert S. Mueller, III. (Attachments: # 1 Affidavit Declaration of Mark Giuliano, # 2 Affidavit Declaration of Laura Lynch, # 3 Affidavit Declaration of Christopher Piehota)(Sher, R.) (Entered: 03/21/2011)
11 Memorandum in Support re 10 MOTION to Dismiss or for Summary Judgment filed by Timothy J. Healy, Eric H. Holder, Jr, Robert S. Mueller, III. (Attachments: # 1 Exhibit Unpublished Decision in Scherfen v. DHS)(Sher, R.) (Entered: 03/21/2011)
12 Notice of Hearing Date April 29, 2011 re 10 MOTION to Dismiss or for Summary Judgment (Sher, R.) (Entered: 03/21/2011)
Set Deadlines as to 10 MOTION to Dismiss or for Summary Judgment. Motion Hearing set for 4/29/2011 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. (clar, ) (Entered: 03/22/2011)

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04/04/2011 04/04/2011 04/11/2011 04/28/2011 04/28/2011 04/29/2011 04/29/2011
04/29/2011
05/20/2011 05/23/2011 05/24/2011 06/03/2011 06/03/2011

13 RESPONSE in Opposition re 10 MOTION to Dismiss or for Summary Judgment Motion for Response in Opposition to Defendants' Motion to Dismiss filed by Gulet Mohamed. (Al−Khalili, Nadhira) (Entered: 04/04/2011)
14 RESPONSE in Opposition re 10 MOTION to Dismiss or for Summary Judgment filed by Gulet Mohamed. (Al−Khalili, Nadhira) (Entered: 04/04/2011)
15 REPLY to Response to Motion re 10 MOTION to Dismiss or for Summary Judgment filed by Timothy J. Healy, Eric H. Holder, Jr, Robert S. Mueller, III. (Sher, R.) (Entered: 04/11/2011)
16 MOTION for Leave to File Second Amended Complaint by Gulet Mohamed. (Attachments: # 1 Memorandum of Law in Support of Motion for Leave)(Al−Khalili, Nadhira) (Entered: 04/28/2011)
17 AMENDED COMPLAINT Proposed against Timothy J. Healy, Eric H. Holder, Jr, Robert S. Mueller, III, Unknown Agents, Unknown TSC Agents, filed by Gulet Mohamed.(Al−Khalili, Nadhira) (Entered: 04/28/2011)
Notice of Correction re 17 Amended Complaint. − The filing user has been notified that the proposed amended complaint should have been an attachment to 16 motion for leave to file. (tche) (Entered: 04/29/2011)
18 Minute Entry for proceedings held before District Judge Anthony J Trenga: Motion Hearing held on 4/29/2011 re 10 MOTION to Dismiss or for Summary Judgment filed by Timothy J. Healy, Robert S. Mueller, III, Eric H. Holder, Jr.: Appearances of counsel for Pltf and Deft. Motion argued and GRANTED w/ leave to amend. Court to reserve on jurisdictional issues. Pltf to allege the facts for standing and jurisdiction and which aspect of the Do Not Fly List that is being challenged. 16 MOTION for Leave to File Second Amended Complaint filed by Gulet Mohamed is MOOT. Order to follow. (Court Reporter R. Wilson) (kbro) (Entered: 04/29/2011)
19 ORDERED that defendants* Motion to Dismiss [Doc. No. 10 ] be. and the same hereby is, GRANTED, with leave to file a revised amended complaint, with additional parties to be joined as required, within twenty−one (21) days, consistent with the requirements set forth in this Order, if he be so advised: and the Court reserves with respect to the issues of standing, mootness, jurisdiction pursuant to 49 U.S.C. § 46110(a), and exhaustion, as well as the merits of the underlying substantive issues raised by the Amended Complaint, pending the filing of any revised amended complaint. Signed by District Judge Anthony J Trenga on 4/29/2011. (tche) (Entered: 04/29/2011)
20 AMENDED COMPLAINT against Timothy J. Healy, Eric H. Holder, Jr, Robert S. Mueller, III, Unknown Agents, Unknown TSC Agents, filed by Gulet Mohamed.(Al−Khalili, Nadhira) (Entered: 05/20/2011)
Notice of Correction re 20 Amended Complaint. The document is unsigned, the filing user has been notified to file a signed document. (rban, ) (Entered: 05/23/2011)
21 SECOND AMENDED COMPLAINT [CORRECTED] against Timothy J. Healy, Eric H. Holder, Jr, Robert S. Mueller, III, Unknown Agents, Unknown TSC Agents, filed by Gulet Mohamed.(Al−Khalili, Nadhira) (Entered: 05/24/2011)
22 MOTION to Dismiss by Timothy J. Healy, Eric H. Holder, Jr, Robert S. Mueller, III. (Attachments: # 1 Affidavit Declaration of Christopher Piehota, # 2 Affidavit Declaration of Mark F. Giuliano, # 3 Affidavit Declaration of Laura Lynch)(Sher, R.) (Entered: 06/03/2011)
23 Brief in Support to 22 MOTION to Dismiss filed by Timothy J. Healy, Eric H. Holder, Jr, Robert S. Mueller, III. (Attachments: # 1 Supplement Copy of Unpublished Opinion in Latif v Holder, # 2 Supplement Copy of unpublished opinion in Redfern v. Napolitano, # 3 Supplement Copy of unpublished opinion in Sherfen v. DHS)(Sher, R.) (Entered: 06/03/2011)

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06/03/2011 06/06/2011 06/10/2011 06/15/2011
06/15/2011 07/01/2011 07/01/2011 07/15/2011 07/29/2011
08/26/2011
08/26/2011
08/29/2011

24 Notice of Hearing Date set for 7/22/2011 re 22 MOTION to Dismiss (Sher, R.) (Entered: 06/03/2011)
Set Deadlines as to 22 MOTION to Dismiss. Motion Hearing set for 7/22/2011 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. (clar, ) (Entered: 06/06/2011)
25 MOTION for Extension of Time to File Response/Reply by Gulet Mohamed. (Attachments: # 1 Proposed Order)(Al−Khalili, Nadhira) (Entered: 06/10/2011)
26 ORDER granting 25 Motion for Extension of Time to File Response re 22 MOTION to Dismiss. ORDERED that the Plaintiff's Motion for Extention of Time to File a Response to Defendants' Motion to Dismiss and to Reschedule the July 22, 2011 Hearing is GRANTED. Plaintiff shall have until Friday, July 1, 2011 to file his response to the Motion to Dismiss. Defendants shall have until Friday, July 15, 2011 to file a reply, if any. A hearing on the Motion to Dismiss shall be held on Friday, July 29, 2011. Signed by District Judge Anthony J Trenga on 6/15/2011. (tche) (Entered: 06/15/2011)
Reset Deadline as to 22 MOTION to Dismiss. − Motion Hearing set for 7/29/2011 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. (tche) (Entered: 06/15/2011)
27 RESPONSE in Opposition re 22 MOTION to Dismiss filed by Gulet Mohamed. (Al−Khalili, Nadhira) (Entered: 07/01/2011)
28 RESPONSE in Opposition re 22 MOTION to Dismiss filed by Gulet Mohamed. (Al−Khalili, Nadhira) (Entered: 07/01/2011)
29 REPLY to Response to Motion re 22 MOTION to Dismiss filed by Timothy J. Healy, Eric H. Holder, Jr, Robert S. Mueller, III. (Sher, R.) (Entered: 07/15/2011)
30 Minute Entry for proceedings held before District Judge Anthony J Trenga: Motion Hearing held on 7/29/2011 re 22 MOTION to Dismiss filed by Timothy J. Healy, Robert S. Mueller, III, Eric H. Holder, Jr.: Appearances of counsel for Pltf and Deft. Motion argued and TAKEN UNDER ADVISEMENT. Order to follow. (Court Reporter R. Montgomery) (kbro) (Entered: 07/29/2011)
31 MEMORANDUM OPINION re: 22 Motion to Dismiss filed by defendants Eric H. Holder, Jr., Attorney General of the United States, Robert S. Mueller, III, Director of the Federal Bureau of Investigation, and Timothy J. Healy, Director of the Terrorist Screening Center (collectively, the "Official Capacity Defendants"). Signed by District Judge Anthony J Trenga on 08/26/2011. (kbro) (Entered: 08/29/2011)
32 ORDER re: 22 Motion to Dismiss filed by defendants Eric H. Holder, Jr., Attorney General of the United States, Robert S. Mueller, III, Director of the Federal Bureau of Investigation, and Timothy J. Healy, Director of the Terrorist Screening Center (collectively, the "Official Capacity Defendants"): Upon consideration of the Motion, the memoranda and exhibits in support thereof and in opposition thereto, and the arguments of counsel at a hearing on July 29, 2011, and for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that the Motion be, and the same hereby is, GRANTED in part and DENIED in part. Plaintiff's claims against the Official Capacity Defendants based solely on plaintiff's alleged inclusion in the Terrorist Screening Database and the "No−Fly List" are hereby DISMISSED. Those remaining portions of Counts I, II and V asserted against the Official Capacity Defendants and defendant "Unknown TSC Agents" are hereby TRANSFERRED to the United States Court of Appeals for the Fourth Circuit. The Motion is otherwise DENIED. (kbro ) (Entered: 08/29/2011)
Pleadings 1,8,17,20,21,22,23,31,32 Transferred to U.S. Court of Appeals pursuant to order of 8/26/11. (nmck, ) (Entered: 08/29/2011)

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09/01/2011 09/28/2011 09/28/2011
01/18/2012 01/18/2012 01/18/2012 01/19/2012
02/16/2012 02/27/2012 02/28/2012 02/29/2012

33 SCHEDULING ORDER: Initial Pretrial Conference set for 9/28/2011 at 11:00 AM in Alexandria Courtroom 301 before Magistrate Judge Thomas Rawles Jones Jr. Discovery due by 1/13/2012. Final Pretrial Conference set for 1/19/2012 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. Signed by District Judge Anthony J Trenga on 9/1/2011. (Attachments: # 1 Pretrial Notice, # 2 Alexandria Magistrate Judge Consent Form)(stas) (Entered: 09/01/2011)
34 Minute Entry for proceedings held before Magistrate Judge Thomas Rawles Jones, Jr: Initial Pretrial Conference held on 9/28/2011. Appearance of counsel for pltf and for the government (who is not representing the remaining parties at this time). No Discovery plan filed − Court will not require one be filed at this time. Order to issue. (cmar, ) (Entered: 09/28/2011)
35 Rule 16(b) Scheduling Order − Pursuant to the Rule 16(b) Conference it is ordered that: a) Parties shall deliver to my chambers (not to the Clerks office) a copy of every non−dispositive motion and every document relating to such a motion within one business day of filing it. b) Rule 26(a) disclosures, depositions, interrogatories, requests for documents and admissions, and answers thereto shall not be filed except on order of the court, or for use in a motion or at trial. c) Any motion to amend the pleadings or to join a party shall be made as soon as possible after counsel becomes aware of the grounds for the motion. d) Unless the parties submit a consent order under Local Rule 26(D)(1), expert discovery shall be governed by Local Rule 26(D)(2−4). (SEE ORDER FOR DETAILS.) Signed by Magistrate Judge Thomas Rawles Jones, Jr on 09/28/11. (cmar, ) (Entered: 09/29/2011)
36 STATUS REPORT by Eric H. Holder, Jr. (Sher, R.) (Entered: 01/18/2012)
37 Unopposed Emergency MOTION to Continue Final Pretrial Conference Hearing for January 19, 2012 by Gulet Mohamed. (Al−Khalili, Nadhira) Modified text on 1/18/2012 (klau, ). (Entered: 01/18/2012)
38 ORDER that the 37 Unopposed Emergency Motion to Continue Final Pretrial Conference be, and the same hereby is, DENIED. Signed by District Judge Anthony J Trenga on 1/18/12. (klau, ) (Entered: 01/18/2012)
39 Minute Entry for proceedings held before District Judge Anthony J Trenga: Final Pretrial Conference held on 1/19/2012: Appearances of counsel for Pltf and Deft. The Court sees no justification for the delays that have happened in this case. If counsel wants to file a motion for a third party complaint or to extend discovery or if counsel wants to agree to some sort of stipulation, counsel may do so. Motions will likely be referred to the Magistrate Judge. Bench Trial set for 3/19/2012 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. (Court Reporter R. Montgomery) (kbro) (Entered: 01/19/2012)
40 ORDER that within 10 days of this Order, the Plaintiffs file a response to this Order that shows cause, if any there be, why this case should not be dismissed pursuant to Fed. R. Civ. P. 4(m). Signed by District Judge Anthony J Trenga on 2/16/2012. (klau, ) (Entered: 02/16/2012)
41 Response to Show Cause Order filed by Gulet Mohamed. (Al−Khalili, Nadhira) (Entered: 02/27/2012)
42 Unopposed MOTION for Leave to File the Third Amended Complaint and Join Necessary Parties by Gulet Mohamed. (Attachments: # 1 Proposed Third Amended Complaint)(Al−Khalili, Nadhira) Modified text on 2/29/2012 (klau, ). (Entered: 02/28/2012)
43 Reply to the Plaintiff's Response to the Order to Show Cause and Response to re 42 MOTION for Leave to File the Third Amended Complaint, filed by Eric H. Holder, Jr. (Sher, R.) Modified text on 3/1/2012 (klau, ). (Entered: 02/29/2012)

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03/02/2012 05/28/2013 05/28/2013 07/22/2013 07/29/2013 07/30/2013 08/06/2013
08/14/2013 08/14/2013 08/16/2013
08/29/2013 09/11/2013 09/12/2013 09/16/2013 09/18/2013 09/27/2013

44 ORDERED that this action be, and the same hereby is, DISMISSED without prejudice pursuant to Fed. R. Civ. P. 4(m). Signed by District Judge Anthony J Trenga on 3/2/2012. (rban, ) (Entered: 03/02/2012)
45 ORDER of the USCA granting Mohamed's motion to remand, vacate the portion of the district court's order transferring claims, and remand for proceedings consistent with this order; denying respondents' motion to dismiss. (rban, ) (Entered: 05/28/2013)
46 JUDGMENT of the USCA. In accordance with the decision of this court, this case is remanded to the district court for further proceedings. This judgment shall take effect upon issuance of this court's mandate in accordance with FRAP 41. (rban, ) (Entered: 05/28/2013)
47 USCA Mandate. The judgment of this court, entered 5/28/2013, takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of FRAP. (rban, ) (Entered: 07/29/2013)
48 Motion to appear Pro Hac Vice by Amy E. Powell and Certification of Local Counsel R. Joseph Sher, AUSA by Timothy J. Healy, Eric H. Holder, Jr, Robert S. Mueller, III. (Sher, R.) (Entered: 07/29/2013)
49 ORDER granting 48 Motion for Pro hac vice. Signed by District Judge Anthony J Trenga on 7/30/13. (klau, ) (Entered: 08/02/2013)
50 ORDERED that a status conference will be held on 8/16/2013 at 10AM; that each party submit on or before 8/14/2013, a report that specifies what claims it contends are currently pending before the Court for resolution, any procedurall or evidentiary issues particular to this case, including, without limitation, those pertaining to classified information, and any other issues that the party things need to be addressed or should be brought to the attention of the Court. Signed by District Judge Anthony J Trenga on 8/6/2013. (rban, ) (Entered: 08/06/2013)
51 STATUS REPORT by Eric H. Holder, Jr. (Sher, R.) (Entered: 08/14/2013)
52 STATUS REPORT by Gulet Mohamed. (Al−Khalili, Nadhira) (Entered: 08/14/2013)
53 Minute Entry for proceedings held before District Judge Anthony J Trenga: Status Conference held on 8/16/2013: Appearances of counsel for Pltf and Defts. The Court GRANTED the Pltf's request to file an Amended Complaint and imposed the following schedule as agreed to by the Parties: Amended Complaint to be filed by: 08/29/2013; Gov't Motion to Dismiss to be filed by: 09/27/2013. Court will permit it to be filed as a Motion for Reconsideration or it can be incorporated into their Motion to Dismiss. Pltf's response due by: 10/18/2013; Reply due by: 11/01/2013; Motion Hearing set for 11/15/2013 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. (Court Reporter R. Montgomery) (kbro) (Entered: 08/16/2013)
54 AMENDED COMPLAINT against Timothy J. Healy, Eric H. Holder, Jr(in his official capacity as Attorney General of the United States), Eric H. Holder, Jr, Robert S. Mueller, III, filed by Gulet Mohamed.(Abbas, Gadeir) (Entered: 08/29/2013)
55 MOTION to Withdraw as Attorney Nadhira Al−Khalili by Gulet Mohamed. (Al−Khalili, Nadhira) (Entered: 09/11/2013)
Notice of Correction re 55 MOTION to Withdraw as Attorney Nadhira Al−Khalili, The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument (klau, ) (Entered: 09/12/2013)
56 Waiver of re 55 MOTION to Withdraw as Attorney Nadhira Al−Khalili Notice of Waiver of Oral Argument by Gulet Mohamed (Al−Khalili, Nadhira) (Entered: 09/16/2013)
57 ORDER granting 55 Motion to Withdraw as Attorney. Attorney Nadhira Bint Faisal Al−Khalili terminated. Signed by Magistrate Judge Thomas Rawles Jones, Jr on 9/18/13. (klau, ) (Entered: 09/19/2013)
58 Third MOTION to Dismiss Plaintiff's Third Amended Complaint by Eric H. Holder, Jr. (Sher, R.) Modified text on 9/30/2013 (klau, ). (Entered: 09/27/2013)

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09/27/2013 09/30/2013 09/30/2013 10/01/2013 10/01/2013 10/15/2013 10/16/2013 10/16/2013 10/16/2013
10/18/2013 10/18/2013 10/18/2013
10/21/2013 11/06/2013 11/15/2013
01/22/2014 01/22/2014

59 Memorandum in Support re 58 Third MOTION to Dismiss filed by Eric H. Holder, Jr. (Sher, R.) (Entered: 09/27/2013)
Notice of Correction re 58 Third MOTION to Dismiss , The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument (klau, ) (Entered: 09/30/2013)
60 CERTIFICATE of Service re 58 Third MOTION to Dismiss by R. Joseph Sher on behalf of Eric H. Holder, Jr (Sher, R.) (Entered: 09/30/2013)
Notice of Correction re 60 Certificate of Service, An incomplete document was filed. The filing user has been notified to refile the document. (klau, ) (Entered: 10/01/2013)
61 CERTIFICATE of Service re 58 Third MOTION to Dismiss by R. Joseph Sher on behalf of Eric H. Holder, Jr (Sher, R.) (Entered: 10/01/2013)
62 MOTION for Leave to File Excess Pages by Gulet Mohamed. (Abbas, Gadeir) (Entered: 10/15/2013)
Notice of Correction re 62 MOTION for Leave to File Excess Pages, The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument.(klau, ) (Entered: 10/16/2013)
63 RESPONSE to Motion re 62 MOTION for Leave to File Excess Pages filed by Eric H. Holder, Jr. (Sher, R.) (Entered: 10/16/2013)
64 ORDER granting 62 Motion for Leave to File Excess Pages, and Plaintiff's Opposition to Defendants' Motion to Dismiss may contain up to thirty−seven (37) pages; and it is further ORDERED that, should the defendants choose to file a rebuttal to plaintiff's Opposition to Defendants' Motion to Dismiss, such rebuttal may contain up to twenty−five (25) pages.. Signed by District Judge Anthony J Trenga on 10/16/13. (ltun) (Entered: 10/17/2013)
65 MOTION for Extension of Time to File Response/Reply as to 58 Third MOTION to Dismiss by Eric H. Holder, Jr. (Attachments: # 1 Proposed Order)(Sher, R.) (Entered: 10/18/2013)
66 RESPONSE in Opposition re 58 Third MOTION to Dismiss filed by Gulet Mohamed. (Attachments: # 1 Memorandum of Law, # 2 Affidavit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(Abbas, Gadeir) (Entered: 10/18/2013)
67 ORDER granting 65 Motion for Extension of Time to File Response/Reply. ORDERED that Defendants file a Reply Memorandum on or before the close of business on November 6, 2013. Signed by District Judge Anthony J Trenga on 10/18/13. (klau, ) Modified on 10/21/2013 to correct the filed date (klau, ). (Entered: 10/21/2013)
Notice of Correction re 66 Response in Opposition to Motion, The filing user has been notified to file the memorandum in support separately and link it to the motion. (klau, ) (Entered: 10/21/2013)
68 REPLY to Response to Motion re 58 Third MOTION to Dismiss filed by Eric H. Holder, Jr. (Sher, R.) (Entered: 11/06/2013)
69 Minute Entry for proceedings held before District Judge Anthony J Trenga: Motion Hearing held on 11/15/2013 re 58 Third MOTION to Dismiss filed by Eric H. Holder, Jr.: Appearances of counsel for Pltf and Defts. Motion argued and TAKEN UNDER ADVISEMENT. Order to follow. (Court Reporter R. Montgomery) (kbro) (Entered: 11/15/2013)
70 MEMORANDUM OPINION. Signed by District Judge Anthony J Trenga on 1/22/2014. (rban, ) (Entered: 01/22/2014)
71 ORDER granting in part and denying in part 58 Motion to Dismiss. ORDERED that Plaintiff's claim that he was denied his constitutional right of reentry in January 2011 is hereby DISMISSED, and the motion is otherwise DENIED. Signed by District

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01/22/2014
02/05/2014 02/05/2014 02/05/2014 02/06/2014 02/06/2014 02/06/2014 02/11/2014 02/12/2014 02/12/2014
02/26/2014 02/27/2014

Judge Anthony J Trenga on 1/22/2014. (rban, ) (Entered: 01/22/2014)
72 SCHEDULING ORDER:Initial Pretrial Conference set for 2/12/2014 at 11:00 AM in Alexandria Courtroom 301 before Magistrate Judge Thomas Rawles Jones Jr. Final Pretrial Conference set for 6/19/2014 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. Discovery due by 6/13/2014. Signed by District Judge Anthony J Trenga on 1/22/2014. (Attachments: # 1 Magistrate Consent, # 2 Pretrial Notice)(rban, ) (Entered: 01/22/2014)
73 Motion to appear Pro Hac Vice by Nina Kraut and Certification of Local Counsel Gadeir Abbas Filing fee $ 75, receipt number 0422−3840555. by Gulet Mohamed. (Abbas, Gadeir) (Entered: 02/05/2014)
74 Motion to appear Pro Hac Vice by Munia Jabbar and Certification of Local Counsel Gadeir Abbas Filing fee $ 75, receipt number 0422−3840563. by Gulet Mohamed. (Abbas, Gadeir) (Entered: 02/05/2014)
75 Joint Discovery Plan by Gulet Mohamed, Eric H. Holder, Jr..(Abbas, Gadeir) Modified on 2/6/2014 to add party filer(klau, ). (Entered: 02/05/2014)
Notice of Correction re 75 Discovery Plan, The text has been modified to reflect all relevant party/filer of the document (klau, ) (Entered: 02/06/2014)
76 ORDER granting 74 Motion for Pro hac vice. Signed by District Judge Anthony J Trenga on 2/6/14. (klau, ) (Entered: 02/06/2014)
77 ORDER granting 73 Motion for Pro hac vice. Signed by District Judge Anthony J Trenga on 2/6/14. (klau, ) (Entered: 02/06/2014)
78 ANSWER to Complaint by Timothy J. Healy, Eric H. Holder, Jr, Robert S. Mueller, III.(Sher, R.) (Entered: 02/11/2014)
79 Minute Entry for proceedings held before Magistrate Judge Thomas Rawles Jones, Jr:Initial Pretrial Conference held on 2/12/2014. Appearances of counsel. Parties to contact chambers when privilege issues have been obtained after objections are served. Resumed 16b conference may be necessary. Order to issue. (cmar, ) (Entered: 02/12/2014)
80 Rule 16(b) Scheduling Order − Pursuant to the Rule 16(b) Conference it is ordered that: a. Parties shall deliver to my chambers (not to the Clerks office) a copy of every non−dispositive motion and every document relating to such a motion within one business day of filing it. b. Rule 26(a) disclosures, depositions, interrogatories, requests for documents and admissions, and answers thereto shall not be filed except on order of thecourt, or for use in a motion or at trial. c. No "general objection" may be asserted in response to any discovery demand except to preserve the attorney−client privilege and work product protection. d. Plaintiff should file any motion to add a party as soon as the need to do so becomes apparent. e. No schedule for expert discovery is established at this time. f. The parties will not serve Rule 26(a)(1) initial disclosures in this case. g. Notwithstanding the general motions procedures discussed later in this order, if defendant asserts a privilege in a motion or in response to a motion, then the parties should contact my law clerk to obtain a briefing schedule. (SEE ORDER FOR FURTHER DETAILS.) Signed by Magistrate Judge Thomas Rawles Jones, Jr on 02/12/14. (cmar, ) (Entered: 02/12/2014)
81 MOTION for Leave to File Fourth Amended Complaint by Gulet Mohamed. (Attachments: # 1 Proposed Fourth Amended Complaint)(Abbas, Gadeir) (Entered: 02/26/2014)
Notice of Correction re 81 MOTION for Leave to File Fourth Amended Complaint, The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument.(klau, ) (Entered: 02/27/2014)

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02/27/2014 03/06/2014 03/07/2014
03/07/2014 03/11/2014 03/14/2014 03/21/2014 03/28/2014 03/31/2014 04/01/2014 04/07/2014 04/07/2014 04/08/2014 04/08/2014 04/08/2014
04/08/2014 04/09/2014 04/09/2014 04/09/2014

82 NOTICE by Gulet Mohamed re 81 MOTION for Leave to File Fourth Amended Complaint of Unopposed Waiver of Oral Argument (Abbas, Gadeir) (Entered: 02/27/2014)
83 Memorandum in Opposition re 81 MOTION for Leave to File Fourth Amended Complaint filed by Timothy J. Healy, Eric H. Holder, Jr, Robert S. Mueller, III. (Sher, R.) (Entered: 03/06/2014)
84 ORDER that 81 Motion for Leave to File a fourth amended complaint is GRANTED; and plaintiff shall electronically file the fourth amended complaint forthwith, and the newly added defendants shall plead or move in response within fourteen days. Signed by Magistrate Judge Thomas Rawles Jones, Jr on 3/7/14. (klau, ) (Entered: 03/07/2014)
85 Fourth AMENDED COMPLAINT against All Defendants, filed by Gulet Mohamed.(Abbas, Gadeir) Modified text on 3/10/2014 (klau, ). (Entered: 03/07/2014)
86 Summons Issued for Amended Complaint and given to attorney for service by Certified Mail as to Eric H. Holder, Jr (U.S. Attorney General), Jeh C Johnson, John S. Pistole, U.S. Attorney (klau, ) (Entered: 03/11/2014)
87 4 Proof of Services filed by Gulet Mohamed. (Attachments: # 1 Letter, # 2 Envelope)(jlan) (Entered: 03/21/2014)
88 ANSWER to Complaint by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole.(Sher, R.) (Entered: 03/21/2014)
89 MOTION for Reconsideration re 70 Memorandum Opinion by Gulet Mohamed. (Abbas, Gadeir) (Entered: 03/28/2014)
Notice of Correction re 89 MOTION for Reconsideration re 70 Memorandum Opinion , The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (klau, ) (Entered: 03/31/2014)
90 NOTICE by Gulet Mohamed re 89 MOTION for Reconsideration re 70 Memorandum Opinion of Waiver of Oral Argument (Abbas, Gadeir) (Entered: 04/01/2014)
91 MOTION to Compel and points & authorities by Gulet Mohamed. (Attachments: # 1 Exhibit A, # 2 Exhibit A−1, # 3 Exhibit B, # 4 Exhibit B−1, # 5 Affidavit)(Abbas, Gadeir) (Entered: 04/07/2014)
92 ORDER that Plaintiffs' 89 Motion for Reconsideration be, and the same hereby is, DENIED. Signed by District Judge Anthony J Trenga on 4/7/14. (klau, ) (Entered: 04/08/2014)
Notice of Correction re 91 MOTION to Compel and points & authorities, The filing user has been notified to file the same document as "Notice of Hearing Date".(klau, ) (Entered: 04/08/2014)
93 Notice of Hearing Date for Plaintiff's Motion to Compel set for 07/18/2014 re 91 MOTION to Compel and points & authorities (Abbas, Gadeir) (Entered: 04/08/2014)
94 ORDER that the Court will hold a hearing on Plaintiff's 91 MOTION to Compel on July 18, 2014, at 10:00 a.m., and the briefing scheduled proposed by the parties will be adopted as follows −−−− (see order for details). Signed by District Judge Anthony J Trenga on 4/8/14. (klau, ) (Entered: 04/08/2014)
Set Deadlines as to 91 MOTION to Compel and points & authorities. Motion Hearing set for 7/18/2014 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. (klau, ) (Entered: 04/08/2014)
Set Deadlines as to 91 MOTION to Compel and points & authorities. Motion Hearing set for 7/18/2014 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Thomas Rawles Jones Jr. (clar, ) (Entered: 04/09/2014)
MOTIONS REFERRED to Magistrate Judge: Jones. 91 MOTION to Compel and points & authorities (clar, ) (Entered: 04/09/2014)
Reset Deadlines as to 91 MOTION to Compel and points & authorities. Motion Hearing set for 7/18/2014 at 10:00 AM in Alexandria Courtroom 701 before District

Case: 1:11-cv-50 As of: 07/02/2018 10:49 PM EDT 11 of 23

05/21/2014 05/21/2014 05/21/2014 05/21/2014 05/22/2014 05/22/2014 05/28/2014 05/28/2014 05/28/2014 05/28/2014 05/28/2014 05/29/2014 05/29/2014 05/29/2014 05/30/2014

Judge Anthony J Trenga. (clar, ) (Entered: 04/09/2014)
95 NOTICE of Appearance by Lauren A. Wetzler on behalf of James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole (Wetzler, Lauren) (Entered: 05/21/2014)
96 MOTION for Leave to File Excess Pages by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Proposed Order)(Wetzler, Lauren) (Entered: 05/21/2014)
97 Memorandum in Support re 96 MOTION for Leave to File Excess Pages filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Wetzler, Lauren) (Entered: 05/21/2014)
98 MOTION for Extension of Time to File Response/Reply by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Proposed Order)(Wetzler, Lauren) (Entered: 05/21/2014)
99 ORDER granting 98 Motion for Extension of Time to File Response/Reply re 91 MOTION to Compel and points & authorities, Responses due by 5/28/2014. Signed by District Judge Anthony J Trenga on 5/22/2014. (rban, ) (Entered: 05/22/2014)
100 ORDER granting 96 Motion for Leave to File Excess Pages. Defendants may file a memorandum of not more than 36 pages in opposition to Plaintiff's motion to compel. Signed by District Judge Anthony J Trenga on 5/22/2014. (rban, ) (Entered: 05/22/2014)
101 MOTION to Withdraw Munia Jabbar as Attorney by Gulet Mohamed. (Attachments: # 1 Proposed Order)(Abbas, Gadeir) Modified text on 5/29/2014 (klau, ). (Entered: 05/28/2014)
102 Memorandum in Opposition re 91 MOTION to Compel and points & authorities filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Affidavit Declaration of Attorney General Holder, # 2 Affidavit Declaration of TSC Deputy Director Grigg)(Sher, R.) (Entered: 05/28/2014)
103 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 102 Memorandum in Opposition, of Lodging of Classified Declarations in Support of Defendants' Assertion of the State Secrets Privilege and Other Privileges (Sher, R.) (Entered: 05/28/2014)
104 MOTION to Dismiss as a Consequence of the Interposition of the Privilege for Secrets of State by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Affidavit Declaration of Attorney General Holder)(Sher, R.) (Entered: 05/28/2014)
105 Memorandum in Support re 104 MOTION to Dismiss as a Consequence of the Interposition of the Privilege for Secrets of State filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) (Entered: 05/28/2014)
Notice of Correction re 104 MOTION to Dismiss as a Consequence of the Interposition of the Privilege for Secrets of State, The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (klau, ) (Entered: 05/29/2014)
106 Notice of Hearing Date set for 07/18/2014 re 104 MOTION to Dismiss as a Consequence of the Interposition of the Privilege for Secrets of State (Sher, R.) (Entered: 05/29/2014)
107 ORDER granting 101 Motion to Withdraw as Attorney. ORDERED that attorney Munia Jabbar's appearance as counsel for Plaintiff is withdrawn. Signed by District Judge Anthony J Trenga on 5/29/14. (klau, ) (Entered: 05/29/2014)
Set Deadlines as to 104 MOTION to Dismiss as a Consequence of the Interposition of the Privilege for Secrets of State. Motion Hearing set for 7/18/2014 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. (clar, ) (Entered: 05/30/2014)

Case: 1:11-cv-50 As of: 07/02/2018 10:49 PM EDT 12 of 23

06/02/2014 06/10/2014
06/18/2014 06/18/2014
06/24/2014 06/27/2014 06/30/2014 07/01/2014 07/02/2014 07/02/2014 07/02/2014 07/07/2014 07/11/2014 07/18/2014

108 UNOPPOSED MOTION for Extension of Time to File Response/Reply as to 104 MOTION to Dismiss as a Consequence of the Interposition of the Privilege for Secrets of State by Gulet Mohamed. (Attachments: # 1 Proposed Order, # 2 Notice of Hearing Waiver)(Abbas, Gadeir) Modified text on 6/3/2014 (klau, ). (Entered: 06/02/2014)
109 ORDER that Plaintiff's 108 Unopposed Motion for Extension of Time within which to File Opposition to Defendants' Motion to Dismiss Plaintiff's Complaint as a Result of the Assertion of the State Secrets Privilege be, and the same hereby is, GRANTED in part and DENIED in part. It is granted insofar as Plaintiff shall have until July 3, 2014 to file his opposition and is otherwise denied. Signed by District Judge Anthony J Trenga on 6/10/14. (klau, ) (Entered: 06/10/2014)
110 Joint MOTION to Continue Final Pre−Trial Conference by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, Gulet Mohamed, John S. Pistole. (Attachments: # 1 Proposed Order)(Wetzler, Lauren) (Entered: 06/18/2014)
111 ORDER re: 110 Motion to Continue: Having considered the joint submission of the parties, it is hereby ORDERED that the Parties' Joint Motion to Continue the Final Pretrial Conference is GRANTED and the Final Pretrial Conference CONTINUED to a date to be set by further order of the Court. The parties need not appear on June 19, 2014, and the parties' obligations to file witness and exhibit lists are also continued to a later date to be determined if necessary. Signed by District Judge Anthony J Trenga on 6/18/2014. (jall) (Entered: 06/18/2014)
112 NOTICE by Gulet Mohamed of Withdrawal of Appearance (Abbas, Gadeir) (Entered: 06/24/2014)
113 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole of Lodging of Ex Parte In Camera Privilege Log (Sher, R.) (Entered: 06/27/2014)
114 MOTION to Withdraw as Attorney (Nina Kraut) by Gulet Mohamed. (Attachments: # 1 Proposed Order)(Abbas, Gadeir) (Entered: 06/30/2014)
115 ORDER granting 114 Motion to Withdraw as Attorney. Signed by District Judge Anthony J Trenga on 7/1/2014. (rban, ) (Entered: 07/01/2014)
116 Emergency MOTION for Extension of Time to File Response/Reply as to 104 MOTION to Dismiss as a Consequence of the Interposition of the Privilege for Secrets of State by Gulet Mohamed. (Attachments: # 1 Proposed Order)(Abbas, Gadeir) (Entered: 07/02/2014)
117 Waiver of re 116 Emergency MOTION for Extension of Time to File Response/Reply as to 104 MOTION to Dismiss as a Consequence of the Interposition of the Privilege for Secrets of State (Hearing Waiver) by Gulet Mohamed (Abbas, Gadeir) (Entered: 07/02/2014)
118 ORDER granting 116 Motion for Extension of Time to File Response/Reply ORDERED that plaintiff may file his Opposition on or before the 7th day of July 2014. Signed by District Judge Anthony J Trenga on 7/2/14. (klau, ) (Entered: 07/02/2014)
119 Memorandum in Opposition re 104 MOTION to Dismiss as a Consequence of the Interposition of the Privilege for Secrets of State filed by Gulet Mohamed. (Abbas, Gadeir) (Entered: 07/07/2014)
120 Reply to Motion re 91 MOTION to Compel and points & authorities filed by Gulet Mohamed. (Abbas, Gadeir) (Entered: 07/11/2014)
121 Minute Entry for proceedings held before District Judge Anthony J Trenga: Motion Hearing held on 7/18/2014 re 104 MOTION to Dismiss as a Consequence of the Interposition of the Privilege for Secrets of State filed by Jeh C Johnson, Timothy J. Healy, John S. Pistole, James B. Comey, Eric H. Holder, Jr., and 91 MOTION to Compel and points & authorities filed by Gulet Mohamed. Motions argued and TAKEN UNDER ADVISEMENT. Order will follow.

Case: 1:11-cv-50 As of: 07/02/2018 10:49 PM EDT 13 of 23

07/18/2014
08/01/2014 08/06/2014 08/06/2014
08/15/2014 08/20/2014 08/22/2014 08/22/2014 08/25/2014 08/27/2014 08/29/2014 09/03/2014 09/03/2014 09/03/2014

(Court Reporter R. Montgomery.) (jall) (Entered: 07/18/2014)
122 ORDER re: 91 Motion to Compel and 104 Motion to Dismiss: This matter is before the Court on Plaintiffs Motion to Compel Defendants to Answer his First Set of Interrogatories and First Set of Requests for Production of Documents [Doc. No. 91] and Defendants' Motion to Dismiss Plaintiffs Complaint as a Result of the Assertion of the State Secrets Privilege [Doc. No. 104] ("the Motions"), upon which the Court held a hearing on July 18, 2014. For the reasons discussed in open court, it is hereby ORDERED that the Motions are taken under advisement, with the parties to submit, within two weeks of the date of this Order, a status report identifying any issues they have resolved regarding the Motion to Compel and any remaining issues to be decided. Signed by District Judge Anthony J Trenga on 7/18/2014. (jall) (Entered: 07/18/2014)
123 STATUS REPORT by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, Gulet Mohamed, John S. Pistole. (Sher, R.) (Entered: 08/01/2014)
124 ORDER that the parties shall submit another status report on or before August 15, 2014. Signed by District Judge Anthony J Trenga on 8/6/14. (klau, ) (Entered: 08/06/2014)
125 ORDER In order to assist the Court in deciding those pending motions, it is hereby ORDERED that, on or before September 7, 2014, the United States submit in camera, under seal, all documents, and a summary of any testimony, expert or otherwise −−−− (see order for details). Signed by District Judge Anthony J Trenga on 8/6/14. (klau, ) (Entered: 08/06/2014)
126 STATUS REPORT by Gulet Mohamed. (Attachments: # 1 Exhibit)(Abbas, Gadeir) (Entered: 08/15/2014)
127 ORDER−Upon consideration of the Joint Status Report submitted by the parties [Doc. No. 126], it is hereby ORDERED that the parties shall submit another status report on or before August 29, 2014. Signed by District Judge Anthony J Trenga on 8/20/14. (gwalk, ) (Entered: 08/20/2014)
128 MOTION for Reconsideration re 125 Order, for in camera submission by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) (Entered: 08/22/2014)
129 Memorandum in Support re 128 MOTION for Reconsideration re 125 Order, for in camera submission filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Proposed Order)(Sher, R.) (Entered: 08/22/2014)
Notice of Correction re 128 MOTION for Reconsideration re 125 Order, for in camera submission. The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument in the future. (clar, ) (Entered: 08/25/2014)
130 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 128 MOTION for Reconsideration re 125 Order, for in camera submission of Submission Without Oral Hearing (Sher, R.) (Entered: 08/27/2014)
131 STATUS REPORT Joint by Gulet Mohamed. (Abbas, Gadeir) (Entered: 08/29/2014)
132 Consent MOTION to Amend/Correct Proposed Protective Order by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Proposed Order Proposed Protective Order)(Sher, R.) (Entered: 09/03/2014)
133 Consent MOTION for Extension of Time Within Which to File In Camera Submission by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) (Entered: 09/03/2014)
134 Stipulated Protective Order in re 132 Consent MOTION to Amend/Correct Proposed Protective Order. Signed by District Judge Anthony J Trenga on 09/03/2014. (jlan) (Entered: 09/03/2014)

Case: 1:11-cv-50 As of: 07/02/2018 10:49 PM EDT 14 of 23

09/03/2014 09/05/2014 09/05/2014 09/11/2014 09/15/2014
10/14/2014 10/15/2014 10/17/2014 10/17/2014 10/30/2014
11/07/2014 11/14/2014 11/14/2014 11/14/2014

135 ORDER granting 133 Motion for Extension of Time to File. Signed by District Judge Anthony J Trenga on 09/03/2014. (jlan) (Entered: 09/03/2014)
136 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole of Filing Supplemental Declaration (Attachments: # 1 Affidavit Declaration of G. Clayton Grigg)(Sher, R.) (Entered: 09/05/2014)
137 RESPONSE in Opposition re 128 MOTION for Reconsideration re 125 Order, for in camera submission filed by Gulet Mohamed. (Abbas, Gadeir) (Entered: 09/05/2014)
138 REPLY to Response to Motion re 128 MOTION for Reconsideration re 125 Order, for in camera submission filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, Robert S. Mueller, III, John S. Pistole. (Sher, R.) (Entered: 09/11/2014)
139 ORDER granting 128 Motion for Reconsideration and the Court's Order dated August 6, 2014 [Doc. No. 125] be, and the same hereby is, AFFIRMED; provided, however, that the date for the submission of the ordered documents is continued to a date to be designated by further order of the Court; and it isfurther ORDERED that Defendants shall submit in camera and under seal, for ex parte review by the Court, all documents listed in Defendants' privilege log; and it is further ORDERED that Defendants shall submit to the Court the documents required under this Order on or before October 15, 2014. Signed by District Judge Anthony J Trenga on 9/15/14. (See Order for further details). (gwalk, ) (Main Document 139 replaced on 11/7/2014 per Order dated 11/7/14 ) (klau, ). (Entered: 09/15/2014)
140 Consent MOTION for Extension of Time of Two Days Within Which to File Documents Ex Parte In Camera by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Proposed Order)(Sher, R.) (Entered: 10/14/2014)
141 ORDER granting 140 Motion for Extension of Time to File. The time for the Defendants to file the submission pursuant to the Court's Order dated 9/15/2014 is extended to 10/17/2014. Signed by District Judge Anthony J Trenga on 10/15/2014. (rban, ) (Entered: 10/15/2014)
142 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 141 Order on Motion for Extension of Time to File, 139 Order on Motion for Reconsideration,, (Sher, R.) (Entered: 10/17/2014)
143 Response to 139 Order on Motion for Reconsideration,, filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, Robert S. Mueller, III, John S. Pistole. (Attachments: # 1 Affidavit Steinbach Declaration)(Sher, R.) (Entered: 10/17/2014)
144 ORDER that Defendants' 104 Motion to Dismiss be, and the same hereby is, DENIED as to plaintiff's procedural due process claims, without prejudice. ORDERED that Plaintiff's 91 Motion to Compel be, and the same hereby is, DENIED as the documents submitted pursuant to the Court's Order dated September 15, 2014, without prejudice −−−−−− (see order for details). Signed by District Judge Anthony J Trenga on 10/30/14. (klau, ) (Entered: 10/30/2014)
145 ORDER that note 1 on page 5 of the Court's Order dated September 15, 2014 [Doc. No. 139] is hereby amended as follows −−−−− The Clerk is directed to replace note 1 at page 5 of the Court's Order dated September 15, 2014 [Doc. No. 139] with the language contained herein (see order for details). Signed by District Judge Anthony J Trenga on 11/7/14. (klau, ) (Entered: 11/07/2014)
146 MOTION to Stay re 144 Order on Motion to Compel, Order on Motion to Dismiss,, 145 Order, by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Sher, R.) (Entered: 11/14/2014)
147 Memorandum in Support re 146 MOTION to Stay re 144 Order on Motion to Compel, Order on Motion to Dismiss,, 145 Order, filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) (Entered: 11/14/2014)
148 Joint MOTION re 146 MOTION to Stay re 144 Order on Motion to Compel, Order on Motion to Dismiss,, 145 Order, to Hold the Hearing on Defendant's Motion to Stay on

Case: 1:11-cv-50 As of: 07/02/2018 10:49 PM EDT 15 of 23

11/17/2014
11/18/2014 11/20/2014 11/20/2014 11/21/2014 11/21/2014 12/05/2014 12/05/2014 12/08/2014 12/08/2014 12/09/2014
12/09/2014 12/09/2014 12/10/2014

Monday, November 24, 2014 by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Proposed Order)(Sher, R.) (Entered: 11/14/2014)
149 ORDER that the Plaintiff file a response to Defendants' Motion to Stay by noon on Thursday, November 20, 2014. Ordered that the 148 Joint Motion to set Hearing Date for November 24, 2014, be and the same hereby is DENIED, and the Court will schedule a hearing if necessary. Signed by District Judge Anthony J Trenga on 11/17/14. (klau, ) (Entered: 11/17/2014)
Erroneously sent Notice of Correction re 146 MOTION to Stay re 144 Order on Motion to Compel, Order on Motion to Dismiss,, 145 Order, , (klau, ) Modified on 11/18/2014 The filing user do not need to file notice of hearing, please see order dated 11/17/14(klau, ). (Entered: 11/18/2014)
150 RESPONSE in Opposition re 146 MOTION to Stay re 144 Order on Motion to Compel, Order on Motion to Dismiss,, 145 Order, filed by Gulet Mohamed. (Abbas, Gadeir) (Entered: 11/20/2014)
151 ORDER that Defendants 146 Motion to Stay be, and the same hereby is, DENIED. Signed by District Judge Anthony J Trenga on 11/20/14. (klau, ) (Entered: 11/20/2014)
152 Joint MOTION for Extension of Time Within Which to File Summary Judgment Motions Pertaining to Plaintiff's Procedural Due Process Claim by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Proposed Order)(Sher, R.) (Entered: 11/21/2014)
153 ORDER granting 152 Motion for Extension of Time to File. ORDERED that the parties submit summary judgment briefing on Plaintiff's procedural due process claim pursuant to the following schedule −−− (see order for details). Signed by District Judge Anthony J Trenga on 11/21/14. (klau, ) (Entered: 11/21/2014)
154 Joint MOTION for Leave to File Excess Pages in Support of Summary Judgment Motions by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, Robert S. Mueller, III, John S. Pistole. (Attachments: # 1 Proposed Order)(Wetzler, Lauren) (Entered: 12/05/2014)
155 ORDER that the parties' 154 Joint Motion for Extension of Pages −Limit is GRANTED. The parties may file memoranda of up to forty (40) pages in length in support of their respective summary Judgment motions. Signed by District Judge Anthony J Trenga on 12/5/14. (klau, ) (Entered: 12/05/2014)
156 Emergency MOTION for Extension of Time to File for Summary Judgment by Gulet Mohamed. (Attachments: # 1 Proposed Order)(Abbas, Gadeir) (Entered: 12/08/2014)
157 ORDER granting 156 Motion for Extension of Time to File, ORDERED that the parties submit summary judgment motions on Plaintiff's procedural due process claim by December 9, 2014. Signed by District Judge Anthony J Trenga on 12/8/14. (klau, ) (Entered: 12/08/2014)
158 MOTION for Partial Summary Judgment on Plaintiff's Procedural Due Process Claim by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Affidavit Grigg Declaration, # 2 Affidavit Steinbach Declaration, # 3 Affidavit Gary Declaration, # 4 Proposed Order)(Sher, R.) Modified text on 12/10/2014 (klau, ). (Entered: 12/09/2014)
159 Memorandum in Support re 158 MOTION for Summary Judgment on Plaintiff's Procedural Due Process Claim filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) (Entered: 12/09/2014)
160 MOTION for Summary Judgment by Gulet Mohamed. (Attachments: # 1 Exhibit, # 2 Exhibit)(Abbas, Gadeir) (Entered: 12/09/2014)
161 MOTION for Summary Judgment (CORRECTED) by Gulet Mohamed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit E)(Abbas, Gadeir) (Entered: 12/10/2014)

Case: 1:11-cv-50 As of: 07/02/2018 10:49 PM EDT 16 of 23

12/10/2014
12/11/2014 12/12/2014 12/22/2014 12/22/2014 01/08/2015
01/08/2015 01/09/2015 01/09/2015 01/13/2015 01/13/2015 01/23/2015 01/23/2015 01/30/2015

Notice of Correction re 160 MOTION for Summary Judgment , 158 MOTION for Summary Judgment on Plaintiff's Procedural Due Process Claim, 161 MOTION for Summary Judgment (CORRECTED), The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (klau, ) (Entered: 12/10/2014)
162 Notice of Hearing Date set for 1/23/2015 re 158 MOTION for Summary Judgment on Plaintiff's Procedural Due Process Claim (Sher, R.) (Entered: 12/11/2014)
Set Deadlines as to 158 MOTION for Summary Judgment on Plaintiff's Procedural Due Process Claim. Motion Hearing set for 1/23/2015 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. (clar, ) (Entered: 12/12/2014)
163 Memorandum in Opposition re 160 MOTION for Summary Judgment , 161 MOTION for Summary Judgment (CORRECTED) filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Exhibit Defendant'sSupplemental Interrogatory Response)(Sher, R.) (Entered: 12/22/2014)
164 Memorandum in Opposition re 158 MOTION for Summary Judgment on Plaintiff's Procedural Due Process Claim filed by Gulet Mohamed. (Abbas, Gadeir) (Entered: 12/22/2014)
165 ORDER that defendants shall produce to the Court on or before January 16, 2015, ex parte, in camera, any specific documents, not previously produced, which defendants claim are protected under the state secrets privilege and they need to use in order to adequately present their claims or defenses with respect to the procedural due process claims that are the subject of the pending cross−motions for partial summary judgment (see order for details). Signed by District Judge Anthony J Trenga on 1/8/15. (klau, ) (Entered: 01/08/2015)
166 Joint MOTION for Extension Time for Filiong Reply Briefs and In Camera Ex Parte Documents by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Proposed Order)(Sher, R.) (Entered: 01/08/2015)
167 ORDER granting 166 Joint Motion for Extension of Time to File. Plaintiff's procedural due process claim pursuant to the following schedule: −−− January 30, 2015 Hearing on cross−motions for summary judgment (see order for details). Signed by District Judge Anthony J Trenga on 1/9/15. (klau, ) (Entered: 01/09/2015)
Reset Deadlines as to 158 MOTION for Summary Judgment on Plaintiff's Procedural Due Process Claim. Motion Hearing set for 1/30/2015 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. (per AJT chambers) (klau, ) (Entered: 01/13/2015)
168 REPLY to Response to Motion re 158 MOTION for Summary Judgment on Plaintiff's Procedural Due Process Claim filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) (Entered: 01/13/2015)
169 Response to Defendants' Opposition re 160 MOTION for Summary Judgment filed by Gulet Mohamed. (Abbas, Gadeir) Modified text on 1/14/2015 (klau, ). (Entered: 01/13/2015)
170 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 165 Order,, 167 Order on Motion for Extension of Time to File, of Lodging of Materials in Response to the Court's January 6, 2015 Order (Sher, R.) (Entered: 01/23/2015)
171 Memorandum in Response to 165 Order,, 167 Order on Motion for Extension of Time to File, filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) (Entered: 01/23/2015)
172 Minute Entry for proceedings held before District Judge Anthony J Trenga: Motion Hearing held on 1/30/2015 re 160 MOTION for Summary Judgment filed by Gulet Mohamed and 158 MOTION for Summary Judgment on Plaintiff's Procedural Due Process Claim filed by Jeh C Johnson, Timothy J. Healy, John S. Pistole, James B. Comey, Eric H. Holder, Jr.. Appearances of Counsel for Pltf. and Deft. Motions were argued and TAKEN UNDER ADVISEMENT.

Case: 1:11-cv-50 As of: 07/02/2018 10:49 PM EDT 17 of 23

02/02/2015
02/02/2015 02/18/2015 02/18/2015 02/19/2015
02/19/2015 03/01/2015 03/02/2015 03/02/2015 03/06/2015 03/06/2015 03/06/2015 03/09/2015

Order to follow. (Court Reporter R. Wilson.) (jall) (Entered: 01/30/2015)
173 ORDER that the Court will hold an exparte, in camera, sealed hearing on Tuesday, February 24, 2015, at 10:00 AM in order to provide the defendants with the opportunity to provide and the Court to consider additional information concerning the defendants' claims concerning the existence of state secrets and their relevance to the pending procedural due process claims, including additional information concerning −−−− (see order for details). Signed by District Judge Anthony J Trenga on 2/2/15. (klau, ) (Main Document 173 replaced on 2/2/2015) (klau, ). (Entered: 02/02/2015)
Set Hearings: Ex Parte In Camera Hearing set for 2/24/2015 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. (klau, ) (Entered: 02/02/2015)
174 MOTION to Continue Ex Parte Hearing by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, Robert S. Mueller, III, John S. Pistole. (Attachments: # 1 Proposed Order)(Wetzler, Lauren) (Entered: 02/18/2015)
175 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 174 MOTION to Continue Ex Parte Hearing SUBMISSION OF MOTION WITHOUT ORAL ARGUMENT (Wetzler, Lauren) (Entered: 02/18/2015)
176 ORDER that Defendants' 174 Motion to Continue EX Parte Hearing be, and the same hereby is, GRANTED and that the ex parte, in camera, sealed hearing currently scheduled for February 24, 2015 is CONTINUED until March 17, 2015 at 10:00 a.m.. ORDERED that the defendants file any additional ex parte submissions on or before March 3, 2015, and any additional submissions to the public record on or before March 10, 2015. Signed by District Judge Anthony J Trenga on 2/19/15. (klau, ) (Entered: 02/19/2015)
Reset Hearings: In Camera Hearing set for 3/17/2015 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. (klau, ) (Entered: 02/19/2015)
Case reassigned to Magistrate Judge Michael S. Nachmanoff (Chamber Phone Number 703−299−3367/Law Clerk Phone Number 703−299−3369). Magistrate Judge Thomas Rawles Jones, Jr. no longer assigned to the case. (rban, ) (Entered: 03/01/2015)
177 Consent MOTION for Extension Time to File Ex Parte Declarations by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, Robert S. Mueller, III, John S. Pistole. (Attachments: # 1 Proposed Order)(Wetzler, Lauren) (Entered: 03/02/2015)
178 ORDER that 177 Motion for Extension Time to File Ex Parte Declarations is GRANTED. ORDERED that Defendants shall file any ex parte submissions on or before March 5, 2015. Signed by District Judge Anthony J Trenga on 3/2/15. (klau, ) (Entered: 03/02/2015)
179 Consent MOTION for Extension of Time to File Second and Final Ex Parte Submission by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, Robert S. Mueller, III, John S. Pistole. (Attachments: # 1 Proposed Order)(Wetzler, Lauren) (Entered: 03/06/2015)
180 ORDER granting 179 Motion for Extension of Time to File. ORDERED that Defendants' second and final ex parte and in camera submission is due by 3/9/2015. Signed by District Judge Anthony J Trenga on 3/6/2015. (rban, ) (Entered: 03/06/2015)
181 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole of Lodging Ex Parte Declaration (Wetzler, Lauren) (Entered: 03/06/2015)
182 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole of Ex Parte, In Camera Submission (Wetzler, Lauren) (Entered: 03/09/2015)

Case: 1:11-cv-50 As of: 07/02/2018 10:49 PM EDT 18 of 23

03/10/2015 03/13/2015 03/17/2015
03/17/2015 03/18/2015 03/19/2015
04/13/2015 07/16/2015 07/16/2015 08/07/2015 08/11/2015 08/12/2015
08/13/2015 08/13/2015 08/13/2015 08/13/2015

183 Response to the Court's February 2, 2015 Order to 173 Order,, filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Affidavit Redacted Grigg Declaration)(Sher, R.) Modified text on 3/11/2015 (klau, ). (Entered: 03/10/2015)
184 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole of the Filing of a Redacted version of the Steinbach Declaration previously submitted in camera ex parte (Attachments: # 1 Affidavit Redacted Steinbach Declaration)(Sher, R.) (Entered: 03/13/2015)
185 Minute Entry for proceedings held before District Judge Anthony J Trenga: Closed Ex Parte In Camera Hearing held on 3/17/2015. Appearances of Counsel for Deft. (Court Reporter R. Montgomery.) (jall) (Entered: 03/17/2015)
186 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole of the in camera filing of a notice of errata and motion to substitute certain documents (Sher, R.) (Entered: 03/17/2015)
Notice of Correction re 186 NOTICE, The filing user has been notified to file the document separately for each motion relief. (klau, ) (Entered: 03/18/2015)
187 ORDER Defendants' Ex Parte, In Camera Notice of Errata and Motion to Substitute Documents, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that the Classified Information Security Officer be pemiitted to replace the previously lodged versions of the documents at issue with corrected versions. Signed by District Judge Anthony J Trenga on 3/19/15. (klau, ) (Entered: 03/19/2015)
188 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole of New Redress Procedures (Sher, R.) (Entered: 04/13/2015)
189 MEMORANDUM OPINION. Signed by District Judge Anthony J Trenga on 7/16/15. Order to follow(gwalk, ) (Entered: 07/16/2015)
190 ORDER granting in part and denying in part 158 Motion for Summary Judgment; denying 161 Motion for Summary Judgment. Signed by District Judge Anthony J Trenga on 7/16/2015. (see Order for further details) (dvanm, ) (Entered: 07/16/2015)
191 STATUS REPORT (Joint) by Gulet Mohamed. (Abbas, Gadeir) (Entered: 08/07/2015)
192 STATUS REPORT Corrected by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) (Entered: 08/11/2015)
193 ORDER that on or before August 12, 2015, Plaintiff shall file his motion for leave to conduct discovery, motion to reconsider, and motion for leave to file a fifth amended complaint; it is further ORDERED that Defendants shall file their oppositions to Plaintiff's motions on or before September 11, 2015; it is further ORDERED that Plaintiff shall file any reply memoranda on or before September 18, 2015, following which, if the Court deems it necessary, the Court will schedule a hearing by separate order. Signed by District Judge Anthony J Trenga on 8/12/15. (klau, ) (Entered: 08/12/2015)
194 MOTION for Leave to File Fifth Amended Complaint by Gulet Mohamed. (Attachments: # 1 Proposed Fifth Amended Complaint)(Abbas, Gadeir) (Entered: 08/13/2015)
195 CORRECTED MOTION for Leave to File Proposed Fifth Amended Complaint by Gulet Mohamed. (Attachments: # 1 Exhibit Proposed Fifth Amended Complaint, # 2 Exhibit Oral Argument Waiver)(Abbas, Gadeir) Modified text on 8/13/2015 (klau, ). (Entered: 08/13/2015)
196 MOTION for Discovery to Identify Unknown Defendants by Gulet Mohamed. (Abbas, Gadeir) (Entered: 08/13/2015)
197 MOTION for Reconsideration re 189 Memorandum Opinion by Gulet Mohamed. (Abbas, Gadeir) (Entered: 08/13/2015)

Case: 1:11-cv-50 As of: 07/02/2018 10:49 PM EDT 19 of 23

09/11/2015 09/11/2015
09/11/2015 09/18/2015 09/18/2015 09/18/2015 12/18/2015
12/28/2015 01/04/2016 01/05/2016 01/11/2016 01/11/2016 01/12/2016 01/12/2016 01/22/2016
02/25/2016 02/25/2016

198 Memorandum in Opposition re 196 MOTION for Discovery to Identify Unknown Defendants filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) (Entered: 09/11/2015)
199 Memorandum in Opposition re 194 MOTION for Leave to File Fifth Amended Complaint, 195 MOTION for Leave to File Proposed Fifth Amended Complaint filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) (Entered: 09/11/2015)
200 Memorandum in Opposition re 197 MOTION for Reconsideration re 189 Memorandum Opinion filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) (Entered: 09/11/2015)
201 REPLY to Response to Motion re 196 MOTION for Discovery to Identify Unknown Defendants filed by Gulet Mohamed. (Abbas, Gadeir) (Entered: 09/18/2015)
202 REPLY to Response to Motion re 194 MOTION for Leave to File Fifth Amended Complaint filed by Gulet Mohamed. (Abbas, Gadeir) (Entered: 09/18/2015)
203 REPLY to Response to Motion re 197 MOTION for Reconsideration re 189 Memorandum Opinion filed by Gulet Mohamed. (Abbas, Gadeir) (Entered: 09/18/2015)
204 ORDER that plaintiff's 195 Motion for Leave to Amend be, and the same hereby is, GRANTED in part and DENIED in part. ORDERED that plaintiff's 196 Motion for Discovery be, and the same hereby is, DENIED. ORDERED that plaintiff's 197 Motion for Reconsideration be, and the same hereby is, DENIED. ORDERED that plaintiff shall file the Fifth Amended Complaint within seven (7) days of this Order −−− (see order for details). Signed by District Judge Anthony J Trenga on 12/18/15. (klau, ) (Entered: 12/18/2015)
205 AMENDED COMPLAINT (Fifth) against All Defendants, filed by Gulet Mohamed.(Abbas, Gadeir) (Entered: 12/28/2015)
206 NOTICE by Gulet Mohamed (Abbas, Gadeir) (Entered: 01/04/2016)
207 NOTICE by Gulet Mohamed re 204 Order on Motion for Leave to File, Order on Motion for Discovery, Order on Motion for Reconsideration,,,,,, [CORRECTED] (Abbas, Gadeir) (Entered: 01/05/2016)
208 STATUS REPORT by Defendants by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) (Entered: 01/11/2016)
209 STATUS REPORT by Gulet Mohamed. (Abbas, Gadeir) (Entered: 01/11/2016)
Notice of Correction re 208 Status Report, The filing user has been notified to file a separate Certificate of Service.(klau, ) (Entered: 01/12/2016)
210 CERTIFICATE of Service re 208 Status Report by R. Joseph Sher on behalf of James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole (Sher, R.) (Entered: 01/12/2016)
211 ORDERED that defendants' time to answer, move or other respond to the Fifth Amended Complaint be, and the same hereby is, EXTENDED to 2/29/2016; that the parties shall file any motions for summary judgment they believe appropriate at this time with respect to plaintiff's remaining claims as set forth in the Fifth Amended Complaint in accordance with the following schedule: Motions − 2/29/2016, Responses − 3/21/2016, and Replies − 3/28/2016; that the parties are directed to notice any filed motions for a hearing on 3/31/2016 at 10:00 a.m. Signed by District Judge Anthony J Trenga on 1/22/2016. (rban, ) (Entered: 01/22/2016)
212 Consent MOTION for Extension of TIme to File for Summary Judgment or Otherwise Respond/Answer by Gulet Mohamed. (Abbas, Gadeir) (Entered: 02/25/2016)
213 Waiver of re 212 Consent MOTION for Extension of TIme to File for Summary Judgment or Otherwise Respond/Answer [oral argument waiver] by Gulet Mohamed (Abbas, Gadeir) (Entered: 02/25/2016)

Case: 1:11-cv-50 As of: 07/02/2018 10:49 PM EDT 20 of 23

02/26/2016
03/01/2016 03/01/2016
03/03/2016 03/03/2016
03/03/2016 03/03/2016 03/03/2016 03/03/2016 03/04/2016 03/04/2016 03/04/2016
03/04/2016 03/04/2016

214 ORDER granting 212 Motion for Extension of Time to File the Cross−Motions for Summary Judgment. The deadline of February 29, 2016 is extended to allow for the filing of Cross−Motions for Summary Judgment by Thursday, March 3, 2016. This Order does not alter any other deadlines in this matter. Signed by District Judge Anthony J Trenga on 2/26/2016. (dvanm, ) (Entered: 02/29/2016)
215 Joint MOTION for Leave to File Excess Pages by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, Robert S. Mueller, III, John S. Pistole. (Sher, R.) (Entered: 03/01/2016)
216 ORDER granting 215 Motion for Leave to File Excess Pages. Accordingly, the memoranda shall not exceed thirty−seven (37) pages and shall otherwise conform with other applicable provisions of the Local Civil Rules and Federal Rules of Civil Procedure. Signed by District Judge Anthony J Trenga on 3/1/16. (klau, ) (Entered: 03/01/2016)
217 MOTION for Partial Summary Judgment as to Counts I and IV of the Fifth Amended Complaint by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Attachments: # 1 Affidavit Exhibit B Steinbach Declaration)(Sher, R.) (Entered: 03/03/2016)
218 Memorandum in Support re 217 MOTION for Partial Summary Judgment as to Counts I and IV of the Fifth Amended Complaint filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) Modified on 3/4/2016 Under Seal, removed from public docket per order dated 3/4/16 (klau, ). (Entered: 03/03/2016)
219 Notice of Under Seal Filing LCvR5 (B) by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 217 MOTION for Partial Summary Judgment as to Counts I and IV of the Fifth Amended Complaint (Sher, R.) (Entered: 03/03/2016)
220 Sealed Attachment/Exhibit(s) re 219 Notice of Under Seal Filing LCvR5 (B), 217 MOTION for Partial Summary Judgment as to Counts I and IV of the Fifth Amended Complaint. (Sher, R.) (Entered: 03/03/2016)
221 MOTION for Partial Summary Judgment by Gulet Mohamed. (Abbas, Gadeir) (Entered: 03/03/2016)
222 Memorandum in Support re 221 MOTION for Partial Summary Judgment filed by Gulet Mohamed. (Abbas, Gadeir) (Entered: 03/04/2016)
223 Emergency MOTION Remove Document from Docket or Seal Document (CONSENTED TO) by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, Robert S. Mueller, III, John S. Pistole. (Attachments: # 1 Proposed Order)(Wetzler, Lauren) (Entered: 03/04/2016)
Notice of Correction re 217 MOTION for Partial Summary Judgment as to Counts I and IV of the Fifth Amended Complaint. The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (klau, ) (Entered: 03/04/2016)
224 ORDER re Defendants' Emergency Consent 223 Motion to Remove from the Public Docket ORDERED that the Clerk 's Office shall immediately remove from the public docket document number 218, and it is hereby ORDERED that Defendants shall promptly file on the public docket a substituted memorandum of law in support of their partial motion for summary judgment. Signed by District Judge Anthony J Trenga on 3/4/16. (klau, ) (Entered: 03/04/2016)
Notice of Correction re 219 Notice of Under Seal Filing LCvR5 (B), 218 Memorandum in Support, 217 MOTION for Partial Summary Judgment as to Counts I and IV of the Fifth Amended Complaint, The filing user has been notified to file a separate Certificate of Service (klau, ) (Entered: 03/04/2016)
Notice of Correction re 221 MOTION for Partial Summary Judgment , The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument.(klau, ) (Entered: 03/04/2016)

Case: 1:11-cv-50 As of: 07/02/2018 10:49 PM EDT 21 of 23

03/04/2016
03/16/2016
03/17/2016 03/17/2016 03/21/2016 03/21/2016 03/21/2016 03/22/2016
03/22/2016
03/23/2016 03/24/2016 03/24/2016 03/24/2016 03/28/2016
03/29/2016
03/30/2016 03/30/2016

225 Memorandum in Support re 217 MOTION for Partial Summary Judgment as to Counts I and IV of the Fifth Amended Complaint (Substituted) filed by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, Robert S. Mueller, III, John S. Pistole. (Wetzler, Lauren) (Entered: 03/04/2016)
226 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 220 Sealed Attachment/Exhibit(s), 217 MOTION for Partial Summary Judgment as to Counts I and IV of the Fifth Amended Complaint (Attachments: # 1 Affidavit Redacted Declaration of Roderick Allison)(Sher, R.) (Entered: 03/16/2016)
Notice of Correction re 226 NOTICE, The filing user has been notified to file a separate Certificate of Service. (klau, ) (Entered: 03/17/2016)
227 CERTIFICATE of Service re 226 NOTICE, by R. Joseph Sher on behalf of James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole (Sher, R.) (Entered: 03/17/2016)
228 Sealed Response/Reply/Opposition re 222 Memorandum in Support, 221 MOTION for Partial Summary Judgment . (Sher, R.) (Entered: 03/21/2016)
229 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 228 Sealed Response/Reply/Opposition (Sher, R.) (Entered: 03/21/2016)
230 Sealed Memorandum in Support re 225 Memorandum in Support,. (Abbas, Gadeir) (Entered: 03/21/2016)
231 ORDER re Defendants' 217 MOTION for Partial Summary Judgment and Plaintiff's 221 MOTION for Partial Summary Judgment, currently scheduled for oral argument on Thursday, March 31, 2016 at 10:00 a.m. be, and the same hereby are, CONTINUED to Tuesday, April 5, 2016 at 10:00 a.m. Signed by District Judge Anthony J Trenga on 3/22/16. (klau, ) (Entered: 03/22/2016)
Reset Deadlines as to 217 MOTION for Partial Summary Judgment as to Counts I and IV of the Fifth Amended Complaint, 221 MOTION for Partial Summary Judgment . Motion Hearing set for 4/5/2016 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. (klau, ) (Entered: 03/22/2016)
232 [CORRECTED] Sealed Memorandum in Support re 225 Memorandum in Support,. (Abbas, Gadeir) (Entered: 03/23/2016)
233 Notice of Filing Sealing Motion LCvR5(C) by Gulet Mohamed re 225 Memorandum in Support, (Abbas, Gadeir) (Entered: 03/24/2016)
234 MOTION to Seal by Gulet Mohamed. (Abbas, Gadeir) (Entered: 03/24/2016)
235 Consent MOTION for Extension of Time to File Response/Reply by Gulet Mohamed. (Abbas, Gadeir) (Entered: 03/24/2016)
236 ORDER granting 235 Motion for Extension of Time to File Response/Reply. Accordingly, plaintiff is directed to file his Reply to Defendants' Opposition to Plaintiff's Motion for Partial Summary Judgment on or before Thursday, March 31, 2016. Signed by District Judge Anthony J Trenga on 3/28/16. (klau, ) (Entered: 03/28/2016)
238 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 228 Sealed Response/Reply/Opposition (Attachments: # 1 Redacted Version of Defendants' Opposition to Plaintiff's Motion for Partial Summary Judgment)(Sher, R.) (Entered: 03/29/2016)
239 Consent MOTION for Leave to File Excess Pages by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) (Entered: 03/30/2016)
240 ORDER that 239 Consent Motion for Page Extension be, and the same hereby is, GRANTED. Accordingly, the reply memoranda may not exceed twenty−seven (27) pages and shall otherwise conform with other applicable provisions of the Local Civil Rules and Federal Rules of Civil Procedure. Signed by District Judge Anthony J

Case: 1:11-cv-50 As of: 07/02/2018 10:49 PM EDT 22 of 23

03/31/2016 03/31/2016 03/31/2016 03/31/2016 04/01/2016
04/01/2016 04/01/2016 04/01/2016 04/01/2016 04/01/2016 04/01/2016 04/05/2016 04/05/2016
04/05/2016

Trenga on 3/30/16. (klau, ) (Entered: 03/30/2016)
241 Notice of Under Seal Filing LCvR5 (B) by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 217 MOTION for Partial Summary Judgment as to Counts I and IV of the Fifth Amended Complaint the Defendants' Reply Memorandum (Sher, R.) (Entered: 03/31/2016)
242 Sealed Response/Reply/Opposition re 241 Notice of Under Seal Filing LCvR5 (B),. (Attachments: # 1 Exhibit March 28, 2016 Decision in Latif v Lynch)(Sher, R.) (Entered: 03/31/2016)
243 EXHIBIT not under seal to the Defendants' Sealed Reply Memorandum by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole.. (Sher, R.) (Entered: 03/31/2016)
244 Sealed Response/Reply/Opposition re 222 Memorandum in Support. (Abbas, Gadeir) (Entered: 03/31/2016)
Notice of Correction re 241 Notice of Under Seal Filing LCvR5 (B), the filing user has been notified to file certificate of service; 242 Sealed Response/Reply/Opposition, the filing user has been notified to file motion to seal; 243 Exhibit, the filing user has been notified to refile the document due to incomplete document filed. (Entered: 04/01/2016)
245 CERTIFICATE of Service re 242 Sealed Response/Reply/Opposition by R. Joseph Sher on behalf of James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole (Sher, R.) (Entered: 04/01/2016)
246 CERTIFICATE of Service re 241 Notice of Under Seal Filing LCvR5 (B), by R. Joseph Sher on behalf of James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole (Sher, R.) (Entered: 04/01/2016)
247 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 243 Exhibit, 242 Sealed Response/Reply/Opposition (Sher, R.) (Entered: 04/01/2016)
248 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 243 Exhibit, 242 Sealed Response/Reply/Opposition (Attachments: # 1 Exhibit Opinion of the Oregon District Court in Latif v. Lynch)(Sher, R.) (Entered: 04/01/2016)
Notice of Correction re 244 Sealed Response/Reply/Opposition, The filing user has been notified to file the Local Civil Rule 5(B) Notice, motion to seal. (klau, ) (Entered: 04/01/2016)
249 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 231 Order, Regarding Sensitive Security Information at the April 8, 2016 hearing (Sher, R.) (Entered: 04/01/2016)
250 NOTICE by Gulet Mohamed re 232 Sealed Memorandum in Support (Attachments: # 1 Appendix Unredacted Opposition, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(Abbas, Gadeir) (Entered: 04/05/2016)
251 Minute Entry for proceedings held before District Judge Anthony J Trenga: Motion Hearing held on 4/5/2016 re 217 MOTION for Partial Summary Judgment as to Counts I and IV of the Fifth Amended Complaint filed by Jeh C Johnson, Timothy J. Healy, John S. Pistole, James B. Comey, Eric H. Holder, Jr., and 221 MOTION for Partial Summary Judgment filed by Gulet Mohamed. Appearances of Counsel for Pltf. and Deft. Motions argued and TAKEN UNDER ADVISEMENT. Order to follow. (Court Reporter R. Montgomery.) (jall) (Entered: 04/05/2016)
252 ORDER denying 234 Motion to Seal. Signed by Magistrate Judge Michael S. Nachmanoff on 4/5/2016. (rban, ) (Entered: 04/05/2016)

Case: 1:11-cv-50 As of: 07/02/2018 10:49 PM EDT 23 of 23

04/05/2016 04/20/2016 04/20/2016 05/05/2016 07/20/2017 07/20/2017
07/20/2017 09/16/2017 09/20/2017 09/21/2017 12/21/2017
12/21/2017

253 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 242 Sealed Response/Reply/Opposition (Attachments: # 1 Defendants' Redacted Reply Brief)(Sher, R.) (Entered: 04/05/2016)
254 MOTION to Strike 250 NOTICE and Exhibits by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole. (Sher, R.) (Entered: 04/20/2016)
255 NOTICE by James B. Comey, Timothy J. Healy, Eric H. Holder, Jr, Jeh C Johnson, John S. Pistole re 254 MOTION to Strike 250 NOTICE and Exhibits of Submission Without a Hearing (Sher, R.) (Entered: 04/20/2016)
256 Brief in Opposition re 254 MOTION to Strike 250 NOTICE and Exhibits filed by Gulet Mohamed. (Abbas, Gadeir) Modified text on 5/6/2016 (klau, ). (Entered: 05/05/2016)
257 MEMORANDUM OPINION re Motion for summary judgment. Signed by District Judge Anthony J Trenga on 7/20/17. (klau, ) (Entered: 07/20/2017)
258 ORDER that Defendants' 217 Motion for Partial Summary Judgment be, and the same hereby is, GRANTED. ORDERED that Plaintiff's 221 Motion for Partial Summary Judgment be, and the same hereby is, DENIED. The Court directs the Clerk to enter judgment in favor of the United States on all counts pursuant to Federal Rule of Civil Procedure 58 (see order for details). Signed by District Judge Anthony J Trenga on 7/20/17. (klau, ) (Entered: 07/20/2017)
259 JUDGMENT pursuant to FRCP 58 in favor of the United States and against the plaintiff Gulet Mohamed. Entered by Clerk on 7/20/17. (klau, ) (Entered: 07/20/2017)
260 NOTICE OF APPEAL as to 257 Memorandum Opinion, 258 Order on Motion for Partial Summary Judgment,,, 259 Clerk's Judgment by Gulet Mohamed. Filing fee $ 505, receipt number 0422−5715489. (Abbas, Gadeir) (Entered: 09/16/2017)
261 Transmission of Notice of Appeal to US Court of Appeals re 260 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (lcre, ) (Entered: 09/20/2017)
262 USCA Case Number 17−7235 4th Circuit Case Manager C. Bennett for 260 Notice of Appeal filed by Gulet Mohamed. (lcre, ) (Entered: 09/21/2017)
263 ORDER of USCA as to 260 Notice of Appeal filed by Gulet Mohamed. Upon consideration of the motion to voluntarily dismiss this case pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure, and there appearing noopposition, the court grants the motion. (lcre, ) (Entered: 12/22/2017)
264 RULE 42(b) MANDATE as to 260 Notice of Appeal filed by Gulet Mohamed. This court's order dismissing this appeal pursuant to Local Rule 42(b) takes effect today. (lcre, ) (Entered: 12/22/2017)

 
 Case 1:11-cv-00050-AJT-TRJ Document 1 Filed 01/18/11 Page 1 of 14 PageID# 1

Nadhira F. Al-Khalili (VSB #46603)
THE COUNCIL ON AMERICANISLAMIC RELATIONS
453 New Jersey Avenue, South East Washington, D.C. 20003 Telephone: (202) 646-6034 Facsimile: (202) 488-3305
Email: nalkhalili@cair.com
Attorney for Plaintiff Gulet Mohamed
Gadeir Abbas (VSB #81161) [pro hac vice motion pending)
THE COUNCIL ON AMERICANISLAMIC RELATIONS
453 New Jersey Avenue, South East Washington, D.C. 20003 Telephone: (202) 742-6410 Facsimile: (202) 488-0833 Email: gabbas@cair.com Attorney for Plaintiff Gulet Mohamed

'If ~^>
\3 A

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

GULET MOHAMED Plaintiff
v.

CASE NO.: I -" 11 CV/*5"P
hon.: A^y-nts

ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States;
ROBERT S. MUELLER, III, in his
official capacity as Director of the Federal Bureau of Investigation; and
TIMOTHY J. HEALY, in his official capacity as Director of the Terrorist Screening Center.

COMPLAINT
FOR INJUNCTIVE AND DECLARATORY RELIEF
(Violation of Fourteenth Amendment Rights and the Administrative Procedure Act)

Defendants

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 Mohamed v. Holder, Not Reported in F.Supp.2d (2011)

2011 WL 3820711 Only the Westlaw citation is currently available.
United States District Court, E.D. Virginia, Alexandria Division.
Gulet MOHAMED, Plaintiff, v.
Eric H. HOLDER, Jr., et al., Defendants.
No. 1:11–cv–00050–(AJT/TRJ). | Aug. 26, 2011.
Attorneys and Law Firms
Nadhira Bint Faisal Al–Khalili, Council on American Islamic Relations, Washington, DC, for Plaintiff.
R. Joseph Sher, United States Attorney’s Office, Alexandria, VA, for Defendants.
Opinion
MEMORANDUM OPINION
ANTHONY J. TRENGA, District Judge.
*1 In this action, plaintiff Gulet Mohamed has asserted a broad range of constitutional and statutory claims arising out of his alleged physical abuse by Kuwaiti authorities with the knowledge, approval and actual involvement of agents of the United States, and his inability to board a return flight to the United States from Kuwait because of his placement on a “No–Fly List” by American authorities. Joined as defendants are a number of specifically named individuals, as well as certain “Unknown Agents” and “Unknown TSC Agents.”
This matter is before the Court on a motion to dismiss plaintiffs Second Amended Complaint (“SAC”) filed by defendants Eric H. Holder, Jr., Attorney General of the United States, Robert S. Mueller, III, Director of the Federal Bureau of Investigation (“FBI”), and Timothy J. Healy, Director of the Terrorist Screening Center (“TSC”) [Doc. No. 22], all of whom plaintiff has sued in their official capacities only (collectively, the “Official Capacity Defendants”). Upon consideration of the motion to dismiss, the memoranda and exhibits in support thereof and in opposition thereto, and the arguments of counsel, the Court concludes: (1) that plaintiff has not pleaded a legally cognizable claim against the Official Capacity Defendants in so far as plaintiff’s claims are based solely

on his placement in the Terrorist Screening Database (“TSDB”) and on the No–Fly List; and (2) this Court is without subject matter jurisdiction over plaintiff’s remaining claims against the Official Capacity Defendants or the Unknown TSC Agents named as defendants in the Second Amended Complaint. The Court will, therefore, dismiss plaintiffs claims based solely on his alleged placement in the TSDB and on the No–Fly List, and transfer the remaining claims against the Official Capacity Defendants and the Unknown TSC Agent defendants to the United States Court of Appeals for the Fourth Circuit pursuant to 28 U.S.C. § 1631. Plaintiff’s remaining claims under the Torture Victim Protection Act, 28 U.S.C. § 1350, Fifth Amendment due process claims based on his alleged detention and torture, and Fourth Amendment unreasonable seizure claims against the defendant Unknown Agents are unaffected by this decision and shall remain in this Court.
I. BACKGROUND
A. Plaintiff’s Factual Allegations In March 2009, plaintiff, an American citizen, traveled from the United States to Yemen to learn Arabic.2d. Am. Compl., ¶¶ 4, 30. After a brief stay in Yemen, plaintiff traveled to Somalia where he resided with relatives.2d Am. Compl., ¶ 30. In August 2009, plaintiff moved to Kuwait.2d Am. Compl., ¶ 30. Plaintiff resided in Kuwait without incident until December 20, 2010, when he was abducted from the Kuwait International Airport as he waited to renew his visa.2d. Am. Compl., ¶¶ 31–33. Plaintiff claims he was beaten, forced to stand for extended periods, threatened with more serious torture and even death, and interrogated by persons including an individual “who spoke American English” whom plaintiff alleges, upon information and belief, was an agent of the United States, after which he was placed in a Kuwaiti deportation facility.2d Am. Compl., ¶¶ 32–42. Plaintiff alleges that he was interrogated by individuals who identified themselves as FBI agents, and was contacted by an official from the U.S. Embassy who encouraged plaintiff to speak with the FBI.2d Am. Compl., ¶¶ 45–46. Ultimately, Kuwaiti officials attempted to deport plaintiff, but were unable to do so because plaintiff had been placed on a “No–Fly List” and was not permitted to board a United Airlines flight to the United States.2d Am. Compl., ¶¶ 44, 47. According to media reports, unnamed “American officials ... confirm[ed] that [plaintiff] is on a No–Fly list.” 2d Am. Compl., ¶ 44; see also Mem. in Supp. of Emer. Mot. for TRO and/or Prelim Inj., Ex. D.
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Mohamed v. Holder, Not Reported in F.Supp.2d (2011)
[Doc. No. 4–4]. After this legal action was commenced in January 2011, plaintiff was permitted to return to the United States.2d Am. Compl., ¶ 48
B. Plaintiff’s Claims *2 The plaintiff asserts the following claims: (1) violation of plaintiff’s Fourteenth Amendment right to citizenship (Count I); (2) “Unlawful Agency Action” under the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. and 701 et seq. (the “APA”) (Count II); (3) violation of the Torture Victim Protection Act, 28 U.S.C. § 1350 (Count III); (4) a Fifth Amendment due process claim based on plaintiff’s alleged detention and torture (Count IV); (5) violation of plaintiff’s Fifth Amendment due process rights to post-depravation notice and hearing (Count V); and (6) violation of plaintiff’s Fourth Amendment right to be free from unreasonable seizures (Count VI). In the SAC, plaintiff largely fails to clearly identify which claims are asserted against which defendants, or, as to those claims which appear to be asserted against the Official Capacity Defendants, what factual allegations plaintiff relies upon in support of his claims. Despite these ambiguities, it appears to the Court that plaintiff’s claims in Counts I, II and V are directed toward the Official Capacity Defendants, and the Court will analyze these claims as if they were asserted against each of the Official Capacity Defendants.
C. Procedural History Plaintiff filed this lawsuit on January 18, 2011 (at which time he remained in Kuwaiti custody), along with an emergency motion for a temporary restraining order and preliminary injunctive relief with respect to his inability to board a return flight to the United States [Doc. Nos. 1 & 3]. Plaintiff’s initial Complaint and subsequent Amended Complaint named only the Official Capacity Defendants as defendants based on asserted violations of the Fourteenth Amendment (through 42 U.S.C. § 1983) and the APA. The Court held a hearing on January 18, 2011, on plaintiff’s emergency motion, which was continued to January 20, 2011, based on the representations of the United States that it expected that the plaintiff would, in fact, be permitted to board a return flight to the United States. On January 20, 2011, the United States informed the Court that plaintiff was scheduled to arrive the following morning; and plaintiff in fact returned to the United States on January 21, 2011, rendering plaintiff’s emergency motion moot.
On March 21, 2011, the Official Capacity Defendants filed their first motion to dismiss. Plaintiff opposed the

motion on April 4, 2011, and a hearing was held on April 29, 2011, at which time the Court dismissed plaintiff’s Amended Complaint with leave to amend. In its written Order issued in connection with its ruling [Doc. No. 19], the Court found that plaintiff failed to plead his legal theories or the factual bases of those theories with sufficient clarity, and, as a result, the Court could not properly assess the United States’ arguments relating to standing, mootness, jurisdiction and exhaustion. The Court also directed the plaintiff to identify clearly in any subsequent amended complaint what security procedures he was challenging, including whether he was challenging: (1) his placement in the TSDB and the No–Fly List, and the absence or adequacy of the procedures pertaining to the TSC’s listing decision; (2) the implementation of the No–Fly List through the airlines; (3) the Department of Homeland Security Traveler Redress Inquiry Program (“DHS TRIP”), or all three. The Court further ordered plaintiffs to clearly identify: (1) the facts plaintiff contends establish standing and jurisdiction; (2) the legal rights that plaintiff contends were violated and the source of those rights; (3) the specific cause of action, whether it be pursuant to the APA, Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–2680, or otherwise; (4) the facts that support a plausible claim to relief; and (5) the relief that plaintiff seeks.
*3 In response to the Court’s Order, plaintiff filed an unsigned version of the SAC on May 20, 2011 [Doc. No. 20], and a signed corrected version of the SAC on May 24, 2011 [Doc. No. 21], which this Court will treat as the operative complaint. Although the SAC fails to comply fully with the Court’s April 29, 2011, Order, it appears based on what is pleaded in the SAC and the subsequent briefing on the Official Capacity Defendants’ motion to dismiss the SAC that the plaintiff is challenging—as against the Official Capacity Defendants—(1) his placement in the TSDB and No–Fly List, separate and apart from any dissemination of that information; and (2) the dissemination of his name to the Transportation Security Administration (“TSA”) and to the media as a person listed on the No–Fly List, along with the attendant consequences of his inability to fly in the past and future, and reputational harms that may flow from the dissemination of his listing.
D. The Challenged Government Security Tools. Programs and Procedures Central to plaintiffs claims are the security tools, programs and procedures that have been developed and implemented with respect to air travel. These include: (1)
2

Mohamed v. Holder, Not Reported in F.Supp.2d (2011)
the TSDB; (2) the No–Fly List and Selectee List; (3) the Secure Flight Program; and (4) the DHS TRIP. In support of their motion to dismiss based on lack of subject matter jurisdiction, the Official Capacity Defendants submitted certain sworn declarations and other information pertaining to the procedures and methods that are implicated in plaintiffs claims, which this Court may and will consider at this stage of this proceeding. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982) (in resolving a motion to dismiss for lack of subject matter jurisdiction, “[a] trial court may consider evidence by affidavit, depositions or live testimony without converting the proceeding into one for summary judgment”).
(1) The Terrorist Screening Database Most of plaintiff’s claims trace to his alleged inclusion in the TSDB as a suspected terrorist. The TSDB is the government’s consolidated terrorist watchlist, and is maintained by the TSC within the U.S. Department of Justice. Piehota Decl., ¶ 6. In order to be included in the TSDB, “nominations” to the TSDB must satisfy “certain substantive derogatory criteria establishing that the individual may be a known or suspected terrorist. Whether the individual satisfies the substantive derogatory criteria is generally based on whether there is reasonable suspicion to believe that a person is a known or suspected terrorist.” Piehota Decl., ¶ 12.
TSC personnel review nominations to the TSDB, and make determinations regarding the sufficiency of the identifying information provided with the nominations and substantive determinations regarding whether the nomination is substantively supported for inclusion in the TSDB, the No–Fly and Selectee Lists. Piehota Decl., ¶ 10. TSA employees assigned to and stationed at the TSC serve as “subject matter experts” regarding those individuals nominated to the No–Fly and Selectee Lists. Piehota Decl ., ¶ 11. The TSC, through the TSDB, makes terrorist identity information accessible to various screening agencies and law enforcement entities by the regular “export” or distribution of updated subsets of TSDB data. Piehota Decl., ¶ 15.
(2) The No–Fly List and Selec tee List *4 The TSDB information is “exported” to the TSA for inclusion on the No–Fly and Selectee Lists. The No–Fly List is “a list of individuals who are prohibited from boarding an aircraft” and the Selectee List is “a list of individuals who must undergo additional security screening before being permitted to board an aircraft.” Piehota Decl., ¶ 16. The TSA screens airline passengers

and crew against the No–Fly and Selectee Lists pursuant to its Secure Flight Program. Giuliano Decl., ¶ 10.
(3) The Secure Flight Program The Secure Flight Program was enacted pursuant to the TSA’s statutory responsibility to “use information from government agencies” to identify travelers who may pose a threat to national security or to civil aviation, so that it can “prevent [those] individual[s] from boarding an aircraft, or take other appropriate action with respect to [those] individual[s].” 49 U.S.C. § 114(h)(3). In this regard, the TSA must “compar[e] passenger information ... to the automatic selectee and No–Fly lists,” 49 U.S.C. § 44903(j)(2)(C), and, in consultation with the TSC, “design and review, as necessary, guidelines, policies, and operating procedures for the collection, removal and updating of data maintained, or to be maintained, in the no fly and automatic selectee lists.” 49 U.S.C. § 44903(j)(2)(E)(iii).
The Secure Flight Program requires aircraft operators to collect a passenger’s full name, date of birth, gender and “Redress Number” (if applicable). Lynch Aff., at p. 2, fn. 1. This information, along with certain additional information, such as passport and reservation information, is referred to as Secure Flight Passenger Data (“SFPD”). 49 C.F.R. § 1560.3. The airlines are required to transmit this SFPD to the TSA. 49 C.F.R. § 1560.101(b). The TSA, in turn, compares this information against the information contained in its watch lists, including the No–Fly and Selectee Lists. Lynch Aff., at p. 2, fn. 1; see also 49 C.F .R. § 1560.1(b) (“This part enables TSA to operate a watch list matching program known as Secure Flight, which involves the comparison of passenger and non-traveler information with the identifying information of individuals on Federal government watch lists”).
Airlines may not issue a boarding pass until they receive a response from TSA informing the airline of the results of the watch list matching process, and TSA provides the airlines with the government’s determinations regarding which individuals may or may not board an aircraft. TSA’s determinations are communicated by the TSA to the airlines through a “boarding pass printing result.” 49 C.F.R. § 1560.105(b). The Secure Flight Program was fully implemented for all U.S. airlines on June 22, 2010, and all covered airlines on November 23, 2010. Lynch Aff., at p. 2, fn. 1.
(4) Department of Homeland Security Traveler Redress Inquiry Program
3

Mohamed v. Holder, Not Reported in F.Supp.2d (2011)
The Official Capacity Defendants have challenged plaintiff’s ability to proceed in this Court with his claims based, in part, on his failure to exhaust the administrative review process that has been established for persons affected by the Secure Flight Program, known as DHS TRIP. Under DHS TRIP, if a traveler’s complaint relates to data in the TSDB, the matter is referred to the TSC Redress Unit, which assigns the matter to a TSC redress analyst. Piehota Decl., ¶ 29. The TSC does not, however, accept redress inquiries directly from the public.
*5 If the complaining traveler is a direct match to an identity in the TSDB, the TSC Redress Unit provides copies of the complaint form and other relevant information to the agency that nominated the traveler to the TSDB and will work with the nominating agency to determine whether the traveler belongs in the TSDB. Piehota Decl., ¶¶ 29–30. After reviewing the information available and considering any recommendation from the nominating agency, the TSC Redress Unit makes the determination whether the passenger’s information should remain in the TSDB or be modified or removed, and verifies that any appropriate changes are made by screening and law enforcement systems that rely on TSDB data, such as the No–Fly and Selectee Lists. Piehota Decl., ¶ 31.
After the TSC Redress Unit makes its decision, the TSA is notified of the decision. The TSA may send a determination letter to the traveller, but such a letter would not reveal the traveler’s status on the TSDB or what actions, if any, were taken in response to the traveler’s complaint. Piehota Decl., ¶ 32; see also Lynch Decl., ¶¶ 8–12.
II. ANALYSIS
The Official Capacity Defendants challenge this Court’s jurisdiction to hear plaintiff’s claims on the grounds that such jurisdiction lies exclusively in the Court of Appeals under 49 U.S.C. § 46110. In order to rule on the Official Capacity Defendants’ motion to dismiss, the Court must first decide whether plaintiff has stated a cause of action with respect to the challenged conduct, and if so, whether that claim is within the scope of the exclusive jurisdictional grant contained in Section 46110.
A. Relevant Jurisdictional Framework 49 U.S.C. § 46110(a) provides:

[A] person disclosing a substantial interest in an order issued by the [TSA] 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.
Section 46110(c) provides in relevant part that the courts of appeal have “exclusive jurisdiction to affirm, amend, modify, or set aside any part of the [TSA] order.” 49 U.S.C. § 46110(c) (emphasis added). Courts have given a broad construction to the term “order” in Section 46110 and its predecessor statute. See e.g. Gilmore v. Gonzalez, 435 F.3d 1125, 1132 (9th Cir.2006). The term “order” has been defined as a “decision which imposes an obligation, denies a right, or fixes some legal relationship.” Id. at 1133; see also Latif v. Holder, 10–cv–750, 2011 U.S. Dist. LEXIS 47263, at * 9–10 (D.Or. May 3, 2011) (applying Gilmore ); Scherfen v. United States Dept. of Homeland Sec., 3:CV–08–1554, 2010 U.S. Dist. LEXIS 8336, at *31–33 (M.D.Pa. Feb. 2, 2010) (TSA letters that reflect a final determination that “fixes some legal relationship” are TSA orders for purposes of Section 46110). Under Section 46110, the Court of Appeals has exclusive jurisdiction over challenges to a final TSA order. Courts have extended that jurisdiction to other claims that are “inescapably intertwined” with review of such orders. See e.g. Scherfen, 2010 U.S. Dist. LEXIS 8336, at 33–38; Dresser v. Ingolita, 307 Fed. Appx. 834, 842–43 (5th Cir.2009) (holding that plaintiff’s Bivens claims were “inescapably intertwined with a review of the procedures and merits surrounding” the orders at issue); Merrill v. Shuttle, Inc., 187 F.3d 263, 270–72 (2d Cir.1999) (same); see also Ibrahim v. Dept. of Homeland Sec., 538 F.3d 1250, 1259–1261 (9th Cir.2008) (Smith.J., dissenting).
B. Plaintiffs Substantive Claims *6 Plaintiffs claims can be broadly categorized as: (1) constitutional and reputational claims under the APA and the Due Process Clause of the Fifth Amendment as a result of plaintiff’s placement in the TSDB and on the No–Fly List; and (2) claims under the Fourteenth Amendment, the APA, and the Fifth Amendment as a result of the restrictions on his ability to travel, including return travel to the United States, imposed by his placement on the No–Fly List.
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Mohamed v. Holder, Not Reported in F.Supp.2d (2011)

The applicability of Section 46110 is to be judged by reference to the substance of plaintiff’s claims, not his characterization of those claims as something other than the review of a TSA order. See e.g. Dresser, 307 Fed. Appx. at 842–43 (finding lack of jurisdiction to hear Bivens action); Merilt, 187 F.3d at 270–72 (same). For that reason, the Court must decide, particularly in light of the substantial due process issues that those claims raise, whether these challenges are so related to the challenge of a TSA order that they are within the scope of Section 46110 or whether plaintiff has alleged a sufficiently independent cognizable injury, separate and apart from any TSA order that may relate to or issue out of the challenged conduct.1

1

A related issue is whether plaintiff has sustained an

injury sufficient for Article III standing, which requires:

(1) injury in fact that rises to the level of “an invasion

of a legally protected interest which is (a) concrete and

particularized ... and (b) actual or imminent, not

conjectural or hypothetical;” (2) causation, i.e., that

there be a “causal connection between the injury and

the conduct complained of” which is “fairly ...

trace[able] to the challenged action of the defendant;”

and (3) that the injury is likely to be redressed by a

favorable decision. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–61 (1992) (internal citations and

quotation marks omitted); Friends of the Earth, Inc. v.

Gaston Cooper Recycling Corp., 629 F.3d 387, 396–97

(4th Cir.2011). “[A] plaintiff must demonstrate

standing separately for each form of relief sought.”

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs, Inc.,

528 U.S. 167, 185 (2000). Because the elements of this

standing requirement are largely imbedded in the

determination whether plaintiff has stated a cognizable

constitutional tort claim, whether plaintiff has pleaded

an actionable constitutional tort claim based on his

reputational interests substantially merges with the

Article III jurisdictional analysis, and it is not necessary

to conduct a separate analysis of these claims in

deciding the Official Capacity Defendants’ motion to

dismiss.

(1) Placement in the TSDB and on the No–Fly List Plaintiff contends that he suffered a cognizable constitutional deprivation once his name was included in the TSDB and No–Fly List without any pre-listing notice or opportunity to be heard, and without any information concerning the factual basis for placing him in the TSDB or on the list, even without any further dissemination to TSA or any other agency. Since a TSA order issues only after the name of a person on the No–Fly List is disseminated from the TSDB to the TSA and a person is actually prevented from flying only after the TSA

disseminates the No–Fly directive to the airlines through the boarding pass printing result, the Court concludes that plaintiffs claim based solely on his listing is not sufficiently related to a TSA order to bring it within the scope of Section 46110. Accord Ibrahim, 538 F.3d at 1254–55 (Kozinski, C.J.). The Court must therefore determine whether plaintiff states a cognizable claim that can be adjudicated in this Court.
Plaintiff’s position that his listing itself is actionable relies principally on Joint Anti-fascist Refugee Commit tee v. McGrath, 341 U.S. 123 (1951). In McGrath, the Supreme Court addressed whether organizations that the Attorney General included on a list of groups designated by him as communist had a remedy based on alleged constitutional deprivations. The majority of the Court concluded that there was a justiciable controversy and that the organizations had standing to sue, albeit under a variety of different theories. See id. at 139–43, 157–59, 183–84.2 However, the harm that was considered in McGrath flowed not simply from an organization’s inclusion on a list of subversive organizations (which the dissent expressly found insufficient to deny them due process), but from the dissemination of that list to the Loyalty Review Board and to government departments and agencies, which then used the list to take actions against the organizations and their members, including the revocation of the organizations’ tax exemptions, the denial of certain licenses, and the institution of discharge proceedings against disloyal federal employees. While the Supreme Court splintered over the precise nature of the harm inflicted and the bases for and extent of an available remedy, a majority of the Supreme Court anchored their decision on the harm that was caused by the dissemination and use of the list, rather than the listing itself.

2

Specifically, Justices Burton, Douglas, and Black found

that organizations have standing to assert a right to

operate free from what amounts to common law

defamation, specifically, being branded as a communist

or subversive. Id. at 139–43. Justice Frankfurter

concluded that the blacklisting violated the First

Amendment and was in the nature of a Bill of

Attainder. Justices Black, Frankfurter and Douglas

found that the kind of condemnation implicit in the

organizations’ blacklisting would be barred under the

Due Process Clause of the Fifth Amendment without

notice and a fair hearing. Id. at 143, 157–59. Justice

Jackson, by contrast, found that “mere designation as

subversive deprives the organizations themselves of no

legal right or immunity,” but that the harm to individual

members of the organizations at issue gave rise to an

injury that would support standing. Id. at 183–84.

Justices Minton and Reed concluded that the

blacklisting did not confer standing or constitute a

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Mohamed v. Holder, Not Reported in F.Supp.2d (2011)
constitutional deprivation.
*7 Following McGrath, no clear jurisprudence has developed concerning whether and to what extent there are constitutional protections from internal, non-public government listings based on a person’s presumed threat to national security or public safety, without some other conduct or consequence. The Fourth Circuit has recognized in at least one case a “constitutional harm” based on the inclusion of defamatory information in a non-public government file if there is a “likelihood” of dissemination to the public. Sciolino v. City of Newport News, 480 F.3d 642, 650 (4th Cir.2007); but see Bishop v. Wood, 426 U.S. 341, 384 (1976) (the due process clause of the Fourteenth Amendment is not implicated “when there is no public disclosure” of the allegedly defamatory information and the defendant has no otherwise legally recognized interest at stake). The Fourth Circuit has also made clear that prospective victims of government defamation must have access to a pre-deprivation process. Sciolino, 480 F.3d at 653 (“Fundamental to due process is an opportunity to be heard—‘an opportunity which must be granted at a meaningful time’ ... An opportunity to clear your name after it has been ruined by dissemination of false, stigmatizing charges is not ‘meaningful’ ”) (internal citation omitted); but see also Matthews v. Eldridge, 424 U.S. 319, 334–35 (1976) (explaining that “[d]ue process is flexible and calls for such procedural protections as the particular situation demands” and requiring courts to consider: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous depravation of such interest through the procedures used, and the probative value, if any, of additional substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail). In Sciolino, however, the plaintiff was terminated from his government employment, and the nexus between that termination and the plaintiff’s “stigmatic injury” clearly motivated and was at the heart of the court’s analysis. Compare with Siegert v. Gilley, 500 U.S. 226, 233 (1991) (“Defamation, by itself, is a tort actionable under the laws of most states, but not a constitutional deprivation”); Johnson v. Morris, 903 F.2d 996, 999 (4th Cir.1990) ( “Publication of stigmatizing charges alone, without damage to ‘tangible interests such as employment,’ does not invoke the due process clause” of the Fourteenth Amendment).
Without minimizing the substantial liberty issues implicated by internal government listings such as those represented by the TSDB and the No–Fly List, the Court

concludes that plaintiff must allege something more than only his inclusion in the TSDB and No–Fly List in order to state a constitutional claim. Here, plaintiff claims that his listing in the TSDB constitutes a defamatory statement that he is or is suspected of being a terrorist. But more than a defamatory listing itself is necessary to state a claim. Plaintiff has not alleged that his name as someone listed on the TSDB or No–Fly List has or will be disseminated or used for any purpose other than the implementation of the Secure Flight Program administered by the TSA. Nor is there one that the Court can reasonably infer. Plaintiff does allege that his listing on the No–Fly List was “leaked” to the New York Times, but that action is not alleged to have been an official action, authorized as part of the official program administered by the Official Capacity Defendants. Rather, the plaintiff generally alleges that he has been injured because the government’s confirmation that he was placed on the No–Fly List means that the government suspects plaintiff to be a terrorist, and that the government’s determination “encroaches upon [p]laintiff’s reputational interests and interferes with his future personal and professional relationships.” 2d Am. Compl., ¶¶ 68–69. These kinds of vague, non-specific harms are not sufficient. See Ridpath v. Bd. of Governors, 447 F.3d 292, 309 fn. 16 (4th Cir.2006) (under the prevailing “stigma-plus” analysis, “no deprivation of a liberty interest occurs when, in the course of defaming a person, a public official solely impairs that person’s future employment opportunities, without subjecting him to a present injury such as termination of government employment”) (emphasis original). For these reasons, the Court concludes that the plaintiff has failed to state a claim based solely on his alleged inclusion in the TSDB and on the No–Fly List, and those claims will be dismissed.
(2) Plaintiffs Inability to Fly as a Result of His Inclusion on the No–Fly List *8 Plaintiff also contends that he has been injured by his placement on the TSDB and No–Fly List because of the consequences that flow from that placement, specifically, his past inability to return by air to the United States from Kuwait, and the impact on his ability to travel by air in the future. This claim also raises substantial constitutional issues, including the nature and scope of the alleged “right of return” to the United States.3 While the answers to those issues may bear on whether the DHS TRIP provides adequate process, the key question before the Court is whether they sufficiently implicate a TSA order under Section 46110. The Court concludes that they do because an individual is personally affected in his ability to travel only after the issuance of the “boarding pass printing
6

Mohamed v. Holder, Not Reported in F.Supp.2d (2011)

result” that instructs the airlines not to issue a boarding pass to a traveler on the No–Fly List.4 This restriction on a traveller, communicated in the boarding pass printing result, is a TSA “order” because it imposes a legal obligation on the airline to deny a boarding pass to a putative passenger. For that reason, the Court concludes that the issues plaintiff raises with respect to his inability to fly are “inescapably intertwined” with TSA orders; and that this Court does not have subject matter jurisdiction over those claims, regardless of whether such a claim may procedurally be pursued as a Bivens claim, as an appeal of an arbitrary and capricious final agency order under the APA, or the subject matter for declaratory relief. Rather, the Court of Appeals is the correct forum in which to litigate these issues. See e.g. Scherfen, 2010 U.S. Dist. LEXIS 8336, at 33–38; Latif, 2011 U.S. Dist. LEXIS 47263, at *10–15; Dresser, 307 Fed. Appx. at 842–43; Merritt, 187 F.3d at 270–72; Ibrahim v. Dept. of Homeland Sec., 538 F.3d at 1259–1261 (Smith, J.. dissenting); Gilmore, 435 F.3d at 1133, fn. 9. As a result, the adjudication of plaintiffs claims that are based on his allegations that he was denied the right to board, or will be denied the right to board an aircraft, are vested in the Court of Appeals.5

3

The United States contends, briefly summarized, that a

citizen’s right to re-enter the United States does not

extend to a right to return to the border by a specific

means of travel, but rather extends only to the right to

re-enter the country once a citizen actually presents

himself at the border.

4

Plaintiff’s attempt to plead this injury in terms of a

denial to purchase and utilize airplane tickets “in

common with the rest of the citizenry,” see Paul v.

Davis, 424 U.S. 693, 708–09 (1973), does not change

this analysis because the record before the Court does

not suggest that plaintiff would be prevented from

purchasing airline tickets, only that he was and would

be prevented from boarding a flight by the TSA’s

Secure Flight Program.

5

The Official Capacity Defendants also take the position

that any claims related to the DHS TRIP must also be

addressed in the Court of Appeal. The adequacy of that

program may bear on certain of the due process issues

that the plaintiff has raised and which are in the

jurisdiction of the Court of Appeals. However,

proceedings pursuant to DHS TRIP do not necessarily

require or result in an action that would qualify as a

TSA “order,” and specific challenges to DHS TRIP

may or may not come within Section 46110. In this

case, however, plaintiff has not identified a legally

cognizable interest that is not inescapably intertwined with a TSA order, and the Court therefore expresses no view as to whether the process afforded through the DHS TRIP is adequate, either as a matter of constitutionally required due process or as compliance with the statutory mandate to afford an effective method of redress to someone who wishes to challenge his inclusion in the TSDB or No–Fly List. Likewise, the Court expresses no view concerning the substantial constitutional issues that relate to the restrictions on judicial review of governmental conduct imposed through Section 46110, particularly because the jurisdictional grant to the Court of Appeals is silent as to what information will be presented to the Court of Appeals as the record upon which it is to decide the issues committed to its exclusive jurisdiction, how and by whom that record is to be created, and what opportunity the plaintiff has to obtain relevant information for inclusion in that record. In any event, these are issues for the Court of Appeals.

C. Administrative Exhaustion through DHS TRIP Finally, the Court rejects the Official Capacity Defendants’ position that plaintiff must exhaust whatever means of seeking redress he has through DHS TRIP before he can proceed either in this Court or the Court of Appeals. As noted above, there are substantial questions regarding whether this post-listing process is sufficient to satisfy due process requirements; and the Fourth Circuit has expressly declined to require the completion of an administrative decision making process where the “practical effect of the [agency’s] determination” is to accomplish a deprivation before an established administrative appellate process is completed. See e.g. Chamblee v. Espy, 100 F.3d 15, 17–18 (4th Cir.1996) (review appropriate under APA where practical effect of agency action was to suspend loan restructuring on which plaintiff relied to avert loss of interest in farm). This result is particularly appropriate here, where jurisdiction is vested in the Court of Appeals by virtue of an agency order, but no such order would necessarily issue as a result of the administrative process that the government contends plaintiff should be required to exhaust.6 The Court therefore declines to prevent review of plaintiffs due process claims by recognizing an exhaustion requirement that may or may not be imposed by the Court of Appeals.

6

Indeed, the record before the Court and the

representations of counsel for the Official Capacity

Defendants at oral argument reveal that any letter

provided by the TSA at the conclusion of a DHS TRIP

review is non-substantive, does not reveal whether an

7

Mohamed v. Holder, Not Reported in F.Supp.2d (2011)
alteration in status has been accomplished, and has no substantive relationship to the TSC’s review of a complaint by a listee. See e.g. Piehota Decl., ¶ 32; Lynch Decl., ¶¶ 8–12. Unlike a boarding pass printing result, which has a binding legal effect upon the airline receiving that order, the ultimate letter from the TSA does not affect a change in legal obligation, which, if at all, is accomplished by the TSC and is not communicated to the listee or an airline until another boarding pass printing result is issued.
D. Transfer to the Court of Appeals *9 Pursuant to 28 U.S.C. § 1631, if the Court “finds that there is a want of jurisdiction [over a civil action or appeal], the court shall. if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed.” In order to transfer a case pursuant to Section 1631:(1) there must be a lack of jurisdiction in the district court; (2) the transfer must be in the interest of justice; and (3) the transfer can be made only to a court in which the action could have been brought at the time it was filed or noticed. Ukiah Adventist Hosp. v. FTC, 981 F.2d 543, 549 (D.C.Cir.1992). The statute confers upon the Court “authority to make a single decision upon concluding that it lacks jurisdiction—whether to dismiss the case or, ‘in the interest of justice,’ to transfer it to a court of appeals that has jurisdiction .” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988).
Here, the Court has determined that it does not have jurisdiction over the plaintiff’s non-dismissed claims against the Official Capacity Defendants. The Court also concludes that it is in the interests of justice that the substantial and unresolved issues pertaining to plaintiff’s claims against the Official Capacity Defendants be judicially addressed. The plaintiff resides within the Fourth Circuit and the Fourth Circuit has subject matter jurisdiction over plaintiffs remaining claims pursuant to 49 U.S.C. § 46110. The only remaining issue is the scope of the claims that may be transferred to the Court of Appeals.
At this time, the Official Capacity Defendants are the only defendants presently before the Court. Plaintiff, however, also asserts claims against the absent defendant “Unknown Agents” and “Unknown TSC Agents.” At least one of these claims. Count I, appears to be asserted against a combination of Official Capacity Defendants and the Unknown TSC Agents, and relates to the denial of boarding.2d Am. Compl., ¶¶ 49–53. Because the claims

relate to the activities by which the TSC accomplished plaintiff’s placement on the No–Fly List, plaintiff’s remaining claims against these putative defendants would be inescapably intertwined with the TSA’s order requiring the airline to deny plaintiff a boarding pass for the reasons discussed above, and such a claim is properly within the jurisdiction of the Court of Appeals. See Dresser, 307 Fed. Appx. at 842–43; Meritt, 187 F.3d at 270–72.
Counts III and IV. on the other hand, appear to be directed only toward the “Unknown Agents,” and relate to plaintiffs torture claims, which are unrelated to any denial of boarding.2d Am. Compl., ¶¶ 57–64. Similarly. Count VI appears to accuse the Unknown Agents with conspiring to cause Kuwaiti officials to seize plaintiff, and deny him access to counsel, the courts and his consulate, but does not allege unlawful detention in connection with his denial of a boarding pass during Kuwaiti officials’ attempts to deport him.2d Am Compl., ¶¶ 70–72. As such, these claims would not properly be within the jurisdiction of the Court of Appeals in the first instance pursuant to Section 46110.
*10 Although the Fourth Circuit has not addressed the application of Section 46110 with respect to transfer under Section 1631, other federal circuits have concluded, albeit without reference to Section 46110, that Section 1631 permits the severance and transfer of less than an entire action. See D’Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 110–111 (3d Cir.2009); United Stales v. County of Cook, 170 F.3d 1084, 1087–89 (Fed.Cir.1999) (concluding that transfer of less than entire action is appropriate under Section 1631). However, at least one federal circuit has reached the opposite conclusion. Hill v. United States Air Force, 795 F.2d 1067, 1070–71 (D.C.Cir.1986) (finding that Section 1631 “directs a court to transfer an ‘action’ over which it lacks jurisdiction, rather than an individual claim”). In this case, the underlying nature of plaintiffs claims extend beyond the issues to be addressed by the Court of Appeals and those claims over which this Court does have jurisdiction will be unaffected by the decisions of the Court of Appeals on the issues transferred to it. The Court, therefore, concludes under the specific circumstances presented in this case that it may, and should, transfer fewer than all of plaintiff’s claims in this action to the Court of Appeals.
Accordingly, the Court will transfer to the United States Court of Appeals for the Fourth Circuit plaintiff’s claims against the Official Capacity Defendants and the defendant Unknown TSC Agents that relate to plaintiff’s inability to fly. Plaintiff’s remaining claims against the defendant “Unknown Agents,” Counts III, IV and VI, shall be unaffected by the transfer and remain in this
8

Mohamed v. Holder, Not Reported in F.Supp.2d (2011)
Court.
CONCLUSION For the above reasons, the Official Capacity Defendants’ motion to dismiss will be granted in part and denied in part. Plaintiff’s claims against the Official Capacity Defendants based solely on plaintiff’s alleged inclusion in the TSDB and No–Fly List will be dismissed. Plaintiff’s

remaining claims against the Official Capacity Defendants and the defendant Unknown TSC Agents will be transferred to the United States Court of Appeals for the Fourth Circuit. Plaintiff’s remaining claims against the defendant Unknown Agents are unaffected and shall remain in this Court.
An appropriate Order will issue.
	  

9

 
 Case 1:11-cv-00050-AJT-TRJ Document 44 Filed 03/02/12 Page 1 of 4 PageID# 578

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

GULET MOHAMED,

Plaintiff,

v.

No. l:ll-cv-50(AJT/TRJ)

UNKNOWN AGENTS,

Defendants.

ORDER
On February 16, 2012, the Court issued an Order [Doc. No. 40] requiring the plaintiff to show cause why this action should not be dismissed pursuant to Fed. R. Civ. P 4(m) for failing to effect service on the remaining defendants in this case within 120 days from the filing of suit. Upon consideration of plaintiffs response [Doc. No. 41] and the government's reply thereto [Doc. No. 43], the Court finds that plaintiff has failed to establish "good cause for the failure" to serve and the case will be dismissed without prejudice.
On May 24, 2011, the plaintiff filed his Second Amended Complaint alleging two categories of claims. The first category of claims related to his placement on the no-flylist and was brought against defendants Attorney General Eric Holder, Federal Bureau of Investigation ("FBI") Director Robert Mueller, Director of the Terrorists Screening Center Timothy Healy, and "Unknown Terrorists Screening Center Agents" (the "no-flylist claims"). The second category of claims were brought against "Unknown Agents" and alleged that those agents tortured him in Kuwait (the "torture claims").

Case 1:11-cv-00050-AJT-TRJ Document 44 Filed 03/02/12 Page 2 of 4 PageID# 579
On August 26,2011, the Court granted the government's motion to dismiss the no-fly-list claims on the grounds that the Courts of Appeals had exclusive jurisdiction
over those claims, and transferred those claims to the Fourth Circuit. [Doc. No. 32]. The Court retained jurisdiction over the torture claims, although plaintiff had yet to effect
service upon the Unknown Agent defendants, the only remaining defendants in the case. On September 1,2011, the Court entered a scheduling order setting the initial Rule 16 pretrial conference for September 28,2011, the close of discovery on January 13,2012, and the final pretrial conference for January 19, 2012. [Doc. No. 33]. On September 28,
2011, after the initial pretrial conference, the Court entered a Rule 16(b) Scheduling Order. [Doc. No. 35].
The plaintiff did not raise with the Court during the discovery period any issues related to service on the Unknown Agents. Rather, on January 18, 2012, the day before the final pretrial conference, he filed an emergency motion to continue the final pretrial conference [Doc. No. 37], on the grounds that based on agreements reached with the government, he intended to request not later than February 22, 2012 leave to add additional defendants through a third amended complaint. The Court denied that motion in an Order dated January 18, 2012 [Doc. No. 38]; and the final pre-trial conference was held on January 19, 2012 as scheduled, at which the Court scheduled a trial date of March
19,2012.
With no service yet effected on the remaining defendants, the Court entered its show cause Order on February 16,2012. [Doc. No. 40]. On February 27, 2012, plaintiff filed his response to the show cause Order [Doc. No. 41]; and on February 28, 2012, plaintiff filed his motion for leave to file a third amended complaint [Doc. No. 42].

Case 1:11-cv-00050-AJT-TRJ Document 44 Filed 03/02/12 Page 3 of 4 PageID# 580
Rule 4(m) requires a Court to dismissan actionwithout prejudice if a defendant has not been served within 120 days, unless the plaintiff "shows good cause for the failure." Fed. R. Civ. P. 4(m). Plaintiff contends that he has not been able to execute service because he "does not know the identities of the persons responsible for his torture and detention." [Doc. No. 41, p. 3], The Court concludes that the plaintiff has not demonstrated good cause for his failure to effect service.
Beginning no later than September 1,2012, plaintiff had the ability to seek through discovery the identities of those "Unknown Agents." However, as reflected in the record [Doc. Nos. 36 and 37], plaintiffs first effort in that regard was his issuance of a discovery subpoena to the FBI on October 7,2012, requesting the identity of the Unknown Agents who had allegedly tortured the plaintiff. On October 24,2011, the government objected to the subpoena, but proposed that plaintiff file a third amended complaint, which would name the FBI agents by pseudonyms, to be provided by the government, and the governmentwould accept service on behalf of those so identified agents, without prejudice to those agents' rights to move to dismiss the claims against them. On November 28,2011, over a month later, plaintiff agreed to proceed in that manner. However, plaintiff then delayed moving to file a third amended complaint pursuant to that proposal until February 28,2012, after the final pre-trial conference and after the Court set a trial date. Nowhere in his response to the show cause Order has the plaintiff explained (1) the one-month delay in agreeing with the government's proposal or (2) the delay in filing its third amended complaint in accordance with that agreement.
In his response, the plaintiff also seeks an extension of time "in the interests of judicial economy." In that regard, the plaintiff argues that there is a chance the claims

Case 1:11-cv-00050-AJT-TRJ Document 44 Filed 03/02/12 Page 4 of 4 PageID# 581
that were transferred to the Fourth Circuit could be remanded to this Court, and, if they were, dismissal of this action would create duplicative litigation. What this position ignores is that the claims transferred to the Fourth Circuit relate to different allegations and different defendants than those that remain here, as this Court previously stated in its Memorandum Opinion dated August, 26,2011. [Doc. No. 31, at 20 (holding that the plaintiffs torture claims are unrelated to the no-fly-list claims)]. The plaintiff also fails to recognize that were his request to extend the time for him to effect service on some defendant, either existing or to be joined, discovery, which closed on January 13, 2012, would need to be extended and the trial date currently set for March 19,2012, would
need to be vacated.
For all the above reasons, the Court finds and concludes that the plaintiff has failed to show cause for his failure to effect service, as required; and it is hereby
ORDERED that this action be, and the same hereby is, DISMISSED without prejudice pursuant to Federal Rule of Civil Procedure 4(m).
The Clerk is directed to forward copies of this Order to all counsel of record.

Alexandria, Virginia March 2, 2012

Anthony J.Trenga United States District Judge

 
 Case 1:11-cv-00050-AJT-TRJ Document 45 Filed 05/28/13 Page 1 of 6 PageID# 582
FILED: May 28, 2013 UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1924 (1:11-cv-00050-AJT-TRJ)
GULET MOHAMED, Petitioner,
v. ERIC H. HOLDER, JR., Attorney General; JANET NAPOLITANO, Secretary of Department of Homeland Security,
Respondents.
O R D E R
Presently before the court is the respondents’ motion to dismiss Gulet Mohamed’s petition for review. Mohamed filed a complaint in the district court that was transferred here pursuant to 28 U.S.C. § 1631 (2006) after the district court concluded that this Court has exclusive jurisdiction to consider several of Mohamed’s claims.
The respondents assert that the district court correctly found that it lacked jurisdiction and argue that the petition should be dismissed because it fails to comply with Fed. R. App. P. 15(a), and because Mohamed has not exhausted his

Case 1:11-cv-00050-AJT-TRJ Document 45 Filed 05/28/13 Page 2 of 6 PageID# 583
available administrative remedies. In a cross motion seeking remand, Mohamed submits that the district court has jurisdiction. In short, the parties agree, albeit on different grounds, that Mohamed’s petition for review is not properly before us. Because the district court erred in determining the limits of its jurisdiction, we conclude that transfer of Mohamed’s claims to this court was improper. Accordingly, we vacate the district court’s order to that effect, and remand the matter to the district court.
Mohamed, a United States citizen and resident of Virginia, initiated the relevant pro ceedings in January 2011, after he was allegedly barred from a United Airlines flight leaving Kuwait because he is included on the federal government’s list of individuals who may not board commercial flights originating from or bound for destinations within the United States (“No-fly list”). Although Mohamed was eventually allowed to return to this country, he claims that he remains on the No-fly list.
Mohamed alleged that the respondents played some role in placing or maintaining him on the No-fly list, which burdens his right to travel and to return to the United States from
2

Case 1:11-cv-00050-AJT-TRJ Document 45 Filed 05/28/13 Page 3 of 6 PageID# 584
trips abroad. Mohamed further alleges that he has no meaningful opportunity to contest this classification.1
Mohamed sought an injunction requiring the respondents to 1) remove him from federal government watch lists, 2) inform him of the grounds for his inclusion on the No-fly list, and 3) provide him an opportunity to rebut the “government’s charges.” Mohamed also sought unspecified monetary damages, and reimbursement for his litigation costs, as well as a declaration that the respondents violated his rights.
The district court held that it lacked jurisdiction to consider Mohamed’s challenge to past or future restrictions on his ability to travel because such claims are “inescapably intertwined” with the review of TSA orders, over which this Court has exclusive jurisdiction under 49 U.S.C. § 46110 (2006). Blitz v. Napolitano, 700 F.3d 733, 735-36 (4th Cir. 2012); see e.g., Ligon v. LaHood, 614 F.3d 150, 154-57 (5th Cir. 2010) (discussing the “inescapably intertwined” doctrine in reference to 49 U.S.C. § 46110 and collecting cases), cert. denied, 131 S. Ct. 3063 (2011). In reaching this conclusion, however, the district court inappropriately truncated the analysis this Court
1 We note that a copy of Mohamed’s initial complaint has been transferred to this court as his petition for review. The district court, however, purported to transfer claims raised in Mohamed’s second amended complaint. So as not to further delay the disposition of this matter, we consider Mohamed’s claims as stated in the final version of his complaint.
3

Case 1:11-cv-00050-AJT-TRJ Document 45 Filed 05/28/13 Page 4 of 6 PageID# 585

has found appropriate in situations, such as this, in which

Congress has arguably sought to limit the jurisdiction of the

district courts by channeling review of an agency’s actions to

an administrative review process or the circuit courts.

The Supreme Court recently reiterated that the proper

inquiry examines whether Congress’ intent to preclude district

court review of an agency’s actions is “fairly discernible” from

the “text, structure, and purpose” of the relevant statute or

statutes. Elgin v. Dep’t of the Treasury, 132 S. Ct. 2126, 2133

(2012); see Blitz, 700 F.3d at 740 (applying Elgin and holding

that § 46110 deprived district court of jurisdiction over

constitutional challenge to TSA search procedures).

The statutory review scheme at issue here involves a

general congressional directive that the DHS and the TSA

establish a “timely and fair process” for aggrieved travelers to

contest their identification as a threat to air travel and

“correct any erroneous information.” 49 U.S.C.

§§ 44903(j)(2)(C)(iii),(G)(i) (2006); 49 U.S.C. §

44926(a)

(2006). Additionally, 49 U.S.C. § 46110 gives this Court broad

discretion to “affirm, amend, modify, or set aside any part” of

a TSA or DHS order and direct further proceedings by either

agency. Considering the unique character of Mohamed’s claims,

we do not fairly discern from either grant of authority a

4

Case 1:11-cv-00050-AJT-TRJ Document 45 Filed 05/28/13 Page 5 of 6 PageID# 586
congressional intent to remove such claims from review in the district court.
First, this is not a situation in which Congress has “painstaking[ly]” constructed an administrative process for resolving claims like Mohamed’s, which challenge the interagency actions of the TSC and the TSA. See Elgin, 132 S. Ct. at 2133-34 (elaborate procedural and remedial framework indicates Congress’ intent to limit district court jurisdiction); Nat’l Taxpayers Union v. United States Soc. Sec. Admin., 376 F.3d 239, 242 (4th Cir. 2004) (statutory provision of various procedural protections during administrative review process evidenced Congress’ intent to preclude district court jurisdiction).
Further, as the Ninth Circuit determined when considering its jurisdiction under 49 U.S.C. § 46110 and claims indistinguishable from those at issue here, resolving substantive and procedural due process challenges to an individual’s inclusion on the No-fly list necessarily requires scrutiny of both the TSC’s and the TSA’s actions, and, should a remedy be required, it will likely involve both agencies. Latif v. Holder, 686 F.3d 1122, 1127-29 (9th Cir. 2012). Although 49 U.S.C. § 46110 gives us broad powers of review over orders of the TSA, it does not give us similar independent authority over the TSC. Moreover, the efficacy of our review is limited by our inability to directly review the TSC’s actions,
5

Case 1:11-cv-00050-AJT-TRJ Document 45 Filed 05/28/13 Page 6 of 6 PageID# 587

direct the agency to develop necessary facts or evidence, or compel its compliance with any remedy we might fashion. Elgin, 132 S. Ct. at 2138; Nat’l Taxpayers Union, 376 F.3d at 243-44. Thus, Mohamed’s claims are readily distinguishable from those we recently considered in Blitz.
We therefore conclude that § 46110 does not evidence Congress’ intent to exclude Mohamed’s challenge to past and future restrictions on his ability to travel from consideration in the district court and, consequently, that transfer under 28 U.S.C. § 1631 was improper. We grant Mohamed’s motion to remand, vacate the portion of the district court’s order transferring the claims, and remand for proceedings consistent with this order. 2 We deny as moot the respondents’ motion to dismiss.
Entered at the direction of the panel: Judge Gregory, Judge Davis, and Judge Keenan.

For

the Court

/s/

Patricia S. Connor, Clerk

2 By this disposition, we offer no opinion as to whether the district court’s jurisdiction is otherwise proper or regarding the merits of Mohamed’s claims, leaving those issues to be considered in the first instance on remand.
6

 
 Mohamed v. Holder, --- F.Supp.2d ---- (2014)

2014 WL 243115 Only the Westlaw citation is currently available.
United States District Court, E.D. Virginia, Alexandria Division.
Gulet MOHAMED, Plaintiff, v.
Eric H. HOLDER, Jr., et al., Defendants.
No. 1:11–CV–50 (AJT/TRJ). | Jan. 22, 2014.
Synopsis Background: United States citizen, who traveled to Yemen, Somalia, and Kuwait to visit relatives and learn Arabic, brought action against Attorney General, director of the Federal Bureau of Investigation (FBI), and director of the Terrorist Screening Center (TSC), alleging placement on no-fly list violated his rights of reentry and to due process and was arbitrary and capricious. Defendants moved to dismiss.
Holdings: The District Court, Anthony J. Trenga, J., held that:
[1] citizen was not required to administratively exhaust his claims;
[2] citizen had standing;
[3] placement on no fly list did not violate his Fifth Amendment substantive due process right of reentry;
[4] allegations were sufficient to state a claim for violations of Fifth Amendment substantive due process; and
[5] allegations were sufficient to state a claim for violations of Fifth Amendment procedural due process.
Motion granted in part.
See also 2011 WL 3820711.
Attorneys and Law Firms
Gadeir Ibrahim Abbas, Council on American Islamic Relations, Washington, DC, for Plaintiff.

R. Joseph Sher, United States Attorney’s Office, Alexandria, VA, for Defendants.
Opinion
MEMORANDUM OPINION
ANTHONY J. TRENGA, District Judge.
*1 Plaintiff Gulet Mohamed has filed a three-count Third Amended Complaint based on his alleged placement on the No Fly List compiled by Defendant Terrorist Screening Center (the “TSC”). In Count I, Mohamed alleges that his constitutional right of reentry into the United States has been, and continues to be, infringed by his placement on the No Fly List. In Count II, Mohamed appeals, under the Administrative Procedure Act (“APA”), the TSC’s decision to place him on the No Fly List, contending that the TSC’s decision was arbitrary and capricious and contrary to law. In Count III, Mohamed alleges that he has been denied procedural due process in connection with his placement on the No Fly List. This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff’s Third Amended Complaint [Doc. No. 58]. For the reasons set forth below, the Court concludes that, as applied to American citizens, the No Fly List raises substantial constitutional issues, and that the plaintiff has alleged facts sufficient to make plausible certain of his constitutional claims. The Motion will therefore be GRANTED in part and DENIED in part.
I. BACKGROUND
A. Procedural History On January 18, 2011, Mohamed filed this action against Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, Robert S. Mueller, III, in his official capacity as Director of the Federal Bureau of Investigation (“FBI”), and Timothy J. Healy, in his official capacity as Director of the TSC (collectively, the “Official Capacity Defendants”). Mohamed claims the Official Capacity Defendants violated his constitutional rights by placing him on the “No Fly List,” the federal government’s list of individuals on its terrorist watchlist who are prohibited from boarding commercial flights originating from or bound for destinations within the United States, and by preventing him from returning from
1

Mohamed v. Holder, --- F.Supp.2d ---- (2014)
Kuwait to the United States. Accompanying Mohamed’s complaint was an application for emergency relief with respect to his alleged inability to return to the United States from Kuwait because of his placement on the No Fly List. After an initial hearing held on January 18, 2011, Mohamed’s application for emergency relief became moot when he was permitted to return to the United States on January 21,2011.
On May 20, 2011, Mohamed amended his complaint to add as defendants in their individual capacities “Unknown Agents,” who he alleged tortured him in Kuwait, and “Unknown TSC Agents,” who he alleged placed him on the No Fly List while he was abroad. In response, the defendants filed a motion to dismiss [Doc. No. 22], which the Court granted in part and denied in part on August 26, 2011, 2011 WL 3820711 [Doc. Nos. 31–32]. In that Order, the Court dismissed those of Mohamed’s claims against the Official Capacity Defendants that were based solely on his alleged inclusion in the Terrorist Screening Database (“TSDB”) and on the No Fly List and transferred his remaining claims against the Official Capacity Defendants, as well as his claims against the Unknown TSC agents, to the Court of Appeals for the Fourth Circuit pursuant to 49 U.S.C. § 46110, which gives the Courts of Appeals exclusive jurisdiction over challenges to certain orders of the Transportation Security Administration (“TSA”).1 This Court retained jurisdiction over the remaining claims against the Unknown Agent Defendants. However, Mohamed failed to timely identify, join and serve those defendants and, on March 2, 2012, the Court dismissed the case as to those defendants pursuant to Fed.R.Civ.P. 4(m).
*2 On May 28, 2013, the Court of Appeals entered an order vacating that portion of this Court’s Order dated August 26, 2011 that transferred certain claims to it and remanding the case to this Court for further proceedings, having concluded that it lacked exclusive jurisdiction over Mohamed’s claims pursuant to 49 U.S.C. § 46110. On August 29, 2013, Mohamed filed his Third Amended Complaint, which the defendants moved to dismiss on September 27, 2013. The Court held a hearing on the Motion to Dismiss on November 15, 2013, at which time it took the matter under advisement.
B. Factual Allegations2 Briefly summarized, Mohamed alleges the following facts:
Mohamed, age 21, is a United States citizen and a resident of Alexandria, Virginia. Third Amend. Compl. ¶ 7. In March 2009, he “temporarily left the United States to

learn Arabic and connect with members of his family living abroad.” Id. ¶ 37. Mohamed first studied Arabic for a few weeks in Yemen, but left “out of concern for his safety given the instability of the country” and traveled to Somalia, where he stayed with relatives for several months. Id. Around August 2009, Mohamed moved to Kuwait to continue his Arabic studies and stayed with an uncle. Id. Mohamed entered each country lawfully and maintained his lawful status during his travels abroad. Id.
On December 20, 2010, after having twice renewed his Kuwaiti visitor’s visa without incident, Mohamed went to again renew his visa at an airport in Kuwait. Id. ¶ 39. While he was at the airport, “two men in civilian clothes approached Mr. Mohamed, handcuffed him, blindfolded him, escorted him to a waiting SUV, and drove him to an undisclosed location approximately fifteen minutes from the airport.” Id. ¶ 40. Mohamed was held at that location for more than a week and “was repeatedly beaten and tortured by his interrogators,” one of whom spoke “perfect American English.” Id. ¶¶ 40–42.3
On December 28, 2010, Mohamed’s interrogators transferred him to a deportation facility, from which he was able to make contact with his family in the United States and retain a lawyer in the United States. Id. ¶¶ 44–45. Kuwaiti officials told Mohamed’s family that he was being held at the behest of the United States government. Id. ¶ 46. Further, the Kuwaiti officials attempted to deport Mohamed but were unable to do so because the United States had placed him on the No Fly List. Id. While at the deportation facility, Mohamed received two visits from FBI agents, on December 28, 2010 and January 12,2011. Id. ¶¶ 47–48. During those visits, the FBI agents told him that “they could expeditiously procure his release from detention if Mr. Mohamed spoke to them,” and that “he would remain in detention indefinitely if he did not speak to them.” Id. ¶ 47. The agents questioned Mohamed for hours, even after he repeatedly asked them to stop, and they threatened future interrogations and criminal charges. Id. ¶ 48. On January 16, 2011, Mohamed’s family purchased a ticket for him to return to the United States at the suggestion of Kuwaiti officials, who delivered the ticket to Mohamed and transported him to the airport, where he was denied boarding.4 Id. ¶ 49.
*3 On January 18, 2011, Mohamed, through his American lawyer, filed this action, together with a request for emergency relief to obtain Mohamed’s return to the United States. The Court held a hearing on the emergency request that same day but continued the hearing to January 20, 2011 at the defendants’ request and based on their representations concerning their efforts to place
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Mohamed on a flight back to the United States. On January 20, 2011, the defendants advised the Court that arrangements had been made for Mohamed to return to the United States that day, and on January 21, 2011, Mohamed arrived in the United States by commercial airliner without escort or restraints and without incident. See id. ¶ 50. Since his arrival in the United States, Mohamed has not been criminally charged or otherwise detained.
Mohamed alleges that the FBI “does not limit its nominations [for inclusion on its terrorist watchlist] to persons it believes pose a threat to commercial aircraft ... [but] also nominates individuals it considers as a broader threat to domestic or international security.” Id. ¶ 22. Further, Mohamed alleges that “Defendants placed Mr. Mohamed on its No Fly List while he was abroad in order to pressure him to forgo his right to counsel, submit to invasive questioning, and become an informant for the FBI upon returning to the United States.” Id. ¶ 2. Finally, Mohamed alleges that this improper use of the No Fly List extends beyond his own experience and that the FBI has repeatedly used the No Fly List “not just to protect commercial aircraft, but rather to coerce a specific subset of Americans—Muslim citizens—to forgo their rights, obstruct their ability to move freely, and otherwise give Defendants’ agents leverage over listed persons.” Id. ¶ 3.
Mohamed claims that his placement on the No Fly List constitutes: (1) a violation of his right as a U.S. citizen to reside in the United States and reenter it from abroad (Count I); (2) unlawful agency action that violates his Fourteenth Amendment right to return to the United States and his Fifth Amendment liberty interests “in traveling by air and being free from false governmental stigmatization as a terrorist” (Count II); and (3) a violation of his right to procedural due process, including his right to pre- or post-deprivation notice and a hearing (Count III).
C. The Terrorist Screening Center and Terrorist Screening Database Following the attacks of September 11, 2001, Congress and the President mandated that federal executive departments and agencies share terrorism information with those in the counterterrorism community responsible for national security. Piehota Decl., ¶ 4.5 Specifically, Congress directed that the TSA, “in consultation with other appropriate Federal agencies and air carriers, establish policies and procedures requiring air carriers (A) to use information from government agencies to identify individuals on passenger lists who may be a threat to civil aviation or national security; and (B) if such an individual

is identified, notify appropriate law enforcement agencies, prevent the individual from boarding an aircraft, or take other appropriate action with respect to that individual.” 49 U.S.C. § 114(h)(3).
*4 On September 16, 2003, through Homeland Security Presidential Directive (“HSPD”)–6, President Bush sought to consolidate the government’s approach to terrorist prevention activities. Toward that end, the Attorney General, pursuant to HSPD–6, established the TSC as a multi-agency center for coordinating information pertaining to terrorist activity.6 Id. ¶ 2. HSPD–6 also directed the creation of the Terrorist Screening Database (“TSDB”) as the government’s consolidated terrorist watchlist maintained by the TSC. Id. ¶ 6. In creating the TSDB, the government consolidated as many as twelve preexisting watchlists, including the No Fly List. Id. ¶¶ 5–6.7
The TSC determines whether to place individuals in the TSDB based on “nominations” received from the National Counterterrorism Center (“NCTC”) and the FBI. Id. ¶¶ 8–10. The TSC places a nominated individual in the TSDB if the nomination is supported by “minimum substantive derogatory criteria.” Id. ¶ 10. Whether an individual satisfies the substantive derogatory criteria necessary to be placed in the TSDB is “generally based on whether there is reasonable suspicion to believe that a person is a known or suspected terrorist.” Id. ¶ 12. In order to meet this standard, “the nominator, based on the totality of the circumstances, must rely upon ‘articulable’ intelligence or information which, taken together with rational inferences from those facts, creates a reasonable suspicion that the individual is a known or suspected terrorist.”8 Id. By contrast, “[m]ere guesses or ‘hunches,’ or the reporting of suspicious activity alone are not enough to constitute a reasonable suspicion and are not sufficient bases to watchlist an individual.” Id. Likewise, “nominations must not be solely based on race, ethnicity, national origin, religious affiliation, or First Amendment protected activities.” Id. “TSC personnel” make the decision of whether to place an individual in the TSDB, and “TSA employees assigned to and stationed at the TSC serve as subject matter experts regarding those individuals nominated to the No Fly and Selectee Lists.” Id. ¶¶ 11–13.
The No Fly List is a subset of individuals included in the TSDB and is defined by the Department of Homeland Security (“DHS”) as “a list of individuals who are prohibited from boarding an aircraft.” Id. ¶ 16. The Selectee List, another subset of the TSDB, is “a list of individuals who must undergo additional security screening before being permitted to board an aircraft.” Id.
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In order for the TSC to place an individual on the No Fly or Selectee List, his nomination must meet unspecified “additional derogatory requirements” in addition to the “minimum substantive derogatory criteria” required for placement in the TSDB. Id. ¶ 10.
Through its Secure Flight Program, the TSA receives information on passengers from airlines and compares it to information contained in government watchlists, including the No Fly and Selectee Lists. Lynch Decl., n. 1. An airline cannot issue a boarding pass until it receives permission from the TSA. In addition, “[t]he TSC, through the TSDB, makes terrorist identity information accessible to various screening agencies and law enforcement entities by the regular export of updated subsets of TSBD data. For example, the No Fly and Selectee Lists are available for passenger and employee screening.” Piehota Decl., ¶ 15.
*5 The TSC and the other agencies involved operate under a directive to maintain “thorough, accurate, and current information within the TSDB.” Id. ¶ 19. To meet that directive, “several quality control measures are continuously applied by nominating agencies, the TSC, and NCTC,” including “periodic reviews and audits to guarantee the integrity of the information relied upon for the maintenance of TSDB records, and an ongoing responsibility upon the nominating agencies to notify NCTC and TSC of any changes that could affect the validity or reliability of that information.” Id. That review process does not include any disclosure to the individual involved or any judicial oversight or review before a person is included in the TSDB or placed on the No Fly List.
Congress has mandated that DHS “shall establish a timely and fair process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat under the regimes utilized by the Transportation Security Administration, United States Customs and Border Protection, or any other office or component of the Department of Homeland Security.” 49 U.S. § 44926(a). DHS is also required to “establish a procedure to enable airline passengers, who are delayed or prohibited from boarding a flight because the advanced passenger prescreening system determined that they might pose a security threat, to appeal such determination and correct information contained in the system.” 49 U.S. 44903(j)(2)(C)(iii).
In response to these congressional mandates, the TSA has established a procedure called DHS Traveler Redress Inquiry Program (“DHS TRIP”), through which the

government provides redress to travelers who have been referred for additional screening or delayed or denied airline boarding for any reason, including because of their alleged placement on the No Fly List. Piehota Decl., ¶ 26. To initiate the review process, the traveler must first submit a traveler inquiry form to DHS. Lynch Decl., ¶ 5. When a traveler’s inquiry seems related to the TSDB, it is referred to the TSC, which determines whether the traveler is an exact match to an individual listed in the TSDB. Piehota Decl., ¶ 29. If there is a match, the TSC works in collaboration with the agency that nominated the individual to determine whether the individual’s current status is appropriate. Id. ¶¶ 29–31. After its review, the TSC notifies the TSA, which sends a determination letter to the traveler. Lynch Decl., ¶ 10. The determination letter does not reveal whether the individual is, or ever was, on the No Fly List, or the reasons for his status. Piehota Decl., ¶ 32. The DHS TRIP letter advises, however, that the inquiring traveler can seek judicial review of the TSA’s actions in the United States Court of Appeals pursuant to 49 U.S.C. § 46110 and may also indicate that the traveler can pursue an administrative appeal with the TSA. Lynch Decl., ¶ 11.
II. ANALYSIS
A. Interests Implicated by the No Fly List as Applied to American Citizens *6 It is among the most compelling of governmental duties to protect our country from its enemies, foreign and domestic. Today, we are at war with those who would, if possible, use a commercial aircraft as an instrument of mass murder. There can be no doubt that the government has the right and obligation to identify, investigate and stop those who present such a threat; and for that purpose, the government must collect and act on intelligence information concerning possible terrorists, while protecting its sources and methods. It is a task of the highest national priority, performed by dedicated Americans whose mission is to protect this country and its citizens. It is because the stakes are so high and the consequences of a lapse in security so potentially catastrophic that the central issue presented in this case—how to adequately protect our population from terrorist threats while remaining faithful to the basic liberties that define the society we seek to preserve—is so difficult. For this reason, the constitutional issues pertaining to the No Fly List cannot be responsibly addressed without an informed, fact-based record that allows an assessment of the unavoidable trade-off between security and personal liberties and whether the
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No Fly List, and its associated procedures and uses, strikes the appropriate balance between the two.
At first blush, it may seem a small intrusion upon the fabric of our freedoms to eliminate the ability of a relatively small number of American citizens to fly on commercial airlines in order to avert a possible catastrophic air disaster, such as occurred over Lockerby, Scotland in 1988, or nearly occurred through the efforts of the “Shoe Bomber” in 20019 or the “Christmas Day bomber” in 2009,10 particularly if there is a process in place dedicated to limiting that restriction to those reasonably suspected to be terrorists. See Piehota Decl., ¶ 12. We were recently reminded by the Boston Marathon bombings that there are, indeed, those living among us who seek to indiscriminately kill on American soil. And the No Fly List is designed to protect a particularly vulnerable population—those who fly on commercial airlines. See, e.g., United States v. Hartwell, 436 F.3d 174, 179 (3d Cir.2006) (“[T]here can be no doubt that preventing terrorist attacks on airplanes is of paramount importance.”). Extended analysis is not required, however, to understand that the No Fly List implicates some of our basic freedoms and liberties as well as the question of whether we will embrace those basic freedoms when it is most difficult.
The impact on a citizen who cannot use a commercial aircraft is profound. He is restricted in his practical ability to travel substantial distances within a short period of time, and the inability to fly to a significant extent defines the geographical area in which he may live his life. As a practical matter, an affected person is restricted in his ability to visit family and friends located in relatively distant areas of the country or abroad, which through flight can be reached within a matter of hours but would otherwise take days, if not weeks, to access. See Latif v. Holder, No. 3:10–cv–750, –––F.Supp.2d ––––, ––––, 2013 WL 4592515, at *8 (D.Or. Aug. 28, 2013) (noting that flight is often the only feasible form of international travel); Ibrahim v. Dep’t of Homeland Sec., No. C 06–00545 WHA, 2012 WL 6652362, at *7 (N.D.Cal. Dec. 20, 2012) (same). An inability to travel by air also restricts one’s ability to associate more generally, and effectively limits educational, employment and professional opportunities. It is difficult to think of many job categories of any substance where an inability to fly would not affect the prospects for employment or advancement; one need only reflect on how an employer would view the desirability of an employee who could not travel by air. An inability to fly likewise affects the possibility of recreational and religious travel, given the time periods usually available to people, particularly those who are employed.11

*7 Inclusion on the No Fly List also labels an American citizen a disloyal American who is capable of, and disposed toward committing, war crimes, and one can easily imagine the broad range of consequences that might be visited upon such a person if that stigmatizing designation were known by the general public. In effect, placement on the No Fly List is life defining and life restricting across a broad range of constitutionally protected activities and aspirations; and a No Fly List designation transforms a person into a second class citizen, or worse. The issue, then, is whether and under what circumstances the government should have the ability to impose such a disability on an American citizen, who should make any such decision, according to what process, and by what standard of proof.
The War on Terrorism in which the United States is currently engaged is not the first time the judicial branch has had occasion to consider these national security issues. During the Cold War, with its threat of unbridled nuclear war, the courts considered the constitutionality of laws limiting the issuance of passports in order to restrict the travel of American citizens suspected of subversive, Communist activities that, as reflected in congressional findings,12 were perceived as raising public safety and national security concerns comparable to those associated with the threats of terrorism today. In a series of cases, the federal courts, including the United States Supreme Court, addressed the constitutional limits on the government’s reach over a citizen’s freedom of movement. For example, in Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958),13 the Supreme Court considered the right to travel and the protections it enjoyed from restrictions in the name of national security:
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 .... In Anglo–Saxon law that right was emerging at least as early as the Magna Carta. Chafee, Three Human Rights in the Constitution of 1787 (1956), 171–181, 187 et seq., shows how deeply engrained in our history this freedom of movement is. Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic to our scheme of values. ‘Our nation,’ wrote Chaffee, ‘has thrived on the principle that, outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases.’
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Id. at 125–26, 78 S.Ct. 1113 (some citations omitted). Observing that the government has been allowed in times of war to exclude citizens from their homes and restrict their freedom of movement only upon a showing of “the gravest imminent danger to the public safety,” the Kent Court reaffirmed that:
*8 [T]he right of exit [from the United States] is a personal right included within the word ‘liberty’ as used in the Fifth Amendment. If that ‘liberty’ is to be regulated, it must be pursuant to the lawmaking functions of the Congress. And if that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests. Where activities or enjoyment, natural and often necessary to the well-being of an American citizen, such as travel, are involved, we will construe narrowly all delegated powers that curtail or dilute them.
Id. at 128–29, 78 S.Ct. 1113 (internal citations omitted). In summary, the Court emphasized that in dealing with restrictions on travel, such as those imposed in that case, “[w]e deal with beliefs, with associations, with ideological matters. We must remember that we are dealing with citizens who have neither been accused of crimes nor found guilty.” Id. at 130, 78 S.Ct. 1113.
The Court revisited the constitutionality of statutory restrictions on the right to travel in Aptheker v. Secretary State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). There, the Court reviewed the constitutionality of Section 6 of the Subversive Activities Control Act of 1950, which made it unlawful for any member of a registered Communist organization with knowledge or notice of the registration to apply for or use a U.S. passport. The Court recognized that “freedom of travel is a constitutional liberty closely related to rights of speech and association,” and in declaring Section 6 unconstitutional, reaffirmed that “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” Id. at 508, 517, 84 S.Ct. 1659 (quoting NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964)). The Court recognized that the application of these principles required it to consider the congressional purpose underlying the restrictions on the right to travel:

The Government emphasizes that the legislation in question flows, as the statute itself declares, from the congressional desire to protect our national security. That Congress under the Constitution has power to safeguard our Nation’s security is obvious and unarguable. As we said in [Kennedy v. Mendoza–Martinez, 372 U.S. 144, 159–60, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) ], ‘while the Constitution protects against invasions of individual rights, it is not a suicide pact.’ At the same time the Constitution requires that the powers of government must be so exercised as not, in attaining a permissible end, unduly to infringe a constitutionally protected freedom.
Id. at 509, 84 S.Ct. 1659 (some internal citations and quotation marks omitted).
The Court in Aptheker concluded:
[Section 6] sweeps too widely and too indiscriminately across the liberty guaranteed in the Fifth Amendment. The prohibition against travel is supported only by a tenuous relationship between the bare fact of organizational membership and the activity Congress sought to proscribe. The broad and enveloping prohibition indiscriminately excludes plainly relevant considerations such as the individual’s knowledge, activity, commitment, and purposes in and places for travel. The section therefore is patently not a regulation narrowly drawn to prevent the supposed evil, yet here, as elsewhere, precision must be the touchstone of legislation so affecting basic freedoms.
*9 Id. at 514, 84 S.Ct. 1659 (internal quotation marks and citations omitted).
These passport cases did not deal with the limits on governmental authority within the specific context of airline safety, but rather assessed the extent of that authority based on broader national security justifications more directly associated with rights of association and freedom of speech. Nevertheless, when the basic principles discussed in Kent and Aptheker are applied to the No Fly List, substantial constitutional issues are immediately apparent.
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First, the No Fly List, once distributed, clearly infringes upon a citizen’s right to travel; and the Court cannot conclude based on the present record that there are no means less restrictive than an unqualified flight ban to adequately assure flight security, such as comprehensive preflight screening and searches. Second, the current record is inadequate to explain why judicial involvement before a person is placed on the No Fly List is either unnecessary or impractical, other than perhaps within the context of an emergency based on a specific, imminent threat that requires immediate action. Nor does the record conclusively establish that there cannot be any opportunity, either before or after an American citizen is placed on the No Fly List, to know of or challenge any of the information used to list him, even where such information could be summarized in a way that does not compromise sources or methods.
Third, substantial issues exist concerning the standards used, or required to be used, to determine whether an American citizen can be banned from flying. The process of nomination to the No Fly List is based on a suspected level of future dangerousness that is not necessarily related to any unlawful conduct. In that connection, the TSC’s currently applied standard for inclusion is “satisfaction of a certain substantive derogatory criteria establishing that the individual may be a known or suspected terrorist.” Piehota Decl., ¶ 12. And “[w]hether the individual satisfies the substantive derogatory criteria is generally based on whether there is reasonable suspicion to believe that a person is a known or suspected terrorist.” Id. While determining whether a person is a “known terrorist” appears to be straightforward and based on certain formal actions taken within the criminal justice system,14 whether a person is a “suspected terrorist” appears to be based to a large extent on subjective judgments. As the defendants explain, “[a] suspected terrorist is an individual who is reasonably suspected to be, or have been, engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities based on articulable and reasonable suspicion.” Piehota Decl., n. 5 (emphasis added). In other words, an American citizen can find himself labeled a suspected terrorist because of a “reasonable suspicion” based on a “reasonable suspicion.”
*10 What constitutes conduct sufficiently “related to” or “in aid of terrorism is not explained, but it is not difficult to imagine completely innocent conduct serving as the starting point for a string of subjective, speculative inferences that result in a person’s inclusion on the No Fly List. For example, is the academic study of terrorism or the investigative reporting of terrorist activities “related to terrorism and terrorist activities”? Is providing financial

support to a charitable organization enough, even without knowledge that some of the organization’s activities are “in aid of ... terrorist activities”? Is it enough to be a member of a lawfully operating social or religious organization whose membership may include other persons suspected of terrorism? Is studying Arabic abroad, as Mohamed concedes he did, conduct “in preparation for ... terrorist activities”? A showing of past or ongoing unlawful conduct does not seem to be required, and the level of proof required for inclusion on the No Fly List appears to be far less than that required to obtain such law enforcement tools as a search or arrest warrant or a thirty-day wiretap. See U.S. Const. amend. IV; 50 U.S.C. § 1805(a)(2). But the Court has little, if any, ability to articulate what information is viewed by the TSC as sufficiently “derogatory” beyond the labels it has provided the Court.15
In sum, the No Fly List assumes that there are some American citizens who are simply too dangerous to be permitted to fly, no matter the level of pre-flight screening or on-flight surveillance and restraint, even though those citizens cannot legally be arrested, detained, or otherwise restricted in their movements or conduct. The No Fly List also assumes that in order to achieve its intended purpose, it must be compiled and distributed without any judicial review or involvement and without any opportunity for the citizen to learn of or contest the accuracy of any information used to justify his inclusion on the list. Specifically at issue in this case is whether, given the substantial liberty interest in freedom of movement possessed by every citizen, the No Fly List, as applied to American citizens, comports with the requirements of substantive and procedural due process.
B. Plaintiff’s Claims and Defendants’ Objections The defendants seek dismissal of Mohamed’s claims on both procedural and substantive grounds. First, they argue that Mohamed’s claims must be dismissed because he failed to exhaust the available administrative remedies, he lacks standing, and his claims are not ripe for adjudication. Substantively, the defendants contend that: 1) Mohamed has failed to allege a violation of his right to reside in or reenter the United States, and that such a claim is in any event moot; 2) the available administrative remedies satisfy Mohamed’s procedural due process rights; and 3) Mohamed’s APA claim fails for the same reasons as his other claims and because he makes no allegations supporting a claim of arbitrary and capricious agency action. The Court will address these arguments in turn.
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(1) Exhaustion, Standing, and Ripeness
*11 The defendants seek dismissal of Mohamed’s claims on the ground that he has not presented his claims to the TSA through DHS TRIP and has therefore failed to exhaust administrative remedies. The defendants do not contend that the relevant statutes or regulations require exhaustion, but rather that the Court should require Mohamed to utilize DHS TRIP as a matter of prudence because that process could provide him with some of the relief he seeks and because the Court would be in a better position to review Mohamed’s claims after the completion of that process. In a related vein, the defendants contend that Mohamed’s constitutional claims are too “hypothetical” to satisfy the requirements of standing and ripeness.
[1] “Where Congress specifically mandates, exhaustion is required.” McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), superseded by statute on other grounds. Where exhaustion is not congressionally mandated, on the other hand, “sound judicial discretion” generally governs. Id. The Supreme Court has held, however, that a federal court cannot require a plaintiff to exhaust administrative remedies before seeking judicial review of a final agency action under the APA where neither the relevant statute nor an agency rule imposes such a requirement. Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993).
[2] For non-APA claims, “federal courts must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion.” McCarthy, 503 U.S. at 146, 112 S.Ct. 1081. In that regard, requiring administrative exhaustion allows the agency to “correct its own mistakes with respect to programs it administers before it is haled into federal court” and helps to avoid piecemeal appeals. Id. at 145–46, 112 S.Ct. 1081. Thus, considerations of efficiency and agency expertise may weigh in favor of requiring exhaustion. See Guerra v. Scruggs, 942 F.2d 270, 277 (4th Cir.1991).
Balancing these conflicting considerations, the Fourth Circuit has recognized that exhaustion should not be required where: (1) exhaustion would be futile; (2) the available administrative remedies would be insufficient; (3) the dispute is a matter of statutory construction; (4) compelling the use of administrative procedures would cause irreparable injury; or (5) requiring exhaustion would leave an administrative decision unreviewed. See Darby v. Kemp, 957 F.2d 145, 147 (4th Cir.1992), overruled on other grounds, Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993); McDonald

v. Centra, Inc., 946 F.2d 1059, 1063 (4th Cir.1991). Because administrative remedies are almost always inadequate to address procedural due process challenges to those remedies, such challenges are particularly immune from administrative exhaustion requirements. See Bangura v. Hansen, 434 F.3d 487, 494 (6th Cir.2006) (“Exhaustion of administrative remedies may not be required in cases of non-frivolous constitutional challenges to an agency’s procedures.”); see also Gibson v. Berryhill, 411 U.S. 564, 575, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973) (holding that appellee was not required to exhaust state administrative remedies where “the question of the adequacy of the administrative remedy ... was for all practical purposes identical with the merits of appellees’ lawsuit”); Kreschollek v. S. Stevedoring Co., 78 F.3d 868, 875 (3d Cir.1996) (holding that exhaustion of administrative remedies under the Longshore and Harbor Workers’ Compensation Act was not required where the administrative process was inadequate to address the Longshoreman’s claim that the Act unconstitutionally deprived him of a hearing prior to the deprivation of benefits).
*12 [3] The Court concludes that it would be inappropriate to require exhaustion in this case. First, as the defendants acknowledge, Congress has not mandated exhaustion of the DHS TRIP process with respect to Mohamed’s claims, and there are no regulations regarding DHS TRIP that mandate exhaustion. See 49 U.S.C. §§ 44903(j)(2) & 44926(a) (directing DHS to create a redress program without requiring that travelers take advantage of it). It would therefore appear that the Court could not, under the holding in Darby v. Cisneros, require Mohamed to exhaust the DHS TRIP process before proceeding with his APA appeal in Count II. To require exhaustion with respect to Mohamed’s other claims, then, would essentially bifurcate substantially related, if not common, claims and create, rather than avoid, piecemeal litigation.
Second, it is difficult to see how exhaustion of DHS TRIP would significantly assist the Court in adjudicating or resolving Mohamed’s claims. Mohamed would not have access to any information the government used to place him on the No Fly List, and once the government completed the review, he would receive only a letter indicating that the review process was complete. He would not receive any substantive information as to whether he was, or ever had been, on the No Fly List, or the grounds for his potential inclusion on the list. For these reasons, Mohamed would not have any opportunity to respond to the information used by the government to place him on the No Fly List; and it is not even clear whether he would have any meaningful opportunity to submit and have considered information that might negate
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any “derogatory information” possessed by the government, even without access to the government’s reasons for his inclusion on the No Fly List.
Moreover, DHS TRIP would not provide Mohamed with any opportunity to present and have considered his constitutional claims. That process addresses only whether a traveler who has submitted an inquiry is in fact the individual listed in the TSDB, and if so, whether there is sufficient information to support the listing. As a result, at the end of the DHS TRIP process, even were the TSC to voluntarily remove Mohamed from the No Fly List, the alleged underlying constitutional infirmities that allowed his name to be included on the list and distributed to airlines would remain in place, unreviewed and with no assurances that Mohamed would not suffer the same alleged injury in the future.16 In other words, the administrative process that the defendants want exhausted would not address Mohamed’s constitutional claims.
Finally, the Court has no expectation that the DHS TRIP process would create a record more helpful than the one that already exists.17 According to the government, if Mohamed is on the No Fly List, there already exists for the Court’s review an administrative file containing the “derogatory information” the TSC relied upon in placing him on the list. See Piehota Decl., ¶ 9. There is also no reason to think that the DHS TRIP process would develop any of the additional factual record relevant for the purposes of Mohamed’s constitutional claims, given the limited scope of the issues addressed in DHS TRIP.18
*13 [4] As for standing, Mohamed’s alleged constitutional injuries constitute an “injury in fact” that is actual, concrete and particularized, and traceable to the defendants, who are alleged to be responsible for placing him on the No Fly List and distributing it to the TSA.19 Further, the relief Mohamed seeks, including removal from the No Fly List, would redress his alleged injury.20 As to ripeness, there is nothing “hypothetical” about Mohamed’s claims, which attack the constitutionality of the No Fly List.21 The DHS TRIP process is already established, and Mohamed’s participation in the process would not provide the Court with more information about how the process works than the Court already possesses or could be presented at trial. In the end, the defendants’ standing and ripeness challenges are bound up with their exhaustion position and fail for essentially the same reasons. Thus, the Court concludes that Mohamed has standing and his claims are ripe.
(2) Defendants’ Contention that Plaintiff Fails to State a

Claim
a. Count I: Citizen’s Right to Reenter the United States
In Count I, styled “Violation of U.S. Citizen’s Right to Reside in United States and to Reenter the United States from Abroad,” Mohamed alleges that, “[b]y placing [him] on the No Fly List while he was abroad, Defendants Unknown TSC Agents prevented [him] from boarding an aircraft to return to the United States, even though no other means existed by which he may return to the United States, thus violating [his] constitutional rights.” Third Amend. Compl. ¶ 56. Further, Mohamed alleges that, by maintaining him on the No Fly List, the defendants have “substantially burdened his fundamental right to return to the United States in the immediate future.” Id. ¶ 57. Count I is, in essence, a substantive due process claim.
Substantive due process “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Those protected rights and interests include those that “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.” Id. at 720–21, 117 S.Ct. 2258 (internal quotation marks and citations omitted). In contrast to the procedural component of the Due Process Clause, substantive due process “protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them.” Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (internal quotation marks omitted).
The defendants do not contest that a United States citizen has a right to reenter the United States. They contend, however, that Count I must fail because the right of reentry attaches only once a citizen presents himself at a U.S. port of entry and does not extend to restrictions that may prevent or impede his ability to reach a U.S. port of entry. Based on this position, the defendants contend that, as a matter of law, based on his allegations, Mohamed has never been denied reentry to the United States, and that, even if he is on the No Fly List, Mohamed will not in the future be denied reentry once he presents himself at the border.
*14 [5] The Court concludes that a U.S. citizen’s right to reenter the United States entails more than simply the right to step over the border after having arrived there. See, e.g., Newton v. INS, 736 F.2d 336, 343 (6th Cir.1984)
9

Mohamed v. Holder, --- F.Supp.2d ---- (2014)
(noting that citizens “have the right to return to this country at any time of their liking” (emphasis added)). At some point, governmental actions taken to prevent or impede a citizen from reaching the boarder infringe upon the citizen’s right to reenter the United States. The issue is whether the defendants’ conduct has in the past or will in the future cross over into an unconstitutional burden on that right of reentry.
[6] Mohamed invokes his right of reentry with respect to both his initial unsuccessful attempt to return to the United States from Kuwait in January 2011 and also with respect to his plans to travel abroad for religious purposes and to visit his family. As to his claim of past constitutional injury, the Court concludes that Mohamed has failed to allege facts that make plausible his claim that his constitutional right of reentry was violated when he was prevented from boarding a plane from Kuwait to the United States on January 16, 2011 because of his placement on the No Fly List. Mohamed’s own allegations establish that, although he was denied boarding on that flight, he was able to board a flight on January 20, 2011 and reenter the United States without incident on January 21, 2011. Even accepting as true Mohamed’s allegations—including that the government improperly placed him on the No Fly List and prevented him from boarding the January 16th flight—the four to five-day delay that Mohamed experienced in his ability to reenter the United States did not unduly burden his right of reentry and therefore, as a matter of law, did not constitute a constitutional deprivation.
[7] Broader, however, are Mohamed’s allegations of present and future harms arising from his inability to fly. In that regard, Mohamed alleges that, even though the defendants permitted his return in January 2011, his continued inclusion on the No Fly List presumptively prevents him from departing the United States to travel abroad for a religious pilgrimage and to visit family members, and, were he able to leave the United States, from returning to the country through any practical means. Thus, Mohamed complains of a violation of his right to exit and return based on the burden placed on his right to international travel, which, as discussed above, is “an important aspect of the citizen’s ‘liberty’ guaranteed in the Due Process Clause of the Fifth Amendment.” Aptheker, 378 U.S. at 505, 84 S.Ct. 1659 (quoting Kent, 357 U.S. at 127, 78 S.Ct. 1113). It is true that the right to international travel is not, like the right to interstate travel, “virtually unqualified,” but rather is subject to “reasonable governmental regulation.” Haig v. Agee, 453 U.S. 280, 306–307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (citation omitted). Nonetheless, “a governmental purpose to control or prevent activities constitutionally

subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” Aptheker, 378 U.S. at 508, 84 S.Ct. 1659 (quoting NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964)). Whether Mohamed’s alleged disabilities as a result of his alleged inclusion on the No Fly List unconstitutionally burden the exercise of his right of exit and reentry cannot be decided at this stage as a matter of law. However, Mohamed’s factual allegations, taken as true, suffice to make plausible his substantive due process claim.
b. Count III: Procedural Due Process
*15 [8] In Count III, Mohamed alleges that the defendants have failed to provide him with “a meaningful opportunity to challenge his inclusion on the No Fly List either prior or subsequent to his placement, depriving him of his liberty interest in (1) being able to return to the United States, (2) traveling by air like other American citizens, and (3) being free from false governmental stigmatization as a terrorist.” Third Amend. Compl. ¶ 62. The defendants contend that “the redress process available through DHS TRIP is constitutionally sufficient to address Plaintiff’s claims, given the limited private interest at issue, the profound government interest in protecting the security of civil aviation, and the negligible value of additional measures given the robust internal review of highly sensitive information by experts tasked with protecting national security.” Defendants’ Memorandum in Support of Motion to Dismiss Plaintiff’s Third Amended Complaint at 16.
“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (internal quotation marks omitted). However, “[t]he procedural protections required by the Due Process Clause must be determined with reference to the rights and interests at stake in the particular case.” Washington v. Harper, 494 U.S. 210, 229, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). In evaluating the sufficiency of the process the government has provided in a particular case, the Court must consider: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest.” Mathews, 424 U.S. at 335, 96 S.Ct. 893. These factors, when considered within the context of Mohamed’s allegations, necessarily require an
10

Mohamed v. Holder, --- F.Supp.2d ---- (2014)
evidentiary record beyond that presented to the Court in connection with the defendants’ motion to dismiss.
As discussed above, Mohamed alleges a range of protectable interests, including his right to travel, that have been affected adversely by his alleged inclusion on the No Fly List.22 Further, the government’s interest in combating terrorism is no doubt substantial. The Court must then determine whether the No Fly List and the redress procedures provided through DHS TRIP constitute appropriate means to prevent terrorism directed against air travel while protecting the liberty interests at stake. By the defendants’ own account, individuals are placed in the TSDB according to a reasonable suspicion standard and without any judicial involvement. Nominations to the No Fly List must satisfy “additional derogatory requirements,” Piehota Decl., ¶ 10, but it is unclear what these are. Regardless, it does not appear that unlawful conduct, unlawful speech, or unlawful association is required.
As the defendants have also acknowledged, an individual placed on the No Fly List does not receive any notice of his placement on the list, pre-deprivation or otherwise, or the reasons for his inclusion. Further, an individual’s inclusion on the No Fly List and the dissemination of that list are accomplished without any judicial involvement or review, and according to a standard of proof that is far less than that typically required when the deprivation of significant constitutional liberties are implicated. While the government no doubt has a significant and even compelling interest, an American citizen placed on the No Fly List has countervailing liberty interests and is entitled to a meaningful opportunity to challenge that placement. And, while judicial review of some sort is available pursuant to 49 U.S.C. § 46110, as discussed above, it is not at all clear that such review will effectively address the constitutional issues presented by a citizen’s inclusion on the No Fly List. Finally, the defendants have not made a sufficient showing at this point that they could not accomplish their objectives using less restrictive means, such as enhanced screening.
*16 For these reasons, the Court cannot conclude, as a matter of law, that DHS TRIP provides sufficient process to defeat Mohamed’s procedural due process claim, and instead must conclude that Mohamed has alleged facts sufficient to make that claim plausible. In resolving the claim, the Court must engage in a fact-intensive consideration of the personal liberties involved, the government’s compelling interest in combating terrorism, the procedures used in connection with the No Fly List, and the use made of the No Fly List.

c. Count II: Administrative Procedure Act
In Count II of his Third Amended Complaint, in addition to reiterating his constitutional claims, Mohamed alleges that “Defendants’ actions described herein were and are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional right and should be set aside as unlawful pursuant to 5 U.S.C. § 706.” Third Amend. Compl. ¶ 59. The issues presented in Mohamed’s APA claim essentially conflate with his constitutional claims. Thus, for the same reasons discussed above the Court concludes that Mohamed’s factual allegations make plausible his claim that the defendants’ actions were arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.

III. CONCLUSION
For the reasons stated above, the defendants’ Motion to Dismiss will be GRANTED in part and DENIED in part. The Motion will be granted as to Plaintiff’s claim in Count I of his Third Amended Complaint that he was denied his constitutional right of reentry in January 2011, and will otherwise be DENIED.
An appropriate Order will issue.

1

49 U.S.C. § 46110 provides in pertinent part:

(a) ... [A] person disclosing a substantial interest in

an order issued by the Secretary of Transportation

... 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....

(b) ... When a petition is filed under subsection (a)

of this section, the clerk of the court immediately

shall send a copy of the petition to the Secretary,

Under Secretary, or Administrator, as

appropriate....

(c) ... When the petition is sent to the Secretary,

Under Secretary, or Administrator, the court has

exclusive jurisdiction to affirm, amend, modify, or

set aside any part of the order and may order the

Secretary, Under Secretary, or Administrator to

conduct further proceedings.

11

Mohamed v. Holder, --- F.Supp.2d ---- (2014)

2

The statements in this section are based on the

allegations of the Third Amended Complaint, the

declarations filed by the defendants with respect to the

No Fly List and related programs, and those facts that

currently appear undisputed based on the briefing

pertaining to the Motion to Dismiss. The Court

provides this statement of relevant facts solely for the

purpose of ruling on the Motion to Dismiss. The Court

also incorporates by reference its Memorandum

Opinion dated August 26, 2011 [Doc. No. 31], which

describes in detail the factual background of this case

as well as the challenged government programs and

procedures.

3

Mohamed alleges the following details concerning his

treatment while in detention:

Mr. Mohamed’s interrogators struck him in the

face with their hands regularly and in Mr.

Mohamed’s estimate more than a hundred times.

The interrogators whipped his feet and other parts

of his body with sticks. Mr. Mohamed was forced

by his interrogators to stand for prolonged periods

of time. At one point, the interrogators threatened

to run currents of electricity through Mr.

Mohamed’s genitals. In another instance, Mr.

Mohamed’s arms were tied to a ceiling beam and

left in that position until he lost consciousness....

Mr. Mohamed remained blindfolded and

handcuffed most of the time.

Third Amend. Compl. ¶¶ 40–41.

4

Based on the other facts alleged, the Third Amended

Complaint’s listing of the date as January 16, 2010 is

clearly an error.

5

In support of their Motion to Dismiss, the defendants

have submitted the declarations of Mark Giuliano,

Laura Lynch, and Christopher Piehota, which speak to

the specific programs, agencies and other matters

referenced and alleged in the Third Amended

Complaint. The Court has considered these declarations

in connection with the defendants’ jurisdictional

challenges based on lack of standing, ripeness and

exhaustion of remedies as well as their motion to

dismiss the Third Amended Complaint on the grounds

that it fails to state claims as a matter of law. See

Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th

Cir.2004) (matters outside the pleadings may be

considered in connection with jurisdictional

challenges); see also Katyle v. Penn Nat. Gaming, Inc.,

637 F.3d 462, 466 (4th Cir.2011) (on a motion to

dismiss, the court may consider documents referenced

by the complaint and matters of which it may take

judicial notice).

6

The TSC receives support from, inter alia, the

Department of Justice, the Department of Homeland

Security, the Department of State, and the Office of the

Director of National Intelligence, and is staffed by

officials from those agencies and also the FBI, the

TSA, and U.S. Customs and Border Protection. Piehota

Decl., ¶ 2.

7

The No Fly List was originally maintained by the TSA,

which was formerly within the Department of

Transportation and is now part of Department of

Homeland Security. Piehota Decl., ¶ 5.

8

The TSDB itself does not contain any “derogatory

intelligence information” but is limited to “sensitive but

unclassified terrorist identity information consisting of

biographic identifying information such as name or

date of birth or biometric information such as

photographs, iris scans, and fingerprints.” Piehota

Decl., ¶ 6.

9

On December 22, 2001, Richard Reid, the “Shoe

Bomber,” attempted to detonate explosives hidden in

his shoes during a flight from Paris to Miami. He was

sentenced to life in prison.

10

On December 25, 2009, Umar Farouk Abdulmutallab,

the “Christmas Day bomber,” attempted to detonate, in

flight, explosives concealed in his underwear. He was

convicted of, among other charges, attempted murder

and conspiracy to commit an act of terrorism

transcending national boundaries, and was sentenced to

life in prison. Mohamed alleges that following this

event, the defendants “dramatically expanded the watch

list as a whole and the No Fly List in particular.” Third

Amend. Compl. ¶ 30.

11

The extent to which the No Fly List is “exported” to

agencies and entities other than the TSA is not clear

from the present record. However, it does appear that

such information has a much broader distribution than

merely to the TSA, extending to other law enforcement

and passenger screening agencies as well as for use in

employment screening. See Piehota Decl., ¶ 15 (“The

TSC, through the TSDB, makes terrorist identity

information accessible to various screening agencies

and law enforcement entities by the regular export of

12

Mohamed v. Holder, --- F.Supp.2d ---- (2014)

updated subsets of TSDB data. For example, the No Fly and Selectee Lists are subsets of TSDB information that are available for passenger and employee screening.”). The court in Latif observed that the TSC shares watchlist information with twenty-two foreign governments and that United States Customs and Boarder Protection makes recommendations to ship captains as to whether a passenger poses a risk to transportation security. See Latif, ––– F.Supp.2d at ––––, 2013 WL 4592515, at *9. This type of distribution, of course, only compounds the restrictions on travel and other effects placement in the TSDB has on an American citizen.

12

In support of the Subversive Activities Act of 1950,

Congress found that there “exists a world Communist

movement ... whose purpose it is, by treachery, deceit,

infiltration, ... espionage, sabotage, terrorism, and any

other means deemed necessary, to establish a

communist totalitarian directorship in the countries

throughout the world through the medium of a

world-wide Communist organization.” Aptheker v.

Sec’y of State, 378 U.S. 500, 508 n. 8, 84 S.Ct. 1659,

12 L.Ed.2d 992 (1964). Congress further found that the

Communist organization in the United States and the

world Communist movement presented a danger to the

security of the United States that required legislative

action. With respect to the restrictions of Section 6 of

the Act, pertaining to the issuance of passports,

Congress more specifically found that “[d]ue to the

nature and scope of the world Communist movement,

with the existence of affiliated constituent elements

working toward common objectives in various

countries of the world, travel of Communist members,

representatives, and agents from country to country

facilitates communication and is a prerequisite for the

carrying on of activities to further the purposes of the

Communist movement.” Id.

13

In Kent, the Court considered a challenge to regulations

promulgated by the Secretary of State that prohibited

the issuance of passports to members of the Communist

Party and individuals engaged in activities in support of

the Communist movement. The Court held that the

Secretary of State lacked the authority to promulgate

the regulations and therefore did not reach the question

of whether the regulations would be constitutional if

authorized.

14

“A known terrorist is an individual who has been

convicted of, [or is] currently charged with, or under

indictment for a crime related to terrorism in a U.S. or

foreign court of competent jurisdiction.” Piehota Decl.,

n. 4.

15

The TSC assures the Court that it does not engage in

invidious discrimination “based on race, ethnicity,

national origin, religious affiliation, or First

Amendment protected activities.” Piehota Decl., ¶ 12.

Those assurances, however, do not rule out the

possibility, if not probability, that determinations may

be bound up with beliefs, personal associations, or

activities that are perceived as threatening but are

perfectly lawful in themselves, and may indeed be

constitutionally protected.

16

As mentioned above, the letters sent by the TSA at the

conclusion of the review process indicate that review is

available pursuant to 49 U.S.C. § 46110, which

provides for review of TSA orders in the Courts of

Appeals. The defendants have represented to the Court

that, should Mohamed choose to appeal after

completing the DHS TRIP process, they would provide

to the Court of Appeals an “administrative record” that

the Court could review in camera. In reversing this

Court’s August 2011 Order, however, the Court of

Appeals reasoned that it lacked exclusive jurisdiction

under 49 U.S.C. § 46110 because “resolving

substantive and procedural due process challenges to an

individual’s inclusion on the No-fly list necessarily

requires scrutiny of both the TSC’s and the TSA’s

actions,” and the Court would be unable to “directly

review the TSC’s actions, direct the agency to develop

necessary facts or evidence, or compel its compliance

with any remedy [the court] might fashion.” Slip op. at

5–6. Those same considerations would apply were

Mohamed to appeal after completion of the DHS TRIP

process, indicating that such an appeal would not

provide adequate review of Mohamed’s constitutional

claims.

17

In Shearson v. Holder, 725 F.3d 588, 593–95 (6th

Cir.2013), relied upon heavily by the defendants, the

Sixth Circuit held that the plaintiff, who alleged she

was detained at the United States boarder due to her

inclusion in the TSDB, could not pursue her procedural

due process claim before seeking relief through DHS

TRIP. The court in Shearson reasoned that it was

appropriate to require exhaustion because the plaintiff

might be removed from the TSDB and because the

review process would “create a record that may be

reviewed by a judge in camera” Id. at 595. Based on

the particular facts and circumstances of this case, the

Court finds that neither possibility justifies requiring

exhaustion in this case.

13

Mohamed v. Holder, --- F.Supp.2d ---- (2014)

18

Also militating against exhaustion in this case is

Mohamed’s interest in a prompt adjudication of his

claims, first filed more than two years ago, and the lack

of any time requirement for the government to

complete the DHS TRIP process, coupled with the

defendants’ inability to provide to the Court any actual

estimate of how long that process would take. See Coit

Indep. Joint Venture v. Fed. Sav. & Loan Ins. Corp.,

489 U.S. 561, 586–87, 109 S.Ct. 1361, 103 L.Ed.2d

602 (1989) (holding that available administrative

remedy was inadequate, and therefore declining to

require exhaustion, where administrative agency was

not required to render a decision within a reasonable

time limit).

19

To establish standing, a plaintiff must show that: (1) he

has suffered an injury in fact that is “concrete and

particularized” and “actual or imminent”; (2) the injury

is “fairly ... trace[able] to the challenged action of the

defendant”; and (3) it is “likely, as opposed to merely

speculative, that the injury will be redressed by a

favorable decision.” Lujan v. Defenders of Wildlife, 504

U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351

(1992) (internal quotation marks omitted).

20

The defendants contend that Mohamed lacks standing

because he “cannot be allowed to invoke the

jurisdiction of this Court by refusing to avail himself of

an existing administrative process that may address his

alleged harm.” Defendants’ Memorandum in Support

of Motion to Dismiss Plaintiff’s Third Amended

Complaint (hereinafter “Memorandum in Support”) at

13. But the cases the defendants cite in support of this

position are inapposite, and simply restrict plaintiffs

who have failed to take advantage of an available

process that “appears to provide due process” from

“us[ing] the federal courts as a means to get back what

[they] want.” Wilson v. MVM, Inc., 475 F.3d 166, 176

(3d Cir.2007) (internal quotation marks omitted). Here,

Mohamed does not seek to bypass ostensibly adequate

procedural remedies; rather, he challenges the

constitutionality of those remedies, which, by the

defendants’ own description, do not allow him to raise

and have considered his constitutional challenges.

21

The “basic rationale” of the ripeness doctrine is “to

prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract

disagreements.” Ostergren v. Cuccinelli, 615 F.3d 263,

288 (4th Cir.2010) (quoting Abbott Labs. v. Gardner,

387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681

(1967)). The court assesses ripeness by “balanc[ing] the

fitness of the issues for judicial decision with the

hardship to the parties of withholding court

consideration.” Id. (quoting Miller v. Brown, 462 F.3d

312, 319 (4th Cir.2006)). The defendants argue that,

without requiring Mohamed to submit to the DHS TRIP

process, “the Court would be ruling on the hypothetical

deficiencies of a process that the Plaintiff has not tested

and would be without the benefit of the agency’s expert

assessment.” Memorandum in Support at 13.

22

Central to the defendants’ defense of the No Fly List is

their contention that there is no fundamental right to the

most convenient form of travel. See Memorandum in

Support at 18–19 (citing, e.g., Gilmore v. Gonzales, 435

F.3d 1125, 1136–37 (9th Cir.2006) (holding that airline

policy requiring identification to fly did not

unreasonably burden right to interstate travel)); Miller

v. Reed, 176 F.3d 1202, 1205–1206 (9th Cir.1999)

(indicating that there is no fundamental right to drive);

Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir.1991)

(“Minor restrictions on travel simply do not amount to

the denial of a fundamental right that can be upheld

only if the Government has a compelling

justification.”). As discussed above, the constitutional

issues presented by the No Fly List, as it applies to

American citizens, go far beyond any claimed right to

travel by the most convenient means. In any event, in

none of the cases the defendants cite was the plaintiff

deprived entirely of the right to travel by air. See

Gilmore, 435 F.3d at 1137 (challenge to identification

policy requiring airline passengers to present

identification or be subjected to more extensive

searches); Cramer, 931 F.2d at 1029–33 (challenge to

law that restricted interstate air service from a particular

airport); City of Houston v. FAA, 679 F.2d 1184, 1198

(5th Cir.1982) (challenge to regulations prohibiting air

carriers from operating nonstop flights between

Washington National Airport and any airport more than

1,000 miles away).

14

 
 Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 1 of 17 PageID# 1178
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

)

GULET MOHAMED,

)

)

Plaintiff

)

)

v.

)

)

ERIC H. HOLDER, JR., in his official

)

capacity as Attorney General of the United States; )

)

JAMES B. COMEY, in his official capacity

)

as Director of the Federal Bureau of Investigation;)

)

TIMOTHY J. HEALY, in his official capacity )

as Director of the Terrorist Screening Center; )

)

JEH C. JOHNSON, in his official capacity

)

as Secretary of Homeland Security;

)

)

JOHN S. PISTOLE, in his official capacity

)

as Administrator of the Transportation

)

Security Administration;

)

)

Unknown TSC Agents, in their individual

)

Capacity,

)

)

Defendants

CASE NO.: 1:11-cv-00050 THE HON. ANTHONY J. TRENGA
Fourth Amended COMPLAINT FOR DAMAGES AND INJUNCTIVE AND DECLARATORY RELIEF
(Violation of Fifth and Fourteenth Amendment Rights and the Administrative Procedure Act)

INTRODUCTION 1. Subsequent to the torture and detention, carried out through foreign intermediaries, that the United States inflicted on Mr. Mohamed, Defendants—various government agencies—

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 2 of 17 PageID# 1179 prevented him from returning home to the United States. Defendants exiled Mr. Mohamed by placing him on a “No Fly List” without any notice or hearing.
2. Defendants placed Mr. Mohamed on its No Fly List while he was abroad in order to pressure him to forgo his right to counsel, submit to invasive questioning, and become an informant for the FBI upon returning to the United States. Since 2010, there are have been almost two dozen publicly documented instances in which Defendants have replicated this pattern of conduct, repeatedly subjecting traveling Muslim citizens to No Fly List placement for substantially similar purposes and in similar contexts.
3. The regularity of such occurrences indicates that Defendants utilize the No Fly List, not just to protect commercial aircraft, but rather to coerce a specific subset of Americans—Muslim citizens—to forgo their rights, obstruct their ability to move freely, and otherwise give Defendants’ agents leverage over listed persons.
4. Defendants’ continued inclusion of Mr. Mohamed on the No Fly List substantially burdens his fundamental right to return and reside in the United States. His inclusion deprives him of his liberty interest in traveling by plane and being free from the government-imposed stigma that being on a terrorist watch list inflicts.
5. The only thing preventing Mr. Mohamed from completing one of the five primary obligations of his faith—the Islamic pilgrimage to Mecca—is his inclusion on Defendants’ No Fly List. The year that Mr. Mohamed is removed from the No Fly List is the year he travels by plane to Mecca and returns to the United States. As a citizen, Mr. Mohamed wants to know that Defendants will never again deprive him of his right to return to the United States.
6. In the aftermath of Mr. Mohamed’s return, Defendants have failed to provide him with a meaningful opportunity to rebut Defendants’ conclusion—evinced by Mr. Mohamed’s inclusion

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 3 of 17 PageID# 1180 on the No Fly List—that he is a national security threat and thus unable to travel by plane.
PARTIES
7. Plaintiff Gulet Mohamed, 21, is a naturalized U.S. citizen. He was born in Somalia and immigrated to the United States at the age of three. Mr. Mohamed is a resident of Alexandria, Virginia. On December 20, 2010, when Mr. Mohamed went to renew his Kuwaiti visitor’s visa at an airport in Kuwait, he was detained by unknown assailants, tortured and interrogated for more than one week. He was transferred to a deportation facility on December 28, 2010 where he awaited deportation back to the United States. Despite Kuwait’s desire to return Mr. Mohamed to the United States, Kuwaiti authorities were unable to deport him by air due to Defendants’ actions. After this legal action commenced, Defendants allowed Mr. Mohamed to return to the United States.
8. Defendant Eric H. Holder, Jr. is the Attorney General of the United States and heads the Department of Justice ("DOJ"), a department of the United States government that oversees the Federal Bureau of Investigation ("FBI"). The FBI administers the Terrorist Screening Center ("TSC"), which was created to consolidate the government's approach to terrorism screening. The TSC develops and maintains the federal government's consolidated Terrorist Screening Database (the "watch list"), of which the No Fly List is a component. Defendant Holder is sued in his official capacity.
9. Defendant James B. Comey is Director of the Federal Bureau of Investigation which administers the TSC. He is sued in his official capacity. 10. Defendant Timothy Healy is the Director of the TSC and is sued in his official capacity.
11. Defendant Jeh C. Johnson is the Secretary, Department of Homeland Security (DHS). DHS, through and with the Transportation Security Administration, administers the Traveler Redress Inquiry Program (TRIP). He is sued in his official capacity.

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 4 of 17 PageID# 1181 12. Defendant John S. Pistole is the Administrator, Transportation Security Administration
(TSA). TSA, bureaucratically a division within DHS, is one of the front-line agencies that implements TSC’s watch lists and which, with DHS, administers TRIP. He is sued in his official capacity. 13. Defendants Unknown TSC Agents are the individuals that placed Plaintiff on the No Fly List.
JURISDICTION
14. This is a complaint for damages and injunctive and declaratory relief based upon civil rights and constitutional violations committed by the Terrorist Screening Center, Federal Bureau of Investigation, and U.S. Department of Justice in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and the Administrative Procedure Act.
15. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702.
16. The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
17. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because Defendants are officers of agencies of the United States sued in their official capacity and because this judicial district is where Plaintiff Mohamed resides and where a substantial part of the events or omissions giving rise to the claim occurred.
FACTUAL ALLEGATIONS
A. The Federal Government's Terrorist Watch List 18. In September 2003, Attorney General John Ashcroft established the Terrorist Screening Center (“TSC”) to consolidate the government's approach to terrorism screening. The TSC,

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 5 of 17 PageID# 1182 which is administered by the FBI, develops and maintains the federal government's consolidate Terrorist Screening Database (the "watch list"). TSC's consolidated watch list is the federal government's master list of suspected international and domestic terrorist records used for watch list-related screening.
19. TSC sends records from its terrorist watch list to other government agencies that in turn use those records to identify suspected terrorists. For example, applicable TSC records are provided to the Transportation Security Administration ("TSA") for use by airlines in prescreening passengers and to U.S. Customs and Border Protection ("CBP") for use in screening travelers entering the United States.
20. Thus, while the TSC maintains and controls the database of suspected terrorists, it is the front-line agencies like the TSA that carry out the screening function. In the context of air travel, when individuals make airline reservations and check in at airports, either TSA or the airline conducts a name-based search of the individual to determine whether he or she is on a watch list.
21. Front-line screening agencies like TSA do not make determinations that place or remove individuals from watch lists.
22. Two government entities are primarily responsible for nominating individuals for inclusion in the terrorist watch list—the National Counterterrorism Center ("NCTC") and the Federal Bureau of Investigation (“FBI”).
23. The NCTC, which is managed by the Office of the Director of National Intelligence, relies on information from other federal departments and agencies when including known or suspected international terrorists in its Terrorist Identities Datamart Environment ("TIDE") database. The NCTC reviews TIDE entries and recommends specific entries to the Terrorist Screening Center for inclusion in the watch list. TIDE is the source of all international terrorist identifier information included in the watch list.

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 6 of 17 PageID# 1183 24. The FBI nominates individuals to be included on the watch list but does not limit its nominations to persons it believes pose a threat to commercial aircraft. The FBI also nominates individuals it considers as a broader threat to domestic or international security.
25. TSC makes the final decision on whether a nominated individual meets the minimum requirements for inclusion into the watch list as a known or suspected terrorist and which screening systems will receive the information about that individual.
26. The minimum requirements for inclusion, as a 2006 Department of Justice Inspector General’s report concluded, were “any degree of a terrorism nexus.”
27. A 2007 GAO report found that the TSC accepts almost 100 percent of nominations made to the watch list.
28. Defendant Healy, Director of the TSC, has testified that in evaluating whether an individual meets the criteria for inclusion on the consolidated watch list, the TSC determines whether the nominated individual is "reasonably suspected" of having possible links to terrorism. According to the TSC, "reasonable suspicion requires articulable facts which, taken together with rational inferences, reasonably warrant the determination that an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of or related to terrorism and terrorist activities." Defendants have not stated publicly what standards or criteria are applied to determine whether an individual on the consolidated watch list will be placed on the No Fly List. 29. Under these standards, the number of records in the consolidated watch list has swelled to an estimated one million names, representing the identities and aliases of approximately 400,000 individuals. Once an individual has been placed on the watch list, the individual remains on the list until the agency that supplied the initial information in support of the nomination determines that the individual should be removed.

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 7 of 17 PageID# 1184 30. The number of individuals on the No Fly List more than doubled from 10,000 person in 2011 to 21,000 in 2012. In 2012, 500 American citizens were on the No Fly List.
31. While no government agency discloses a persons’ status on the No Fly List before they try to fly, listed persons who unsuccessfully attempt to fly are regularly told—by TSA agents, other US government personnel, or airline personnel—that they are on the No Fly List.
32. In response to intelligence failures that permitted Nigerian citizen Umar Farouk Abdulmutallab, a would-be bomber, to fly from Amsterdam to Detroit on December 25, 2009, the Defendants have dramatically expanded the watch list as a whole and the No Fly List in particular. At a recent Senate hearing, Russell E. Travers, Deputy Director of the National Counterterrorism Center, stated that "[t]he entire federal government is leaning very far forward on putting people on lists," and that the watch list is "getting bigger, and it will get even bigger."
B. Inadequacy of Redress Procedure 33. The government entities and individuals involved in the creation, maintenance, support, modification, and enforcement of the No Fly List, including Defendants, have not provided travelers with a fair and effective mechanism through which they can challenge their inclusion on the No Fly List either before or after the placement
34. An individual who has been barred from boarding an aircraft on account of apparent inclusion on the No Fly List has no avenue for redress, because the only agency with the authority to place and remove persons on the No Fly List—TSC—has no administrative process.
35. The TSC, which is administered by the FBI, does not accept redress inquiries from the public, nor does it directly provide final disposition letters to individuals who have submitted redress queries through DHS TRIP.
36. Individuals who utilize DHS TRIP after having been prevented from flying must

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 8 of 17 PageID# 1185 complete a standard form and submit it to the Department of Homeland Security Traveler Redress Inquiry Program ("DHS TRIP"). The DHS TRIP Program provides each individual with a "Redress Control Number" associated with the individual's report. However, by bureaucratic design, DHS does not know why TSC places any person on its No Fly List and lacks the authority to remove someone or to even know that TSC has removed someone from its list.
37. For those cases in which TSC makes a determination regarding a particular individual's status on the watch lists, including the No Fly List, the front-line screening agency responds to the individual with a letter that neither confirms nor denies the existence of any terrorist watch list records relating to the individual. The government does not provide the individual with any opportunity to confront, or to rebut, the grounds for his possible inclusion on the watch list.
38. The only "process" available to listed individuals, either before or after their placement on the No Fly List, is to submit their names and other identifying information to an agency that cannot remove any person from the No Fly List.
PLAINTIFF’S ALLEGATIONS 39. On or about March of 2009, Mr. Mohamed temporarily left the United States to learn Arabic and connect with members of his family living abroad. His first destination was Sanaa, Yemen, where he studied Arabic for a few weeks. However, out of concern for his safety given the instability of the country, he traveled to Somalia and stayed with relatives for several months. Finally, on or about August of 2009, he moved to Kuwait to continue his Arabic studies and stay with an uncle. Mr. Mohamed entered each country lawfully and maintained lawful status for the duration of his travels abroad.
40. Since Mr. Mohamed has been in Kuwait, he successfully renewed his visitor’s visa twice. Both times, Mr. Mohamed went to a Kuwaiti airport, followed proper procedures, and received 90-day extensions for his visitor’s visa without incident.

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 9 of 17 PageID# 1186 41. On December 20, 2010, Mr. Mohamed went to the Kuwait International Airport, near Kuwait City, to renew his visa, just as he had done every three months since he arrived in Kuwait. After an abnormally long wait of several hours, Mr. Mohamed contacted his brother in Virginia via email to inform him that the visa process was taking longer than usual. This is the last communication anyone received from Mr. Mohamed for more than a week. 42. While at the airport, two men in civilian clothes approached Mr. Mohamed, handcuffed him, blindfolded him, escorted him to a waiting SUV, and drove him to an undisclosed location approximately fifteen minutes from the airport. During Mr. Mohamed’s abduction, he was repeatedly beaten and tortured by his interrogators. Mr. Mohamed’s interrogators struck him in the face with their hands regularly and in Mr. Mohamed’s estimate more than a hundred times. The interrogators whipped his feet and other parts of his body with sticks. Mr. Mohamed was forced by his interrogators to stand for prolonged periods of time. At one point, the interrogators threatened to run currents of electricity through Mr. Mohamed’s genitals. In another instance, Mr. Mohamed’s arms were tied to a ceiling beam and left in that position until he lost consciousness.
43. Mr. Mohamed’s interrogators inflicted these beatings, torture, and grave threats onto Mr. Mohamed for more than a week. Mr. Mohamed remained blindfolded and handcuffed most of the time.
44. The subject matter of the interrogators’ questioning—communicated by one interrogator in perfect American English—indicates that Defendants Unknown Agents not only facilitated Mr. Mohamed’s illegal detention, interrogation, and torture but participated directly. The English speaking interrogator, Defendant Unknown Agent, asked Mr. Mohamed detailed questions about his American siblings, referencing non-public facts regarding his family. For example, Defendant Unknown Agent knew the educational attainment of several siblings, their names, and indicated that Defendant Unknown Agent was aware that Mr. Mohamed’s father was

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 10 of 17 PageID# 1187 deceased.
45. Furthermore, Mr. Mohamed was asked questions not about his actions within Kuwait but questions pertaining to individuals such as Anwar Al-Awlaki of particular interest to the United States. It is highly implausible that Kuwaiti officials would ask such questions and torture an American citizen—in light of the dependent relationship Kuwait maintains with the United States—without the knowledge and approval of the United States. 46. On Tuesday, December 28, 2010, Mr. Mohamed’s interrogators transferred him to a deportation facility. In this facility, Mr. Mohamed was placed with individuals awaiting deportation, receiving visits from family, and benefiting from the facility’s reasonable treatment.
47. At this deportation facility, Mr. Mohamed conversed with a prisoner who covertly kept a mobile phone in his cell. Mr. Mohamed asked to use it, because his family still knew neither what happened to him nor his present location. Mr. Mohamed made a call to his family, telling them where he was and what had happened to him. He spoke with and retained one of his attorneys, Gadeir Abbas, soon after.
48. Kuwaiti officials told members of Mr. Mohamed’s family that they are holding him at the behest of the United States government and are willing to release him since they have no interest in keeping him in custody. Kuwaiti officials attempted to deport Mr. Mohamed but told members of his family that the United States has placed him on the No Fly List which is preventing his deportation. Mr. Mohamed’s placement on the No Fly List was confirmed by the United States in conversations reported in the press.
49. Also on December 28, 2010, FBI agents visited Mr. Mohamed. Once he informed them that he was represented by legal counsel in the United States and did not wish to answer their questions, the FBI agents suggested that they had some control over his detention by telling Mr. Mohamed that they could expeditiously procure his release from detention if Mr. Mohamed

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 11 of 17 PageID# 1188 spoke to them. The agents told Mr. Mohamed that he would remain in detention indefinitely if he did not speak to them.
50. On or about January 12, 2011, FBI agents again visited Mr. Mohamed. Again, Mr. Mohamed informed the agents that he would not answer their questions without his lawyer present. The FBI agents persisted, asking him questions for several hours despite Mr. Mohamed’s repeated entreaties for the interrogation to stop and essentially continuing the interrogation where Mr. Mohamed’s torturers stopped. The FBI agents threatened Mr. Mohamed with future interrogations, criminal charges, and during the interrogation the agents physically intimidated Mr. Mohamed by crowding him and yelling. A Kuwaiti official intervened to calm the FBI agents down and request that the interrogation be brought to an end.
51. On January 16, 2010, at the direction of Kuwaiti officials, Mr. Mohamed’s family purchased a ticket for him back to the United States and delivered that ticket to Kuwaiti officials. When Kuwaiti officials took Mr. Mohamed to the airport on January 16, 2010, however, Mr. Mohamed was not allowed onto the United Airlines flight.
52. After this legal action commenced, Defendants allowed Mr. Mohamed to return to the United States on January 21, 2011.
53. Defendants have utilized the No Fly List in a similar manner against other Muslim citizens. Publicly documented examples of Defendants using the No Fly List to exile American citizens abroad while communicating to such persons that becoming an FBI informant or submitting to interrogation overseas without counsel could resolve their placement include: Amayan Latif, Raymond Knaeble, Faisal Nabin Kashem, Elias Mustafa Mohamed, Steven Washburn, Najib Ghaleb, Mashaal Rana, Jamal Tarhuni, Mustafa Elogbi, Stephen Persaud, and Yonas Fikre.
54. Publicly documented examples of American citizens simply exiled abroad by Defendants

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 12 of 17 PageID# 1189 placing them on the No Fly List include: Kevin Iraniha, Abdullatif Muthanna, Mashaal Rana, Ali Ahmed, Saadiq Long, and Amr Abulrub. And finally, there are also publicly documented examples of Defendant placing or maintaining citizens who are in the United States on the No Fly List, because they declined to become an FBI informant or submit to interrogation, including: Michael Migliore, Amir Meshal, Salah Ahmed, and Ibraheim Mashal.
CLAIMS FOR RELIEF
COUNT I - VIOLATION OF U.S. CITIZENS' RIGHT TO RESIDE IN UNITED STATES AND TO REENTER THE UNITED STATES FROM ABROAD Right to Citizenship (Fourteenth Amendment)
55. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
56. By the actions described above, Defendants, acting under color of law and through their agents, have deprived and continue to deprive Mr. Mohamed of his rights guaranteed by the Fourteenth Amendment of the United States Constitution.
57. As a United States citizen, Mr. Mohamed has an absolute right to return to the United States from abroad.
58. By placing Mr. Mohamed on the No Fly List while he was abroad, Defendants Unknown TSC Agents prevented Mr. Mohamed from boarding an aircraft to return to the United States, even though no other means existed by which he may return to the United States, thus violating the constitutional rights of Mr. Mohamed. Kuwaiti officials indicated that they were ready to deport Mr. Mohamed to the United States but were being prevented from doing so by Defendants

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 13 of 17 PageID# 1190
Unknown TSC Agents. Defendants Unknown TSC Agents knew or should have known that their actions violated Mr. Mohamed’s clearly established citizenship rights.
59. By maintaining Mr. Mohamed on the No Fly List, Defendants have substantially burdened his fundamental right to return to the United States in the immediate future. It is only Defendants’ inclusion of Mr. Mohamed on the No Fly List that prevents him from again departing the United States to visit family in Somalia and Canada and to complete a religious pilgrimage to Mecca, Saudi Arabia, and Defendants’ overbroad actions substantially burden Mr. Mohamed’s right to return to the United States.
COUNT II - UNLAWFUL AGENCY ACTION (5 U.S.C. §§ 702, 706)
60. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
61. Defendants' actions described herein were and are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional right and should be set aside as unlawful pursuant to 5 U.S.C. § 706. Defendants' violations of Plaintiffs' constitutional and statutory rights constitute agency actions that are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity in violation of 5 U.S.C. § 706.
62. Defendants’ placement of Mr. Mohamed on the No Fly List violate his Fourteenth Amendment right to return to the United States and his Fifth Amendment liberty interests in traveling by air and being free from false governmental stigmatization as a

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 14 of 17 PageID# 1191
terrorist.
COUNT III - FIFTH AMENDMENT: PROCEDURAL DUE PROCESS – FAILURE TO PROVIDE PRE OR POST DEPRIVATION NOTICE AND
HEARING
63. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 64. Defendants have failed to provide Mr. Mohamed with a meaningful opportunity to challenge his inclusion on the No Fly List either prior or subsequent to his placement, depriving him of his liberty interest in (1) being able to return to the United States, (2) traveling by air like other American citizens, and (3) being free from false governmental stigmatization as a terrorist. 65. By failing to provide Mr. Mohamed with a constitutionally sufficient legal mechanism for challenging his inclusion on the No Fly List, Defendants have deprived Mr. Mohamed of his constitutionally protected liberty interests without due process of law.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request the following relief: a. An injunction that:
i. requires Defendants to remedy the constitutional violations identified above, including the removal of Plaintiff from any watch list or database that unduly burdens his fundamental right to return to the United States ii. requires Defendants to provide Plaintiff with meaningful notice of the grounds

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 15 of 17 PageID# 1192
for his inclusion on a government watch list, and an opportunity to rebut the government's charges and to clear his name either prior or subsequent to inclusion; and
b. A declaration that the actions of Defendants are illegal and in violation of Mohamed’s constitutional and civil rights;
c. An award of compensatory and punitive damages to Mr. Mohamed—determined in a jury trial—in an amount that is fair, just, and reasonable;
d. Award attorneys' fees, costs, and expenses of all litigation;
e. Grant such other relief as the Court may deem just and appropriate
Respectfully submitted,
By: _/s/ Gadeir Abbas (VA Bar #81161) THE COUNCIL ON AMERICAN- ISLAMIC RELATIONS 453 New Jersey Avenue, SE Washington, D.C. 20003 Telephone: (202) 742-6410 Fax: (202) 488-0833 Email: gabbas@cair.com
*licensed in VA; not in DC practice limited to federal matters

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 16 of 17 PageID# 1193
_/s/ Nina Kraut (DC Bar #348185) General Counsel THE COUNCIL ON AMERICAN- ISLAMIC RELATIONS 453 New Jersey Avenue, SE Washington, D.C. 20003 Telephone: (202) 640-4934 Fax: (202) 488-0833 Email: nkraut@cair.com Admitted pro hac vice
_/s/ Munia Jabbar (DC Bar #1008337) Staff Attorney THE COUNCIL ON AMERICAN- ISLAMIC RELATIONS 453 New Jersey Avenue, SE Washington, D.C. 20003 Telephone: (202) 646-6033 Fax: (202) 488-0833 Email: mjabbar@cair.com Admitted pro hac vice
Attorneys for Gulet Mohamed

Case 1:11-cv-00050-AJT-TRJ Document 85 Filed 03/07/14 Page 17 of 17 PageID# 1194
CERTIFICATE OF SERVICE I hereby certify that on the 7th day of March, 2014 a true and correct copy of the foregoing proposed Fourth Amended Complaint was served electronically on all parties of record through the U.S. District Court for the Eastern District of Columbia Electronic Case Filing System (ECF) and that the documents are available on the ECF system.
By: _/s/ Gadeir Abbas (VA Bar #81161)

 
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

GULET MOHAMED,
PLAINTIFF,
v.
ERIC H. HOLDER, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
DEFENDANTS.

Case No. 1:11-CV-00050

DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

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TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1 STATUTORY AND REGULATORY BACKGROUND...............................................................3 PROCEDURAL BACKGROUND................................................................................................13 ARGUMENT .................................................................................................................................14 I. THIS COURT LACKS JURISDICTION TO HEAR PLAINTIFF’S CLAIMS ...............14
A. Plaintiff’s Claim That He Has been Denied the Right To Re-Enter the United States and Reside Therein Is Now Moot and Plaintiff Lacks Standing to Seek Future Injunctive Relief..............................15
B. Plaintiff’s Claim Regarding His Right to Challenge His Alleged Placement On a Terrorist Watch List is Premature and Not Ripe...........................................18
C. This Court Cannot Grant the Relief Plaintiff Seeks Regarding Notice and an Opportunity to Challenge His Alleged Placement on a Terrorist Watch List ...............................................................................................20 i. TSA is a necessary and indispensable party that cannot be joined............21 ii. Final orders of TSA can only be challenged in The Court of Appeals......24
II. THE GOVERNMENT’S REDRESS POLICY IS NOT ARBITRARY, CAPRICIOUS, OR CONTRARY TO LAW.....................................................................25
CONCLUSION ..............................................................................................................................27
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TABLE OF AUTHORITIES
CASES
Abbott Labs. v. Gardner, 387 U.S. 136 (1967)................................................................................................................ 18
America Cargo Transport v. U.S., 625 F.3d 1176 (9th Cir. 2010) ................................................................................................ 16
Ammex, Inc. v. Cox, 351 F.3d 697 (6th Cir. 2003) .................................................................................................. 16
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)................................................................................................................ 17
Bassiouni v. FBI, 436 F.3d 712 (7th Cir. 2006) ...................................................................................................26
Beta Upsilon Chi Upsilon Chapter at the Univ. of Fla. v. Machen, 586 F.3d 908 (11th Cir. 2009) ................................................................................................ 16
Blum v. Yaretsky, 457 U.S. 991 (1982)................................................................................................................ 16
Califano v. Aznavorian, 439 U.S. 170 (1978)................................................................................................................ 17
Camp v. Pitts, 411 U.S. 138 (1973)................................................................................................................ 25
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)................................................................................................................ 25
City of Houston v. FAA, 679 F.2d 1184 (5th Cir. 1982) .................................................................................................17
City of Los Angeles v. Lyons, 461 U.S. 95 (1983).................................................................................................................. 17
Clarke v. United States, 915 F.2d 699 (D.C. Cir. 1990) .................................................................................... 15, 16, 17
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Cramer v. Skinner, 931 F.2d 1020 (5th Cir. 1991) ................................................................................................ 17
Ctr. for National Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003) ................................................................................................ 26
Department of Navy v. Egan, 484 U.S. 518 (1988)................................................................................................................ 26
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., 528 U.S. 167 (2000).......................................................................................................... 15, 16
Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) .......................................................................................... 17, 20
Haig v. Agee, 453 U.S. 280 (1981).......................................................................................................... 17, 26
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) ........................................................................................................ 3, 26
Ibrahim v. DHS, 538 F.3d 1250 (9th Cir. 2008) .....................................................................................19, 20, 24
Krikorian v. Department of State, 984 F.2d 461 (D.C. Cir. 1993) ................................................................................................ 26
League of United Latin America Citizens v. Bredesen, 500 F.3d 523 (6th Cir. 2007) .................................................................................................. 17
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911).................................................................................................................. 26
Matthew v. Honish, 233 Fed. Appx. 563, 564 (7th Cir. 2007).................................................................................17
McDaniels v. U.S., 300 F.3d 407 (4th Cir. 2002) .................................................................................................. 25
Miller Labs. v. Brown, 462 F.3d 312 (4th Cir. 2006) ...................................................................................................19
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Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999) ................................................................................................ 17
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).................................................................................................................. 25
Munaf v. Geren, 553 U.S. 674 (2008)................................................................................................................ 17
Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Rite Aid of S.C., Inc., 210 F.3d 246 (4th Cir. 2000) .................................................................................................. 23
O'Donnell v. Bond, 510 F. Supp. 925 (D.D.C. 1981) ................................................................................. 13, 22, 24
Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2006) ............................................................................................ 18, 19
Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717 (1984)................................................................................................................ 25
Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) .............................................................................................. 12
Ragsdale v. Turnock, 841 F.2d 1358 (7th Cir.1988) ................................................................................................. 16
Rahman v. Chertoff, 530 F.3d 622 (7th Cir. 2008) .................................................................................................. 27
Republic of Phil. v. Pimentel, 553 U.S. 851 (2008)................................................................................................................ 23
Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010) .............................................................................................. 16
Scherfen v. DHS, No. 3:cv-08-1554, 2010 WL. 456784 (M.D. Pa. Feb. 2, 2010)............................ 13, 17, 20, 24
Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646 (9th cir. 2002) ................................................................................................... 19
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Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D.N.C 2003) .................................................................................... 19
Sima Products v. McLucas, 612 F.2d 309 (7th Cir. 1980) .......................................................................................13, 22, 24
Town of Southold v. Town of East Hampton, 477 F.3d 38 (2d Cir. 2007)...................................................................................................... 17
United States v. Hardy, 545 F.3d 280 (4th Cir. 2008) .................................................................................................. 15
Walter v. City of Chicago, No. 91 C 6333, 1992 WL. 88457 (N.D. Ill., April 27, 1992) ................................................. 19
Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541 (4th Cir. 2006) ............................................................................................ 21, 23
Zadvydas v. Davis, 533 U.S. 678 (2001)................................................................................................................ 26
FEDERAL STATUTES 5 U.S.C. § 706(2) .......................................................................................................................... 25 6 U.S.C. § 111(A) ........................................................................................................................... 4 6 U.S.C. § 111(B) ........................................................................................................................... 4 6 U.S.C. § 202 ................................................................................................................................ 4 28 U.S.C. § 533............................................................................................................................... 4 49 U.S.C. § 114............................................................................................................................... 4 49 U.S.C. § 114(a) .......................................................................................................................... 5 49 U.S.C. § 114(b) .......................................................................................................................... 5 49 U.S.C. § 114(e)(1).................................................................................................................. 4, 5
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49 U.S.C. § 114(h)(3) ..................................................................................................................... 5 49 U.S.C. § 114(h)(3)(A) .......................................................................................................... 5, 21 49 U.S.C. §114(l) ...................................................................................................................... 5, 12 49 U.S.C. § 114(r)........................................................................................................................... 7 49 U.S.C. § 114(r)(1) .......................................................................................................................7 49 U.S.C. § 114(r)(1)(c).................................................................................................................. 7 49 U.S.C. § 1486(a) ...................................................................................................................... 12 49 U.S.C. § 1486(a) ...................................................................................................................... 12 49 U.S.C. § 40101......................................................................................................................... 13 49 U.S.C. § 40113......................................................................................................................... 12 49 U.S.C. § 44901......................................................................................................................... 12 49 U.S.C. § 44902......................................................................................................................... 12 49 U.S.C. § 44903......................................................................................................................... 12 49 U.S.C. § 44903(b) ...................................................................................................................... 5 49 U.S.C. § 44903(j)(2)(A)............................................................................................................. 5 49 U.S.C. § 44903(j)(2)(C) ..................................................................................................... 10, 22 49 U.S.C. § 44903(j)(2)(C)(iii) ........................................................................................................6 49 U.S.C. § 44903(j)(2)(G)(i) ......................................................................................................... 6 49 U.S.C. § 44903(j)(2)(G)(ii) ........................................................................................................ 6 49 U.S.C. § 44903(j)(2)(c)(iii)(I) .................................................................................................... 6 49 U.S.C. § 44909(c)(6)...................................................................................................... 6, 10, 22 49 U.S.C. § 44925(b)(1) ................................................................................................................. 5
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49 U.S.C. § 44926......................................................................................................................... 10 49 U.S.C. § 44926(a) .............................................................................................................. 10, 22 49 U.S.C. § 46110.................................................................................................................. passim 49 U.S.C. § 46110(a) ............................................................................................................. 21, 24 50 U.S.C. § 4040(a) .........................................................................................................................4 50 U.S.C. § 4040(d)(1) ................................................................................................................... 4 Pub. L. No. 107-71, 115 Stat. 597 (2001)....................................................................................... 4 Pub. L. No. 107-296, 116 Stat. 2135 (2002)
§ 403...........................................................................................................................................5 § 423...........................................................................................................................................5 § 424...........................................................................................................................................5 Pub. L. No. 108-458, 118 Stat. 3638 (2004)....................................................................................6 Pub. L. No. 109-295, 120 Stat. 1382 (2006)................................................................................... 7 Pub. L. No. 110-161, 121 Stat. 2069 (2007)................................................................................... 7 Pub. L. No. 110-329, 122 Stat. 3682 (2008)................................................................................... 7 Pub. L. No. 111-83, 123 Stat. 2170 (2009)..................................................................................... 7
RULES AND REGULATIONS 8 C.F.R. § 235.1(b) ....................................................................................................................... 18 28 C.F.R. § 0.85(l) .......................................................................................................................... 4 49 C.F.R. § 1500.3 ...........................................................................................................................5 49 C.F.R. Pt. 1520............................................................................................................................7 49 C.F.R. § 1520.5(b)(9)(ii).......................................................................................................... 10
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49 C.F.R. § 1520.7 ...........................................................................................................................7 49 C.F.R. § 1520.9 ...........................................................................................................................7 49 C.F.R. § 1520.9(a).......................................................................................................................8 49 C.F.R. § 1520.9(a)(2) ................................................................................................................. 7 49 C.F.R. § 1520.11(a)(1) ............................................................................................................... 8 49 C.F.R. § 1520.17 ........................................................................................................................ 7 49 C.F.R. § 1560.201 ............................................................................................................. passim 49 C.F.R. § 1560.205(d) ......................................................................................................... 11, 12 49 C.F.R. § 1560.207 ............................................................................................................. passim
FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 19(b) ......................................................................................................................22
LEGISLATIVE MATERIAL H.R. Rep. No. 107-296, at 53 (2001),
reprinted in 2002 U.S.C.C.A.N. 589 ........................................................................................5
UNITED STATES CONSITITUTION U.S. Const. art. III, § 2 ...................................................................................................................15
MISCELLANEOUS 9/11 Commission Report, Executive Summary,
http://govinfo.library.unt.edu/911/report/911Report_Exec.htm ................................................8 Charles A. Wright & Arthur R. Miller,
Fed. Practice & Proc. § 3532.6 (3d ed. 2004) ........................................................................19
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INTRODUCTION In the aftermath of the September 11 terrorist attacks, Congress and the Executive Branch have devoted extensive resources to enhancing aviation security. Multiple federal agencies have worked together to strengthen the security of our nation, including by creating and utilizing a consolidated terrorist watch list, the Terrorist Screening Database (“TSDB”), to facilitate the identification by United States authorities of those individuals known or suspected of engaging in terrorist activity. Throughout this process, Congress and the Executive Branch have worked to balance the civil rights and liberties of the traveling public with the paramount need to ensure that air travel is safe and secure. For example, pursuant to statutory authority and Executive Branch action, individuals who believe they have been wrongfully placed in the TSDB can seek redress with the Department of Homeland Security’s Traveler Redress Inquiry Program (“DHS TRIP”). Plaintiff Gulet Mohamed is a naturalized United States citizen who alleges that he is on the government’s No Fly List, a subset of the TSDB, and that as a result of that listing he was denied boarding on a flight to the United States. He argues that any infringement on his ability to fly into the United States from abroad is a denial of his constitutional right to re-enter the country, in contravention of his Fourteenth Amendment right to United States citizenship. Plaintiff further claims that Defendants have not provided him with a “fair and effective” mechanism to challenge his alleged inclusion on the No Fly List, and argues that Defendants’ actions are therefore arbitrary and capricious. These claims for relief are now moot and should be dismissed, as Plaintiff has returned to the United States. To the extent, however, that Plaintiff challenges his alleged placement on the No Fly List or the Congressionally-mandated process
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through which individuals may seek redress when they believe they have been placed on the No Fly List, that claim must also be dismissed.
By law, the Department of Homeland Security (“DHS”) and the Transportation Security Administration (“TSA”) are responsible for security measures surrounding transportation, including implementing the No Fly List, and, through DHS TRIP, taking the lead role in administering redress for travelers who have been delayed or denied airline boarding due to security screening by TSA. The DHS TRIP process culminates in determination letters issued by TSA that respond to complaints of denied or delayed boarding due to security screening by TSA. Those letters constitute final orders by TSA, whose Office of Transportation Security Redress (“OTSR”) was designated by the DHS Secretary to be the lead agent managing DHS TRIP. Challenges to DHS TRIP determination letters by individuals alleging denied or delayed airline boarding must be filed in the United States Courts of Appeal, pursuant to 49 U.S.C. § 46110, because they are final orders of TSA. Likewise, challenges to the DHS TRIP process itself, codified at 49 C.F.R. §§ 1560.201-1560.207 as part of the recently implemented Secure Flight program, must be brought in the United States Courts of Appeal because the regulation itself constitutes a TSA final order.
In this case, Plaintiff has never availed himself of the DHS TRIP process. Accordingly, Plaintiff’s challenges to both his alleged inclusion on the No Fly List and to the redress process itself are not ripe and should be dismissed. Plaintiff has also failed to include TSA or DHS as a defendant in this action even though both are necessary parties to grant the relief he seeks. Because TSA cannot be joined, however, Plaintiff’s claims should be dismissed under Rule 19(b) of the Federal Rules of Civil Procedure.
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Nor can the broader polices, practices, and procedures at issue here reasonably be considered arbitrary and capricious. In maintaining and managing the TSDB and its No Fly List subset specifically, the government is acting pursuant to legislation passed by Congress in the wake of the September 11, 2001 terrorist attacks to protect the security of the United States and air passengers. Repeated attempts by terrorists in the intervening years establish unequivocally that airplanes remain a primary target and that terrorists will attempt to exploit any perceived deficiencies in the air security system. To the extent that Plaintiff asks this Court to remove him from any terrorist watch list he may be on, Plaintiff seeks to involve the Court in secondguessing determinations made by the Executive Branch regarding national security risks imposed by particular individuals. As the Supreme Court has made clear, courts should avoid taking on such a role: “when it comes to collecting evidence and drawing factual inferences in [the national security context], the lack of competence on the part of the courts is marked, and respect for the Government’s conclusions is appropriate.” Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2727 (2010) (citation omitted). Accordingly, Plaintiff’s claims, even if interpreted in the broadest way possible, must be dismissed.
STATUTORY AND REGULATORY BACKGROUND At present, several different components of the federal government work together to secure the nation (and its airways) from terrorist threats. The Federal Bureau of Investigation (“FBI”) has responsibility for investigating and analyzing intelligence relating to both international and domestic terrorist activities, and the National Counterterrorism Center (“NCTC”) serves as the primary organization for analyzing and integrating intelligence relating to international terrorism and counterterrorism. See 28 U.S.C. § 533; 28 C.F.R. § 0.85(l); 50
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U.S.C. § 4040(a)&(d)(1). DHS is primarily charged with “prevent[ing] terrorist attacks within the [U.S.],” and “reduc[ing] the vulnerability of the [U.S.] to terrorism.” 6 U.S.C. § 111(A), (B). Within DHS, U.S. Customs and Border Protection (“CBP”) is responsible for securing the United States border against terrorist threats, and TSA is responsible for transportation – including aviation – security. See 6 U.S.C. 202; 49 U.S.C. § 114. Finally, the Terrorist Screening Center (“TSC”), which was established by Homeland Security Presidential Directive 6 in 2003, maintains a consolidated database of identifying information about persons known or reasonably suspected of being involved in terrorist activity. TSC then feeds that information to front-line screening agencies and law enforcement officials so that they can positively identify known or suspected terrorists trying to obtain visas, enter the country, board aircraft, or engage in other activity of concern. All of these agencies are involved in the effort to stop known or suspected terrorists from boarding planes traveling to, from, or within the United States.
Creation of TSA After 9/11 In response to the terrorist attacks on the United States on September 11, 2001, Congress enacted the Aviation and Transportation Security Act (Pub. L. No. 107-71, 115 Stat. 597 (2001)), which created TSA within the Department of Transportation. The legislation charged TSA with overseeing the “security screening operations for passenger air transportation.” See 49 U.S.C. § 114(e)(1). In enacting this law, and creating an agency tasked with aviation security, Congress legislated a “fundamental change in the way it approaches the task of ensuring the safety and security of the civil air transportation system” as a result of the “terrorist hijacking and crashes of passenger aircraft on September 11, 2001, which converted civil aircraft into guided bombs for strikes against the [U.S.] . . .” H.R. Rep. No. 107-296, at 53 (2001), reprinted in 2002
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U.S.C.C.A.N. 589, 590. The new statute provided that the Administrator for TSA was to be an Under Secretary of the Department of Transportation. 49 U.S.C. § 114(a), (b).1
The TSA Administrator is responsible for “day-to-day Federal security screening operations for passenger air transportation and intrastate air transportation under sections 44901 and 44935.” 49 U.S.C. § 114(e)(1). Congress also tasked TSA with a number of duties, including the issuance of regulations with respect to screening passengers and securing commercial air travel. See 49 U.S.C. § 44903(b); 49 U.S.C. § 114(l).
TSA is required by statute to secure commercial air travel against the threat of terrorism including by establishing policies and procedures that require air carriers to prevent boarding for certain individuals. 49 U.S.C. § 114(h)(3). Specifically, TSA must work “in consultation with other appropriate Federal agencies and air carriers” and “use information from government agencies” to identify travelers who may pose a threat to national security, so that it can “prevent [those] individuals from boarding an aircraft.” Id. § 114(h)(3)(A), (B); see also Piehota Dec., ¶ 2, 4. TSA is also specifically responsible for prescreening passengers against the No Fly and Selectee Lists. See 49 U.S.C. § 44903(j)(2)(A). Pursuant to that authority, TSA implemented the Secure Flight program, codified at 49 C.F.R. Parts 1540, 1544, and 1560, through which it performs the watch list matching functions previously conducted by aircraft operators. TSA has been transitioning to the Secure Flight program since January 2009. Secure Flight was fully
1 TSA was subsequently transferred to the Department of Homeland Security as part of the Homeland Security Act of 2002. See Pub. L. No. 107-296, §§ 403, 423, 424, 116 Stat. 2135, 2178, 2184 (2002). Within DHS, the Under Secretary of Transportation for Security underwent a title change to Administrator of TSA, see 49 C.F.R. § 1500.3, and now is also known as the Assistant Secretary of Homeland Security for TSA, see, e.g., 49 U.S.C. § 44925(b)(1).
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implemented for all U.S. airlines on June 22, 2010 and for all covered airlines on November 23, 2010. Lynch Dec., ¶ 7 n.1.
As part of its prescreening functions, TSA is also required to provide redress to travelers who have been delayed or denied airline boarding. Specifically, 49 U.S.C. § 44903(j)(2)(C)(iii), enacted as part of the Intelligence Reform and Terrorism Prevention Act of 2004 (“IRTPA”), Pub. L. No. 108-458, 118 Stat. 3638 (2004), requires the Assistant Secretary of Homeland Security to “establish a procedure to enable airline passengers, who are delayed or prohibited from boarding a flight because the advanced passenger prescreening system determined that they might pose a security threat, to appeal such determination and correct information contained in the system.” 49 U.S.C. § 44903(j)(2)(c)(iii)(I). The Assistant Secretary is further required to “establish a timely and fair process for individuals identified as a threat under one or more of subparagraphs (C), (D), and (E) to appeal to the [TSA] the determination and correct any erroneous information.” 49 U.S.C. § 44903(j)(2)(G)(i).2 A similar requirement is prescribed for international passengers. Under 49 U.S.C. § 44909(c)(6), the Secretary is required to “compare passenger information for any international flight to or from the United States against the consolidated and integrated terrorist watchlist maintained by the Federal Government before departure of the flight[]” and to “establish a timely and fair process for individuals identified as a threat” to appeal the determination to the Department and correct any erroneous information.
2 The process must “include the establishment of a method by which the Assistant Secretary will be able to maintain a record of air passengers and other individuals who have been misidentified and have corrected erroneous information. To prevent repeated delays of misidentified passengers and other individuals, the Transportation Security Administration record shall contain information determined by the Assistant Secretary to authenticate the identity of such a passenger or individual.” 49 U.S.C. § 44903(j)(2)(G)(ii).
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Pursuant to these authorities, TSA provides redress to passengers through DHS TRIP, a process described in more detail below that was codified at 49 C.F.R. §§ 1560.201-1560.207 as part of Secure Flight.
Congress also directed TSA to “prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security . . . if the Under Secretary decides that disclosing the information would . . . be detrimental to the security of transportation.” 49 U.S.C. § 114(r)(1)(c) (formerly § 114(s)). Such information is known as Sensitive Security Information (“SSI”), and TSA is authorized by Congress to determine whether particular material is SSI, and, if so, whether and to what extent it may be disclosed. See id.§ 114(r)(1); 49 C.F.R. Pt. 1520. As a general matter, SSI may only be disclosed to “covered persons who have a need to know, unless otherwise authorized in writing by TSA, the Coast Guard, or the Secretary of DOT.” 49 C.F.R. § 1520.9(a)(2); see also 49 U.S.C. § 114(r). For example, SSI may be released to covered individuals or entities (such as law enforcement agencies or airline or airport personnel) to “carry out transportation security activities approved, accepted, funded, recommended, or directed by DHS or DOT.” 49 C.F.R. § 1520.11(a)(1); id. § 1520.7 (defining covered persons).3 The regulations impose on covered persons an express duty to protect the information. See id. § 1520.9. Among other things, the regulations specifically require that
3 Section 525(d) of the Department of Homeland Security Appropriations Act, 2007, Public Law No. 109-295, § 525(d), 120 Stat. 1382 (Oct. 4, 2006), as reenacted by Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 522, 121 Stat. 2069 (Dec. 26, 2007); Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Pub. L. No. 110-329, § 510, 122 Stat. 3682 (Sept. 30, 2008); and the Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, Title V, § 510, 123 Stat. 2170 (Oct. 28, 2009) (“Section 525(d)”), permits the disclosure of certain SSI in civil discovery in federal court to a “party or party’s counsel” under limited circumstances. See id. § 525(d). If Plaintiffs seek such access, Section 525 contains several statutory prerequisites that must be satisfied.
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covered persons “[t]ake reasonable steps to safeguard SSI . . . from unauthorized disclosure[,]”
and “[r]efer requests by other persons for SSI to TSA or the applicable component or agency
within DOT or DHS.” Id. § 1520.9(a). Violation of these and related additional non-disclosure
requirements “is grounds for a civil penalty and other enforcement or corrective action[.]” Id. §
1520.17.
Creation of the Terrorist Screening Center
In 2003, the President ordered the establishment of a governmental organization that
would “consolidate the Government’s approach to terrorism screening and provide for the
appropriate and lawful use of Terrorist Information in screening processes.” See Homeland
Security Presidential Directive 6. Piehota Dec., ¶ 6. The creation of the TSC satisfied this Presidential Directive.4 The creation of the TSC was driven by the administration’s conclusion
that the lack of intelligence-sharing across federal agencies had created vulnerabilities in the nation’s security.5 Before TSC, multiple terrorist watch lists were maintained separately in
different agencies; the TSC has consolidated and centralized the terrorist watch lists, as the 9/11
Commission recommended. Piehota Dec., ¶¶ 5-6.
4 TSC is an interagency entity that was created through a Memorandum of Understanding entered into by the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of Central Intelligence in order to fulfill the requirements of HSPD 6. Piehota Decl., ¶ 2; Lynch Decl. ¶ 9. TSC is administered by the Department of Justice (through the FBI) and is staffed by government officials from a variety of agencies, including TSA, CBP, and the Department of State. Piehota Decl., ¶ 2. 5 See 9/11 Commission Report, Executive Summary, available at http://govinfo.library.unt.edu/911/report/911Report_Exec.htm (“The missed opportunities to thwart the 9/11 plot were also symptoms of a broader inability to adapt the way government manages problems to the new challenges of the twenty-first century. Action officers should have been able to draw on all available knowledge about al Qaeda in the government. Management should have ensured that information was shared and duties were clearly assigned across agencies, and across the foreign-domestic divide.”)
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The TSC is responsible for maintaining the federal government’s consolidated terrorist watch list, the TSDB, which contains identifying information about individuals known or suspected to be engaged or aiding in terrorist related conduct. Piehota Dec., ¶¶ 8; Giuliano Dec., ¶ 6. Government agencies (such as members of the intelligence community and the FBI) nominate individuals to be included in the TSDB. Nominations require sufficient identifying information and certain minimum substantive criteria, including a “reasonable suspicion” based on the “totality of circumstances” that the individual is a known or suspected terrorist. Piehota Dec., ¶ 12; Giuliano Dec., ¶ 12. The substantive information supporting a TSDB nomination is known as the “derogatory information.” Piehota Dec., ¶ 9; see generally Giuliano Dec., ¶¶ 7-8. The TSDB contains terrorist identity information (i.e., name, date of birth, etc.). See Piehota Dec., ¶ 6, 24; Giuliano Dec., ¶ 7.
The TSDB only includes identifying information; it does not include the underlying derogatory information. Separating the classified derogatory information from the identifying information allows identifying information to be shared with government and law enforcement officials who may lack appropriate security clearances but who nevertheless need to be able to positively identify known or suspected terrorists who try to obtain visas, enter the country, board aircraft, or engage in other activity that may pose a risk to national security. See Piehota Dec., ¶ 13; Giuliano Dec., ¶ 9. Because intelligence is continually evolving, the composition of the TSDB, including the identifying information about known or suspected terrorists, is regularly updated. See Piehota Dec., ¶ 18; Giuliano ¶ 10.
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No Fly and Selectee Lists The No Fly and Selectee Lists are subsets of the TSDB. Piehota Dec., ¶ 15. The No Fly List is “a list of individuals who are prohibited from boarding an aircraft” and the Selectee List as “a list of individuals who must undergo additional security screening before being permitted to board an aircraft.” Id., ¶ 16. To be included on the No Fly or Selectee list, an individual must be on the TSDB and meet heightened criteria above the general reasonable suspicion standard for inclusion in TSDB. Id., ¶ 10. The government treats the No Fly and Selectee list criteria as SSI; as a result, neither the No Fly and Selectee list criteria, nor the implementation guidance, are publicly released. See 49 C.F.R. § 1520.5(b)(9)(ii); Piehota Dec., ¶ 17. There is no bar to including United States citizens or lawful permanent residents on either the No Fly or Selectee Lists. Piehota Dec., ¶ 9. If a person is denied boarding and wishes to file a complaint about that denial, he or she may do so with DHS TRIP, as explained below. See Piehota Dec., ¶ 26; Lynch Dec., ¶¶ 4, 5.
Redress Procedures for Travelers Denied Boarding As discussed above, Congress required TSA to create a redress process for passengers who have been delayed or denied airline boarding due to TSA security screening. See 49 U.S.C. § 44903(j)(2)(C); 49 U.S.C. § 44909(c)(6). Congress also enacted 49 U.S.C. § 44926, as part of the legislation implementing the recommendations of the 9/11 Commission. This provision requires DHS, inter alia, to “establish a timely and fair process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they were misidentified as a threat under the regimes utilized by the TSA, U.S. Customs and Border
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Protection, or any other office or component of the Department of Homeland Security.” Id. § 44926(a).
In February 2007, DHS launched DHS TRIP as the central administrative redress process for individuals who have, for example, been denied or delayed airline boarding; denied or delayed entry into or exit from the United States at a port of entry; or been repeatedly referred to additional (secondary) screening. See Lynch Dec., ¶ 4; Piehota Dec., ¶ 26. By designation from the Secretary of DHS, TSA’s OTSR, which predated the establishment of DHS TRIP, acts as DHS’s lead agent managing DHS TRIP. See Lynch Dec., ¶ 4. As noted above, as part of its implementation of Secure Flight, TSA recently codified its passenger redress program for passengers who have been delayed or denied boarding as a result of TSA’s passenger prescreening at 49 C.F.R. §§ 1560.201-1560.207.
Persons who have been denied boarding, or been subject to additional screening, may file a complaint with DHS TRIP. See 49 C.F.R. § 1560.201; Lynch Dec., ¶ 5. They are required to complete a traveler inquiry form, either on-line or via e-mail or hard copy. See Lynch Dec., ¶ 6. If the applicable DHS component determines that the complainant is an exact or near match to an identity in the TSDB, the matter is referred to the TSC Redress Unit. See Lynch Dec., ¶ 9; Piehota Dec., ¶¶ 30-32; see also 49 C.F.R. § 1560.205(d).6 To date, less than 1% of all DHS TRIP complaints relate to persons actually included in the TSDB (or by extension, the No Fly or Selectee Lists). See Lynch Dec., ¶ 9; Piehota Dec., ¶ 29.
6 This interagency review process is described in the Memorandum of Understanding on Watchlist Redress Procedures, which was executed on September 19, 2007, by the secretaries of State, Treasury, Defense, and Homeland Security, the Attorney General, the FBI Director, the NCTC Director, the CIA Director, the ODNI, and the TSC Director. See Piehota Dec., ¶ 28.
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The TSC Redress Unit reviews the available information to determine whether the DHS TRIP complainant is an exact match to a TSDB identity, and if so, whether the individual’s status should be modified or whether the person should be removed entirely from the TSDB. See Piehota Dec., ¶ 31. As part of this process, TSC contacts the agency that originally nominated the individual for inclusion in the TSDB and “determine[s] whether the complainant’s current status in the TSDB is suitable based on the most thorough, accurate, and current information available.” Piehota Dec., ¶ 30. The TSC Redress Unit makes a determination as to whether any adjustment in the individual’s status, including a modification or removal, is required and informs DHS TRIP accordingly. For inquiries that involve complaints about delayed or denied boarding due to TSA security screening, DHS TRIP, in conjunction with TSA OTSR, subsequently sends a determination letter to the complainant as required under 49 U.S.C. §§ 44903 and 44926. See Piehota Dec., ¶ 32; Lynch Dec., ¶ 10.; see also 49 C.F.R. § 1560.205(d). Pursuant to the government’s current “Glomar” policy, the letter does not confirm or deny whether the individual is in the TSDB, or on the No Fly or Selectee subset lists. Piehota Dec., ¶ 32; Lynch Dec. ¶¶ 8, 10.7
The passenger redress program implemented by TSA pursuant to Congressional mandate, codified at 49 C.F.R. §§ 1560.201-1560.207, is subject to review only by a U.S. Court of Appeals pursuant to 49 U.S.C. § 46110, because the Secure Flight regulations were issued under 49 U.S.C. §114(l), well as 49 U.S.C. §§ 40113, 44901, 44902, and 44903, which are contained in
7 “Glomar” refers to a “neither confirm nor deny” response. This response was first judicially recognized in the national security context, see Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976), which raised the issue of whether CIA could refuse to confirm or deny its ties to Howard Hughes’ submarine retrieval ship, the Glomar Explorer.
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Part A of Subtitle VII of the Title 49 of the U.S. Code. See, e.g., 49 U.S.C. § 46110 (providing that orders issued by the Administrator of TSA in whole or in part under certain sections of Title 49 (Parts A or B of Subtitle VII, or section 114(l) or (r)), are subject to review only in the courts of appeals); Sima Prods. v. McLucas, 612 F.2d 309 (7th Cir. 1980) (holding that a regulation that was subject to notice and comment rulemaking may be considered an order pursuant to 49 U.S.C. § 1486(a), 49 U.S.C. § 46110’s predecessor statute); O’Donnell v. Bond, 510 F. Supp. 925, 928 (D.D.C. 1981) (holding that the definition of a final order under 49 U.S.C. § 1486(a) includes “procedures and regulations adopted . . . through informal notice-and-comment rulemaking[,]” and that challenges thereto must be brought in a federal court of appeals).
Likewise, the DHS TRIP determination letters that respond to complaints regarding delayed or denied boarding due to TSA security screening are final orders of TSA pursuant to 49 U.S.C. § 46110. See Lynch Dec. ¶ 11. Judicial review of such letters is available only in the Courts of Appeal. See Scherfen v. DHS, No. 3:cv-08-1554, 2010 WL 456784, at *11 (M.D. Pa. Feb. 2, 2010) (holding that DHS TRIP was established pursuant to “a statute encompassed by the jurisdictional grant conferred by § 46110 over security-related orders issued pursuant to statutory authority established in 49 U.S.C. §§ 40101 through 46507.”).
PROCEDURAL BACKGROUND The Plaintiff is a naturalized United States citizen who alleges he was denied boarding on a flight to the United States. See Verified Complaint (“Compl.”), ¶ 1. Plaintiff asserts two claims for relief, one for an alleged Constitutional violation of the Fourteenth Amendment, and one for an alleged violation of the Administrative Procedure Act (“APA”) with regard to his re-
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entry into the United States. Compl., at 11-13. Plaintiff has not filed a complaint with DHS TRIP. See Lynch Dec. ¶ 13.
At the outset of this litigation, Plaintiff was located in Kuwait and wished to return home by traveling on commercial airlines. Compl., ¶ 1. On January 18, 2011, Plaintiff’s counsel filed a motion for a temporary restraining order, a preliminary and permanent injunction, and other relief on behalf of Plaintiff, asking the Court to require Defendants to allow him to return to the U.S., subject to “suitable screening procedures.” See Compl., at 13. This Court held a hearing the same day, which was continued until January 20, 2011. See Dkt. # 6. On January 20, 2011, Defendants reported that the Kuwaiti government confirmed that Plaintiff would be on a flight to the United States that evening. See Dkt. # 9. The Court declined to enter a judgment, and instead ordered the parties to return to Court on January 21, 2011, if Plaintiff had not returned to the United States. As a result of the parties’ efforts, Plaintiff returned to the United States on January 21, 2011.8
ARGUMENT I. THIS COURT LACKS JURISDICTION TO HEAR PLAINTIFF’S CLAIMS.
Plaintiff’s claims should be dismissed because they are moot, lack ripeness, and the relief Plaintiff seeks cannot be granted by this Court. Because Plaintiff has been back in the United States since January 21, 2011, any claim relating to his right of re-entry is now moot. Further, to the extent that Plaintiff challenges his alleged placement on the No Fly List, his claim is not ripe because he has failed to avail himself of the redress process provided by TSA through DHS
8 On January 31, 2010, counsel for Defendants called Plaintiff’s counsel in order to determine Plaintiff intended to pursue his case in light of his return to the United States. Defendants’ counsel has not yet heard back from Plaintiff’s counsel.
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TRIP. Finally, even after Plaintiff completes the DHS TRIP process, in order to challenge the outcome and the adequacy of that redress process, he must bring a claim in the Court of Appeals, pursuant to 49 U.S.C. § 46110.
A. Plaintiff’s Claim That He Has Been Denied the Right To Re-Enter the United States and Reside Therein Is Now Moot and Plaintiff Lacks Standing to Seek Future Injunctive Relief.
In the first count of his Complaint, Plaintiff alleges that the government has denied him his right to reside in and re-enter the United States because he was denied boarding on a direct flight to the United States. See Compl., ¶¶ 32-34. Because Plaintiff has now returned to the United States and has made no credible allegation of certain, impending future injury, Plaintiff’s Fourteenth Amendment claim is moot because there is no existing injury that the Court can redress.
The mootness doctrine is based on the Constitution’s case-or-controversy requirement. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180 (2000) (citing U.S. Const. art. III, § 2). Whereas standing is determined at the time the lawsuit is filed, the question of mootness arises during the pendency of the lawsuit: “[t]he requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Id. at 189 (citing quotations omitted). A case is moot if the issues are no longer live and the court is unable to grant effective relief. U.S. v. Hardy, 545 F.3d 280, 282 (4th Cir. 2008). Thus, even if there is a live controversy when the case is filed, courts should refrain from deciding issues “if events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.” See
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Clarke v. U.S., 915 F.2d 699, 701 (D.C. Cir. 1990) (internal quotation marks omitted). Here, the Plaintiff has entered the United States, thereby mooting his Fourteenth Amendment claim.
Although there are exceptions to the mootness doctrine, none apply here. Plaintiff may argue that this is a case of voluntary cessation, which ordinarily will not moot a case unless it is clear that the allegedly wrongful behavior could not reasonably be expected to recur. See Laidlaw Envtl. Servs., 528 U.S. at 189. Although ordinarily “[c]ourts are understandably reluctant to declare a case moot based on the defendant’s voluntary cessation of the challenged activity[,]” “cessation of the allegedly illegal conduct by government officials has been treated with more solicitude by the courts than similar action by private parties.” Am. Cargo Transp. v. U.S., 625 F.3d 1176, 1179, 1180 (9th Cir. 2010) (quoting Ragsdale v. Turnock, 841 F .2d 1358, 1365 (7th Cir.1988)). See also Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1117 (10th Cir. 2010); Beta Upsilon Chi Upsilon Chapter at the Univ. of Fla. v. Machen, 586 F.3d 908, 916-17 (11th Cir. 2009); Ammex, Inc. v. Cox, 351 F.3d 697, 705 (6th Cir. 2003).
Moreover, there is no additional relief the Court could order. It would be beyond the Court’s power to order that Plaintiff always be permitted to board flights to the United States or to prescribe the screening and security procedures that should be applied to him, and Plaintiff does not appear to be seeking such future relief. See, e.g., Blum v. Yaretsky, 457 U.S. 991, 999 (1982) (a plaintiff “who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject.”). Any future decisions about terrorist watch listing or screening are sensitive, highly fact-specific assessments that depend on the facts and resources available at the future time to the responsible agencies; the information is dynamic, making it impossible to
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give future guarantees about an individual’s status. See generally Piehota Dec. ¶ 18; Giuliano
Dec. ¶ 10. Accordingly, Plaintiff’s Fourteenth Amendment claim is moot because “events have
so transpired that the decision will neither presently affect the parties’ rights nor have a more-
than-speculative chance of affecting them in the future.” See Clarke, 915 F.2d at 701.
Finally, because Plaintiff cannot show immediate, certain denial of future injury, he does
not have standing to seek injunctive relief regarding future travel. See City of Los Angeles v.
Lyons, 461 U.S. 95, 102 (1983) (requiring “real and immediate threat of repeated
injury”)(citation omitted); Scherfen, 2010 WL 456784 at *13 (finding No Fly List claims moot).9
9 While United States citizens have a right to re-enter the country, they do not have a constitutional right to re-enter by a specific mode of transportation. As an initial matter, there is no right to international travel, and such travel is “subordinate to national security and foreign policy considerations.” See Haig v. Agee, 453 U.S. 280, 306 (1981). Unlike the right to interstate travel, the freedom to travel internationally is simply an aspect of the liberty protected by the due process clause, and the restrictions on international travel are permissible unless “wholly irrational[.]” Califano v. Aznavorian, 439 U.S. 170, 177 (1978).
Even in the context of interstate travel, a more heavily protected interest, courts have repeatedly held that there is no right to any particular means of travel, even if the most convenient means of travel is restricted. See League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 534 (6th Cir. 2007) (holding that there is no protected right to a particular mode of transportation); Matthew v. Honish, 233 Fed. Appx. 563, 564 (7th Cir. 2007); Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) (holding there is no right to air travel); Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999) (no right to drive); see also Town of Southold v. Town of East Hampton, 477 F.3d 38 (2d Cir. 2007)(“travelers do not have a constitutional right to the most convenient form of travel”); Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir. 1991)(same); City of Houston v. FAA, 679 F.2d 1184 (5th Cir. 1982)(same). Therefore, any inability to return to the United States by airplane cannot reasonably be equated with denial of re-entry into the country.
While Plaintiff may claim that actions of the Kuwaitis limited his options for returning to the United States, anyone who travels abroad always takes the risk that they will be detained or otherwise subjected to foreign law, and they cannot hold the United States responsible for the actions of foreign nations. See Munaf v. Geren, 553 U.S. 674, 694-95 (2008) (Constitution does not prevent US citizens abroad from being subject to foreign law); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 417-18 (1964) (“To permit the validity of the acts of one sovereign state to be [reexamined] and perhaps condemned by the courts of another would very certainly
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Although the government cannot provide assurances with respect to future air travel, there is no indication that Plaintiff would be prohibited from entering the United States in the future. Generally, United States citizens who arrive at a United States port of entry are permitted to enter the country once they establish to the satisfaction of a CBP officer that they are in fact United States citizens. See 8 C.F.R. § 235.1(b). Under these facts, Plaintiff simply cannot show that future denial of entry is in any way likely, and therefore, his claim should be dismissed as moot.
B. Plaintiff’s Claim Regarding His Right to Challenge His Alleged Placement on a Terrorist Watch List Is Premature and Not Ripe.
To the extent Plaintiff challenges his alleged placement on a terrorist watch list, and the existing mechanism through which individuals may seek removal, those claims are premature. Plaintiff has failed to avail himself of the redress process that Congress mandated, and that he now seeks to challenge. As such, Plaintiff’s claim is not ripe and not appropriately before the Court at this time.
Ripeness occurs only when a dispute is definite and concrete. See Ostergren v. Cuccinelli, 615 F.3d 263, 288 (4th Cir. 2006). “[I]ts basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . .” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). Ripeness is determined
imperil the amicable relations between governments and vex the peace of nations.”) (internal quotation marks omitted).
Moreover, past experience cannot be the basis for the future injunctive relief Plaintiff seeks. In order to obtain future injunctive relief, Plaintiff would have to show that he would once again be detained by a third party, and any such claim would be entirely speculative.
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by balancing “the fitness of the issues for judicial decision with the hardship to the parties of withholding court consideration.” Miller Labs v. Brown, 462 F.3d 312, 319 (4th Cir. 2006)(internal quotations omitted). Ripeness cannot, however, occur when there are “problems such as the inadequacy of the record ... or ambiguity in the record ... will make a case unfit for adjudication on the merits,” Ostergren, 615 F.3d at 288 (quoting Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 662 (9th Cir.2002)) (internal quotations omitted).
Although Plaintiff attacks the adequacy of the DHS TRIP process, he has not applied to TSA for redress through DHS TRIP. Plaintiff’s Complaint will not be ripe until he has tested his arguments by utilizing the Congressionally-mandated redress process provided by DHS TRIP. See 13B Charles A. Wright & Arthur R. Miller, Fed. Practice & Proc. § 3532.6 (3d ed. 2004) (“[R]ipeness may be used to express the exhaustion principle that administrative remedies should be tried before running to the courts.”). Without having allowed this process to run its course, the Court would be without the benefit of the agency’s assessment and if needed, a formal administrative record. This defect could also be viewed through the prism of standing – Plaintiff has no standing to challenge the adequacy of the DHS TRIP if he has never even attempted to use it. See, e.g., Shavitz v. City of High Point, 270 F. Supp. 2d 702, 710 (M.D.N.C 2003) (where “Plaintiff has failed to use the process provided to him, he cannot show that he has suffered injury because of the insufficiency of the process provided[]”); Walter v. City of Chicago, 1992 WL 88457, at *3 (N.D. Ill., April 27, 1992) (questioning whether plaintiff has standing to challenge procedures where plaintiff “never made use of them”).
Even if this Court determines that Plaintiff’s claim is ripe, he must bring his claim in the Court of Appeals, consistent with the Ninth Circuit’s decision in Ibrahim v. DHS, 538 F.3d 1250
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(9th Cir. 2008).10 Ms. Ibrahim brought her claim in the Northern District of California prior to TSA’s development of DHS TRIP. When the Ninth Circuit heard her appeal, therefore, the question of jurisdiction regarding that redress process was not before the court. See Scherfen, 2010 WL 456784, at *10. In Ibrahim, the Ninth Circuit held that a challenge to the “policies and procedures implementing the No Fly List” was a challenge to an “order” of TSA and therefore must be brought in a Court of Appeals. 538 F.3d at 1257; see also Gilmore, 435 F.3d 1125. Indeed, the court noted that any “’order’ of an agency . . . named in section 46110” must be challenged in the Court of Appeals. Ibrahim, 538 F.3d at 1255.
Like the “policies and procedures” at issue in Ibrahim, TSA’s passenger redress program, as codified at 49 C.F.R. §§ 1560.201-1560.207, is subject to review only by a U.S. Court of Appeals pursuant to 49 U.S.C. § 46110. Likewise, DHS TRIP determination letters that resolve complaints about denied or delayed airline boarding caused by alleged placement on a watch list are final orders issued by TSA, which administers DHS TRIP. Thus, even if Plaintiff’s claim were ripe, any challenge to the DHS TRIP process or to a DHS TRIP determination letter received by Plaintiff must be brought in the Courts of Appeals.
C. This Court Cannot Grant the Relief Plaintiff Seeks Regarding Notice and an Opportunity to Challenge His Alleged Placement on a Terrorist Watch List.
Even if Plaintiff had availed himself of the DHS TRIP process and had received a determination letter from TSA, this Court would be unable to grant the relief Plaintiff appears to
10 The only other court to consider DHS TRIP has also held that any challenge to TSA’s determination under the redress process must be brought in a Court of Appeals. In Scherfen v. Department of Homeland Security, the court dismissed the case because “the existence of TRIP determination letters in this case means that, unlike Ibrahim, there are orders issued by an agency named with § 46110.” Scherfen, 2010 WL 456784 at *11.
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seek: a “mechanism through which [he] can challenge [his] inclusion on the No Fly List.” Compl. ¶ 17. That relief necessarily requires that TSA be a party to the lawsuit. Pursuant to 49 U.S.C. § 46110(a), however, such a lawsuit must be filed in a Court of Appeals.11
i. TSA is a necessary and indispensable party that cannot be joined. The Complaint appears to ask this Court to require the government to provide Plaintiff with an opportunity to challenge his purported inclusion on the No Fly list, because Plaintiff contends that the DHS TRIP process is constitutionally inadequate. Yet, not only has Plaintiff failed to avail himself of the statutorily-mandated process for seeking redress, he has also failed to include two necessary parties – DHS and TSA – in this suit. Including DHS and TSA in this case is required by Rule 19 of the Federal Rules of Civil Procedure; without DHS and TSA, “the plaintiff could not obtain complete relief[.]” Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 552 (4th Cir. 2006). The regulations governing the DHS TRIP process, as well as the DHS TRIP determination letters regarding complaints about denied or delayed airline boarding due to TSA security screening are final orders by TSA, which administers DHS TRIP. The
11 49 U.S.C. § 46110(a) provides that “[e]xcept for an order related to a foreign air carrier subject to disapproval by the President under section 41307 or 41509 (f) of this title, 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 [U.S.] Court of Appeals for the District of Columbia Circuit or in the court of appeals of the [U.S.] for the circuit in which the person resides or has its principal place of business. The petition must be filed not later than 60 days after the order is issued. The court may allow the petition to be filed after the 60th day only if there are reasonable grounds for not filing by the 60th day.”
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Complaint should be dismissed as a result, pursuant to Rule 19(b), and judgment should be entered for Defendants, because TSA is a necessary party that cannot be joined.
As explained above, TSA is responsible for identifying travelers who pose a threat to national security and for preventing those individuals from boarding an aircraft. See 49 U.S.C. § 114(h)(3), (f)(1)-(4). TSA and DHS are also responsible for providing a redress process to travelers who complain that they have been delayed or denied boarding due to wrongful placement on the No Fly or Selectee Lists. See Lynch Dec. ¶ 4; 49 U.S.C. § 44926(a); see also 49 U.S.C. §§ 44903(j)(2)(C), 44909(c)(6). Accordingly, the relief Plaintiff requests – that this Court require the government to provide him with meaningful notice of the basis for his alleged inclusion on the watchlist and an opportunity to rebut the government’s charges – requires that both DHS and TSA be included as defendants in the case. TSA’s passenger redress program, as codified at 49 C.F.R. §§ 1560.201-1560.207, is subject to review only by a U.S. Court of Appeals pursuant to 49 U.S.C. § 46110. See, e.g., Sima Prods., 612 F.2d at 312-13 (holding that a regulation can be final order when it otherwise meets the definition of a final order); O’Donnell, 510 F. Supp. at 928 (same). Likewise, DHS TRIP determination letters that resolve complaints about denied or delayed airline boarding caused by alleged placement on the No Fly or Selectee Lists are final orders issued by TSA, which administers DHS TRIP. As a result, this action belongs in the Court of Appeals.
Rule 19(b) provides the factors that a Court should consider to determine whether, when joinder is not feasible, “in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” Fed. R. Civ. P. 19(b). These factors include: (1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the
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existing parties; (2) the extent to which any prejudice could be lessened or avoided by shaping the judgment or the relief; (3) whether a judgment rendered in the person’s absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed. See Yashenko, 446 F.3d at 552 (applying Rule 19(b) factors). The Rule 19(b) factors support dismissal here.
The first two factors weigh in favor of dismissal. The Court cannot order DHS and TSA to improve the DHS TRIP process if they are not parties to the suit. DHS and TSA have a significant stake in how DHS TRIP operates. DHS and TSA have been charged by Congress with satisfying the Congressional command that a “timely and fair [redress] process” be established for persons delayed or denied boarding; through DHS TRIP and TSA Office of Transportation Security Redress, TSA and DHS thus fulfill the statutory command to provide redress to persons who allege they were wrongfully denied or delayed boarding due to TSA security screening. See supra at 10-13. As a result, the judgment cannot be shaped to exclude DHS and TSA but still provide relief. Moreover, a judgment regarding Plaintiff’s status or rights via-a-vis the No Fly or Selectee Lists without DHS and TSA will be inadequate. The Court cannot effectively order any changes to DHS TRIP without including as parties the entities responsible for DHS TRIP. In such circumstances, the Court is not in a position to order an “adequate” judgment. See, e.g., Republic of Phil. v. Pimentel, 553 U.S. 851, 870-71 (2008). Plaintiff’s Complaint refers at times to TSA’s role in airline security (see Compl., ¶11), but he chose not to sue TSA, likely because he knew he would face a jurisdictional bar to district court litigation if he did so. A party’s preference for a particular forum does not change a Court’s Rule 19(b) analysis.
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Under the third factor of Rule 19, the Court must examine “whether a judgment without the absent person will be adequate.” Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Rite Aid of S.C., Inc., 210 F.3d 246, 253 (4th Cir. 2000). In this case, the practical effect is clear: a successful outcome for Plaintiffs would likely require changes to the way DHS TRIP operates; require DHS and TSA to alter their regulations regarding redress and screening; and require TSA to alter its final orders.
Critically, Plaintiff has an alternative remedy, the last factor implicated by Rule 19(b); he can challenge a DHS TRIP determination letter in the Court of Appeals, after he has utilized the DHS TRIP process. Congress has explicitly required that all suits challenging TSA final orders proceed in the Court of Appeals. Plaintiff’s preference for litigation in district court cannot trump the jurisdictional bar to joining TSA in this district court litigation.
ii. Final orders of TSA can only be challenged in the Court of Appeals. Even if Plaintiff’s claim were ripe, it would still be subject to dismissal. Pursuant to 49 U.S.C. § 46110(a), challenges to DHS TRIP’s response to complaints of denied or delayed airline boarding due to TSA security screening may only be brought in the Courts of Appeals, because DHS TRIP determination letters are final orders of TSA, see Scherfen, 2010 WL 456784, at *11, and because such complaints implicate the sections of regulations implementing Secure Flight that pertain to passenger redress, see, e.g., Sima Prods., 612 F.2d at 312-13; O’Donnell, 510 F. Supp. at 928. Availing himself of DHS TRIP will also produce an administrative record for a Court of Appeals to review. See Lynch Dec., ¶ 8, see also Ibrahim, 538 F.3d at 1256 (holding that the lack of an administrative record was one impediment to Circuit Court review); Scherfen, 2010
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WL 456784, at *10 (“One of the reasons that the majority in Ibrahim found that the placement of a person on the No Fly List fell outside the scope of § 46110 was the absence of any administrative record to review. Where, however, the TRIP process has been invoked, there is indeed a record for review by the appellate court.”). Thus, once Plaintiff utilizes the redress process offered through DHS TRIP, he will have a final order from TSA, a reviewable administrative record, and a claim that can only be heard in a Court of Appeals. II. THE GOVERNMENT’S REDRESS POLICY IS NOT ARBITRARY,
CAPRICIOUS, OR CONTRARY TO LAW Even if the Court were to determine that it, and not the Court of Appeals, has jurisdiction to hear Plaintiff’s claims, judgment should be entered for Defendants on Plaintiff’s APA Claim. Pursuant to the APA’s limited waiver of sovereign immunity, a reviewing court must uphold an agency decision unless it is (1) arbitrary and capricious; (2) an abuse of discretion; or (3) otherwise not in accordance with law. See 5 U.S.C. § 706(2)(A); Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). The scope of judicial review under this standard is a narrow and deferential one, and a court cannot substitute its judgment for that of the agency. See Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Under arbitrary and capricious review, the court does not undertake its own fact-finding; rather, the court must review the administrative record as prepared by the agency. See Camp v. Pitts, 411 U.S. 138, 142 (1973). As long as the agency’s decision was supported by a rational basis, it must be affirmed. See, e.g., McDaniels v. U.S., 300 F.3d 407, 412 (4th Cir. 2002) citing Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729, (1984) (holding that as long as “‘a statute is supported by a legitimate legislative purpose furthered by rational means, judgments
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about the wisdom of such legislation remain within the exclusive province of’ the promulgating entity”); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, (1911) (holding that under rationality review, a law should be invalidated only where it lacks “any reasonable basis and therefore is purely arbitrary”).
Plaintiff’s Complaint makes no allegation that supports the conclusion that Defendants’ terrorist watch listing procedures are arbitrary and capricious, nor cites any authority for the proposition that the APA requires something more than what Defendants have done in this context. Further, to the extent that Plaintiff wants the Court to establish new substantive and procedural rules to govern the TSDB, or its subset lists, the No Fly and Selectee Lists, Plaintiff’s request is improper because matters of national security “are rarely proper subjects for judicial intervention.” Haig, 453 U.S. at 292. Courts “owe considerable deference to [the Executive branch’s] assessment in matters of national security[,]” Bassiouni v. FBI, 436 F.3d 712, 724 (7th Cir. 2006), and must be “reluctant to intrude upon the authority of the Executive” in such affairs. Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988). See also Ctr. for Nat'l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 926, 932 (D.C. Cir. 2003) (holding “that the courts must defer to the executive on decisions of national security. In so deferring, we do not abdicate the role of the judiciary. Rather, in undertaking a deferential review we simply recognize the different roles underlying the constitutional separation of powers. It is within the role of the executive to acquire and exercise the expertise of protecting national security. It is not within the role of the courts to second-guess executive judgments made in furtherance of that branch's proper role.”); Zadvydas v. Davis, 533 U.S. 678, 696 (2001); Krikorian v. Dep’t of State, 984 F.2d 461, 464-65 (D.C. Cir. 1993).
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The Supreme Court’s recent decision in Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), underscores the deference due to both the Legislative and Executive Branches in review of factual conclusions and legal matters that implicate national security, even when constitutional concerns are raised. See id. at 2727 (“But when it comes to collecting evidence and drawing factual inferences in [national security and foreign relations], the lack of competence on the part of the courts is marked, and respect for the Government’s conclusions is appropriate.”) (internal quotation marks and citation omitted); see also Rahman v. Chertoff, 530 F.3d 622 at 627-28 (7th Cir. 2008)(“modesty is the best posture for the branch that knows the least about protecting the nation’s security and that lacks the full kit of tools possessed by the legislative and executive branches.”). Plaintiff’s requested relief that the Court order Defendants to remove him from any terrorist watch list he may be on plainly implicates sensitive national security Executive judgments that are entitled to deference.
Judgment should thus be entered for Defendants on Count II of Plaintiff’s Complaint. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss should be granted.

Dated: March 21, 2011

Respectfully submitted,

TONY WEST ASSISTANT ATTORNEY GENERAL CIVIL DIVISION
NEIL H. MACBRIDE UNITED STATES ATTORNEY
SANDRA M. SCHRAIBMAN ASSISTANT BRANCH DIRECTOR

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FEDERAL PROGRAMS BRANCH

PAUL G. FREEBORNE

LILY SARA FAREL

ATTORNEYS

U.S. DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

20 MASSACHUSETTS AVENUE, N.W.

WASHINGTON, D.C. 20001

TELEPHONE: (202) 353-7633

FAX:

(202) 616-8460

E-MAIL:

lily.farel@usdoj.gov

/S/

_______________________________

R. JOSEPH SHER

ASSISTANT UNITED STATES ATTORNEY

OFFICE OF THE UNITED STATES ATTORNEY

JUSTIN W. WILLIAMS UNITED STATES ATTORNEYS

BUILDING

2100 JAMIESON AVE.,

ALEXANDRIA, VA. 22314

TELEPHONE: (703) 299-3747

FAX:

(703) 299-3983

E-MAIL

JOE.SHER@USDOJ.GOV

ATTORNEYS FOR THE DEFENDANTS

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CERTIFICATE OF SERVICE
I certify that I electronically filed the foregoing with the Clerk of Court using the
CM/ECF system, which will send a notification of such filing (NEF) to the following counsel of
record:
Nadhira Faisal Al-Khalili Council on American Islamic Relations
453 New Jersey Avenue, SE Washington, DC 20003 Phone: 202-646-6034 Fax: 202-488-3305 nalkhalili@cair.com

DATED: MARCH 21, 2011

/S/

_______________________________

R. JOSEPH SHER

ASSISTANT UNITED STATES ATTORNEY

OFFICE OF THE UNITED STATES ATTORNEY

JUSTIN W. WILLIAMS UNITED STATES

BUILDING

2100 JAMIESON AVE.,

ALEXANDRIA, VA. 22314

TELEPHONE: (703) 299-3747

FAX:

(703) 299-3983

E-MAIL

JOE.SHER@USDOJ.GOV

ATTORNEYS’

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 Case 1:11-cv-00050-AJT-TRJ Document 15 Filed 04/11/11 Page 1 of 26 PageID# 202

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

GULET MOHAMED,
PLAINTIFF,
v.
ERIC H. HOLDER, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
DEFENDANTS.

Case No. 1:11-CV-00050

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

Case 1:11-cv-00050-AJT-TRJ Document 15 Filed 04/11/11 Page 2 of 26 PageID# 203
TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 ARGUMENT ...................................................................................................................................3 I. Plaintiff’s Right of Re-entry Claims are Moot Because Plaintiff Resides
in the United States and Has Never Been Denied His Right of Re-entry............................3 II. Plaintiff Cannot Demonstrate That He Will Likely Suffer Harm in the
Future and Therefore, He Cannot Be Granted Prospective, Injunctive Relief ....................6 III. Plaintiff Has No Fundamental Right to Fly .........................................................................8 IV Plaintiff’s Requested Relief is Available Through DHS TRIP, and Plaintiff
Must Bring Any Challenge to DHS TRIP in a Court of Appeals ......................................11 a. Before Bringing a Challenge to His Alleged Placement on the No Fly List, Plaintiff Must Avail Himself of DHS TRIP ..........................12 b. Plaintiff Cannot Challenge a Final Order from TSA in this Court………………………………………………………...……15
CONCLUSION ..............................................................................................................................17
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TABLE OF AUTHORITIES
CASES
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)........................................................................................................... 10-11
Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971)..................................................................................................................6
Blum v. Yaretsky, 457 U.S. 991 (1982).................................................................................................................. 7
Brandon v. Holt, 469 U.S. 464 (1985)...................................................................................................................5
Brown v. General Servs. Admin., 425 U.S. 820 (1976).................................................................................................................14
Califano v. Aznavorian, 439 U.S. 170 (1978).............................................................................................................. 8, 9
City of Houston v. FAA, 679 F.2d 1184 (5th Cir. 1982) ...................................................................................................9
City of Los Angeles v. Lyons, 461 U.S. 95 (1983)................................................................................................................ 6, 7
Cramer v. Skinner, 931 F.2d 1020 (5th Cir. 1991) .................................................................................................. 9
Doe v. Chao, 306 F.3d 170 (4th Cir.2002) ......................................................................................................6
FDIC v. Meyer, 510 U.S. 471 (1994)............................................................................................................... 5-6
Ferris v. Haymore, 967 F.2d 946 (4th Cir. 1992) .....................................................................................................5
Fisher v. Reiser, 610 F.2d 629 (9th Cir. 1979) .....................................................................................................9
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Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., 528 U.S. 167 (2000).................................................................................................................. 4
Fox v. Board of Trustees of State University of New York, 42 F.3d 135, 141 (2nd Cir. 1994) .............................................................................................5
Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955 (7th Cir. 1998) .....................................................................................................5
Gibson v. Berryhill, 411 U.S. 564 (1973).................................................................................................................14
Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119 (W.D. Wash. 2005).................................................................................9
Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) ......................................................................................... 8-9, 16
Hafer v. Melo, 502 U.S. 21 (1991).....................................................................................................................5
Haig v. Agee, 453 U.S. 280 (1981)............................................................................................................ 8, 10
Hart v. Schering-Plough Corp., 253 F.3d 272 (7th Cir. 2001) .....................................................................................................5
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) .............................................................................................................. 8
Ibrahim v. DHS, 538 F.3d 1250 (9th Cir. 2008) .................................................................................... 15, 16, 17
Kentucky v. Graham, 473 U.S. 159 (1985)...................................................................................................................5
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...................................................................................................................6
Madsen v. Boise State Univ., 976 F.2d 1219 (9th Cir. 1992) ........................................................................................... 14-15
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McCarthy v. Madigan, 303 U.S. 140 (1992)...........................................................................................................12, 14
Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999) .................................................................................................. 9
Munaf v. Geren, 553 U.S. 674 (2008)................................................................................................................ 10
Neely v. Henkel, 180 U.S. 109 (1901).................................................................................................................10
Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2006) .................................................................................................. 12
Planned Parenthood v. Casey, 505 U.S. 833 (1992)...................................................................................................................8
Randall v. United States, 95 F.3d 339 (4th Cir. 1996) ......................................................................................................5, 6
Scherfen v. DHS, No. 3:cv-08-1554, 2010 WL 456784 (M.D. Pa. Feb. 2, 2010)..................................... 6, 15, 16
Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646 (9th Cir. 2002) .................................................................................................. 12
Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D.N.C 2003) .................................................................................... 15
Town of Southold v. Town of East Hampton, 477 F.3d 38 (2d Cir. 2007)........................................................................................................ 9
United States v. Hardy, 545 F.3d 280 (4th Cir. 2008) .....................................................................................................4
United States v. Flores-Montano, 541 U.S. 149 (2004) ................................................................................................................10
United States v. Montoya de Hernandez, 473 U.S. 531 (1985) ................................................................................................................10
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United States ex rel. Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963) .........................................................................................10
Vo v. Benov, 447 F.3d 1235 (9th Cir. 2006) .................................................................................................10
Whitmore v. Arkansas, 495 U.S. 149 (1990)...................................................................................................................6
Worthy v. Herter, 270 F.2d 905 (D.C. Cir. 1959) .................................................................................................10 FEDERAL STATUTES
5 U.S.C. § 702................................................................................................................................. 5 19 U.S.C. § 482..............................................................................................................................10 19 U.S.C. § 1582…………………………………………………………………………………10 42 U.S.C. § 264 ............................................................................................................................ 10 49 U.S.C. § 44903......................................................................................................................... 12 49 U.S.C. § 44909......................................................................................................................... 12 49 U.S.C. § 46110.................................................................................................................. passim
RULES AND REGULATIONS 8 C.F.R. § 235.1 .......................................................................................................................... 3, 4
UNITED STATES CONSITITUTION U.S. Const. art. III, § 2 .....................................................................................................................4
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Case 1:11-cv-00050-AJT-TRJ Document 15 Filed 04/11/11 Page 7 of 26 PageID# 208 MISCELLANEOUS
9/11 Commission Report, Executive Summary, http://govinfo.library.unt.edu/911/report/911Report_Exec.htm ..............................................13
Port of Entry-Washington-Dulles http://www.cbp.gov/xp/cgov/toolbox/contacts/ports/dc/5401.xml ......................................4
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INTRODUCTION As even Plaintiff has acknowledged, his circumstances have changed since the filing of his original complaint and his motion for preliminary relief. To the extent that he arguably had any cognizable claim for relief from a District Court for his Fourteenth Amendment re-entry claim at the outset of the case when he was still in Kuwait, this case no longer raises any even arguably cognizable controversy regarding alleged denial of re-entry into the United States. Plaintiff returned to the United States from Kuwait on January 20, 2011 and was not denied reentry. He cannot resurrect that claim by arguing that his Amended Complaint contains a claim for damages against Terrorist Screening Center (“TSC”). In fact, the Complaint does not contain such a damages claim, nor could such a claim succeed, because sovereign immunity precludes damages for alleged constitutional violations against the United States, its agencies, and its officials sued in their official capacities. Nor can Plaintiff meet the standing requirements for his claims of future injury. Plaintiff’s claims regarding a future inability to re-enter the U.S. from abroad are speculative, at best, and do not constitute a certainly impending future injury as required to obtain the type of prospective injunctive relief that he seeks. While he states conclusively that he will again travel and fears that he may be denied boarding, he fails to provide any specificity regarding those plans: that he has plans to leave the United States on a certain date, travel to a certain country or countries, stay there a certain time, or return to the United States on a certain date. Nor does he show that he has investigated and found that the only means of traveling outside the U.S. and returning would be by airplane, thus rendering him unable to re-enter the United States unless he can take a plane directly back to a U.S. port of entry. Nor can he show that even if he had been
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on the No Fly List, he would still be on the No Fly List when he next travelled abroad. Indeed, he has not shown that he has even attempted to board an airplane since his return to the U.S. in January 2011. Plaintiff also fails to establish standing to challenge the purported lack of a procedure to challenge his alleged placement on the No Fly List. He cannot claim injury from supposed inability to effectively challenge his alleged No Fly status because he deliberately chose not to utilize the Department of Homeland Security’s Traveler Redress Inquiry Program (“DHS TRIP”) process made available to him and the opportunity for judicial review in the courts of appeals afforded after a final order from Transportation Security Administration (“TSA”). In other words, Plaintiff cannot claim an “injury” in order to be able to have standing to maintain his case.
But even if Plaintiff were correct that he would in the future be denied boarding an airplane, that action would not impact a fundamental right. There is simply no constitutional right to travel by a specific mode of transportation. Further, the Government may establish rational policies governing international travel, and it is Plaintiff’s burden to establish that such policies are wholly irrational. Plaintiff has not even attempted to make that showing in his Complaint or his opposition to Defendants’ motion.
Finally, contrary to Plaintiff’s claims, filing for redress through DHS TRIP provides the appropriate process for Plaintiff to obtain the ultimate relief he is seeking. Plaintiff, like every other traveler who believes that he or she has been improperly denied boarding because of placement on the No Fly List, is afforded the opportunity to seek redress through this congressionally-mandated program, which is administered by DHS through the TSA. As the declarations submitted by Defendants establish, Plaintiff’s attempt to divorce the DHS TRIP
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process from TSC actions founders. The redress process includes not just DHS and TSA but also TSC and other agencies in reviewing the petition for redress and any watchlist status. Thus, TSC participates in the DHS TRIP redress process for complaints involving the Terrorist Screening Database (“TSDB”), of which the No Fly List is a subset. The process challenging No Fly status ends when TSA issues a final agency action upon which a complainant can seek review, and that review lies exclusively in the Courts of Appeals under 49 U.S.C. ¶ 46110. It is up to the courts of appeals to determine whether the Plaintiff’s alleged placement on the No Fly list was appropriate and further to determine if the redress process is fair and effective. The Court should therefore dismiss this action.
ARGUMENT I. Plaintiff’s Right of Re-entry Claims are Moot Because Plaintiff Resides in the
United States and Has Never Been Denied His Right of Re-entry. Although Plaintiff insists that his case involves the alleged “deprivation of [his] fundamental right to re-enter the United States,” Pl’s Opp. at 7, the relief he requests, “meaningful notice of the grounds for his [alleged] inclusion on a government watch list,” Pl’s Opp. at 6, is, in fact, unrelated to this alleged injury. Assuming, arguendo, that such an injury had occurred, his claim is now moot, and any relief related to that claim should be denied. Plaintiff’s claim ignores the fact that he has never been denied re-entry into the United States. It is well established that, in general, U.S. citizens who arrive at a U.S. port of entry are permitted to enter the United States after they establish to the satisfaction of a U.S. Customs and Border Protection (“CBP”) officer that they are in fact U.S. citizens. 8 C.F.R. § 235.1(b). Notably, lawful entry of U.S. citizens into the United States does not occur until the individual
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citizen has presented himself or herself at a U.S. port of entry and been permitted to enter by CBP. See id. § 235.1(a) (“Application to lawfully enter the United States shall be made in person to an immigration officer at a U.S. port-of-entry when the port is open for inspection, or as otherwise designated in this section.”). On direct flights from Kuwait to Dulles International Airport, the port of entry is Washington Dulles International Airport. See Port of EntryWashington-Dulles http://www.cbp.gov/xp/cgov/toolbox/contacts/ports/dc/5401.xml (last visited 4/8/11). When Plaintiff presented himself at the Port of Entry at Washington Dulles International Airport, he was allowed to enter the United States, and therefore, any claim of denial of re-entry is baseless. See Pl’s Opp. at 5.
Assuming, however, that Plaintiff could bring a claim that he was denied re-entry, that claim would now be moot. Indeed, the sole support Plaintiff offers as a basis of his alleged denial of re-entry is that he “could not board the plane” in Kuwait. Id. at 5. Subsequent to that denial of boarding (a claim that he must pursue through DHS TRIP, see infra at 12-15), Plaintiff returned to and currently resides in the United States, Pl’s Opp. at 5, thereby making his claim of denial of re-entry moot. U.S. v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008) (A case is moot if the issues are no longer live and the court is unable to grant effective relief.); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180 (2000) (citing U.S. Const. art. III, § 2).
Plaintiff’s response to Defendants’ presentation of mootness is to argue that his claim of re-entry cannot be moot because he has a pending claim for damages. Pl’s Opp. at 7. Plaintiff, however, does not seek damages in his Complaint. Indeed, the Complaint is styled a “Verified Complaint for Injunctive and Declaratory Relief.” Rather, he seeks “attorneys’ fees, costs, and expenses”. Compl. at 13. Attorneys’ fees are not damages, and therefore, cannot insulate
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Plaintiff’s claim of re-entry from being utterly moot. See Ferris v. Haymore, 967 F.2d 946, 954 (4th Cir. 1992); Hart v. Schering-Plough Corp., 253 F.3d 272, 273-74 (7th Cir. 2001); Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 958-59 (7th Cir. 1998). That the Complaint includes a boilerplate request for “such other relief as the Court may deem just and appropriate” does not change this conclusion. See Fox v. Board of Trustees of State University of New York, 42 F.3d 135, 141 (2nd Cir. 1994) (rejecting the argument that a virtually identical boilerplate request constituted a claim for damages).
But even if Plaintiff had requested damages in his Complaint and would otherwise be entitled to damages for an injury, he has failed to identify an applicable waiver of sovereign immunity that would entitle him to such damages against the United States or its officials. While Plaintiff has invoked the Administrative Procedure Act (“APA”) as an applicable waiver, see Compl. at ¶ 7, that waiver would at most entitle Plaintiff to declaratory and injunctive relief -not money damages. “The waiver of sovereign immunity in the APA is limited to suits seeking relief ‘other than money damages.’” Randall v. United States, 95 F.3d 339, 346 (4th Cir. 1996) (quoting 5 U.S.C. § 702). That Plaintiff has also sued Defendants under the Fourteenth Amendment does not create a waiver of sovereign immunity for damages.
Plaintiff has sued the defendants in their official capacity, and as such, this action is against the United States. Kentucky v. Graham, 473 U.S. 159, 165 (1985); Brandon v. Holt, 469 U.S. 464, 471-72 (1985); see also Hafer v. Melo, 502 U.S. 21, 25 (1991) (holding that the real party in interest in an official capacity suit is the governmental entity and not the named official.) Absent a clear and express waiver of sovereign immunity, the Court cannot imply a damages remedy against the United States. See FDIC v. Meyer, 510 U.S. 471, 476-80 (1994).
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(holding that damages action under Bivens v. Six Unknown Fed. Agents, 403 U.S. 388 (1971) cannot lie against a federal agency); Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (observing that “a Bivens action does not lie against either agencies or officials in their official capacity”) (emphasis in original); Randall, 95 F.3d at 345 (“Any remedy under Bivens is against federal officials individually, not the federal government.”).
Thus, not only was Plaintiff never denied re-entry into the United States, any claim he may be able to bring would have to be moot, as he is currently in the United States. Further, Plaintiff’s claim that he seeks damages cannot resurrect an otherwise-moot claim, as he neither requested relief in the form of damages nor identified an applicable waiver of sovereign immunity that would permit such damages to be awarded to Plaintiff in any event. II. Plaintiff Cannot Demonstrate That He Will Likely Suffer Harm in the Future and
Therefore, He Cannot Be Granted Prospective, Injunctive Relief. Plaintiff does not have standing to seek injunctive relief regarding future travel because he cannot make the requisite showing of imminent, certain future injury. See City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (requiring “real and immediate threat of repeated injury”) (citation omitted); Scherfen v. DHS, No. 3:cv-08-1554, 2010 WL 456784, at *13 (M.D. Pa. Feb. 2, 2010) (finding No Fly List claims moot). To obtain prospective relief, Plaintiff must point to “an invasion of a legally protected interest which is . . . “‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Yet Plaintiff continues to rely solely upon the fact that he was unable to board a plane on January 16, 2011, ignoring the fact that he subsequently was able to fly on January 20, 2011 and has not attempted to fly since then and been denied boarding.
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His plans for future travel are, at best, pure speculation. Pl’s Opp. at 8 (Plaintiff “intends to leave the United States again in the immediate future to visit family and complete a religious pilgrimage.”)1 Plaintiff’s allegation that when he “goes abroad again, this situation may recur”, id. at 11 (emphasis added) is precisely the type of allegations that the Supreme Court found too speculative in Lyons to confer standing or to entitle a party to the prospective injunctive relief sought by Plaintiff.
Similar to Plaintiff’s allegations, which center on one alleged denial of boarding an airplane, the plaintiff in Lyons was subjected to one stop, yet the Court held that he lacked the ability to obtain the injunctive relief sought because he could not show any immediate threat of future harm. In reaching this conclusion, the Court focused on plaintiff’s failure to allege facts that he was “realistically threatened by a repetition of his experience of October, 1976” when he was stopped and subjected to a chokehold. 461 U.S. at 109. Here, as in Lyons, past experience cannot be the basis for the future injunctive relief Plaintiff seeks. In order to obtain future injunctive relief, Plaintiff would have to show that he would suffer some harm, and any such claim would be entirely speculative. Because Plaintiff has failed to make that showing, he lacks standing to sue for the prospective, injunctive relief he seeks.
1 It would be beyond the Court’s power to order that Plaintiff always be permitted to board flights to the United States or to prescribe the screening and security procedures that should be applied to him, and Plaintiff does not appear to be seeking such future relief. See, e.g., Blum v. Yaretsky, 457 U.S. 991, 999 (1982) (a plaintiff “who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject.”).
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III. Plaintiff Has No Fundamental Right to Fly.
In asking this Court to rule on “whether the burden of Defendants’ refusal to allow
Plaintiff to arrive in the United States via air transportation in the future has the purpose or effect
of ‘placing a substantial obstacle’ in the way of Plaintiff exercising his fundamental right to re-
enter the United States.” Pl’s Opp. at 10 (quoting Planned Parenthood v. Casey, 505 U.S. 833, 877 (1992)),2 Plaintiff wrongly assumes that U.S. citizens have a fundamental right to travel
internationally and return home by plane.
There is no right to international travel, and such travel is “subordinate to national security and foreign policy considerations.” See Haig v. Agee, 453 U.S. 280, 306-07 (1981). 3
Unlike the right to interstate travel, the freedom to travel internationally is simply an aspect of
the liberty protected by the due process clause, and the restrictions on international travel are
permissible unless “wholly irrational[.]” Califano v. Aznavorian, 439 U.S. 170, 177 (1978).
Plaintiff makes no allegation that any of Defendants’ watchlist procedures are irrational.
Instead, Plaintiff seems to conflate the “right to enter” the United States with a right to
unimpeded international travel to the United States. But even in the context of interstate travel,
2 Plaintiff’s analogies to a citizen’s right to family planning or to marriage are simply inapplicable. Pl’s Opp. at 1012. Both of those rights have been afforded heightened scrutiny, which is not the case with Plaintiff’s right to fly, which is accorded only rational basis review. See Califano, 439 U.S. at 177. 3 In Haig v. Agee, the Supreme Court upheld the revocation of a citizen’s passport even though a passport was “the only means by which an American can lawfully leave the country or return to it.” 453 U.S. at 293. Agee’s activities abroad were deemed to pose a danger to the national security and foreign policy of the United States. The Court upheld this severe restriction on his international travel, explaining that it is “obvious and unarguable that that no governmental interest is more compelling than the security of the Nation.” Id. at 307 (citation omitted); see also Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2727 (2010) (referring to “sensitive and weighty interests of national security and foreign affairs”). The Court noted in a footnote that the government had provided temporary papers that would permit Agee to travel back to the United States from his location in Europe, but Agee never returned to the United States. Haig, 453 U.S. at 289 n.15. Agee’s return was necessarily limited in time by the nature of his temporary papers, subject to the existence of appropriate flights, and could theoretically have been impracticable if other countries would not accept his temporary papers. The Court’s conclusion, however, was not influenced by any such considerations. Rather, the Court found that the legitimate national security concerns of the government amply justified the revocation of his passport.
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which is recognized as a fundamental right, courts have repeatedly held that there is no right to any particular means of travel, even if the most convenient means of travel is restricted. See Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) (holding there is no right to air travel even if plaintiff wants to travel to exercise his First Amendment right to petition his government); Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999) (holding there is no right to drive); Green v. Transp. Sec. Admin., 351 F. Supp. 2d 1119, 1130 (W.D. Wash. 2005) (holding there is no right to travel “without any impediments” and burdens on a “single” form of transportation are not unreasonable); see also Town of Southold v. Town of East Hampton, 477 F.3d 38, 54 (2nd Cir. 2007) (“travelers do not have a constitutional right to the most convenient form of travel”) (quotation and citation omitted); Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir. 1991) (same); City of Houston v. FAA, 679 F.2d 1184, 1198 (5th Cir. 1982) (same).
In Gilmore, the Ninth Circuit upheld certain requirements for air travel because the plaintiff “does not possess a fundamental right to travel by airplane even though it is the most convenient mode of travel for him.” 435 F.3d at 1137. Accepting as true for the purposes of that decision the allegation that “air travel is a necessity and not replaceable by other forms of transportation,” the Ninth Circuit nonetheless held that there was no infringement on his constitutional right to domestic travel because other means of travel remained possible, even if the alternative means involved taking a car, train, or bus over 3,000 miles. Id. at 1136. Moreover, the Ninth Circuit issued this ruling even though restrictions on interstate travel – unlike international travel may be subject to higher scrutiny. See, e.g., Fisher v. Reiser, 610 F.2d 629 (9th Cir. 1979); see also Califano, 439 U.S. at 177. If restrictions on a specific means of interstate travel do not trigger or offend the Constitution, this must be even more clearly true
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for international travel. It may be less convenient or more expensive to travel by ship, train, or car, but this factor does not impinge on a constitutional right to travel.
It is clear that a citizen’s ability to return to the United States is qualified insofar as the Government may, and routinely does, engage in acts that might burden this asserted right. The United States has enacted a variety of laws that might make entering the country more difficult or time-consuming for citizens, all of which have been upheld by the courts. The United States can deny or revoke a passport, see generally Haig, 453 U.S. at 280; Worthy v. Herter, 270 F.2d 905 (D.C. Cir. 1959); can conduct lengthy and intrusive searches and inspections of anyone attempting to enter the United States, see e.g.,19 U.S.C. § 482; 19 U.S.C. § 1582; U.S. v. Montoya de Hernandez, 473 U.S. 531 (1985); and impose quarantines, see, e.g., 42 U.S.C. § 264; U. S. ex rel. Siegel v. Shinnick, 219 F. Supp. 789, 791 (E.D.N.Y. 1963). The U.S. can even extradite its citizens to face trial and imprisonment in another country, which could permanently prevent the return of a citizen. See, e.g., Neely v. Henkel, 180 U.S. 109 (1901); Vo v. Benov, 447 F.3d 1235 (9th Cir. 2006). These actions – all of which have been upheld as lawful can delay, complicate or render prohibitively expensive or impossible international travel, including one’s return to the United States. As the Supreme Court held in United States v. Flores-Montano, “[i]t is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity.” 541 U.S. 149, 153 (2004).
While Plaintiff may claim that actions of the Kuwaitis limited his options for returning to the United States, anyone who travels abroad always takes the risk that they will be detained or otherwise subjected to foreign law, and they cannot hold the United States responsible for the actions of foreign nations. See Munaf v. Geren, 553 U.S. 674, 694-95 (2008) (Constitution does
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not prevent US citizens abroad from being subject to foreign law); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 417-18 (1964) (“To permit the validity of the acts of one sovereign state to be [reexamined] and perhaps condemned by the courts of another would very certainly imperil the amicable relations between governments and vex the peace of nations.”) (internal quotation marks omitted). IV. Plaintiff’s Requested Relief is Available Through DHS TRIP, and Plaintiff Must
Bring Any Challenge to DHS TRIP in a Court of Appeals. In both his Complaint and his Opposition, Plaintiff clearly articulates the relief he seeks: that the Court order the Defendants “to provide Plaintiff with meaningful notice of the grounds for his [alleged] inclusion on a government watch list, and an opportunity to rebut the government’s charges and clear his name.” Compl. at 13; Pl’s Opp. at 4. This is the precise relief DHS TRIP would provide to Plaintiff. And although Plaintiff continues to insist that he does not have to avail himself of DHS TRIP, Pl’s Opp. at 13-14, it is DHS TRIP that can provide the relief Plaintiff seeks. Congress has mandated DHS TRIP to be run by TSA and DHS. By refusing to avail himself of DHS TRIP, yet demanding that this Court grant him the identical relief as offered by that process, Plaintiff is asking this Court to replace an administrative procedure with one of Plaintiff’s own making. Judicial review of DHS TRIP No Fly List redress determination is available under 49 U.S.C.' 46110. At that point, Plaintiff can bring a claim challenging the outcome of that administrative process in the Court of Appeals. It will then be up to the Court of Appeals to determine whether the process of DHS TRIP provides sufficient due process regarding Plaintiff’s No Fly complaints.
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a. Before Bringing a Challenge to His Alleged Placement on the No Fly List, Plaintiff Must Avail Himself of DHS TRIP.
Despite Plaintiff’s insistence that he is not challenging the adequacy of DHS TRIP, Pl’s Opp. at 14 (“complaint is not directed at the adequacy of the DHS TRIP process”), he seeks from this Court the very relief afforded by DHS TRIP, and as such, his failure to exhaust this readilyavailable, congressionally-mandated administrative remedy means that his claim is not ripe and judicial review is premature. See Ostergren v. Cuccinelli, 615 F.3d 263, 288 (4th Cir. 2010) (quoting Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 662 (9th Cir. 2002)) (Ripeness cannot occur when there are “problems such as the inadequacy of the record ... or ambiguity in the record ... will make a case unfit for adjudication on the merits.” ) (internal quotations omitted).
Plaintiff excuses his failure to avail himself of DHS TRIP by asserting that “DHS lack[s] authority to grant the type of relief requested.” Pl’s Opp. at 13 (citing McCarthy v. Madigan, 303 U.S. 140, 148 (1992)). This allegation, however, is simply incorrect, as DHS, through TSA, is the only agency with authority to grant the relief sought by Plaintiff. In 2004, Congress set up a statutory structure that charged TSA with providing redress to travelers in the very situation Plaintiff claims to be in. See 49 U.S.C. § 44903(j)(2)(C)(iii); Id. § 44903(j)(2)(G)(i); Id. § 44909(c)(6). Specifically, TSA is required to “establish a procedure to enable airline passengers, who are delayed or prohibited from boarding a flight because the advanced passenger prescreening system determined that they might pose a security threat, to appeal such determination and correct information contained in the system.” 49 U.S.C. § 44903(j)(2)(C)(iii) (emphasis added). Pursuant to this statutory authority, TSA established the Office of
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Transportation Security Redress (“OTSR”), which was later designated by the Secretary of Homeland Security as the lead agent managing DHS TRIP.
Plaintiff also implies that because Defendants are involved in redress procedures coordinated by DHS and TSA, Plaintiff can bypass DHS TRIP and ask this Court to order Defendants to offer relief. See Pl’s Opp. at 12. This argument is incorrect. As explained above, Congress mandated TSA and DHS to provide travelers with a redress process. The fact that TSA and DHS rely upon information and support from TSC does not undermine the control and authority that TSA and DHS have over DHS TRIP. Indeed, the multi-agency collaboration ensures the efficacy of DHS TRIP. See Declaration of Christopher Piehota, Deputy Director, Terrorist Screening Center, dkt. 10-3, ¶¶ 26-33.4 While the Terrorist Screening Center (“TSC”) considers whether changes are warranted to an individual’s status on the No Fly List, it is TSA that effectuates whether or not individuals may board an airline by determining who may or may not obtain a boarding pass through the administration of passenger prescreening programs. As a result, if an individual is denied boarding due to his placement on the No Fly List, seeks redress, and is removed from the No Fly List, it is TSA that permits the airlines to issue a boarding pass to allow that individual to board a flight. Thus, in order to get the relief he demands, Plaintiff must bring his claims against DHS and TSA after completing DHS TRIP.
4 Nor would such a rigidly-drawn line make any sense. Inter-agency collaboration is precisely the point of centralizing and sharing the contents of the Terrorist Screening Database and the No Fly and Selectee Lists. Indeed, the lack of this kind of centralized information was specifically cited as a government failing by the 9/11 Commission. See 9/11 Comm’n Report, Exec. Summary, at http://govinfo.library.unt.edu/911/report/911Report_Exec.htm (“The missed opportunities to thwart the 9/11 plot were also symptoms of a broader inability to adapt the way government manages problems to the new challenges of the twenty-first century. Action officers should have been able to draw on all available knowledge about al Qaeda in the government. Management should have ensured that information was shared and duties were clearly assigned across agencies, and across the foreign-domestic divide.”).
13

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Nor can Plaintiff ask this Court to replace a statutory redress procedure with one of Plaintiff’s own creation, merely because he does not want to sue the necessary parties. In accordance with the Congressional mandate described above, TSA and DHS created the DHS TRIP process to do precisely what Plaintiff improperly asks of this Court: to resolve complaints from travelers who believe they have been delayed or prohibited from boarding a commercial aircraft due to being mistaken for, or being a match with, an identity on the Selectee or No-Fly List. A court cannot substitute its judgment for that of Congress in deciding who has the responsibility to provide redress and how they should provide it. See Brown v. General Servs. Admin., 425 U.S. 820, 829, 834-35 (1976) (where Congress created “an exclusive, pre-emptive administrative and judicial scheme for the redress” of injuries, including violations of constitutional rights, Congress’ enforcement scheme is presumptively the only means to remedy such injuries).
Plaintiff also argues that even if this Court construes his Complaint to challenge the adequacy of DHS TRIP, he is still not required to avail himself of the process before challenging it in court. For this proposition, Plaintiff relies on two cases, McCarthy v. Madigan, 503 U.S. 140 (1992) and Gibson v. Berryhill, 411 U.S. 564 (1973). Neither case applies to Plaintiff’s claims. In McCarthy, the Court held that a prisoner seeking only money damages was not required to exhaust administrative remedies provided by the Bureau of Prisons. 503 U.S. at 149. Gibson is similarly inapplicable to Plaintiff’s case, holding that state administrative remedies need not be exhausted where there is ”some doubt as to whether the agency was empowered to grant effective relief” or if “the administrative body is shown to be biased or has otherwise predetermined the issue before it.” Gibson, 411 U.S., at 575, n. 14. Here, Plaintiff seeks from
14

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this Court injunctive relief that Congress has instructed TSA to provide to travelers. TSA provides that relief through DHS TRIP. Accordingly, Plaintiff cannot fail to utilize DHS TRIP and then ask this Court to provide the very relief available through the DHS TRIP process. See, e.g., Madsen v. Boise State Univ., 976 F.2d 1219, 1220 (9th Cir. 1992) (noting long-standing principle that “a plaintiff lacks standing to challenge a rule or policy to which he has not submitted himself by actually applying for the desired benefit”); Shavitz v. City of High Point, 270 F. Supp. 2d 702, 710 (M.D.N.C 2003) (where “Plaintiff has failed to use the process provided to him, he cannot show that he has suffered injury because of the insufficiency of the process provided”).
Were Plaintiff to avail himself of DHS TRIP, he would be able to obtain the remedy he requests in his Complaint – an opportunity to challenge his alleged placement on the No Fly List. If he does not feel that the relief he seeks has been granted, at the completion of that administrative process, Plaintiff could challenge the final TSA order in a Court of Appeals, pursuant to 49 U.S.C. § 46110. Plaintiff has provided no basis to believe that a Court of Appeals could not adjudicate the type of relief Plaintiff seeks in this case.
b. Plaintiff Cannot Challenge a Final Order from TSA in this Court. Even if Plaintiff had availed himself of DHS TRIP, under 49 U.S.C. § 46110, this Court could not hear his claim. Judicial review of such final orders from TSA is available only in the Courts of Appeal. See Scherfen v. DHS, No. 3:cv-08-1554, 2010 WL 456784, at *11 (M.D. Pa. Feb. 2, 2010) (holding that DHS TRIP was established pursuant to “a statute encompassed by the jurisdictional grant conferred by § 46110 over security-related orders issued pursuant to statutory authority established in 49 U.S.C. §§ 40101 through 46507.”). Plaintiff insists that Section
15

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46110 does not affect his ability to bring a claim in this Court, Pl’s Opp. at 15, and he relies on the Ninth Circuit’s opinion in Ibrahim v. DHS, 538 F.3d 1250 (9th Cir. 2008) for support. Plaintiff’s reliance on this decision, however, is misplaced. In Ibrahim, the Ninth Circuit held that a challenge to the “policies and procedures implementing the No Fly List” was a challenge to an “order” of TSA and therefore must be brought in a Court of Appeals. 538 F.3d at 1257; see also Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006). The question of whether a DHS TRIP letter constituted a final order of TSA was not before the Ninth Circuit, a distinction noted by the court in Scherfen, the only other court to issue a decision on this issue. 2010 WL 456784, at *10 (“Significantly, Ibrahim did not involve a determination made by DHS following receipt of a Traveler Inquiry Form from the affected person. Thus, Ibrahim did not present for consideration the issue of whether a DHS TRIP determination letter constitutes an order falling within § 46110.”).
In Scherfen, similar to the claim brought by Plaintiff in this case, an American citizen and his wife contended that they had not been afforded “‘a legal mechanism that affords them notice and an opportunity to contest their inclusion on the terrorist watch lists.’” Id. at *1. The court found that the plaintiffs did not have standing to bring their claim because they had failed to demonstrate a “reasonable expectation that the alleged wrongful conduct [would] recur.” Id. at *9.
The court also found that it lacked jurisdiction to hear plaintiffs’ challenge under section 46110. In Scherfen, the court dismissed the case because “the existence of TRIP determination letters in this case means that, unlike Ibrahim, there are orders issued by an agency named with § 46110.” Id. at *11. In addition, a DHS TRIP determination in this case means that a reviewing
16

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court would have access to an administrative record to review. See Scherfen, 2010 WL 456784, at *7 (“One of the reasons that the majority in Ibrahim found that the placement of a person on the No Fly List fell outside the scope of § 46110 was the absence of any administrative record to review. Where, however, the TRIP process has been invoked, there is indeed a record for review by the appellate court.”).
As explained above, after completing DHS TRIP, Plaintiff must include TSA in this lawsuit to obtain the relief he seeks. Once he has completed DHS TRIP, he will have a final order from TSA, and pursuant to Ibrahim, he can challenge that order in a Court of Appeals.
CONCLUSION For the reasons stated above, and in the Government’s prior filings on this issue, Plaintiff’s Complaint must be dismissed, and judgment entered in Defendants’ favor.

Dated: April 11, 2011

Respectfully submitted,
TONY WEST ASSISTANT ATTORNEY GENERAL CIVIL DIVISION
NEIL H. MACBRIDE UNITED STATES ATTORNEY
SANDRA M. SCHRAIBMAN ASSISTANT BRANCH DIRECTOR FEDERAL PROGRAMS BRANCH
PAUL G. FREEBORNE LILY SARA FAREL ATTORNEYS U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
17

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20 MASSACHUSETTS AVENUE, N.W.

WASHINGTON, D.C. 20001

TELEPHONE: (202) 353-7633

FAX:

(202) 616-8460

E-MAIL:

lily.farel@usdoj.gov

/S/

_______________________________

R. JOSEPH SHER

ASSISTANT UNITED STATES ATTORNEY

OFFICE OF THE UNITED STATES ATTORNEY

JUSTIN W. WILLIAMS UNITED STATES ATTORNEYS

BUILDING

2100 JAMIESON AVE.,

ALEXANDRIA, VA. 22314

TELEPHONE: (703) 299-3747

FAX:

(703) 299-3983

E-MAIL

JOE.SHER@USDOJ.GOV

ATTORNEYS FOR THE DEFENDANTS

18

Case 1:11-cv-00050-AJT-TRJ Document 15 Filed 04/11/11 Page 26 of 26 PageID# 227

CERTIFICATE OF SERVICE
I certify that I electronically filed the foregoing with the Clerk of Court using the
CM/ECF system, which will send a notification of such filing (NEF) to the following counsel of
record:
Nadhira Faisal Al-Khalili Council on American Islamic Relations
453 New Jersey Avenue, SE Washington, DC 20003 Phone: 202-646-6034 Fax: 202-488-3305 nalkhalili@cair.com

DATED: APRIL 11, 2011

/S/

_______________________________

R. JOSEPH SHER

ASSISTANT UNITED STATES ATTORNEY

OFFICE OF THE UNITED STATES ATTORNEY

JUSTIN W. WILLIAMS UNITED STATES

BUILDING

2100 JAMIESON AVE.,

ALEXANDRIA, VA. 22314

TELEPHONE: (703) 299-3747

FAX:

(703) 299-3983

E-MAIL

JOE.SHER@USDOJ.GOV

ATTORNEYS’

19

 
 Case 1:11-cv-00050-AJT-TRJ Document 19 Filed 04/29/11 Page 1 of 5 PageID# 258

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

GULET MOHAMED,

Plaintiff,

v.
ERICH. HOLDER, JR.,etal,

No. l:ll-cv-50(AJT)

Defendants.

ORDER
This matter is before the Court on defendants' Motion to Dismiss [Doc. No. 10] (the "Motion"). Upon consideration of the Motion, the memoranda and exhibits in support thereof and in opposition thereto, and the arguments of counsel at a hearing on April 29, 2011, and for the reasons stated during that hearing and contained in this Order, the Court finds that the Amended Complaint fails to state a claim. The Court will therefore dismiss plaintiffs Amended Complaint, but with leave to file a revised amended complaint within
twenty-one (21) days.
Plaintiff filed his initial Complaint on January 18, 2011, along with an Emergency Motion for Temporary Restraining Order and Preliminary Injunction [Doc. No. 3] (the "Application"). Plaintiff filed his operative Amended Complaint on January 20, 2011,
asserting claims pursuant 42 U.S.C. § 1983 for violation of his Fourteenth Amendment rights, and for "Unlawful Agency Action" under the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. and 701 et seq. (the "APA"). The gravamen of plaintiffs Amended
Complaint is thatthe defendants placed plaintiff, a United States citizen, on a No-Fly List,
which made it impossible for him to return to the United States from a Kuwaiti detention

Case 1:11-cv-00050-AJT-TRJ Document 19 Filed 04/29/11 Page 2 of 5 PageID# 259
facility because Kuwaiti authorities would not return plaintiff to the United States by any
means other than air travel.
Plaintiffs Amended Complaint seeks three types of injunctive relief: (1) that plaintiff be removed from any watch list or database that prevents him from flying; (2) that defendants provide plaintiff with meaningful notice of the grounds for his inclusion on a government watch list, and an opportunity to rebut the government's charges and clear his name; and (3) that defendants permit plaintiff to return to the United States, subject to suitable screening procedures. Plaintiffs Amended Complaint also seeks attorney's fees, costs and expenses associated with this litigation, but does not request monetary damages.
This Court held hearings on plaintiffs Application on January 18,2011, and January 20, 2011. During the latter of these hearings, the United States represented that plaintiff was scheduled to arrive in the United States the following morning, after which the Court adjourned the hearing. The parties agree that plaintiff has returned to the United States, and no further hearings were held.
On March 21,2011, the defendants filed the instant Motion. Defendants contend
that: (1) plaintiffs claims are moot now that plaintiff has returned to the United States; (2) plaintiff does not have standing to seek prospective injunctive relief; (3) he has failed to exhaust his administrative remedies; and (4) this Court lacks jurisdiction to review the decisions and proceedings of which he complains since those matters involve orders of the Transportation Security Administration ("TSA") which may be reviewed only by the Court of Appeals under 49 U.S.C § 46110(a). Plaintiff, however, contends that he has standing with respect to the relief sought, that he remains entitled to prospective injunctive relief, that he is entitled to damages for the defendants' prior actions, that this Court has jurisdiction

Case 1:11-cv-00050-AJT-TRJ Document 19 Filed 04/29/11 Page 3 of 5 PageID# 260
with respect to his claims since they are not directed against the TSA, or any orders of the TSA, but rather against the Terrorist Screening Center ("TSC") operated by the Federal Bureau of Investigation, and that he is not required to exhaust any administrative process established by the TSA.
The Amended Complaint must set forth "a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949(2009); BellAtlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible "when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 129 S. Ct. at 1949; Twombly, 550 U.S. at 556. In this case, plaintiffs Amended Complaint, filed on an emergency basis in response to the plaintiffs then situation in Kuwait, is less than clear concerningthe scope of the challenges that he is making, particularly now that he has re-entered the United States. In this connection, the Amended Complaint does not identify within the overall process that implicates the plaintiff the precise conduct he challenges or the facts and legal basis upon which he challenges the conduct. For example, it is unclearunder what cause of action plaintiff is contending that the alleged act of placing him initially on the No Fly List deprived him of a specific constitutional or statutory right. More specific to his claims under the APA, it is unclear whether and to what extent plaintiff is claiming that agency action was arbitrary and capricious or otherwise statutorily inadequate, or whether he is asserting as applied or facial constitutional challenges, and if so, on what basis.
Given the lack of factual and legal specificity in the Amended Complaint, the Court cannot properly assess the United States' challenges to the plaintiffs claims based on standing, mootness, jurisdiction and exhaustion. For these reasons, plaintiffwill be required

Case 1:11-cv-00050-AJT-TRJ Document 19 Filed 04/29/11 Page 4 of 5 PageID# 261
to plead specifically as to these issues with respect to any of the following aspects of the NoFly program that the plaintiff challenges and on the basis of which he seeks relief:
1. Plaintiffs alleged placement initially on the No-Fly List by the TSC, and the absence or adequacy of procedures pertaining to the TSC's decision;
2. The implementation of the No-Fly List through the airlines, through TSA Security Directives or otherwise; and/or
3. The Department of Homeland Security Traveler Redress Inquiry Program. The Court also concludes that the Amended Complaint fails to state a claim for damages. The Amended Complaint does not allege a claim, or the proper defendants, pursuant to Bivens v. Six Unknown NamedAgents, 403 U.S. 388 (1971), or a claim pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (the "FTCA") or some other basis that would allow the recovery of damages against those federal officers allegedly involved in this case. In this regard, plaintiffs claim in Count I pursuant to 42 U.S.C. § 1983 does allow for the recovery of damages but only against those acting under color of state law; and there are no allegations that such individuals were involved in the alleged conduct pertaining to the plaintiff. Likewise, damages are not recoverable under the APA, asserted as the sole basis for relief in Count II of the Amended Complaint. For the above reasons, the Court will dismiss the Amended Complaint, but will grant plaintiff leave to file a further amended complaint, which should, as to each asserted cause of action, plead with specificity: (1) the facts plaintiff contends establish standing and jurisdiction; (2) the legal rights that plaintiff contends were violated and the source of those rights; (3) the specific cause of action, whether it be pursuant to the APA, Bivens, the FTCA,

Case 1:11-cv-00050-AJT-TRJ Document 19 Filed 04/29/11 Page 5 of 5 PageID# 262
or otherwise; (4) the facts that state a plausible claim to relief; and (5) the relief that plaintiff
seeks.
Accordingly, it is hereby ORDERED that defendants* Motion to Dismiss [Doc. No. 10] be. and the same hereby is, GRANTED, with leave to file a revised amended complaint, with additional parties to be joined as required, within twenty-one (21) days, consistent with the requirements set forth in this Order, if he be so advised: and the Court reserves with respect to the issues of standing, mootness, jurisdiction pursuant to 49 U.S.C. § 46110(a), and exhaustion, as well as the merits of the underlying substantive issues raised by the Amended Complaint, pending the filing of any revised amended complaint. The Clerk is directed to forward copies of this Order to all counsel of record.

Alexandria, Virginia
April 29,2011 '

Anthony J. Trenga
United States District Judge

 
 Case 1:11-cv-00050-AJT-TRJ Document 23 Filed 06/03/11 Page 1 of 39 PageID# 355

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

GULET MOHAMED,
PLAINTIFF,
v.
ERIC H. HOLDER, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
DEFENDANTS.

Case No. 1:11-CV-00050
) )

DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT

i

Case 1:11-cv-00050-AJT-TRJ Document 23 Filed 06/03/11 Page 2 of 39 PageID# 356
TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1
PROCEDURAL BACKGROUND..................................................................................................3
ARGUMENT ...................................................................................................................................4
I. PLAINTIFF DOES NOT HAVE STANDING TO CHALLENGE HIS ALLEGED DENIAL OF RE-ENTRY .........................................................................4
A. Plaintiff Has Never Been Denied the Right to Re-Enter the United States .............5
B. Even if Plaintiff Had Been Denied Re-Entry, That Claim Would Now Be Moot...........................................................................................................6
C. Plaintiff Cannot Demonstrate That He Will Likely Suffer Harm in the Future and Therefore, He Cannot Be Granted Prospective, Injunctive Relief. .......7
II. THIS COURT LACKS JURISDICTION TO HEAR EITHER PLAINTIFF‟S APA CLAIM OR HIS DUE PROCESS CLAIM........................................8
A. DHS TRIP Provides an Adequate Remedy at Law for Plaintiff...............................9 i. DHS and TSA Provide Redress Through DHS TRIP for Travelers Who Allege They Have Been Denied Boarding..........................9
ii. DHS TRIP Provides an Adequate Remedy for Plaintiff‟s Alleged Injuries..........................................................................................12
B. Until Plaintiff Avails Himself of DHS TRIP to Challenge His Alleged Placement on the No Fly List, Plaintiff‟s APA and Due Process Claims are Not Ripe for Review...............................................................13
C. Plaintiff Must Bring Any Challenge to the Congressionally-Mandated DHS TRIP Redress Process and any Challenge to a TSA Final Order in a Court of Appeals ............................................................................................14
D. TSA is A Necessary Party to Provide the Relief Plaintiff Seeks and Dismissal is Required by Rule 19 ..........................................................................19
III. The Government‟s Terrorist Watchlisting Procedures Are Not Arbitrary, Capricious, or Contrary to Law.........................................................................19
IV. DHS TRIP SATISFIES PLAINTIFF‟S PROCEDURAL DUE PROCESS......................21 ii

Case 1:11-cv-00050-AJT-TRJ Document 23 Filed 06/03/11 Page 3 of 39 PageID# 357 A. Plaintiff Has Not Articulated a “Private Interest” That Requires More Process Than What DHS TRIP Provides ......................................23 B. There is Little Risk of Erroneous Deprivation Given the Quality Controls Over the TSDB (and the even Smaller Subset of the No-Fly List) and the Right to Appeal TSA Final Orders in the Court of Appeals ....................................................................................................26 C. Protecting Terrorist Watchlisting Status, and the Underlying Information, is Crucial to the Government‟s Counterterrorism Efforts ................26
CONCLUSION ..............................................................................................................................28
iii

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TABLE OF AUTHORITIES
CASES
Armstrong v. Manzo, 380 U.S. 545 (1965).......................................................................................................... 22, 28
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)................................................................................................................ 24
Bassiouni v. CIA, 392 F.3d 244, 245-46 (7th Cir. 2004) ..................................................................................... 27
Bassiouni v. FBI, 436 F.3d 712 (7th Cir. 2006) .................................................................................................. 20
Boddie v. Connecticut, 401 U.S. 371 (1971)................................................................................................................ 22
Califano v. Aznavorian, 439 U.S. 170 (1978)................................................................................................................ 24
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)................................................................................................................ 20
City of Houston v. FAA, 679 F.2d 1184 (5th Cir. 1982) ................................................................................................ 24
City of Los Angeles v. Lyons, 461 U.S. 95 (1983)................................................................................................................ 5, 7
Clarke v. U.S., 915 F.2d 699 (D.C. Cir. 1990) .................................................................................................. 6
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)................................................................................................................ 22
Cramer v. Skinner, 931 F.2d 1020 (5th Cir. 1991) ................................................................................................ 24
Center for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918 (D.C. Cir. 2003) ................................................................................................ 20
iv

Case 1:11-cv-00050-AJT-TRJ Document 23 Filed 06/03/11 Page 5 of 39 PageID# 359
Dep't of Navy v. Egan, 484 U.S. 518 (1988)................................................................................................................ 20
Figueroa v. Rivera, 147 F.3d 77 (1st Cir. 1998) ....................................................................................................... 1
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000).................................................................................................................. 6
Gen. Elec. Uranium Mgmt. Corp. v. Dep't of Energy, 764 F.2d 896 (D.C. Cir. 1985) ................................................................................................ 18
Gilbert v. Homar, 520 U.S. 924 (1997).......................................................................................................... 22, 23
Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980) .................................................................................................... 1
Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) ......................................................................................... passim
Green v. TSA, 351 F. Supp. 2d 1119 (W.D. Wash. 2005)............................................................................... 25
Haig v. Agee, 453 U.S. 280 (1981).................................................................................................... 20, 22, 24
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) ............................................................................................................ 21
Ibrahim v. DHS, 538 F.3d 1250 (9th Cir. 2008) .......................................................................................... 17, 18
Jones v. Flowers, 547 U.S. 220 (2006)................................................................................................................ 22
Krikorian v. Dep't of State, 984 F.2d 461 (D.C. Cir. 1993) ................................................................................................ 21
Lafayette Fed. Credit Union, et al. v. Nat’l Credit Union Admin., et al., 960 F.Supp. 999 (E.D.VA. 1997)……………………………………………………….. 16
Latif v. Holder No. 10-cv-750, 2011 WL 1667471 (D. Or. May 3, 2011) .....................................13, 15, 17, 19
v

Case 1:11-cv-00050-AJT-TRJ Document 23 Filed 06/03/11 Page 6 of 39 PageID# 360
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523 (6th Cir. 2007) .............................................................................................. 7, 24
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).............................................................................................................. 5, 7
Mallette v. Arlington County Employees' Supplemental Retirement System II, 91 F.3d 630 (4th Cir. 1996) .................................................................................................... 22
Matthew v. Honish, 233 Fed. Appx. 563 (7th Cir. 2007).......................................................................................24
Mathews v. Eldridge, 424 U.S. 319 (1976).................................................................................................... 22, 23, 28
Merritt v. Shuttle, 245 F.3d 182 (2d Cir. 2001).................................................................................................... 17
Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999) ................................................................................................ 24
Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).................................................................................................................. 29
Munaf v. Geren, 553 U.S. 674 (2008)................................................................................................................ 24
Nixon v. Administrator of General Services, 433 U.S. 425 (1977)................................................................................................................ 25
O'Donnell v. Bond, 510 F. Supp. 925 (D.D.C. 1981)…………………………………………………………….16
Omni Capital Investment v. Rudolph Wolff & Co., 484 U.S. 97 (1987).................................................................................................................... 1
Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010) .................................................................................................. 14
Paul v. Davis, 424 U.S. 693 (1976)................................................................................................................ 25
vi

Case 1:11-cv-00050-AJT-TRJ Document 23 Filed 06/03/11 Page 7 of 39 PageID# 361
Rahman v. Chertoff, 530 F.3d 622 (7th Cir. 2008) .................................................................................................. 21
Redfern v. Napolitano, No. 10-cv-12048, 2011 WL 1750445 (D. Mass May 9, 2011)............................................... 17
Rhodes v. United States, 995 F.2d 1063 (4th Cir. 1993) ................................................................................................ 18
Town of Southold v. Town of East Hampton, 477 F.3d 38 (2d Cir. 2007)...................................................................................................... 24
Scherfen v. DHS, No. 3:cv-08-1554, 2010 WL 456784 (M.D. Pa. Feb. 2, 2010)....................................... passim
Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646 (9th Cir.2002) ................................................................................................... 14
Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D.N.C 2003) .................................................................................... 14
Sima Products v. McLucas, 612 F.2d 309 (7th Cir. 1980) .................................................................................................. 16
Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985) .................................................................................................... 1
Suburban O'Hare Comm'n v. Dole, 787 F.2d 186 (7th Cir. 1986) .................................................................................................. 18
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994).......................................................................................................... 18, 19
Tooley v. Bush, No. 06-306 (CKK), 2006 WL 3783142 (D.D.C. 2006) .......................................................... 27
Tooley v. Napolitano, 586 F.3d 1006 (D.C. Cir. 2009) .............................................................................................. 27
United States v. Hardy, 545 F.3d 280 (4th Cir. 2008) .................................................................................................... 6
Wayte v. U.S., 470 U.S. 598 (1985)................................................................................................................ 22
vii

Case 1:11-cv-00050-AJT-TRJ Document 23 Filed 06/03/11 Page 8 of 39 PageID# 362
Whitmore v. Arkansas, 495 U.S. 149 (1990).................................................................................................................. 7
Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541 (4th Cir. 2006) .................................................................................................. 19
Zadvydas v. Davis, 533 U.S. 678 (2001).......................................................................................................... 20, 21
STATUTORY LAW 5 U.S.C. § 704............................................................................................................................9, 13 5 U.S.C. § 706............................................................................................................................... 20 6 U.S.C. § 203................................................................................................................................15 6 U.S.C. § 551................................................................................................................................15 6 U.S.C. § 552................................................................................................................................15 6 U.S.C. § 557................................................................................................................................15 49 U.S.C. § 114............................................................................................................. 9, 12, 15, 16 49 U.S.C. § 40113......................................................................................................................... 16 49 U.S.C. § 44901......................................................................................................................... 16 49 U.S.C. § 44902......................................................................................................................... 16 49 U.S.C. § 44903.................................................................................................................. passim 49 U.S.C. § 44909......................................................................................................................... 25 49 U.S.C. § 44926......................................................................................................................... 12 49 U.S.C. § 46110.................................................................................................................. passim
viii

Case 1:11-cv-00050-AJT-TRJ Document 23 Filed 06/03/11 Page 9 of 39 PageID# 363 REGULATIONS 8 C.F.R. § 235 ............................................................................................................................. 5, 7 49 C.F.R. § 1500 ........................................................................................................................... 15 49 C.F.R. § 1540 ....................................................................................................................... 9, 12 49 C.F.R. § 1560 ....................................................................................................................... 9, 12 49 C.F.R. § 1560 .................................................................................................................... passim
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INTRODUCTION In his Second Amended Complaint, Plaintiff Gulet Mohamed alleges six counts based on: (I) the Fourteenth Amendment‟s guarantee of a right to citizenship, (II) the Administrative Procedure Act (“APA”), (III) the Torture Victims Protection Act, (IV) the Fifth Amendment (alleging a substantive due process violation), (V) the Fifth Amendment (alleging a procedural due process violation), and (VI) the Fourth Amendment‟s protection against unlawful searches and seizures. Plaintiff brings Counts I, II, and V against Defendants Eric H. Holder, Jr., Robert Mueller, and Timothy Healy in their official capacities (“Federal Defendants”) and Counts III, IV and VI against certain unidentified government “agents” in their individual capacities.1 Plaintiff seeks declaratory and injunctive relief against the Federal Defendants and damages from the unidentified government agents. This Court noted in its April 29, 2011 Order that Plaintiff‟s complaint was “less than clear concerning the scope of the challenges that he is making, particularly now that he has reentered the United States.” Dkt.# 19 at 3. Accordingly, the Court dismissed that complaint, but allowed Plaintiff leave to file a second amended complaint. Plaintiff‟s Second Amended Complaint, however, fails to cure the deficiencies in his previous two complaints or to set forth cognizable claims against the Federal Defendants. Accordingly, Counts I, II, and V should be dismissed.
1 These “unknown” individuals have not been identified or served in this action and therefore are not properly before the Court at this time. See Omni Capital Inv. v. Rudolph Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”) It is the Plaintiff‟s responsibility to identify and serve anonymous defendants. See Strauss v. City of Chicago, 760 F.2d 765, 770 n. 6 (7th Cir. 1985) (citing Gillespie v. Civiletti, 629 F.2d 637, 642-43 (9th Cir. 1980); Figueroa v. Rivera, 147 F.3d 77, 82-83 (1st Cir. 1998). Until such time as Plaintiff satisfies this responsibility, these individuals are properly served, and a determination is made that undersigned counsel is authorized to represent these individuals, undersigned counsel is not appearing on their behalf. As such, this motion to dismiss does not include a response to Counts III, IV, and VI, which relate to the unknown individuals.
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With respect to Count I, the Fourteenth Amendment claim, Plaintiff brings the very same “right of reentry” claim that the Court dismissed in its April 29, 2011 Order. The claim should again be dismissed. As explained in the Federal Defendants‟ previous motion, Plaintiff returned to the United States on January 20, 2011, has never been denied entry, and continues to reside here today. He thus lacks standing to assert an entry claim and any claim he might have had is now moot. Further, Plaintiff has not subsequently been denied entry to the United States and he has not shown a real and immediate threat of future injury to establish standing for the prospective relief he seeks.
With respect to Plaintiff‟s APA challenge, the Court asked Plaintiff to clarify whether he seeks to challenge the following government conduct: (1) his alleged placement on the No Fly List, (2) the implementation of the No-Fly List, and/or (3) the Department of Homeland Security Traveler Redress Inquiry Program (“DHS TRIP”). Dkt.# 19 at 4. Plaintiff has failed to answer this question with any specificity. Moreover, Plaintiff has failed to cure the standing, ripeness, and jurisdictional deficiencies that the Federal Defendants identified in their previous motion to dismiss. Instead, Plaintiff now alleges that the Federal Defendants have failed to provide him with proper due process to challenge his alleged inclusion on the No Fly List. But as explained in the Federal Defendants‟ previous motion, Plaintiff‟s alleged harm can be redressed through DHS TRIP. Until Plaintiff chooses to avail himself of DHS TRIP, neither his APA claim nor his accompanying due process claim are not ripe for review and further, Plaintiff lacks standing to bring either claim.
Moreover, because DHS TRIP would provide Plaintiff with a full and adequate remedy at law for his alleged harm, APA jurisdiction does not lie under 5 U.S.C. § 704. When and if
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Plaintiff utilizes DHS TRIP, Plaintiff may then seek judicial review of both the resulting TSA final order and the sufficiency of the process itself in a Court of Appeals, pursuant to 49 U.S.C. § 46110. Accordingly, Plaintiff‟s APA claim and accompanying procedural due process claim must also be dismissed for lack of subject-matter jurisdiction.
But even if the Court did have jurisdiction to hear Plaintiff‟s due process challenge, DHS TRIP provides a constitutionally sufficient mechanism for challenging one‟s inclusion on the No Fly List. As an initial matter, no liberty interest is at stake: Plaintiff has no constitutional right to travel by airplane or any single mode of transportation. DHS TRIP, moreover, provides sufficient process to satisfy the requirements of procedural due process. The redress process provided by DHS TRIP balances interests of travelers challenging alleged inclusion on the No Fly List with the government‟s compelling interests in ensuring the security of air travel and the protection of classified and sensitive information that supports placement on the No Fly List. Finally, Plaintiff‟s Second Amended Complaint makes no allegation that supports the conclusion that Federal Defendants‟ terrorist watch listing procedures are arbitrary and capricious, nor cites any authority for the proposition that the APA requires something more than what Federal Defendants have done in this context.
In sum, Plaintiff has been afforded ample opportunity to plead a cause of action and has failed to do so. As such, this Court should dismiss Plaintiff‟s claims with prejudice.
PROCEDURAL BACKGROUND At the outset of this litigation, Plaintiff was located in Kuwait and wished to return home by traveling on commercial airlines. SAC ¶ 4. On January 18, 2011, Plaintiff‟s counsel filed a motion for a temporary restraining order, a preliminary and permanent injunction, and other
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relief on behalf of Plaintiff, asking the Court to require Federal Defendants to allow him to return to the U.S., subject to “suitable screening procedures.” See Dkt. # 3. This Court held a hearing the same day, which was continued until January 20, 2011. See Dkt. # 6. As a result of the parties‟ efforts, Plaintiff returned to the United States on January 21, 2011. On March 21, 2011, the Federal Defendants filed a Motion to Dismiss Plaintiff‟s Complaint. See Dkt. # 10. After oral argument, the Court granted Federal Defendants‟ Motion to Dismiss and granted Plaintiff leave to amend his Complaint. See Dkt. # 19. The Court directed Plaintiff to plead with specificity: (1) the facts Plaintiff contends establish standing and jurisdiction; (2) the legal rights that Plaintiff contends were violated and the source of those rights; (3) the specific cause of action; (4) the facts that state a plausible claim to relief; and (5) the relief that Plaintiff seeks. See Dkt. #19 at 4-5. On May 20, 2011, Plaintiff filed his Second Amended Complaint. Plaintiff‟s Second Amended Complaint fails to cure the deficiencies in his previous two complaints or to set forth a cognizable claim against the Federal Defendants. Counts I, II, and V against the Federal Defendants should accordingly be dismissed with prejudice.
ARGUMENT I. PLAINTIFF DOES NOT HAVE STANDING TO CHALLENGE HIS ALLEGED
DENIAL OF ENTRY. Plaintiff cannot challenge his alleged denial of entry to the United States because he cannot show a cognizable injury. Simply put, Plaintiff was never denied entry into the United States. And even if Plaintiff could demonstrate some injury, whatever claims for relief he may have had are now moot, as he currently resides in the United States. Nor can Plaintiff maintain his claims for prospective, injunctive relief related to his alleged inability to enter the United States because he fails to allege sufficient facts to demonstrate that he is likely to suffer future
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harm. The Court recognized this failure in its April 29, 2011 Order, but provided Plaintiff an opportunity to file an amended complaint that would include the facts Plaintiff contends support his claims and this Court‟s jurisdiction. See Dkt. #19 at 4-5. Tellingly, Plaintiff offers no new support for his right of “re-entry” claim. His claim, therefore, should be dismissed with prejudice.
A. Plaintiff Has Never Been Denied Entry into the United States. Article III‟s limitation on judicial power requires at a minimum that a party must demonstrate that he has suffered an actual or threatened injury to establish standing. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 101-102 (1983); see also Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Yet here, Plaintiff has failed to identify any injury-in-fact, and indeed, cannot identify such an injury because he has never been denied entry into the United States. Denial of boarding on an airplane does not constitute a denial of entry into the United States because lawful entry of U.S. citizens into the United States does not occur until the individual citizen has presented himself or herself at a U.S. port of entry and been permitted to enter by U.S. Customs and Border Protection (“CBP”). See 8 C.F.R. § 235.1(a) (“Application to lawfully enter the United States shall be made in person to an immigration officer at a U.S. portof-entry when the port is open for inspection, or as otherwise designated in this section.”). On direct flights from Kuwait to Dulles International Airport, the port of entry is Washington Dulles International Airport. See Port of Entry-Washington-Dulles http://www.cbp.gov/xp/cgov/toolbox/contacts/ports/dc/5401.xml (last visited 5/31/11). When Plaintiff presented himself at the Port of Entry at Washington Dulles International Airport on January 21, 2011, following his flight from Kuwait, he was permitted to enter the United States
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after he appeared before a CBP official. Therefore, any claim that he was denied entry into the United States is baseless.
B. Even if Plaintiff Had Been Denied Entry, That Claim Would Now Be Moot. Plaintiff alleges that the government has denied him his right to reside in and enter the United States by allegedly placing him on the No Fly List. See SAC ¶¶ 49-53. Setting aside the fact that Plaintiff has never been denied entry, even if Plaintiff could identify some injury, his claim is moot because Plaintiff has now returned to the United States. SAC ¶ 48. The mootness doctrine is based on the Constitution‟s case-or-controversy requirement. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180 (2000) (citing U.S. Const. art. III, § 2). Whereas standing is determined at the time the lawsuit is filed, the question of mootness arises during the pendency of the lawsuit: “[t]he requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Id. at 189 (citing quotations omitted). A case is moot if the issues are no longer live and the court is unable to grant effective relief. United States v. Hardy, 545 F.3d 280, 282 (4th Cir. 2008). Thus, even if there is a live controversy when the case is filed, courts should refrain from deciding issues “if events have so transpired that the decision will neither presently affect the parties‟ rights nor have a more-than-speculative chance of affecting them in the future.” See Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (internal quotation marks omitted). Here, because Plaintiff entered the United States on January 21, 2011, his Fourteenth Amendment claim is no longer a live controversy. Consequently, his claim must be dismissed as moot.
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C. Plaintiff Cannot Demonstrate That He Will Likely Suffer Harm in the Future and Therefore, He Cannot Be Granted Prospective, Injunctive Relief.
Plaintiff also lacks standing to seek injunctive relief regarding future travel because he cannot make the requisite showing of imminent, certain future injury. See Lyons, 461 U.S. at 102 (requiring “real and immediate threat of repeated injury”) (citation omitted). To obtain prospective relief, Plaintiff must point to “an invasion of a legally protected interest which is . . . “„actual or imminent,‟ not „conjectural‟ or „hypothetical.‟” Lujan, 504 U.S. at 560 quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Other than Plaintiff‟s denial of boarding in January 2011, Plaintiff has not alleged any additional denials of boarding or entry to the United States, despite being given the opportunity to amend his complaint. His plans for future travel continue to be, at best, pure speculation and devoid of any facts that would support his fear of denial of entry in the future. SAC ¶ 53 (Plaintiff “plans on again departing the United States”). Plaintiff‟s allegation that he “plans on again departing” the United States is precisely the type of allegation that the Supreme Court found too speculative in Lyons to confer standing or to entitle a party to prospective injunctive relief. Further, it is well established that, in general, U.S. citizens who arrive at a U.S. port of entry are permitted to enter the United States after they establish to the satisfaction of a CBP officer that they are in fact U.S. citizens. 8 C.F.R. § 235.1(b).2
2 While United States citizens have a right to re-enter the country, they do not have a constitutional right to rearrive at a port of entry via a specific mode of transportation. See, e.g., League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 534 (6th Cir. 2007) (holding that there is no protected right to a particular mode of transportation). In particular, there is no constitutional right to air travel. Gilmore v. Gonzales, 435 F.3d 1125, 1136-37 (9th Cir. 2006).
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In sum, Plaintiff has no basis for immediate or prospective relief regarding his Fourteenth Amendment entry claims. II. THIS COURT LACKS JURISDICTION TO HEAR EITHER PLAINTIFF’S APA
CLAIM OR HIS DUE PROCESS CLAIM. With respect to his APA claim, Plaintiff has failed to answer the Court‟s fundamental question about what agency action he challenges: (1) his alleged placement on the No Fly List, (2) the implementation of the No Fly List, and/or (3) DHS TRIP. Dkt.# 19 at 4. Plaintiff instead asserts generally that he has incurred harm because he cannot board an airplane and because he has been denied a “post-deprivation hearing” that would allow him to challenge his alleged placement on the No Fly List. SAC ¶¶ 65-69. To remedy these harms, Plaintiff seeks removal from, and an opportunity to contest any inclusion on, the No Fly List. In answer to the Court‟s question, these demands make clear that Plaintiff‟s true grievance is not about his alleged original placement on a terrorist watchlist, but about his purported ongoing inability to fly based on the implementation of the No Fly List, and the lack of a process through which to contest that inability to fly. As explained in Federal Defendants‟ previous motion, DHS TRIP provides an adequate remedy to grant Plaintiff both forms of relief he seeks – removal and a process through which to seek removal. That Plaintiff has opted not to avail himself of DHS TRIP renders his APA claim unripe and improper for adjudication. Further, if and when Plaintiff does utilize DHS TRIP, he could then choose to seek judicial review of the resulting Transportation Security Administration (“TSA”) final order, or any constitutional claims related to the DHS TRIP process, in the Court of Appeals.
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A. DHS TRIP Provides an Adequate Remedy at Law for Plaintiff. While Plaintiff attempts to invoke the APA as the basis for subject-matter jurisdiction and waiver of sovereign immunity, APA jurisdiction will only lie for review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. As explained below, to the extent Plaintiff seeks removal from the No Fly List, or a post-deprivation process through which to contest ongoing inclusion, DHS TRIP provides a full and adequate remedy for that claim.
i. DHS and TSA Provide Redress Through DHS TRIP for Travelers Who Allege They Have Been Denied Boarding.
In response to the terrorist attacks on the United States on September 11, 2001, Congress enacted the Aviation and Transportation Security Act (Pub. L. No. 107-71, 115 Stat. 597 (2001)), which charged TSA with overseeing the “security screening operations for passenger air transportation.” See 49 U.S.C. § 114(e)(1). TSA is required by statute to secure commercial air travel against the threat of terrorism by establishing policies and procedures that require air carriers to prevent boarding for certain individuals. 49 U.S.C. § 114(h)(3). Specifically, TSA must work “in consultation with other appropriate Federal agencies and air carriers” and “use information from government agencies” to identify travelers who may pose a threat to national security, so that it can “prevent [those] individuals from boarding an aircraft.” Id. § 114(h)(3)(A), (B); see also Piehota Dec., ¶ 2, 4. TSA is also specifically responsible for prescreening passengers against the No Fly and Selectee Lists. See 49 U.S.C. § 44903(j)(2)(C). Pursuant to that authority, TSA implemented the Secure Flight program, codified at 49 C.F.R. Parts 1540, 1544, and 1560, through which it performs the watch list matching functions previously conducted by aircraft operators. TSA has been transitioning to the Secure Flight
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program since January 2009. Secure Flight was fully implemented for all U.S. airlines on June 22, 2010 and for all covered airlines on November 23, 2010. Lynch Dec., ¶ 7 n.1
As part of its prescreening functions, TSA is also required to “establish a procedure to enable airline passengers, who are delayed or prohibited from boarding a flight because the advanced passenger prescreening system determined that they might pose a security threat, to appeal such determination and correct information contained in the system.” 49 U.S.C. § 44903(j)(2)(C)(iii)(I). The Assistant Secretary of Homeland Security is further required to “establish a timely and fair process for individuals identified as a threat under one or more of subparagraphs (C), (D), and (E) to appeal to the [TSA] the determination and correct any erroneous information.” 49 U.S.C. § 44903(j)(2)(G)(i).3 Pursuant to these authorities, TSA provides redress to passengers who were delayed or denied boarding due to alleged placement on the No Fly or Selectee Lists through DHS TRIP, which was codified at 49 C.F.R. §§ 1560.2011560.207 as part of Secure Flight.
In February 2007, DHS launched DHS TRIP, which is managed by TSA‟s Office of Transportation Security Redress, as the central administrative redress process for individuals who have, for example, been denied or delayed airline boarding; denied or delayed entry into or exit from the United States at a port of entry; or been repeatedly referred to additional (secondary) screening. See Lynch Dec., ¶ 4; Piehota Dec., ¶ 26. Persons who have been denied boarding, or been subject to additional screening, may file a complaint with DHS TRIP. See 49
3 The process must “include the establishment of a method by which the Assistant Secretary will be able to maintain a record of air passengers and other individuals who have been misidentified and have corrected erroneous information. To prevent repeated delays of misidentified passengers and other individuals, the TSA record shall contain information determined by the Assistant Secretary to authenticate the identity of such a passenger or individual.” 49 U.S.C. § 44903(j)(2)(G)(ii).
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C.F.R. § 1560.201; Lynch Dec., ¶ 5. They are required to complete a traveler inquiry form,
either on-line or via e-mail or hard copy. See Lynch Dec., ¶ 6.
Other agencies, including Federal Defendants, are involved in the DHS TRIP process.
Specifically, if the traveler is an exact or near match to an identity in the Terrorist Screening
Database (“TSDB”), the matter is referred to the Terrorist Screening Center (“TSC”) Redress Unit. See Lynch Dec., ¶ 9; Piehota4 Dec., ¶¶ 30-32; see also 49 C.F.R. § 1560.205(d).5 After
that referral, the TSC Redress Unit reviews the available information to determine whether the
DHS TRIP complainant is an exact match to a TSDB identity, and if so, whether the individual‟s
status should be modified or whether the person should be removed entirely from the TSDB. See
Piehota Dec., ¶ 31. As part of this process, TSC contacts the agency that originally nominated
the individual for inclusion in the TSDB and “determine[s] whether the complainant‟s current
status in the TSDB is suitable based on the most thorough, accurate, and current information
available.” Piehota Dec., ¶ 30.
The TSC Redress Unit will make a determination on whether the record should remain in
the TSDB, or have its TSDB status modified or removed, unless the legal authority to make such
a determination resides, in whole or in part, with another government agency. Piehota Dec., ¶
31. In such cases, TSC will only prepare a recommendation for the decision-making agency and
4 TSC, which was established by Homeland Security Presidential Directive 6 in 2003, maintains a consolidated database of identifying information about persons known or reasonably suspected of being involved in terrorist activity. TSC then feeds that information to front-line screening agencies and law enforcement officials so that they can positively identify known or suspected terrorists trying to obtain visas, enter the country, board aircraft, or engage in other activity of concern. The TSC is responsible for maintaining the federal government‟s consolidated terrorist watch list, the TSDB, which contains identifying information about individuals known or suspected to be engaged or aiding in terrorist related conduct. Piehota Dec., ¶¶ 8; Giuliano Dec., ¶ 6. 5 This interagency review process is described in the Memorandum of Understanding on Watchlist Redress Procedures, which was executed on September 19, 2007, by the Secretaries of State, Treasury, Defense, and Homeland Security, the Attorney General, the FBI Director, the NCTC Director, the CIA Director, the ODNI, and the TSC Director. See Piehota Dec., ¶ 28.
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will implement any determination once made. Id. When changes to a record‟s status are warranted, the TSC will ensure such corrections are made, and will verify that such modifications or removals carry over to the various screening or law enforcement systems that receive TSDB data (e.g., the Selectee and No Fly Lists). Id.
For inquiries that involve complaints about delayed or denied boarding due to TSA security screening, DHS TRIP, in conjunction with TSA‟s Office of Transportation Security Redress, subsequently sends a determination letter to the complainant as required under 49 U.S.C. §§ 44903 and 44926. See Piehota Dec., ¶ 32; Lynch Dec., ¶ 10; see also 49 C.F.R. § 1560.205(d). This multi-agency collaboration ensures the efficacy of DHS TRIP. See Piehota Dec., ¶¶ 26-33. That DHS TRIP involves the efforts of multiple agencies does not undermine the fact that, pursuant to Congress‟ mandate, TSA is in charge of the implementation of DHS TRIP. 6 Moreover, it is TSA that effectuates whether or not individuals may board an airline by determining who may or may not obtain a boarding pass through the administration of TSA‟s passenger prescreening programs. See generally 49 U.S.C. §§ 114, 44903; 49 C.F.R §§ 1540.107, 1544.103, 1560.1-1560.207
ii. DHS TRIP Provides an Adequate Remedy for Plaintiff’s Alleged Injuries. DHS TRIP provides an adequate remedy for Plaintiff‟s purported injuries. First, to remedy his alleged inability to board a plane, Plaintiff seeks removal from the No Fly List. SAC ¶ 52 (“By placing Mr. Mohamed on the No Fly List….[defendants] prevented [him] from
6 Inter-agency collaboration is precisely the point of centralizing and sharing the contents of the TSDB and the No Fly and Selectee Lists. Indeed, the lack of this kind of centralized information sharing was specifically cited as a government failing by the 9/11 Commission. See 9/11 Comm‟n Report, Exec. Summary, at http://govinfo.library.unt.edu/911/report/911Report_Exec.htm (“The missed opportunities to thwart the 9/11 plot were also symptoms of a broader inability to adapt the way government manages problems to the new challenges of the twenty-first century. Action officers should have been able to draw on all available knowledge about al Qaeda in the government. Management should have ensured that information was shared and duties were clearly assigned across agencies, and across the foreign-domestic divide.”).
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boarding an aircraft.”). Second, to remedy his denied post-deprivation hearing, Plaintiff seeks an opportunity to contest his alleged inclusion on the No Fly List. SAC ¶ 73. DHS TRIP is the Congressionally-mandated process offered to seek removal and redress the complaints of travelers who, like Plaintiff, allege they have been wrongfully denied boarding onto commercial aircraft due to placement on the No Fly List. Accordingly, DHS TRIP provides the remedies that Plaintiff seeks.
In Latif v. Holder, a group of plaintiffs recently presented claims similar to Plaintiff‟s claims here. See Latif v. Holder, No. 10-cv-750, 2011 WL 1667471 (D. Or. May 3, 2011) (alleging that Federal Defendants violated their due process rights by failing to provide a postdeprivation notice and hearing or any meaningful opportunity to contest their continued inclusion on the No Fly List). Also, as in this case, the plaintiffs in Latif sought removal and “„a meaningful opportunity to contest their continued inclusion‟ on such List.” Id. The Latif court dismissed the case, however, for lack of subject matter jurisdiction and concluded that “the relief Plaintiffs seek is a matter that Congress has delegated to TSA, which is responsible for administering the DHS TRIP procedures.” Id. at *5. Because Plaintiff can seek redress through DHS TRIP and later seek review of any TSA final order in the Court of Appeals, Plaintiff has an adequate remedy in a court and APA jurisdiction will not lie. 5 U.S.C. ' 704.
B. Until Plaintiff Avails Himself of DHS TRIP to Challenge His Alleged Placement on the No Fly List, Plaintiff’s APA and Due Process Claims are Not Ripe for Review.
Almost five months have elapsed since Plaintiff was denied boarding and yet he has failed to avail himself of the Congressionally-mandated process that would provide him with the relief he seeks, DHS TRIP. Until Plaintiff does so, his claims are not ripe. See 13B Charles A.
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Wright & Arthur R. Miller, Fed. Practice & Proc. § 3532.6 (3d ed. 2004) (“[R]ipeness may be used to express the exhaustion principle that administrative remedies should be tried before running to the courts.”).
Ripeness occurs only when a dispute is definite and concrete. See Ostergren v. Cuccinelli, 615 F.3d 263, 288 (4th Cir. 2010). Ripeness cannot, however, occur when “problems such as the inadequacy of the record . . . or ambiguity in the record . . . will make a case unfit for adjudication on the merits,” Ostergren, 615 F.3d at 288 (quoting Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 662 (9th Cir.2002)) (internal quotations omitted). Without having allowed this process to run its course, the Court would be without the benefit of the agency‟s assessment and if needed, a formal administrative record. Indeed, Plaintiff‟s refusal to avail himself of DHS TRIP also deprives him of standing. Plaintiff cannot be allowed to invoke the jurisdiction of this Court by refusing to avail himself of a process that may redress his alleged harm. See, e.g., Shavitz v. City of High Point, 270 F. Supp. 2d 702, 710 (M.D.N.C 2003) (where “Plaintiff has failed to use the process provided to him, he cannot show that he has suffered injury because of the insufficiency of the process provided[]”).
C. Plaintiff Must Bring Any Challenge to the Congressionally-Mandated DHS TRIP Redress Process and any Challenge to a TSA Final Order in a Court of Appeals.
If and when Plaintiff avails himself of DHS TRIP to contest his alleged inclusion on the No Fly List, and he is dissatisfied with TSA‟s determination, he may seek judicial review of his DHS TRIP determination letter (and any other challenge to the process of DHS TRIP) in the Court of Appeals under 49 U.S.C. § 46110. Section 46110 of Title 49 of the U.S. Code provides in relevant part:
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[A] person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security7 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 [(r)]8 of section 114 may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business . . .
49 U.S.C. § 46110(a). This section further states that the courts of appeal have “exclusive
jurisdiction to affirm, amend, modify or set aside any part of [such an] order.” Id. § 46110(c)
(emphasis added).
DHS TRIP determination letters that resolve complaints about denied or delayed airline
boarding caused by alleged placement on the No Fly or Selectee Lists are final orders issued by
TSA. Scherfen v. DHS, No. 3:cv-08-1554, 2010 WL. 456784, at *11 (M.D. Pa. Feb. 2, 2010)
(holding that DHS TRIP letters are final orders under § 46110 ); Latif v. Holder, No. 10-cv-750,
2011 WL 1667471, at *6 (D. Or. May 3, 2011) (“The Court also concludes any „order‟ through
DHS TRIP that might cause the names of any or all Plaintiffs to remain on or to be removed
from any No Fly List would have to be issued by TSA pursuant to § 46110(a)”). Likewise, the
process provided by TSA through DHS TRIP, as codified at 49 C.F.R. §§ 1560.201-1560.207,
7 49 U.S.C. § 46110 refers to TSA‟s Administrator as “the Under Secretary of Transportation for Security.” See 49 U.S.C. § 46110(a). When TSA was created, Congress appointed the Under Secretary of Transportation for Security as the head of TSA. 49 U.S.C. § 114(b)(1). In 2002, TSA was transferred from the Department of Transportation to the Department of Homeland Security. See 6 U.S.C. §§ 203(2), 551(d). Statutory references to the Under Secretary for Transportation Security are deemed to refer to TSA and its Administrator. See id. §§ 552(d), 557; 49 C.F.R. § 1500.3 (stating that the Administrator of TSA is the Under Secretary of Transportation for Security). 8 Although Section 46110 refers to “subsection (1) or (s) of section 114,” subsection (s) of section 114 was later redesignated as subsection (r). See Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div. E, § 568(a), 121 Stat. 1844, 2092 (2007).
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also constitutes a final order under 49 U.S.C. § 46110.9 See, e.g., Sima Products v. McLucas, 612 F.2d 309, 312-13 (7th Cir. 1980) (holding that a regulation that was subject to notice and comment rulemaking may be considered an order pursuant to 49 U.S.C. § 1486(a), the predecessor to 49 U.S.C. § 46110); O'Donnell v. Bond, 510 F. Supp. 925, 928 (D.D.C. 1981) (holding that the definition of a final order under 49 U.S.C. § 1486(a) includes “procedures and regulations adopted . . . through informal notice-and-comment rulemaking[,]” and that challenges thereto must be brought in a federal court of appeals). Judicial review of such final orders from TSA is available only in the Court of Appeals. 49 U.S.C. §46110.
Plaintiff cannot circumvent the requirements of Section 46110 by invoking the APA. There is no waiver of sovereign immunity to proceed under the APA. APA jurisdiction does not lie where plaintiff is seeking relief under the APA that is “expressly or impliedly forbidden by another statute.” Lafayette Fed. Credit Union, et al. v. Nat’l Credit Union Admin., et al., 960 F.Supp. 999, 1002 (E.D.VA. 1997) (internal citation omitted). In enacting Section 46110, Congress has expressly mandated that challenges to TSA final orders must proceed in the Court of Appeals. Therefore, APA jurisdiction does not lie in this case. See Lafayette, 960 F. Supp. at 1002; Scherfen, 2011 WL 1667471 at*10 (holding that DHS TRIP determination letters that resolve complaints about denied or delayed airline boarding caused by alleged placement on the No Fly or Selectee Lists are final orders issued by TSA and noting that to the extent plaintiffs “assail[ed] the sufficiency of the process” provided by DHS TRIP, they could raise that claim
9 These regulations were issued under 49 U.S.C. §114(l), well as 49 U.S.C. §§ 40113, 44901, 44902, and 44903, which are contained in Part A of Subtitle VII of the Title 49 of the U.S. Code. See, e.g., 49 U.S.C. § 46110 (providing that orders issued by the Administrator of TSA in whole or in part under certain sections of Title 49 (Parts A or B of Subtitle VII, or subsections 114(l) or (r)), are subject to review only in the courts of appeals).
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pursuant to Section 46110 in a Court of Appeals); Latif v. Holder, No. 10-cv-750, 2011 WL 1667471 (D. Or. May 3, 2011) (same).
To the extent that Plaintiff is challenging TSC‟s role in maintaining the No Fly list, Section 46110 also precludes preclude district courts from hearing claims that are “inescapably intertwined” with the review of such orders. Merritt v. Shuttle, 245 F.3d 182, 187 (2d Cir. 2001); see also Gilmore, 435 F.3d at 1133 n. 9 (accord); Redfern v. Napolitano, No. 10-cv12048, 2011 WL 1750445 (D. Mass May 9, 2011)(finding challenge to use of Advanced Imaging Technology machines must be brought in courts of appeal where challenge to underlying Standard Operating Procedures issued by TSA was challenge to TSA “order” subject to Section 46110). Here, Plaintiff recognizes that TSC‟s role in the DHS TRIP process is to provide DHS/TSA with information regarding a particular individual‟s status so that TSA can a letter of decision–“order”–regarding a particular individual‟s No-Fly List status. SAC ¶ 24. Any claim brought by Plaintiff against TSC is, accordingly, “inextricably intertwined” with his claim challenging the adequacy of DHS TRIP and must therefore be brought in the Court of Appeals.
Plaintiff may attempt to rely upon the Ninth Circuit‟s decision in Ibrahim v. DHS, where the court found TSC‟s placement of a name on a watch list to be separate from and, thus, not inextricably intertwined with an order issued by TSA. 538 F.3d 1250, 1254-1256 (9th Cir. 2008). While the government respectfully disagrees with that decision, DHS TRIP did not exist at the time that the district court action was instituted. As such, the question of whether a DHS TRIP determination letter that addresses alleged placement on the No Fly List or the Secure Flight regulation that codified the DHS TRIP process constituted final orders of TSA was not before the Ninth Circuit. This distinction was noted by the court in Scherfen, 2010 WL 456784,
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at *10 (“Significantly, Ibrahim did not involve a determination made by DHS following receipt of a Traveler Inquiry Form from the affected person. Thus, Ibrahim did not present for consideration the issue of whether a DHS TRIP determination letter constitutes an order falling within § 46110.”). The Ninth Circuit recognized, moreover, that a challenge such as the one presented here, that complains of the inability to contest the placement of one‟s name on the NoFly List, is a challenge that is subject to Section 46110 were such TSA “policies and procedures implementing the No Fly List” in place. 538 F.3d at 1257 (citing Gilmore, 435 F.3d at 1133). Indeed, the Ninth Circuit noted that any “‟order‟ of an agency . . . named in Section 46110” must be challenged in the Court of Appeals. Ibrahim, 538 F.3d at 1255. Currently, both the result of the DHS TRIP process and the process itself are governed by TSA, an agency named in Section 46110. As such, under Ibrahim, Plaintiff must bring any challenge to either the final TSA determination letter that would result from DHS TRIP or TSA‟s procedures and policies that govern the DHS TRIP process in the Court of Appeals.
Plaintiff has the burden of establishing jurisdiction, Rhodes v. United States, 995 F.2d 1063 (4th Cir. 1993), and as explained, has failed to do so here. Indeed, even “if there [were] any ambiguity as to whether jurisdiction lies with a district court or with a court of appeals,” the ambiguity should be resolved “in favor of review by the court of appeals.” Suburban O’Hare Comm’n v. Dole, 787 F.2d 186, 192 (7th Cir. 1986); Gen. Elec. Uranium Mgmt. Corp. v. Dep’t of Energy, 764 F.2d 896, 903 (D.C. Cir. 1985). Where, as here, the Court of Appeals has exclusive jurisdiction over Plaintiff‟s procedural due process claim and that claim can be meaningfully addressed by the Court of Appeals, Plaintiff cannot proceed in district court. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994) (finding exclusive jurisdiction in the
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circuit courts where “petitioners‟ statutory and constitutional claims here can be meaningfully addressed in the Court of Appeals).
D. TSA is A Necessary Party to Provide the Relief Plaintiff Seeks and Dismissal is Required by Rule 19.
Further, if and when Plaintiff avails himself of DHS TRIP and if he is dissatisfied with the resulting final order from TSA and brings his claim in the Court of Appeals, he must include the proper defendants. Rule 19 of the Federal Rules of Civil Procedure requires that Plaintiff include DHS and TSA as defendants in this case because without DHS and TSA, “the plaintiff could not obtain complete relief[.]” Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 552 (4th Cir. 2006), see also Latif, 2011 WL 1667471 at *15 (holding in a case where plaintiffs challenged their alleged placement on the No Fly List that “TSA is an indispensible party without whose presence this action cannot proceed.”) The regulations governing the DHS TRIP process in regards to Secure Flight, as well as the DHS TRIP determination letters regarding complaints addressing denied or delayed airline boarding due to TSA security screening are final orders by TSA subject to Section 46110. By failing to join TSA and DHS, therefore, Plaintiff is unable to obtain the relief he seeks. Nor can Plaintiff‟s preference for litigation in district court cannot trump the need to join TSA and to proceed according to the Congressionally-mandated process in Section 46110. III. THE GOVERNMENT’S TERRORIST WATCHLISTING PROCEDURES ARE
NOT ARBITRARY, CAPRICIOUS, OR CONTRARY TO LAW. But even if the Court were to determine that it, and not the Court of Appeals, has jurisdiction to hear Plaintiff‟s APA claims, Plaintiff has failed to plead a cognizable claim under the APA. Pursuant to the APA‟s limited waiver of sovereign immunity, a reviewing court must
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uphold an agency decision unless it is (1) arbitrary and capricious; (2) an abuse of discretion; or (3) otherwise not in accordance with law. See 5 U.S.C. § 706; Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). The scope of judicial review under this standard is a narrow and deferential one, and a court cannot substitute its judgment for that of the agency. See Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Plaintiff‟s Second Amended Complaint makes no allegation that supports the conclusion that Federal Defendants‟ terrorist watch listing procedures are arbitrary and capricious, nor cites any authority for the proposition that the APA requires something more than what Federal Defendants have done in this context. Further, to the extent that Plaintiff wants the Court to establish new substantive and procedural rules to govern the TSDB, or its subset lists, the No Fly and Selectee Lists, Plaintiff‟s request is improper because matters of national security “are rarely proper subjects for judicial intervention.” Haig v. Agee, 453 U.S. 280, 292 (1981). Courts “owe considerable deference to [the Executive branch‟s] assessment in matters of national security[,]” Bassiouni v. FBI, 436 F.3d 712, 724 (7th Cir. 2006), and must be “reluctant to intrude upon the authority of the Executive” in such affairs. Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988); see also Center for Nat'l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 932 (D.C. Cir. 2003) (holding “that the courts must defer to the executive on decisions of national security. In so deferring, we do not abdicate the role of the judiciary. Rather, in undertaking a deferential review we simply recognize the different roles underlying the constitutional separation of powers. It is within the role of the executive to acquire and exercise the expertise of protecting national security. It is not within the role of the courts to second-guess executive judgments made in furtherance of that branch's proper role.”); Zadvydas v. Davis, 533 U.S. 678, 696 (2001);
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Krikorian v. Dep’t of State, 984 F.2d 461, 464-65 (D.C. Cir. 1993). The Supreme Court‟s recent decision in Holder v. Humanitarian Law Project, 130 S. Ct.
2705 (2010), underscores the deference due to both the Legislative and Executive Branches in review of factual conclusions and legal matters that implicate national security, even when constitutional concerns are raised. See id. at 2727 (“But when it comes to collecting evidence and drawing factual inferences in [national security and foreign relations], the lack of competence on the part of the courts is marked, and respect for the Government‟s conclusions is appropriate.”) (internal quotation marks and citation omitted); see also Rahman v. Chertoff, 530 F.3d 622, 627-28 (7th Cir. 2008)(“modesty is the best posture for the branch that knows the least about protecting the nation‟s security and that lacks the full kit of tools possessed by the legislative and executive branches.”). Plaintiff‟s requested relief that the Court order Federal Defendants to remove him from any terrorist watch list he may be on plainly implicates sensitive national security Executive judgments that are entitled to deference. IV. DHS TRIP SATISFIES PLAINTIFF’S PROCEDURAL DUE PROCESS.
Plaintiff‟s procedural due process claim also fails on the merits. Plaintiff claims that the Federal Defendants are denying him procedural due process by not providing “a constitutionally sufficient legal mechanism for challenging his [alleged] inclusion on the No Fly List,” SAC ¶ 67. But DHS TRIP provides exactly the process Plaintiff is seeking, and as explained above, under Section 46110, challenges to either the final TSA order that is the final product of the DHS TRIP process or the DHS TRIP process itself must be brought in a Court of Appeals. But even if Plaintiff‟s procedural due process claim was appropriately filed in this Court, Plaintiff‟s due process challenge fails as a matter of law.
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“[D]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Gilbert v. Homar, 520 U.S. 924, 930 (1997) (internal citation omitted). Instead, “[d]ue process is flexible and calls for such procedural protections as the particular situation demands.” Id. (internal citation omitted). “[A]ssessing the adequacy of a particular form of notice requires balancing the „interest of the State‟ against „the individual interest sought to be protected.‟” Jones v. Flowers, 547 U.S. 220, 229 (2006). In cases involving national security and the possibility of terrorist activities, the government‟s interest is at its zenith. “[N]o governmental interest is more compelling than the security of the Nation.” Haig, 453 U.S. at 307; see also Wayte v. United States, 470 U.S. 598, 612 (1985) (“Unless a society has the capability and will to defend itself from the aggression of others, constitutional protections of any sort have little meaning.”). The fundamental requirement of due process is “the opportunity to be heard „at a meaningful time and in a meaningful manner.‟” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
Plaintiff alleges that he is entitled to “meaningful notice of the grounds for his inclusion on a government watch list, and an opportunity to rebut the government‟s charges and clear his name.” SAC, ¶ 73. Due process procedures may vary “„depending upon the importance of the interests involved and the nature of the subsequent proceedings.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985) (quoting Boddie v. Connecticut, 401 U.S. 371, 378 (1971)). At bottom, the due process evaluation “is flexible and calls for such procedural protections as the particular situation demands.” Mallette v. Arlington Cnty. Emps’ Supplemental Retirement Sys. II, 91 F.3d 630. 640 (4th Cir. 1996) (emphasis added) (internal
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citations omitted). In this case, DHS TRIP provides sufficient due process to Plaintiff, particularly in light of the compelling national security concerns related to the No Fly List and the fact that there is no constitutional right to fly. See Gilmore, 435 F.3d 1125. Plaintiff‟s refusal to avail himself of that due process, however, is outside the control of the government.
In evaluating whether the government has provided sufficient due process, the Court should consider three factors: (1)“„the private interest that will be affected by the official action‟”; (2) “„the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards‟”; and (3) “„the Government‟s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.‟” Gilbert, 520 U.S. at 93132 quoting Mathews, 424 U.S. at 335. Because Plaintiff has no constitutional right to travel by airplane or any single mode of transportation, and because DHS TRIP provides sufficient process to review the government‟s actions, DHS TRIP satisfies the requirements of procedural due process.
A. Plaintiff Has Not Articulated a “Private Interest” That Requires More Process Than What DHS TRIP Provides.
Plaintiff asserts that he has a liberty interest in “traveling free from unreasonable burdens;” in being “free from false governmental stigmatization as an individual that poses a threat to air travel;” and “nonattainder.” SAC ¶ 66. Because none of these interests was infringed when Plaintiff was denied boarding, Plaintiff has failed to plead any private interest.
Plaintiff alleges that Federal Defendants, by allegedly denying him the right to fly, have denied him the right to enter the United States. As explained above, however, Plaintiff was never denied entry into the country. And even if he were to be denied the use of a particular
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mode of transport, he has no constitutional right to travel by a preferred mode of transportation.
Gilmore, 435 F.3d at 1136. Nor is there is a right to international travel; such travel is
“subordinate to national security and foreign policy considerations.” See Haig, 453 U.S. at 306.
Indeed, the freedom to travel internationally is simply an aspect of the liberty protected by the
due process clause, and the restrictions on international travel are permissible unless “wholly irrational[.]” Califano v. Aznavorian, 439 U.S. 170, 177 (1978).10
While Plaintiff may claim that actions of the Kuwaitis limited his options for returning to
the United States, anyone who travels abroad always takes the risk that they will be detained or
otherwise subjected to foreign law, and they cannot hold the United States responsible for the
actions of foreign nations. See Munaf v. Geren, 553 U.S. 674, 694-95 (2008) (Constitution does
not prevent US citizens abroad from being subject to foreign law); Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 417-18 (1964) (“To permit the validity of the acts of one sovereign
state to be [reexamined] and perhaps condemned by the courts of another would very certainly
imperil the amicable relations between governments and vex the peace of nations.”) (internal
quotation marks omitted). Plaintiff has also not been stigmatized.11 SAC ¶ 66. Procedural due process protections
apply to reputational harm only when a plaintiff suffers stigma from governmental action plus
10 Even in the context of interstate travel, a more heavily protected interest, courts have repeatedly held that there is no right to any particular means of travel, even if the most convenient means of travel is restricted. See League of United Latin Am. Citizens, 500 F.3d at 534 (holding that there is no protected right to a particular mode of transportation); Matthew v. Honish, 233 Fed. Appx. 563, 564 (7th Cir. 2007); Gilmore, 435 F.3d 1125 (holding there is no right to air travel); Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999) (no right to drive); see also Town of Southold v. Town of East Hampton, 477 F.3d 38 (2d Cir. 2007)(“travelers do not have a constitutional right to the most convenient form of travel”); Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir. 1991)(same); City of Houston v. FAA, 679 F.2d 1184 (5th Cir. 1982)(same). 11 Plaintiff‟s allegations that his perceived inability to fly sends a “public” message is confounding because such information is not even shared with the individual who is denied boarding. SAC ¶ 68. Indeed, pursuant to the government‟s current “Glomar” policy, government officials do not confirm or deny whether an individual is in the
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alteration or extinguishment of “a right or status previously recognized by state law.” Paul v. Davis, 424 U.S. 693, 711 (1976). This is known as a “stigma-plus” claim. See Green v. TSA, 351 F. Supp. 2d 1119, 1129-30 (W.D. Wash. 2005). The Constitution contains no reference, implied or otherwise, to a right to travel by plane. As a result, Plaintiff cannot meet the standards required for a stigma-plus claim. See Green, 351 F. Supp. 2d at 1130 (rejecting plaintiffs‟ claim that delayed boarding due to mistaken association with the No Fly List sufficed for stigma-plus claims). The Green court held that plaintiffs could not make out a stigma-plus claim, because they did “not have a right to travel without any impediments”; because “burdens on a single mode of transportation do not implicate the right to interstate travel”; and because plaintiffs “have not alleged any tangible harm to their personal or professional lives that is attributable to their association with the No-Fly List, and which would rise to the level of a Constitutional deprivation of a liberty right.” 351 F. Supp. 2d at 1130. Because the same is true here, Plaintiff has failed to plead any cognizable stigma claim.
Plaintiff also fails to raise a bill of attainder. A bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Nixon v. Adm’r of Gen. Servs, 433 U.S. 425, 468 (1977) (emphasis added). Here, however, there is no law enacted by Congress that placed Plaintiff on the No Fly List. Instead, Congress has enacted laws requiring passengers to be screened for risks to civil aviation; the Executive branch is then responsible for identifying the passengers who pose such risks. See 49 U.S.C. § 44903(j)(2)(C); 49 U.S.C. § 44909(c)(6) (requiring TSA to
TSDB, or on the No Fly or Selectee subset lists. Guiliano Dec., ¶¶ 13-17; Piehota Dec., ¶¶ 21-23, 32; Lynch Dec. ¶¶ 8, 10. It is also notable that Plaintiff himself has been actively publicizing his alleged inclusion on the No Fly List. See http://www.washingtonpost.com/wp-dyn/content/article/2011/01/21/AR2011012107042.html (last visited May 23, 2011).
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create a redress process for passengers who have been delayed or denied airline boarding due to TSA security screening). Moreover, while persons who allege they were wrongfully denied boarding due to a mistaken placement on the No Fly List are not provided a “trial,” they are provided with the opportunity to challenge their alleged placement via DHS TRIP, and to obtain judicial review of the TSA final order in the Court of Appeals.
B. There is Little Risk of Erroneous Deprivation Given the Quality Controls Over the TSDB (and the even Smaller Subset of the No-Fly List) and the Right to Appeal TSA Final Orders in the Court of Appeals.
Even if Plaintiff could plead a cognizable private interest, the government‟s current procedures for including individuals on the No Fly List protect against erroneous or unnecessary infringements of liberty. The TSDB is regularly updated daily; it is also reviewed and audited on a regular basis to comply with quality control measures. See Piehota Dec., ¶ 19. Nominations to the No Fly List are reviewed by TSC personnel to ensure that they meet the required criteria. Id. To the extent an individual is denied boarding, and wishes to complain, he or she can file a complaint with DHS TRIP, which then triggers a subsequent review of the individual‟s status. See Lynch Dec., ¶¶ 5-8; Piehota Dec. ¶¶ 30-33. If the individual is unsatisfied with the TSA Final Order he or she receives, then the individual may file a Petition for Review against TSA in the relevant Court of Appeals. See Lynch Dec., ¶¶ 11, 13. See Scherfen, 2010 WL 456784, at *7 (noting that the availability of DHS TRIP means that a reviewing court would have access to an administrative record to review)
C. Protecting Terrorist Watchlisting Status, and the Underlying Information, is Crucial to the Government’s Countererrorism Efforts
Finally, the DHS TRIP process allows a traveler to resolve a travel-related issue without burdening the government‟s aviation and national security interests. The government has a
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paramount interest in ensuring that the TSDB information used for screening or law enforcement purposes can be broadly shared among government agencies to maximize the country‟s counterterrorism efforts related to aviation and national security, without fear that such information will be disclosed whenever anyone cannot travel as he or she chooses.
Most of the derogatory information relied on by nominating agencies to the TSDB consists of operational facts derived from underlying international counterterrorism investigations or intelligence collection methods, which are generally classified to protect intelligence sources and methods. See Piehota Dec., ¶ 20. When separated from the classified means by which they were obtained, the terrorist identity information stored in the TSDB is deemed sensitive but unclassified for terrorist watchlisting, law enforcement, and screening purposes, which allows government officials to access TSDB data for law enforcement or screening purposes without compromising an investigation or intelligence collection methods. Id.
Courts have recognized the vital role watchlisting plays in securing our nation. See Tooley v. Bush, No. 06-306 (CKK), 2006 WL 3783142, at *20 (D.D.C. 2006), judgment aff’d, Tooley v. Napolitano, 586 F.3d 1006 (D.C. Cir. 2009) (“[I]f TSA were to confirm in one case that a particular individual was not on a watch list, but was constrained in another case merely to refuse to confirm or deny whether a second individual was on a watch list, the accumulation of these answers over time would tend to reveal [sensitive security information].”); Bassiouni v. CIA, 392 F.3d 244, 245-46 (7th Cir. 2004) (explaining that if the “CIA opens its files most of the time and asserts the state-secrets privilege only when the information concerns a subject under
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investigation or one of its agents, then the very fact of asserting the exemption reveals that the request has identified a classified subject or source”).
In this case, by providing an opportunity for judicial review without requiring the government to reveal information that ought not to be revealed, DHS TRIP balances the public and private interests fairly and provides a suitable substitute for an evidentiary hearing. DHS TRIP gives an individual who has experienced difficulties during TSA travel screening at airports, or was prohibited from boarding an airline by TSA, an opportunity to be heard at a meaningful time and in a meaningful manner by permitting that individual to complain with specificity to the appropriate authorities (1) about the difficulties that he or she has experienced; (2) to have his or her alleged No Fly List status reviewed; (3) to have appropriate changes made to applicable records; and(4) if unsatisfied, to seek direct review in a federal appellate court. See Mathews, 424 U.S. at 333 (quoting Armstrong, 380 U.S. at 552).
In sum, the DHS TRIP process offers sufficient due process to a person such as the Plaintiff, who wishes to resolve travel-related problems, without burdening the government‟s compelling aviation and national security interests. Therefore, Plaintiff‟s procedural due process claim should thus be dismissed.
CONCLUSION For the foregoing reasons, Federal Defendants‟ Motion to Dismiss Plaintiff‟s Second Amended Complaint should be granted.

Dated: June 3, 2011

Respectfully submitted,

TONY WEST ASSISTANT ATTORNEY GENERAL
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CIVIL DIVISION

NEIL H. MACBRIDE UNITED STATES ATTORNEY

SANDRA M. SCHRAIBMAN ASSISTANT BRANCH DIRECTOR FEDERAL PROGRAMS BRANCH

PAUL G. FREEBORNE

LILY SARA FAREL

ATTORNEYS

U.S. DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

20 MASSACHUSETTS AVENUE, N.W.

WASHINGTON, D.C. 20001

TELEPHONE: (202) 353-7633

FAX:

(202) 616-8460

E-MAIL:

lily.farel@usdoj.gov

/S/

_______________________________

R. JOSEPH SHER

ASSISTANT UNITED STATES ATTORNEY

OFFICE OF THE UNITED STATES ATTORNEY

JUSTIN W. WILLIAMS UNITED STATES ATTORNEYS

BUILDING

2100 JAMIESON AVE.,

ALEXANDRIA, VA. 22314

TELEPHONE: (703) 299-3747

FAX:

(703) 299-3983

E-MAIL

JOE.SHER@USDOJ.GOV

ATTORNEYS FOR THE DEFENDANTS

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CERTIFICATE OF SERVICE
I certify that I electronically filed the foregoing with the Clerk of Court using the
CM/ECF system, which will send a notification of such filing (NEF) to the following counsel of
record:
Nadhira Faisal Al-Khalili Council on American Islamic Relations 453 New Jersey Avenue, SE Washington, DC 20003 Phone: 202-646-6034 Fax: 202-488-3305 nalkhalili@cair.com

DATED: JUNE 3, 2011

/S/

_______________________________

R. JOSEPH SHER

ASSISTANT UNITED STATES ATTORNEY

OFFICE OF THE UNITED STATES ATTORNEY

JUSTIN W. WILLIAMS UNITED STATES

BUILDING

2100 JAMIESON AVE.,

ALEXANDRIA, VA. 22314

TELEPHONE: (703) 299-3747

FAX:

(703) 299-3983

E-MAIL

JOE.SHER@USDOJ.GOV

ATTORNEYS‟

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 Case 1:11-cv-00050-AJT-TRJ Document 59 Filed 09/27/13 Page 1 of 37 PageID# 634

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

GULET MOHAMED,
PLAINTIFF,
v.
ERIC H. HOLDER, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
DEFENDANTS.

Case No. 1:11-CV-00050

DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S THIRD AMENDED COMPLAINT

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TABLE OF CONTENTS
PAGE
INTRODUCTION ...........................................................................................................................1
PROCEDURAL BACKGROUND..................................................................................................3
ARGUMENT ...................................................................................................................................4
I. PLAINTIFF DOES NOT HAVE STANDING TO CHALLENGE HIS ALLEGED DENIAL OF ENTRY ...............................................................................4
A. Plaintiff Has Never Been Denied Entry into the United States ...............................4
B. Even if Plaintiff Had Been Denied Entry, That Claim Would Now Be Moot...........................................................................................................5
C. Plaintiff Cannot Demonstrate That He Will Likely Suffer Harm in the Future and Therefore, He Cannot be Granted Prospective Injunctive Relief.......................................................................................................6
D. Because Plaintiff was Never Denied the Right to Reenter the United States, he has also Failed to State a Claim under 12(b)(6) ..........................8
II. PLAINTIFF’S CLAIMS ARE UNRIPE BECAUSE HE HAS FAILED TO EXHAUST ADMINISTRATIVE REMEDIES...................................................................8
A. DHS TRIP Provides Redress for Travelers Who Allege They Have Been Denied Boarding ...................................................................................9
B. Until Plaintiff Avails Himself of DHS TRIP to Challenge His Alleged Placement on the No Fly List, his APA and Due Process Claims are Barred and are Not Ripe for Review......................................................................12
III. DHS TRIP SATISFIES PLAINTIFF’S PROCEDURAL DUE PROCESS ..........................................................................................................................16
A. Plaintiff Has Not Articulated a “Private Interest” That Requires More Process Than what DHS TRIP Provides ......................................................18
B. There is Little Risk of Erroneous Deprivation Given the Quality Controls Over the TSDB (and the even Smaller Subset of the No Fly List) and the Right to Appeal TSA Final Orders in the Court of
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C. Protecting Terrorist Watchlisting Status, and the Underlying Information, is Crucial to the Government’s Counterterrorism Efforts ....................................................................................................................21
IV. THE GOVERNMENT’S TERRORIST WATCHLISTING PROCEDURES ARE NOT ARBITRARY, CAPRICIOUS, OR CONTRARY TO LAW .........................24
CONCLUSION ..............................................................................................................................26
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TABLE OF AUTHORITIES

CASES

PAGE(S)

Al-Kidd v. Gonzales, No. CV 05-093, 2007 WL. 4391029 (D. Idaho Dec. 10, 2007) ...................................................................23

Arjmand v. DHS, No-12-71748 (9th Cir. filed June 2012) ............................................................................24

Armstrong v. Manzo, 380 U.S. 545 (1965).....................................................................................................17, 24

Barnard v. DHS, 531 F. Supp. 2d 131 (D.D.C. 2008) ...................................................................................23

Bassiouni v. CIA, 392 F.3d 244 (7th Cir. 2004) .......................................................................................22, 23

Bassiouni v. FBI, 436 F.3d 712 (7th Cir. 2006) .............................................................................................25

Boddie v. Connecticut, 401 U.S. 371 (1971)...........................................................................................................17

CIA v. Sims, 471 U.S. 159 (1985)...........................................................................................................15

Califano v. Aznavorian, 439 U.S. 170 (1978)...........................................................................................................18

Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918 (D.C. Cir. 2003) ...........................................................................................25

Chamblee v. Espy, 100 F.3d 15 (4th Cir. 1996) ...............................................................................................15

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)...........................................................................................................24

City of Houston v. FAA, 679 F.2d 1184 (5th Cir. 1982) ...........................................................................................19

City of Los Angeles v. Lyons,

iv

Case 1:11-cv-00050-AJT-TRJ Document 59 Filed 09/27/13 Page 5 of 37 PageID# 638
461 U.S. 95 (1983).......................................................................................................4, 6, 7
Clarke v. United States, 915 F.2d 699 (D.C. Cir. 1990) .............................................................................................6
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)...........................................................................................................17
Cramer v. Skinner, 931 F.2d 1020 (5th Cir. 1991) ...........................................................................................19
Darby v. Cisneros, 509 U.S. 137 (1993)...........................................................................................................14
Dep't of Navy v. Egan, 484 U.S. 518 (1988)...........................................................................................................25
El-Masri v. United States, 479 F.3d 296 (4th Cir.), cert. denied, 552 U.S. 947 (2007) ...............................................15
Figueroa v. Rivera, 147 F.3d 77 (1st Cir. 1998) ..................................................................................................1
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000).............................................................................................................5
Gilbert v. Homar, 520 U.S. 924 (1997).....................................................................................................16, 18
Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980) ...............................................................................................1
Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) ................................................................................... passim
Gordon v. FBI, 388 F. Supp. 2d 1028 (N.D. Cal. 2005) .............................................................................23
Green v. TSA, 351 F. Supp. 2d 1119 (W.D. Wash. 2005).........................................................................19
Haig v. Agee, 453 U.S. 280 (1981)...............................................................................................16, 18, 25
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Case 1:11-cv-00050-AJT-TRJ Document 59 Filed 09/27/13 Page 6 of 37 PageID# 639
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) .......................................................................................................25
Howell v. INS, 72 F.3d 288 (2nd Cir. 1995)...............................................................................................14
Jifry v. FAA, 370 F.3d 1174 (D.C. Cir. 2004) .........................................................................................24
Jones v. Flowers, 547 U.S. 220 (2006)...........................................................................................................16
Krikorian v. Dep't of State, 984 F.2d 461 (D.C. Cir. 1993) ...........................................................................................25
Kurfees v. INS, 275 F.3d 332 (4th Cir. 2001) .............................................................................................15
Latif v. Holder, 2013 WL 4592515 (D. Or. 2013).........................................................................................7
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523 (6th Cir. 2007) .........................................................................................7, 18
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).........................................................................................................4, 6
Mallette v. Arlington Cnty. Emps' Supplemental Retirement Sys. II, 91 F.3d 630 ........................................................................................................................17
Matthew v. Honish, 233 Fed. Appx. 563 (7th Cir. 2007)...................................................................................19
Mathews v. Eldridge, 424 U.S. 319 (1976)................................................................................................... passim
McCarthy v. Madigan, 503 U.S. 140 (1992).....................................................................................................13, 15
Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999) ...........................................................................................19
Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co.,
vi

Case 1:11-cv-00050-AJT-TRJ Document 59 Filed 09/27/13 Page 7 of 37 PageID# 640
463 U.S. 29 (1983).............................................................................................................24
Omni Capital Int’l v. Rudolph Wolff & Co., 484 U.S. 97 (1987)...............................................................................................................1
Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010) .......................................................................................12, 13
Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496 (1982)...........................................................................................................13
Paul v. Davis, 424 U.S. 693 (1976)...........................................................................................................19
Rahman v. Chertoff, 530 F.3d 622 (7th Cir. 2008) .............................................................................................26
Raz v. Mueller, 389 F. Supp. 2d 1057 (W.D. Ark. 2005)............................................................................23
Reg'l Mgmt. Corp. v. Legal Servs. Corp., 186 F.3d 457 (4th Cir. 1999) .............................................................................................13
Scherfen v. DHS, 2010 WL 456784 (M.D. Pa. Feb 02, 2010) .......................................................................20
Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646 (9th Cir. 2002) .............................................................................................13
Shavitz v. City of High Point, 270 F. Supp. 2d 702 (M.D.N.C 2003) ...............................................................................13
Shearson v. Holder, 725 F.3d 588 (6th Cir. 2013) .......................................................................................14, 15
Stehney v. Perry, 101 F.3d 925 (3d Cir. 1996)...............................................................................................21
Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985) ...............................................................................................1
Tooley v. Bush, No. 06-306 (CKK), 2006 WL. 3783142 (D.D.C. 2006) ..............................................22, 23
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Case 1:11-cv-00050-AJT-TRJ Document 59 Filed 09/27/13 Page 8 of 37 PageID# 641
Tooley v. Napolitano, 586 F.3d 1006 (D.C. Cir. 2009 ..........................................................................................22
Town of Southold v. Town of East Hampton, 477 F.3d 38 (2d Cir. 2007).................................................................................................19
United States v. Hardy, 545 F.3d 280 (4th Cir. 2008) ...............................................................................................6
United States v. Hartwell, 436 F.3d 174 (3d Cir. 2006)...............................................................................................22
Vicari v. Ysleta Ind. Sch. Dist., 291 Fed. Appx. 614, 2008 WL. 4111407 (5th Cir. Aug. 28, 2008)...................................13
Wayte v. United States, 470 U.S. 598 (1985)...........................................................................................................17
Whitmore v. Arkansas, 495 U.S. 149 (1990).............................................................................................................6
Wilson v. MVM, Inc., 475 F.3d 166 (3d Cir. 2007)...............................................................................................13
Zadvydas v. Davis, 533 U.S. 678 (2001)...........................................................................................................25
STATUTES 5 U.S.C. § 706 ...............................................................................................................................24 49 U.S.C. § 114...................................................................................................................... passim 49 U.S.C. §§ 44903................................................................................................................ passim 49 U.S.C. § 46110..............................................................................................................2, 3, 4, 14
RULES AND REGULATIONS 8 C.F.R. § 235.1 ............................................................................................................................5,7 49 C.F.R. §§ 1560.201-1560.207.......................................................................................10, 11, 12
MISCELLANEOUS 9/11 Comm’n Report, Exec. Summary, at
http://govinfo.library.unt.edu/911/report/911Report_Exec.htm ................................................12
3B Charles A. Wright & Arthur R. Miller, Fed. Practice & Proc. § 3532.6 (3d ed. 2004) ..........12 viii

Case 1:11-cv-00050-AJT-TRJ Document 59 Filed 09/27/13 Page 9 of 37 PageID# 642 U.S. Gov’t Accountability Office, GAO-12-476, Terrorist Watchlist: Routinely Assessing
Impacts of Agency Actions since the December 25, 2009, Attempted Attack Could Help Inform Future Efforts (2012) ........................................................................................20
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Case 1:11-cv-00050-AJT-TRJ Document 59 Filed 09/27/13 Page 10 of 37 PageID# 643
INTRODUCTION
In his Third Amended Complaint, Plaintiff Gulet Mohamed (“Plaintiff” or “Mr. Mohamed”)
alleges three counts based on: (I) the Fourteenth Amendment’s guarantee of a right to citizenship,
(II) the Administrative Procedure Act (“APA”), and (III) the Fifth Amendment (alleging a
procedural due process violation). Plaintiff brings all Counts against Defendants Eric H. Holder, Jr.,
Robert Mueller, and Timothy Healy in their official capacities (“Federal Defendants”) and
apparently brings Counts I and III against certain unidentified “unknown TSC agents” in their individual capacities.1 Plaintiff seeks declaratory and injunctive relief against the Federal Defendants.2
With respect to Count I, the Fourteenth Amendment claim, Plaintiff brings the very same
“right of reentry” claim that the Court dismissed in its April 29, 2011 Order. The claim should again
be dismissed. As explained in the Federal Defendants’ Motion to Dismiss the Second Amended
Complaint (and not subsequently addressed by the Court), Plaintiff returned to the United States on
January 20, 2011. He was not, and never has been denied entry, and he continues to reside here
today. He thus lacks standing to assert an entry claim, and any claim he might have had is now
1 The Court dismissed the counts in the previous Complaint against those purported Defendants identified as “unknown agents” but not the counts against “unknown TSC agents.” These “unknown” individuals have not been identified or served in this action and therefore are not properly before the Court at this time. See Omni Capital Int’l v. Rudolph Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”). It is the Plaintiff’s responsibility to identify and serve anonymous defendants. See Strauss v. City of Chicago, 760 F.2d 765, 770 n. 6 (7th Cir. 1985) (citing Gillespie v. Civiletti, 629 F.2d 637, 642-43 (9th Cir. 1980); Figueroa v. Rivera, 147 F.3d 77, 82-83 (1st Cir. 1998). Until such time as Plaintiff satisfies this responsibility, these individuals are properly served, and a determination is made that government counsel is authorized to represent these individuals, undersigned counsel is not appearing on their behalf. 2 The Complaint also purports to seek compensatory and punitive damages. The Complaint is unclear as to what the basis for such a claim could be, but the Government assumes that such claims are brought against the individual “unknown TSC agent” defendants because Plaintiff cites no waiver of sovereign immunity that would permit an award of damages against the Government.
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moot. Further, Plaintiff has not subsequently been denied entry to the United States and he has not shown a real and immediate threat of future injury to establish standing for the prospective relief he seeks.
Count III alleges that the Federal Defendants have failed to provide him with proper due process to challenge his alleged inclusion on the No Fly List. But as explained in the Federal Defendants’ previous motions here and before the Court of Appeals, Plaintiff’s alleged harm can be redressed through DHS TRIP, an administrative remedy he has chosen not to pursue. Until Plaintiff chooses to avail himself of DHS TRIP, neither his APA claim nor his accompanying due process claim is ripe for review. Further, Plaintiff lacks standing to bring either claim. If and when Plaintiff utilizes DHS TRIP, Plaintiff may then seek judicial review of both the resulting final agency action and the sufficiency of the process itself (including pursuant to 49 U.S.C. § 46110).
But even if the Plaintiff’s due process challenge were ripe, DHS TRIP provides a constitutionally sufficient mechanism for challenging one’s inclusion on the No Fly List. As an initial matter, no liberty interest is at stake: Plaintiff has no constitutional right to travel by airplane on any single mode of transportation. DHS TRIP, moreover, provides sufficient process to satisfy the requirements of procedural due process. The redress process provided by DHS TRIP balances interests of travelers challenging alleged inclusion on the No Fly List with the Government’s compelling interests in ensuring the security of air travel and the protection of classified and sensitive information that supports placement on the No Fly List.
Finally, Plaintiff’s APA claim appears to rehash his constitutional claims and fails for the same reasons. The Third Amended Complaint makes no allegation supporting a claim that any watchlisting decision or procedure was arbitrary and capricious.
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In sum, Plaintiff has been afforded ample opportunity to plead a cause of action and has failed to do so. As such, this Court should dismiss Plaintiff’s claims with prejudice.
PROCEDURAL BACKGROUND At the outset of this litigation, Plaintiff was located in Kuwait and wished to return home by traveling on commercial airlines. TAC ¶ 7. On January 18, 2011, Plaintiff’s counsel filed a motion for a temporary restraining order, a preliminary and permanent injunction, and other relief on behalf of Plaintiff, asking the Court to require Federal Defendants to allow him to return to the U.S., subject to “suitable screening procedures.” See Dkt. # 3. This Court held a hearing the same day, which was continued until January 20, 2011. See Dkt. # 6. As a result of the parties’ efforts, Plaintiff returned to the United States on January 21, 2011. On March 21, 2011, the Federal Defendants filed a Motion to Dismiss Plaintiff’s Amended Complaint. See Dkt. # 10. After oral argument, the Court granted Federal Defendants’ Motion to Dismiss and granted Plaintiff leave to amend his Complaint. See Dkt. # 19. The Court directed Plaintiff to plead with specificity: (1) the facts Plaintiff contends establish standing and jurisdiction; (2) the legal rights that Plaintiff contends were violated and the source of those rights; (3) the specific cause of action; (4) the facts that state a plausible claim to relief; and (5) the relief that Plaintiff seeks. See Dkt. #19 at 4-5. On May 20, 2011, Plaintiff filed his Second Amended Complaint. In its Opinion dated August 26, 2011, the Court dismissed any claims based solely on his alleged placement in the Terrorist Screening Database or on the No Fly List, as opposed to those claims based on his alleged inability to fly as a result of being placed on such lists. See Dkt. # 32. The Court also transferred his remaining claims to the Court of Appeals, holding that the Court of Appeals had exclusive jurisdiction under 49 U.S.C. § 46110. The Court of
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Appeals vacated and remanded the case, in an unpublished opinion holding that Plaintiff’s claims were not brought under Section 46110.
ARGUMENT I. PLAINTIFF DOES NOT HAVE STANDING TO CHALLENGE HIS ALLEGED
DENIAL OF ENTRY. Plaintiff cannot challenge his alleged denial of entry into the United States because he cannot show a cognizable injury. Simply put, Plaintiff was never denied entry into the United States. And even if Plaintiff could demonstrate some injury, whatever claims for relief he may have had are now moot, as he currently resides in the United States. Nor can Plaintiff maintain his claims for prospective, injunctive relief related to his alleged inability to enter the United States because he fails to allege sufficient facts demonstrating that he is likely to suffer future harm. The Court recognized this failure in its April 29, 2011 Order, but provided Plaintiff an opportunity to file an amended complaint that would include the facts Plaintiff contends support his claims and this Court’s jurisdiction. See Dkt. #19 at 4-5. The Court’s August 26, 2011 ruling did not address this portion of the standing issue. Plaintiff has offered no new support for his right of “re-entry” claim. Count I and the portion of Count II related to denial of reentry therefore should be dismissed with prejudice. A. Plaintiff Has Never Been Denied Entry into the United States. Article III’s limitation on judicial power requires at a minimum that a party must demonstrate that he has suffered an actual or threatened injury to establish standing. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 101-102 (1983); see also Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Yet here, Plaintiff has failed to identify any injury-in-fact, and indeed, cannot identify such an injury because he has never been denied entry into the United States. Denial of boarding on
4

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an airplane does not constitute a denial of entry into the United States. Lawful entry of U.S. citizens into the United States does not occur until the individual citizen has presented himself or herself at a U.S. port of entry and been permitted to enter by U.S. Customs and Border Protection (“CBP”). See 8 C.F.R. § 235.1(a) (“Application to lawfully enter the United States shall be made in person to an immigration officer at a U.S. port-of-entry when the port is open for inspection, or as otherwise designated in this section.”). On direct flights from Kuwait to Dulles International Airport, the port of entry is Washington Dulles International Airport. See Port of Entry-Washington-Dulles http://www.cbp.gov/xp/cgov/toolbox/contacts/ports/dc/5401.xml (last visited 9/27/2013). When Plaintiff presented himself at the Port of Entry at Washington Dulles International Airport on January 21, 2011, following his flight from Kuwait, he was permitted to enter the United States after he appeared before a CBP official. Therefore, any claim that he was denied entry into the United States is baseless.
B. Even if Plaintiff Had Been Denied Entry, That Claim Would Now Be Moot. Plaintiff alleges that the government has denied him his right to reside in and enter the United States by allegedly placing him on the No Fly List. See TAC ¶¶ 53-57. Setting aside the fact that Plaintiff has never been denied entry, even if he could identify some injury, his claim is moot because Plaintiff has now returned to the United States. TAC ¶ 50. The mootness doctrine is based on the Constitution’s case-or-controversy requirement. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180 (2000) (citing U.S. Const. art. III, § 2). Whereas standing is determined at the time the lawsuit is filed, the question of mootness arises during the pendency of the lawsuit: “[t]he requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Id. at
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189 (citing quotations omitted). A case is moot if the issues are no longer live and the court is unable to grant effective relief. United States v. Hardy, 545 F.3d 280, 282 (4th Cir. 2008). Thus, even if there is a live controversy when the case is filed, courts should refrain from deciding issues “if events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.” See Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (internal quotation marks omitted). Here, because Plaintiff entered the United States on January 21, 2011, his Fourteenth Amendment claim is no longer a live controversy. Consequently, his claim must be dismissed as moot.
C. Plaintiff Cannot Demonstrate That He Will Likely Suffer Harm in the Future and Therefore, He Cannot Be Granted Prospective Injunctive Relief.
Plaintiff also lacks standing to seek injunctive relief regarding future travel because he cannot make the requisite showing of imminent, certain future injury. See Lyons, 461 U.S. at 102 (requiring “real and immediate threat of repeated injury”) (citation omitted). To obtain prospective relief, Plaintiff must point to “an invasion of a legally protected interest which is . . . “‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical.’” Lujan, 504 U.S. at 560 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
Any future decisions about terrorist watchlisting or screening are necessarily sensitive, highly fact-specific assessments that depend on the facts and resources available at the future time to the responsible agencies; the information is dynamic, making it impossible to give future guarantees about an individual’s status. See Declaration of Christopher Piehota (previously filed in support of Defendants’ Motion to Dismiss the Second Amended Complaint, see Docket #22-1) (“Piehota Dec.”) ¶¶ 18-19. Given the lapse in time, the dynamic nature of the watchlist renders any claim about future travel speculative. Moreover, other than his denial of boarding in January 2011,
6

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Plaintiff has not alleged any additional denials of boarding or entry to the United States, despite being given the opportunity to amend his complaint. His plans for future travel continue to be, at best, pure speculation and devoid of any facts that would support his fear of denial of entry in the future. TAC ¶ 53 (“Defendants’ inclusion of Mr. Mohamed on the No Fly List that prevents him from again departing the United States to visit family in Somalia and Canada and to complete a religious pilgrimage to Mecca, Saudi Arabia”). Notably, although Plaintiff claims that “the year that [Plaintiff] is removed from the No Fly List is the year he travels by plane to Mecca and returns to the United States,” he does not allege even an immediate desire to make these trips, much less actual plans to do so – only that the Federal Defendants are preventing him from making the trips. Id. ¶ 5. Plaintiff’s new allegation that he will depart the United States someday is precisely the type of allegation that the Supreme Court found too speculative in Lyons to confer standing or to entitle a party to prospective injunctive relief. Further, it is well established that, in general, U.S. citizens who arrive at a U.S. port of entry are permitted to enter the United States after they establish to the satisfaction of a CBP officer that they are in fact U.S. citizens. 8 C.F.R. § 235.1(b).3 Because Mr. Mohamed has never been denied reentry, and because there a standing rule permitting reentry of U.S. citizens, and because he has made no plans to leave the country, Plaintiff is not entitled to prospective relief.
3 While United States citizens have a right to re-enter the country, citizens do not have a constitutional right to rearrive at a port of entry via a specific mode of transportation. See, e.g., League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 534 (6th Cir. 2007) (holding that there is no protected right to a particular mode of transportation). In particular, there is no constitutional right to air travel. Gilmore v. Gonzales, 435 F.3d 1125, 1136-37 (9th Cir. 2006). But see Latif v. Holder, 2013 WL 4592515 (D. Or. 2013) (only court thus far to find a constitutionally protected liberty interest in air travel).
7

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D. Because Plaintiff was Never Denied the Right to Reenter the United States, he has also Failed to State a Claim under 12(b)(6)
Count One also fails to state a claim for which relief can be granted. As noted, Mr. Mohamed was not denied return and entry into the United States. Moreover, Plaintiff does not allege that he was unable to return to the United States at all, only that he was (temporarily) unable to return by his preferred means of travel. He does not plausibly allege the inability to return by ship, for example, only a single denial of boarding over two years ago, after which the Federal Defendants assisted Mr. Mohamed’s return to the United States. There is no allegation at that time that Plaintiff even attempted to travel by sea. Nor does Plaintiff plausibly allege he lacked alternative means of access to a U.S. port of entry via travel through other nations, such as Mexico or Canada. Moreover, the Federal Defendants have established that there is a process for resolving the travel issues of U.S. persons located abroad who have been prohibited from boarding a flight returning to the United States. Piehota Dec. ¶ 33. Accordingly, there is no reason to think that Plaintiff has been or would be prevented from returning to the United States.
In sum, Plaintiff has no basis for immediate or prospective relief regarding his Fourteenth Amendment entry claim or his APA claim related to reentry. II. PLAINTIFF’S CLAIMS ARE UNRIPE BECAUSE HE HAS FAILED TO EXHAUST
ADMINISTRATIVE REMEDIES. Plaintiff alleges that the agencies involved in administration of the No Fly List have treated him unfairly and complains that the process is insufficient. Plaintiff, however, has failed to take advantage of the very process he complains is deficient. As explained in Federal Defendants’ previous motion, DHS TRIP provides an adequate remedy to grant Plaintiff both forms of relief he seeks – removal from his alleged placement on the No Fly List and a process through which to seek
8

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removal. That Plaintiff has opted not to avail himself of this process renders his claim unripe and improper for adjudication.
The Court previously determined that exhaustion should not prevent Plaintiff’s claims from being transferred to the Court of Appeals, but agreed at the Status Conference on August 16, 2013, that the issue may be revisited in light of subsequent developments.
A. DHS TRIP Provides Redress for Travelers Who Allege They Have Been Denied Boarding.
In response to the terrorist attacks on the United States on September 11, 2001, Congress enacted the Aviation and Transportation Security Act (Pub. L. No. 107-71, 115 Stat. 597 (2001)), which charged TSA with overseeing the “security screening operations for passenger air transportation.” See 49 U.S.C. § 114(e)(1). Congress required TSA to secure commercial air travel against the threat of terrorism by establishing policies and procedures that require air carriers to prevent boarding for certain individuals. 49 U.S.C. § 114(h)(3). Specifically, TSA must work “in consultation with other appropriate Federal agencies and air carriers” and “use information from government agencies” to identify travelers who may pose a threat to national security, so that it can “prevent [those] individual[s] from boarding an aircraft.” Id. § 114(h)(3)(A), (B); see also Piehota Dec., ¶ 2, 4. TSA is also responsible for prescreening passengers against the No Fly and Selectee Lists. See 49 U.S.C. § 44903(j)(2)(C). Pursuant to that authority, TSA implemented the Secure Flight program, codified at 49 C.F.R. Parts 1540, 1544, and 1560, through which it performs the watchlist matching functions previously conducted by aircraft operators. Secure Flight was fully implemented for all U.S. airlines on June 22, 2010 and for all covered airlines on November 23, 2010. Declaration of Laura Lynch (previously filed in support of Defendants’ Motion to Dismiss the Second Amended Complaint, see Docket #22-3 (“Lynch Dec.”), ¶ 7 n.1.
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As part of its prescreening functions, the Government is also required to “establish a procedure to enable airline passengers, who are delayed or prohibited from boarding a flight because the advanced passenger prescreening system determined that they might pose a security threat, to appeal such determination and correct information contained in the system.” 49 U.S.C. § 44903(j)(2)(C)(iii)(I). The Assistant Secretary of Homeland Security is further required to “establish a timely and fair process for individuals identified as a threat under one or more of subparagraphs (C), (D), and (E) to appeal to the [TSA] the determination and correct any erroneous information.” 49 U.S.C. § 44903(j)(2)(G)(i).4 Pursuant to these authorities, the Government provides redress to passengers who were delayed or denied boarding due to alleged placement on the No Fly or Selectee Lists through DHS TRIP, which was codified at 49 C.F.R. §§ 1560.201-1560.207 as part of Secure Flight.
In February 2007, DHS TRIP was launched as the central administrative redress process for individuals who have, for example, been denied or delayed airline boarding; denied or delayed entry into or exit from the United States at a port of entry; or been repeatedly referred to additional (secondary) screening. See Lynch Dec., ¶ 4; Piehota Dec., ¶ 26. Persons who have been denied boarding, or been subject to additional screening, may file a complaint with DHS TRIP. See 49 C.F.R. § 1560.201; Lynch Dec., ¶ 5. They are required to complete a traveler inquiry form, either on-line, via e-mail or by hard copy. See Lynch Dec., ¶ 6.
4 The process must “include the establishment of a method by which the Assistant Secretary will be able to maintain a record of air passengers and other individuals who have been misidentified and have corrected erroneous information. To prevent repeated delays of misidentified passengers and other individuals, the [TSA] record shall contain information determined by the Assistant Secretary to authenticate the identity of such a passenger or individual.” 49 U.S.C. § 44903(j)(2)(G)(ii).
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Other agencies, including Federal Defendants, are involved in the DHS TRIP process.
Specifically, if the traveler is an exact or near match to an identity in the Terrorist Screening
Database (“TSDB”), the matter is referred to the Terrorist Screening Center (“TSC”) Redress Unit. See Lynch Dec., ¶ 9; Piehota5 Dec., ¶¶ 30-32; see also 49 C.F.R. § 1560.205(d).6 After that referral,
the TSC Redress Unit reviews the available information to determine whether the DHS TRIP
complainant is an exact match to a TSDB identity, and if so, whether the individual’s status should
be modified or removed from the TSDB. See Piehota Dec., ¶ 31. As part of this process, TSC
contacts the agency that originally nominated the individual for inclusion in the TSDB and
“determine[s] whether the complainant’s current status in the TSDB is suitable based on the most
current, accurate, and thorough information available.” Piehota Dec., ¶ 30.
The TSC Redress Unit will then make a determination on whether the record should remain
in the TSDB, or have its TSDB status modified or removed, unless the legal authority to make such a
determination resides, in whole or in part, with another government agency. Piehota Dec., ¶ 31. In
such cases, TSC will only prepare a recommendation for the decision-making agency and will
implement any determination once made. Id. When changes to a record’s status are warranted, the
TSC will ensure such corrections are made, and will verify that such modifications or removals carry
5 TSC, which was established by Homeland Security Presidential Directive 6 in 2003, maintains a consolidated database of identifying information about persons known or reasonably suspected of being involved in terrorist activity. TSC then feeds that information to front-line screening agencies and law enforcement officials so that they can positively identify known or suspected terrorists trying to obtain visas, enter the country, board aircraft, or engage in other activity of concern. The TSC is responsible for maintaining the federal government’s consolidated terrorist watch list, the TSDB, which contains identifying information about individuals known or suspected to be engaged or aiding in terrorist related conduct. Piehota Dec., ¶ 8; Declaration of Mark F. Giuliano (previously filed in support of Defendants’ Motion to Dismiss the Second Amended Complaint, see Docket #22-2) (“Giuliano Dec.”), ¶ 6. 6 This interagency review process is described in the Memorandum of Understanding on Watchlist Redress Procedures, which was executed on September 19, 2007, by the Secretaries of State, Treasury, Defense, and Homeland Security, the Attorney General, the FBI Director, the NCTC Director, the CIA Director, the ODNI, and the TSC Director. See Piehota Dec., ¶ 28.
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over to the various screening or law enforcement systems that receive TSDB data (e.g., the Selectee
and No Fly Lists). Id.
For inquiries that involve complaints about delayed or denied boarding due to TSA security
screening, DHS TRIP, in conjunction with TSA’s Office of Transportation Security Redress,
subsequently sends a determination letter to the complainant as required under 49 U.S.C. §§ 44903
and 44926. See Piehota Dec., ¶ 32; Lynch Dec., ¶ 10; see also 49 C.F.R. § 1560.205(d). This multiagency collaboration ensures the efficacy of DHS TRIP. See Piehota Dec., ¶¶ 26-33.7
B. Until Plaintiff Avails Himself of DHS TRIP to Challenge His Alleged Placement on the No Fly List, his APA and Due Process Claims are Barred and are Not Ripe for Review.
Over two years have elapsed since Plaintiff was denied boarding and yet he has failed to
avail himself of the Congressionally-mandated process — DHS TRIP— that would provide him
with the relief he seeks, i.e., removal from his alleged placement on the No Fly List. Until Plaintiff
does so, his claims are not ripe. See 13B Charles A. Wright & Arthur R. Miller, Fed. Practice &
Proc. § 3532.6 (3d ed. 2004) (“[R]ipeness may be used to express the exhaustion principle that
administrative remedies should be tried before running to the courts.”).
Ripeness occurs only when a dispute is definite and concrete. See Ostergren v. Cuccinelli,
615 F.3d 263, 288 (4th Cir. 2010). Ripeness cannot, however, occur when “problems such as the
inadequacy of the record . . . or ambiguity in the record . . . will make a case unfit for adjudication on
7 Inter-agency collaboration is precisely the point of centralizing and sharing the contents of the TSDB and the No Fly and Selectee Lists. Indeed, the lack of this kind of centralized information sharing was specifically cited as a government failing by the 9/11 Commission. See 9/11 Comm’n Report, Exec. Summary, at http://govinfo.library.unt.edu/911/report/911Report_Exec.htm (“The missed opportunities to thwart the 9/11 plot were also symptoms of a broader inability to adapt the way government manages problems to the new challenges of the twenty-first century. Action officers should have been able to draw on all available knowledge about al Qaeda in the government. Management should have ensured that information was shared and duties were clearly assigned across agencies, and across the foreign-domestic divide.”).
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the merits,” Ostergren, 615 F.3d at 288 (quoting Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 662 (9th Cir. 2002)) (internal quotations omitted); Reg’l Mgmt. Corp. v. Legal Servs. Corp., 186 F.3d 457, 465 (4th Cir. 1999) (considering the agency’s interest in “crystallizing its policy before that policy is subject to review” and the court’s interest in “avoiding unnecessary adjudication and in deciding issues in a concrete setting.”). Without having allowed the redress process to run its course, the Court would be ruling on the hypothetical deficiencies of a process that the Plaintiff has not tested and would be without the benefit of the agency’s expert assessment. Indeed, Plaintiff’s refusal to avail himself of DHS TRIP also deprives him of standing. Plaintiff cannot be allowed to invoke the jurisdiction of this Court by refusing to avail himself of an existing administrative process that may redress his alleged harm. See, e.g., Shavitz v. City of High Point, 270 F. Supp. 2d 702, 710 (M.D.N.C 2003) (where “Plaintiff has failed to use the process provided to him, he cannot show that he has suffered injury because of the insufficiency of the process provided[]”); see also Vicari v. Ysleta Indep. Sch. Dist., 291 Fed. Appx. 614, 2008 WL 4111407, at *2 (5th Cir. Aug. 28, 2008) (a plaintiff “cannot ignore the [state remedy] process duly extended to him and later complain that he was not accorded due process”); Wilson v. MVM, Inc., 475 F.3d 166, 176 (3d Cir. 2007).
In addition to ripeness and standing, courts may require exhaustion as a prudential matter before a Plaintiff can seek judicial review. See Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 501 (1982) (“[C]ourts play an important role in determining the limits of an exhaustion requirement and may impose such a requirement even where Congress has not expressly so provided.”). When “Congress has not clearly required exhaustion, sound judicial discretion governs” whether or not exhaustion should be required. McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992) (“The exhaustion doctrine also acknowledges the commonsense notion of dispute resolution that an agency
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ought to have an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court.”).8 The Fourth Circuit has considered three factors in
determining whether to require administrative exhaustion:
(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.
Garcia-Bonilla v. Ashcroft, 89 Fed. Appx. 846, 848 (4th Cir. 2004) (unpublished); see Noriega-
Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003) (same).
Applying these principles, the Sixth Circuit dismissed the claims of a traveler who failed to
exhaust her remedies through DHS TRIP. See Shearson v. Holder, 725 F.3d 588 (6th Cir. 2013),
2013 WL 3968800, at *5-7. The Sixth Circuit reasoned that an exhaustion requirement in this
context promotes judicial efficiency, encourages administrative accuracy and creates an
administrative record. See id. at *6. The same reasoning justifies rejection of Mr. Mohamed’s
claims here. He seeks to challenge the specific notice provided under, and procedures used in, a
process which he refuses to go through and which may resolve his claims. While he postulates that
the notice and process would be inadequate to address his claims and concerns, he does not dispute
that this process could provide him with some of the relief he seeks.
This Court previously rejected the Federal Defendants’ motion to dismiss on exhaustion
grounds, relying in part on its conclusion that jurisdiction was vested in the Court of Appeals, who
8 Although the Supreme Court decision in Darby v. Cisneros, 509 U.S. 137 (1993), held that courts may not impose exhaustion as a discretionary prerequisite for an APA claim when plaintiffs challenge an agency action that is otherwise final, the reasoning in Darby does not apply to the constitutional claims. See id. at 153-54. Darby also does not affect the ripeness or standing requirements. See, e.g., Howell v. INS, 72 F.3d 288 (2d Cir. 1995) (Walker, J., concurring) (reasoning that Darby did not affect ripeness analysis).
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could decide what exhaustion was required.9 Slip Op. at 17-18 (“The Court therefore declines to
prevent review of plaintiff’s due process claims by recognizing an exhaustion requirement that may
or may not be imposed by the Court of Appeals.”). The Fourth Circuit subsequently held that
Plaintiff’s challenges were not channeled exclusively to the Court of Appeals and expressed no
opinion with respect to exhaustion. CTA Slip Op. at 5 & 6 n.2. DHS TRIP was mandated by
Congress to redress the claims of travelers, and is intended to address claims like Mr. Mohamed’s. It
results in an expert administrative review of Plaintiff’s claims and reconsideration, if appropriate, of
his purported placement on a list. The Shearson court recognized that even if the DHS TRIP process
were in fact deficient, Plaintiff should attempt the process he criticizes; to do so could afford him
relief, remedy errors in the watchlisting process, or otherwise clarify or narrow the issues for judicial
review. Requiring exhaustion in a context in which the administrative process could remedy an
alleged harm promotes judicial efficiency by ensuring that individuals seeking review of matters that
could be resolved at the administrative level do not “clog the courts with unnecessary petitions.” Kurfees v. INS, 275 F.3d 332, 336 (4th Cir. 2001).10
This Court also cited Chamblee v. Espy, 100 F.3d 15 (4th Cir. 1996), where the Court held
that agency action was already “final” and therefore subject to APA review before completion of an
9 The Court also indicated that a TSA “order” would not necessarily result from exhaustion of the administrative process. This seems to be a factual error. Although not all TRIP inquiries result in a final order, those determination letters which conclude the redress process for persons alleging placement on a No Fly List are final orders of TSA and indicate that relief may be sought in the Court of Appeals under Section 46110. See Lynch Dec. ¶ 11. Plaintiff has argued that the letters are constitutionally defective because they do not reveal one’s status with respect to the No Fly List, but even if Plaintiff were correct, the fact that the determination letters do not reveal status is not a reason why they are not TSA “orders.” 10 This evaluation necessarily implicates the Executive Branch’s expertise in national security and intelligence matters. See CIA v. Sims, 471 U.S. 159, 178 (1985); El-Masri v. United States, 479 F.3d 296, 305 (4th Cir.), cert. denied, 552 U.S. 947 (2007). The Supreme Court emphasized in McCarthy, 503 U.S. at 145, that “[e]xhaustion concerns apply with particular force when * * * the agency proceedings in question allow the agency to apply its special expertise.”
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administrative review process because the practical effect of delay would have been loss of the land in dispute regardless of the outcome of the administrative appeal. Here, on the contrary, the redress process could accomplish at least part of what Plaintiff seeks – reconsideration of his alleged placement on a list. The other part of what Plaintiff seeks – a more robust process – is more easily reviewed by a court in light of the specific process he may receive. III. DHS TRIP SATISFIES PLAINTIFF’S PROCEDURAL DUE PROCESS.
Plaintiff’s procedural due process claim also fails on the merits. Plaintiff claims that the Federal Defendants are denying him procedural due process by not providing “a constitutionally sufficient legal mechanism for challenging his [alleged] inclusion on the No Fly List,” TAC ¶ 63. But the redress process available through DHS TRIP is constitutionally sufficient to address Plaintiff’s claims, given the limited private interest at issue, the profound government interest in protecting the security of civil aviation, and the negligible value of additional measures given the robust internal review of highly sensitive information by experts tasked with protecting national security.
“[D]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Gilbert v. Homar, 520 U.S. 924, 930 (1997) (internal citation omitted). Instead, “[d]ue process is flexible and calls for such procedural protections as the particular situation demands.” Id. (internal citation omitted). “[A]ssessing the adequacy of a particular form of notice requires balancing the ‘interest of the State’ against ‘the individual interest sought to be protected.’” Jones v. Flowers, 547 U.S. 220, 229 (2006). In cases involving national security and the possibility of terrorist activities, the government’s interest is at its zenith. “[N]o governmental interest is more compelling than the security of the Nation.” Haig, 453 U.S. at 307;
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see also Wayte v. United States, 470 U.S. 598, 612 (1985) (“Unless a society has the capability and will to defend itself from the aggressions of others, constitutional protections of any sort have little meaning.”). The fundamental requirement of due process is “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
Plaintiff alleges that he is entitled to “meaningful notice of the grounds for his inclusion on a government watch list, and an opportunity to rebut the government’s charges and to clear his name.” TAC, ¶ PRAYER FOR RELIEF. Due process procedures may vary “‘depending upon the importance of the interests involved and the nature of the subsequent proceedings.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985) (quoting Boddie v. Connecticut, 401 U.S. 371, 378 (1971)). At bottom, the due process evaluation “is flexible and calls for such procedural protections as the particular situation demands.” Mallette v. Arlington Cnty. Emps’ Supplemental Retirement Sys. II, 91 F.3d 630, 640 (4th Cir. 1996) (emphasis added) (internal citations omitted). In this case, DHS TRIP provides sufficient due process to Plaintiff, particularly in light of the compelling national security concerns related to the No Fly List and the fact that there is no constitutional right to fly. See Gilmore, 435 F.3d 1125. Plaintiff’s refusal to avail himself of that due process, however, is outside the control of the government.
In evaluating whether the government has provided sufficient due process, the Court should consider three factors: (1)“‘the private interest that will be affected by the official action’”; (2) “‘the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards’”; and (3) “‘the Government’s interest,’” including the function involved and the fiscal and administrative burdens that the
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additional or substitute procedural requirements would entail. Gilbert, 520 U.S. at 931-32 (quoting Mathews, 424 U.S. at 335). Because Plaintiff has no constitutional right to travel by airplane or any single mode of transportation, and because DHS TRIP provides sufficient process to review the government’s actions, DHS TRIP satisfies the requirements of procedural due process.
A. Plaintiff Has Not Articulated a “Private Interest” That Requires More Process Than What DHS TRIP Provides.
Plaintiff asserts that he has a liberty interest in “being able to return to the United States;” in “traveling by air like other American citizens,” and in being “free from false governmental stigmatization as a terrorist.” TAC ¶ 62. Because none of these interests was infringed, Plaintiff has failed to plead the deprivation of a cognizable protected interest.
Plaintiff alleges that Federal Defendants, by allegedly denying him the right to fly, have denied him the right to enter the United States. As explained above, however, Plaintiff was never denied entry into the country. On the contrary, he successfully reentered the United States. And even if he were at some point in the future to be denied the use of a particular mode of transport, he has no constitutional right to travel by a preferred mode of transportation. Gilmore, 435 F.3d at 1136. Nor is there a right to international travel; such travel is “subordinate to national security and foreign policy considerations.” See Haig, 453 U.S. at 306. Indeed, the freedom to travel internationally is simply an aspect of the liberty protected by the due process clause, and the restrictions on international travel are permissible unless “wholly irrational[.]” Califano v. Aznavorian, 439 U.S. 170, 177 (1978). Even in the context of interstate travel, a more heavily protected interest, courts have repeatedly held that there is no right to any particular means of travel, even if the most convenient means of travel is restricted. See League of United Latin Am. Citizens, 500 F.3d at 534 (holding that there is no protected right to a particular mode of transportation);
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Matthew v. Honish, 233 Fed. Appx. 563, 564 (7th Cir. 2007); Gilmore, 435 F.3d 1125 (holding there
is no right to air travel); Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999) (no right to drive); see also
Town of Southold v. Town of E. Hampton, 477 F.3d 38 (2d Cir. 2007)(“Travelers do not have a
constitutional right to the most convenient form of travel”); Cramer v. Skinner, 931 F.2d 1020, 1031
(5th Cir. 1991) (same); City of Houston v. FAA, 679 F.2d 1184 (5th Cir. 1982) (same).
Plaintiff has also not been stigmatized. TAC ¶ 62. Procedural due process protections apply
to reputational harm only when a plaintiff suffers stigma from governmental action plus alteration or
extinguishment of “a right or status previously recognized by state law.” Paul v. Davis, 424 U.S.
693, 711 (1976). This is known as a “stigma-plus” claim. See Green v. TSA, 351 F. Supp. 2d 1119,
1129-30 (W.D. Wash. 2005). First, there is no allegation that the Government publicly disclosed Plaintiff’s alleged status on the No Fly List.11 Indeed, this Court has previously rejected the
Plaintiff’s stigma-plus claim, at least as it applies to his alleged inclusion on the No Fly List. See
Slip Op. at 15. The same analysis justifies rejection of his latest articulation of the stigma-plus
claim. Moreover, the Constitution contains no reference, implied or otherwise, to a right to travel by
plane. As a result, Plaintiff cannot meet the standards required for a stigma-plus claim. See Green,
351 F. Supp. 2d at 1130 (rejecting plaintiffs’ claim that delayed boarding due to mistaken
association with the No Fly List sufficed for stigma-plus claims). The Green court held that
plaintiffs could not make out a stigma-plus claim, because they did “not have a right to travel
11 Plaintiff’s perceived inability cannot constitute public stigma because such information is not even shared with the individual who is denied boarding. Indeed, pursuant to the government’s current “Glomar” policy, government officials do not confirm or deny whether an individual is in the TSDB, or on the No Fly or Selectee subset lists. Guiliano Dec., ¶¶ 13-17; Piehota Dec., ¶¶ 21-23, 32; Lynch Dec. ¶¶ 8, 10. It is also notable that Plaintiff himself has been actively publicizing his alleged inclusion on the No Fly List. See http://www.washingtonpost.com/wp-dyn/content/article/2011/01/21/AR2011012107042.html (last visited May 23, 2011). Although Plaintiff speculates that unspecified “listed persons” are “regularly” told that they are on the No Fly List, see TAC ¶ 29, these allegations are unsupported and conclusory, and are contradicted by established policy and practice.
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without any impediments”; because “burdens on a single mode of transportation do not implicate the right to interstate travel”; and because plaintiffs “have not alleged any tangible harm to their personal or professional lives that is attributable to their association with the No-Fly List, and which would rise to the level of a Constitutional deprivation of a liberty right.” 351 F. Supp. 2d at 1130. Because the same is true here, Plaintiff has failed to plead any cognizable stigma claim.
B. There is Little Risk of Erroneous Deprivation Given the Quality Controls Over the TSDB (and the even Smaller Subset of the No Fly List) and the Right to Appeal TSA Final Orders in the Court of Appeals.
Even if Plaintiff could plead a cognizable private interest, the government’s current procedures for including individuals on the No Fly List protect against erroneous or unnecessary infringements of liberty. The TSDB is regularly updated; it is also reviewed and audited on a regular basis to comply with quality control measures. See Piehota Dec., ¶ 19. Nominations to the No Fly List are reviewed by TSC personnel to ensure that they meet the required criteria. Id. To the extent an individual is denied boarding, and wishes to complain, he or she can file a complaint with DHS TRIP, which then triggers a subsequent review of the individual’s status. See Lynch Dec., ¶¶ 5-8; Piehota Dec. ¶¶ 30-33.12 If the individual is unsatisfied with the TSA Final Order he or she receives, then the individual may file a Petition for Review against TSA in the relevant Court of Appeals. See Lynch Dec., ¶¶ 11, 13. See Scherfen v. DHS, 2010 WL 456784 (M.D. Pa. Feb 02, 2010), at *7 (noting the availability of review of a DHS TRIP determination).
12 The Third Amended Complaint includes a variety of allegations about the size of the watchlist and procedures for review. TAC ¶¶ 24-30. Some of these allegations are outdated; none address the effectiveness of the redress process. See generally U.S. Gov’t Accountability Office, GAO-12-476, Terrorist Watchlist: Routinely Assessing Impacts of Agency Actions since the December 25, 2009, Attempted Attack Could Help Inform Future Efforts (2012) (available at http://www.gao.gov/assets/600/591312.pdf) (detailing substantial efforts to improve watchlisting processes since 2009).
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C. Protecting Terrorist Watchlisting Status, and the Underlying Information, is Crucial to the Government’s Counterterrorism Efforts
Finally, consistent with established precedent, due process does not require disclosure of either watchlist status or the information underlying an individual’s inclusion on the No Fly List. The DHS TRIP process thus allows a traveler to resolve a travel-related issue without burdening the government’s aviation and national security interests. The government has a paramount interest in ensuring that the TSDB information used for screening or law enforcement purposes can be broadly shared among government agencies to maximize the country’s counterterrorism efforts related to aviation and national security, without fear that such information will be disclosed whenever anyone cannot travel as he or she chooses.
Most of the derogatory information relied on by nominating agencies to the TSDB consists of operational facts derived from underlying international counterterrorism investigations or intelligence collection methods, which are generally classified to protect intelligence sources and methods. See Piehota Dec., ¶ 20. When separated from the classified means by which they were obtained, the identity information stored in the TSDB is deemed sensitive but unclassified for terrorist watchlisting, law enforcement, and screening purposes. This allows government officials to access TSDB data for law enforcement or screening purposes without compromising an investigation or intelligence collection methods. Id.
Assuming (arguendo) that the basis for Plaintiff’s alleged inclusion on the list includes national security information, and that Plaintiff seeks access to such information, Plaintiff’s position contravenes precedent holding that the Executive is primarily responsible for protecting such information, and for assessing the risks — like those discussed here — inherent in its disclosure. See, e.g., Stehney v. Perry, 101 F.3d 925, 931–32 (3d Cir. 1996) (finding that judicial review of the
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merits of an Executive Branch decision to grant or deny a security clearance would violate separation-of-powers principles). As the D.C. Circuit explained in NCRI v. Dep’t of State, 251 F.3d 192 (D.C. Cir. 2001), disclosure of classified information “is within the privilege and prerogative of the executive, and we do not intend to compel a breach in the security which that branch is charged to protect.” Id. at 208–09.
Given the profound government interest in effective watchlisting, due process cannot require disclosure of one traveler’s status on the No Fly List. As the events of recent years have demonstrated, “there can be no doubt that preventing terrorist attacks on airplanes is of paramount importance.” United States v. Hartwell, 436 F.3d 174, 179 (3d Cir. 2006). To that end, Congress has required the establishment of a list of individuals who may be a threat to civil aviation and national security. 49 U.S.C. §§ 114(h)(3), 44903(j)(2)(A). Courts have recognized the vital role watchlisting plays in securing our nation. See Tooley v. Bush, No. 06-306 (CKK), 2006 WL 3783142, at *20 (D.D.C. 2006), judgment aff’d, Tooley v. Napolitano, 586 F.3d 1006 (D.C. Cir. 2009) (If the Government “were to confirm in one case that a particular individual was not on a watch list, but was constrained in another case merely to refuse to confirm or deny whether a second individual was on a watch list, the accumulation of these answers over time would tend to reveal [sensitive security information].”); Bassiouni v. CIA, 392 F.3d 244, 245-46 (7th Cir. 2004) (explaining that if the “CIA opens its files most of the time and asserts the state-secrets privilege only when the information concerns a subject under investigation or one of its agents, then the very fact of asserting the exemption reveals that the request has identified a classified subject or source”).
Because disclosure of watchlist status would reveal operationally valuable information to potential terrorists, courts have upheld the Government’s ability to withhold this kind of information.
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See, e.g., Tooley, 2006 WL 3783142, at *20 (upholding Government’s position that confirming or denying records indicating plaintiff’s presence on watch lists would reveal SSI); see also Bassiouni, 392 F.3d at 245–46. Thus, for example, the Government is not required to confirm whether the names of particular individuals “appear on any watch lists,” Gordon v. FBI, 388 F. Supp. 2d 1028, 1037 (N.D. Cal. 2005); is not required to confirm or deny the existence of “watch list records concerning [a particular individual],” Tooley, 2006 WL 3783142, at *19, *20; is not required to produce information about an individual “which may or may not be in the TSDB,” Al-Kidd v. Gonzales, No. CV 05-093, 2007 WL 4391029, at *8 (D. Idaho Dec. 10, 2007); and is not required to produce “information regarding individuals nominated to the TSDB by the FBI,” Raz v. Mueller, 389 F. Supp. 2d 1057, 1062–63 (W.D. Ark. 2005); Barnard v. DHS, 531 F. Supp. 2d 131, 134 (D.D.C. 2008) (upholding withholding of records in response to plaintiff’s FOIA request to “obtain records related to him that could explain why he has been detained, questioned, and/or searched in airports during and after his international trips beginning in January 2003”).
In this case, by providing an administrative redress process that culminates in an opportunity for judicial review, without requiring the government to reveal information that ought not to be revealed, DHS TRIP balances the public and private interests fairly and provides a suitable substitute for an evidentiary hearing.13 DHS TRIP gives an individual who has experienced difficulties during screening at airports, or was prohibited from boarding an airline, an opportunity to be heard at a meaningful time and in a meaningful manner by permitting that individual to complain with
13 The Third Amended Complaint continues to allege that “TSC has no administrative process” to seek removal. TAC ¶ 32. As previously established and never disputed by Plaintiff, however, DHS TRIP is an interagency process that includes TSC, and as part of that process, TSC can and does in fact make a determination as to whether or not watchlisting is appropriate. See Piehota Dec. ¶¶ 26-32; Lynch Dec. ¶¶ 910.
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specificity to the appropriate authorities: (1) about the difficulties that he or she has experienced; (2) to have his or her alleged No Fly List status reviewed; (3) to have appropriate changes made to applicable records; and (4) if unsatisfied, to seek judicial review. See Mathews, 424 U.S. at 333 (quoting Armstrong, 380 U.S. at 552); see also Jifry v. FAA, 370 F.3d 1174, 1183 (D.C. Cir. 2004). This robust redress process, combined with the availability of judicial review, is sufficient to protect the limited private interests at stake.14
In sum, the DHS TRIP process offers sufficient due process to the Plaintiff, who wishes to resolve travel-related problems, without jeopardizing the government’s compelling aviation and national security interests. Therefore, Plaintiff’s procedural due process claim should be dismissed. IV. THE GOVERNMENT’S TERRORIST WATCHLISTING PROCEDURES ARE NOT
ARBITRARY, CAPRICIOUS, OR CONTRARY TO LAW. Plaintiff has also failed to plead a cognizable claim under the APA. Pursuant to the APA’s limited waiver of sovereign immunity, a reviewing court must uphold an agency decision unless it is (1) arbitrary and capricious; (2) an abuse of discretion; or (3) otherwise not in accordance with law. See 5 U.S.C. § 706; Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). The scope of judicial review under this standard is a narrow and deferential one, and a court cannot substitute its judgment for that of the agency. See Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Plaintiff’s Third Amended Complaint appears to simply restate his Fourteenth and Fifth Amendment claims. TAC ¶ 60. He makes no allegation that supports a conclusion that Federal 14 Although the Fourth Circuit found that Plaintiff’s claims can be heard in district court, the fact that individuals may choose to bring these particular claims in the district court does not mean that they are required to do so. As a general matter, individuals may still obtain review in the court of appeals in order to challenge a specific redress decision issued through the DHS TRIP process as a result of a complaint for delayed or denied boarding by TSA. See, e.g., Arjmand v. DHS, Dkt. No. 11-13, 15, No-12-71748 (9th Cir. filed June 2012) (certified index of record filed).
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Defendants’ actions are arbitrary and capricious, nor cites any authority for the proposition that the APA requires something more than what Federal Defendants have done in this context. Further, to the extent that Plaintiff wants the Court to establish new substantive and procedural rules to govern the TSDB, or its subset lists, the No Fly and Selectee Lists, Plaintiff’s request is improper because matters of national security “are rarely proper subjects for judicial intervention.” Haig v. Agee, 453 U.S. 280, 292 (1981). Courts “owe considerable deference to [the Executive branch’s] assessment in matters of national security[,]” Bassiouni v. FBI, 436 F.3d 712, 724 (7th Cir. 2006), and must be “reluctant to intrude upon the authority of the Executive” in such affairs. Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988); see also Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 932 (D.C. Cir. 2003) (holding “that the courts must defer to the executive on decisions of national security. In so deferring, we do not abdicate the role of the judiciary. Rather, in undertaking a deferential review we simply recognize the different roles underlying the constitutional separation of powers. It is within the role of the executive to acquire and exercise the expertise of protecting national security. It is not within the role of the courts to second-guess executive judgments made in furtherance of that branch’s proper role.”); Zadvydas v. Davis, 533 U.S. 678, 696 (2001); Krikorian v. Dep’t of State, 984 F.2d 461, 464-65 (D.C. Cir. 1993).
The Supreme Court’s decision in Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), underscores the deference due to both the Legislative and Executive Branches in review of factual conclusions and legal matters that implicate national security, even when constitutional concerns are raised. See id. at 2727 (“But when it comes to collecting evidence and drawing factual inferences in [national security and foreign relations], the lack of competence on the part of the courts is marked, and respect for the Government’s conclusions is appropriate.”) (internal quotation
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marks and citation omitted); see also Rahman v. Chertoff, 530 F.3d 622, 627-28 (7th Cir. 2008) (“modesty is the best posture for the branch that knows the least about protecting the nation’s security and that lacks the full kit of tools possessed by the legislative and executive branches.”). Plaintiff’s requested relief — that the Court order Federal Defendants to remove him from any terrorist watchlist he may be on — plainly implicates sensitive national security Executive judgments that are entitled to deference.
CONCLUSION For the foregoing reasons, Federal Defendants’ Motion to Dismiss Plaintiff’s Third Amended Complaint should be granted.

Dated: September 27, 2013

Respectfully submitted,

STUART DELERY ASSISTANT ATTORNEY GENERAL CIVIL DIVISION

DANA J. BOENTE ACTING UNITED STATES ATTORNEY

DIANE KELLEHER ASSISTANT BRANCH DIRECTOR FEDERAL PROGRAMS BRANCH

AMY POWELL

ATTORNEY

U.S. DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

20 MASSACHUSETTS AVENUE, N.W.

WASHINGTON, D.C. 20001

TELEPHONE: (202) 514-3948

FAX:

(202) 616-8202

E-MAIL:

amy.powell@usdoj.gov

26

Case 1:11-cv-00050-AJT-TRJ Document 59 Filed 09/27/13 Page 36 of 37 PageID# 669

__/S/_____________________________

R. JOSEPH SHER

ASSISTANT UNITED STATES ATTORNEY

OFFICE OF THE UNITED STATES ATTORNEY

JUSTIN W. WILLIAMS UNITED STATES ATTORNEYS

BUILDING

2100 JAMIESON AVE.,

ALEXANDRIA, VA. 22314

TELEPHONE: (703) 299-3747

FAX:

(703) 299-3983

E-MAIL

JOE.SHER@USDOJ.GOV

ATTORNEYS FOR THE DEFENDANTS

27

Case 1:11-cv-00050-AJT-TRJ Document 59 Filed 09/27/13 Page 37 of 37 PageID# 670

CERTIFICATE OF SERVICE
I certify that I electronically filed the foregoing with the Clerk of Court using the CM/ECF
system, which will send a notification of such filing (NEF) to the following counsel of record:
Gadeir Abbas Council on American Islamic Relations 453 New Jersey Avenue, SE Washington, DC 20003 Phone: (202) 742-6410 Fax: (202) 488-0833 gabbas@cair.com

DATED: SEPT. 27, 2013

_/S/______________________________

R. JOSEPH SHER

ASSISTANT UNITED STATES ATTORNEY

OFFICE OF THE UNITED STATES ATTORNEY

JUSTIN W. WILLIAMS UNITED STATES ATTORNEYS’ BUILDING

2100 JAMIESON AVE.,

ALEXANDRIA, VA. 22314

TELEPHONE: (703) 299-3747

FAX:

(703) 299-3983

E-MAIL

JOE.SHER@USDOJ.GOV

28

 
 Case 1:11-cv-00050-AJT-TRJ Document 68 Filed 11/06/13 Page 1 of 31 PageID# 1042

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

GULET MOHAMED,
PLAINTIFF,
v.
ERIC H. HOLDER, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
DEFENDANTS.

Case No. 1:11-CV-00050

DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S THIRD AMENDED COMPLAINT

Case 1:11-cv-00050-AJT-TRJ Document 68 Filed 11/06/13 Page 2 of 31 PageID# 1043
TABLE OF CONTENTS PAGE
INTRODUCTION ...........................................................................................................................1 ARGUMENT ...................................................................................................................................1 I. COUNT ONE SHOULD BE DISMISSED BECAUSE PLAINTIFF HAS NOT
BEEN DENIED ENTRY TO THE UNITED STATES AND CANNOT DEMONSTRATE THAT HE WILL BE DENIED ENTRY INTO THE UNITED STATES IN THE FUTURE ................................................................................1 A. Plaintiff Lacks Standing to Challenge the Alleged Denial of Entry........................2 B. Plaintiff’s Denial of Entry Claims are Moot............................................................3 C. Count One if Meritless Because Plaintiff Was Not Denied Entry...........................6 II. PLAINTIFF’S CLAIMS ARE UNRIPE BECAUSE HE HAS FAILED TO EXHAUST ADMINISTRATIVE REMEDIES.................................................................10 III. DHS TRIP SATISFIES PLAINTIFF’S PROCEDURAL DUE PROCESS ..........................................................................................................................13 A. Plaintiff Has Not Alleged Deprivation of a Cognizable Liberty Interest ..............13 B. DHS TRIP Provides Due Process ..........................................................................16 IV. THE GOVERNMENT’S TERRORIST WATCHLISTING PROCEDURES ARE NOT ARBITRARY, CAPRICIOUS, OR CONTRARY TO LAW .........................21 CONCLUSION ..............................................................................................................................22
i

Case 1:11-cv-00050-AJT-TRJ Document 68 Filed 11/06/13 Page 3 of 31 PageID# 1044

TABLE OF AUTHORITIES

CASES

PAGE(S)

Acosta v. Gaffney, 558 F.2d 1153 (3d Cir. 1977)...........................................................................................7, 8

Acumenics Research & Tech. v. DOJ, 843 F.2d 800 (4th Cir. 1988) .............................................................................................21

Al Haramain Islamic Found., Inc. v. Dep't of Treasury, 686 F.3d 965 (9th Cir. 2012) .............................................................................................18

Ayala-Flores v. INS, 662 F.2d 444 (6th Cir. 1981) ...............................................................................................7

Balzac v. Porto Rico, 258 U.S. 298 (1922).............................................................................................................6

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964).............................................................................................................2

Bishop v. Bartlett, 575 F.3d 419 (4th Cir. 2009) ...............................................................................................5

Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974)...........................................................................................................17

Califano v. Aznavorian, 439 U.S. 170 (1978).......................................................................................................6, 14

Camp v. Pitts, 411 U.S. 138 (1973)...........................................................................................................21

Cerrillo-Perez v. INS, 809 F.2d 1419, (9th Cir. 1987) ............................................................................................7

Cherri v. Mueller, Case No. 12-11656, 2013 WL. 2558207 (E.D. Mich. June 11, 2013).................................3

Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402 (1971)...........................................................................................................21

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) .........................................................................................................3

ii

Case 1:11-cv-00050-AJT-TRJ Document 68 Filed 11/06/13 Page 4 of 31 PageID# 1045
Clifford v. Pena, 77 F.3d 1414 (D.C. Cir. 1996) ...........................................................................................21
Darby v. Cisneros, 509 U.S. 137 (1993)...........................................................................................................10
Doe v. Dep’t of Pub. Safety ex rel. Lee, 271 F.3d 38 (2d Cir. 2001), rev'd 538 U.S. 1 (2003) .........................................................16
Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012) .............................................................................................15
Fed. Deposit Ins. Corp. v. Mallen, 486 U.S. 230 (1988)...........................................................................................................17
Fisher v. Reiser, 610 F.2d 629 (9th Cir. 1979) .............................................................................................14
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000).............................................................................................................4
Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) ...........................................................................................14
Global Relief Found., Inc. v. O’Neill, 315 F.3d 748 (7th Cir. 2002) .......................................................................................18, 19
Haig v. Agee, 453 U.S. 280 (1981)................................................................................................... passim
Hernandez v. Cremer, 913 F.2d 230 (5th Cir. 1990) ...............................................................................................6
Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003) .....................................................................................19, 20
Howard v. U.S., 480 F.3d 843 (9th Cir. 2007) ...............................................................................................5
Humphries v. County of Los Angeles, 554 F.3d 1170 (9th Cir. 2008), rev'd by Los Angeles County v. Humphries, __ U.S. __, 131 S. Ct. 447 (2010)......................................................................................15
Islamic Am. Relief Agency v. Unidentified FBI Agents, 394 F. Supp. 2d 34 (D.D.C. 2005) aff’d in part, 477 F.3d 728 (D.C. Cir. 2007) ..............16
iii

Case 1:11-cv-00050-AJT-TRJ Document 68 Filed 11/06/13 Page 5 of 31 PageID# 1046
Jifry v. FAA, 370 F.3d 1174 (D.C. Cir. 2004) .............................................................................18, 19, 20
Latif v. Holder, 686 F.3d 1122 (9th Cir. 2012) .....................................................................................11, 12
Latif v. Holder, __ F. Supp. 2d __, 2013 WL. 4592515 (D. Or. Aug. 28, 2013) ................................ passim
Los Angeles v. Lyons, 461 U.S. 95 (1983)...............................................................................................................5
Lozada-Colon v. Dep’t of State, 2 F. Supp. 2d 43 ...................................................................................................................7
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).............................................................................................................2
Mathews v. Eldridge, 424 U.S. 319 (1976).....................................................................................................13, 15
Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740 (9th Cir. 1991) .............................................................................................19
Munaf v. Geren, 553 U.S. 674 (2008).............................................................................................................2
Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C. Cir. 2001) ...........................................................................................18
Neely v. Henkel, 180 U.S. 109 (1901).............................................................................................................2
Newton v. INS, 736 F.2d 336 (6th Cir. 1984) ...............................................................................................7
Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010) .............................................................................................10
Patterson v. FBI, 893 F.2d 595 (3d Cir. 1990)...............................................................................................19
Rahman v. Chertoff, 530 F.3d 622 (7th Cir. 2008) ...............................................................................................8
iv

Case 1:11-cv-00050-AJT-TRJ Document 68 Filed 11/06/13 Page 6 of 31 PageID# 1047
Regan v. Wald, 468 U.S. 222 (1984)...........................................................................................................14
Rouse v. Dep’t of State, 567 F.3d 408 (9th Cir. 2009) ...............................................................................................2
Rusu v. INS, 296 F.3d 316 (4th Cir. 2002) .............................................................................................18
Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646 (9th Cir. 2002) .............................................................................................10
Shearson v. Holder, 725 F.3d 588 (6th Cir. 2013) .......................................................................................10, 11
Stehney v. Perry, 101 F.3d 925 (3d Cir. 1996).........................................................................................18, 19
Suhre v. Haywood Cty, 131 F.3d 1083 (4th Cir. 1997) .............................................................................................4
Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir. 2007).................................................................................................18
U. S. ex rel. Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963) ......................................................................................8
U.S. v. Flores-Montano, 541 U.S. 149 (2004).............................................................................................................8
U.S. v. Valentine, 288 F. Supp. 957, (D.P.R. 1968)..........................................................................................7
Williams v. Ozmint, 716 F.3d 801 (4th Cir. 2013) ...............................................................................................5
Worthy v. Herter, 270 F.2d 905 (D.C. Cir. 1959) .............................................................................................8
Worthy v. U.S., 328 F.2d 386 (5th Cir 1964) ................................................................................................7
Zablocki v. Redhail, 434 U.S. 374 (1978).............................................................................................................8
v

Case 1:11-cv-00050-AJT-TRJ Document 68 Filed 11/06/13 Page 7 of 31 PageID# 1048 Zemel v. Rusk, 381 U.S. 1 (1965)...............................................................................................................13 STATUTES 5 U.S.C. §702(2)(F) .......................................................................................................................21 42 U.S.C. § 264................................................................................................................................8 49 U.S.C. § 44903..........................................................................................................................11 49 U.S.C. § 44926..........................................................................................................................11 49 U.S.C. § 46110..........................................................................................................................12 FEDERAL RULES OF CIVIL PROCEDURE Rule 12(b)(6)....................................................................................................................................2
vi

Case 1:11-cv-00050-AJT-TRJ Document 68 Filed 11/06/13 Page 8 of 31 PageID# 1049
INTRODUCTION The Federal Defendants submit this reply memorandum in further support of their Motion to Dismiss the Third Amended Complaint. Plaintiff Gulet Mohamed (“Plaintiff” or “Mr. Mohamed”) continues to argue that he was “stranded” overseas despite having returned to the United States nearly three years ago and having resided here since that time. Upon his return from a trip to Yemen, Somalia and Kuwait, Mr. Mohamed was permitted to enter the United States, and he cannot plausibly argue that the single denial of boarding a few days prior to his return constitutes a denial of his right to citizenship. As a result of that single denial of boarding, Plaintiff claims that he is entitled to extraordinary process – a full adversary hearing, prior to listing, with full access to sensitive and classified information related to his alleged inclusion on the No Fly List. His claims are without merit.
ARGUMENT I. COUNT ONE SHOULD BE DISMISSED BECAUSE PLAINTIFF HAS NOT
BEEN DENIED ENTRY TO THE UNITED STATES AND CANNOT DEMONSTRATE THAT HE WILL BE DENIED ENTRY INTO THE UNITED STATES IN THE FUTURE Plaintiff has never been denied entry to this country. He continues to argue that he was “denied entry” to the United States based on a single denial of boarding on an aircraft in early 2011. Shortly after this denial of boarding, Mr. Mohamed boarded another flight for the U.S. and was permitted to enter when he arrived at a U.S. port of entry. Indeed, as Plaintiff recognizes, his successful return to the U.S. stemmed in part from coordination efforts by U.S. government officials. See Pl’s Opp. at 7. Accordingly, he lacks standing to assert any injury of denied entry. Moreover, Plaintiff’s claim is moot because he is in the United States. He has not
1

Case 1:11-cv-00050-AJT-TRJ Document 68 Filed 11/06/13 Page 9 of 31 PageID# 1050
attempted to fly domestically or internationally since his 2011 entry, and he cannot save his
complaint by speculating about any hypothetical future injury from hypothetical future travel.
A. Plaintiff Lacks Standing to Challenge the Alleged Denial of Entry
Plaintiff has failed to show either an actual or a threatened injury sufficient to establish
Article III standing. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). He resides in
the United States, see Dkt # 19 (“The parties agree that plaintiff has returned to the United
States”), and was permitted to enter the United States when he presented himself at the U.S. Port
of Entry. TAC ¶50. As discussed in prior briefs and below at Part I.C, denial of boarding onto
an airplane does not constitute a denial of entry into the United States, and Plaintiff cites no case
law to the contrary.1 Even assuming for the purposes of this Motion that Defendants were
responsible for the denial of boarding, Mr. Mohamed was able to fly back to the United States
shortly thereafter, and he has not identified any injury to support a claim of denied entry.2
1 There is some overlap between the standing argument – that Plaintiff was never injured – and the Rule 12(b)(6) argument – that he was never denied his right of entry. Nonetheless, the questions are distinct. Even if Plaintiff was somehow injured by having sought assistance to make a return flight, that purported “injury” does not give rise to a cause of action under the Fourteenth Amendment. Defendants maintain that Plaintiff lacks standing and fails to state a cause of action with respect to Count One. 2 Plaintiff’s own recitation of events makes clear that the Kuwaiti Government insisted on his deportation by air travel, not the U.S. Government. See Pl’s Opp. at 6-7, 10 (indicating that Mohamed was in custody and “Kuwaiti officials would only deport Mohamed if he could use a one-way plane ticket back to the United States.”). The U.S. Government is not responsible for the Kuwaitis’ procedures for deporting foreign nationals. Cf. Lujan, 504 U.S. at 560-61 (requiring “causal connection” between the injury and the conduct and redressability by the Court). The Court, in any event, has no ability to redress actions taken by a foreign government, which could deny any foreign national the ability to leave the country. International travellers always take the risk that they will be detained or denied admission to foreign countries. Similarly, U.S. citizens are subject to the actions of foreign governments when abroad. See, e.g., Rouse v. Dep’t of State, 567 F.3d 408, 418-19 (9th Cir. 2009) (U.S. citizen arrested by the Philippines had no private right of action against U.S. government for alleged failure to assist him); see also Munaf v. Geren, 553 U.S. 674, 694-95 (2008) (Constitution does not prevent US citizens abroad from being subject to foreign law); Neely v. Henkel, 180 U.S. 109, 123 (1901) (same); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 417-18 (1964) (“To permit the validity of the acts of one sovereign state to be reexamined and perhaps condemned by the courts of another would very certainly imperil the
2

Case 1:11-cv-00050-AJT-TRJ Document 68 Filed 11/06/13 Page 10 of 31 PageID# 1051
Moreover, Plaintiff identifies no facts to support the proposition that denial of entry to the United States is a “certainly impending” future injury such that he has standing to seek future injunctive relief. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) (requiring alleged injury to be “certainly impending” to establish standing). In short, and at best, Plaintiff offers conditional speculation of possible future injury regarding denial of boarding on a plane while abroad. The law requires more. Clapper, 133 S. Ct. at 1143.3
B. Plaintiff’s Denial of Entry Claims are Moot As explained in the Government’s motion, even if Plaintiff had been denied entry to the United States, that claim would be moot because Plaintiff is in the United States, and there is thus no case or controversy to litigate. See Defs’ MTD at 5-7. Faced with the obvious mootness of his entry claim, Plaintiff argues that he has decided not to leave the United States because he fears he will not be permitted on a returning aircraft. Of course, if Plaintiff were correct that he is on the No Fly List, he also would not be able to depart the United States via aircraft, although he could leave and return by any other means. Plaintiff’s alleged injury, then, is not in fact a repeated denial of entry; instead, his purported injury is that he is allegedly deterred from international travel by his preferred mode of transportation.4 These arguments cannot overcome the fundamental mootness of his entry claim.
amicable relations between governments and vex the peace of nations.”) (internal quotation marks omitted). 3 Plaintiff’s reliance on Cherri v. Mueller, Case No. 12-11656, 2013 WL 2558207 (E.D. Mich. June 11, 2013), is misplaced. In that case the Court found that Plaintiffs were able to demonstrate a certainly impending injury based on allegations of numerous incidents at ports of entry where they alleged that they had been repeatedly and consistently subjected to unlawful questioning. Id at *7. 4 Plaintiff thus attempts to conflate his right to enter the United States with an alleged right to travel internationally by air. But there is no right to international travel, see Haig v. Agee, 453 U.S. 280, 306-07
3

Case 1:11-cv-00050-AJT-TRJ Document 68 Filed 11/06/13 Page 11 of 31 PageID# 1052
Plaintiff cites two readily distinguishable cases in support of his novel theory of a
continuing injury. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 184-85
(2000); Suhre v. Haywood Cty, 131 F.3d 1083, 1088 (4th Cir. 1997). In Laidlaw, the Plaintiffs
were directly injured in their use of an outdoor area by the Defendants’ discharges. Laidlaw, 528
U.S. at 184-85. The Laidlaw plaintiffs’ decision to avoid the damaged area was the original
injury-in-fact, however, and resulted from the repeated and continuing damage to that particular
area. Here, there is a single allegedly unconstitutional act in early 2011, and Plaintiff has not adequately alleged that it will recur.5 Similarly, in Suhre, the Court collected instances in which
Establishment Clause plaintiffs had established standing by alleging that they avoided contact
with ongoing and unconstitutional religious displays in public places. See 131 F.3d at 1087,
(describing the injury as “the spiritual affront of unwelcome contact with religious symbolism”).
Neither case is comparable to Plaintiff’s claimed injury.
Plaintiff also cites two exceptions to the mootness doctrine. First, under the “voluntary
cessation” exception, “voluntary cessation of a challenged practice” moots an action only if
“subsequent events made it absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” Laidlaw, 528 U.S. at 189. Plaintiff claims that he was only
(1981), let alone a right to engage in such travel by a preferred means of transportation, see Def’s MTD at 18-20. 5 Plaintiff submits a declaration of counsel. Other than authenticating government documents, virtually none of the matters in the declaration are appropriate for consideration with regard to this Motion to Dismiss. The declaration contains hearsay, see Abbas Dec. ¶¶ 3, 4, 13-16; contains speculation, ¶15; lacks foundation or personal knowledge, ¶¶14-16; violates the Best Evidence Rule, ¶¶ 5-12; and contains improper lay opinion, among other faults. It is also highly inappropriate for counsel of record to put himself forward as a fact witness on these matters, given the points noted above, as well as long-standing prohibitions on allowing attorneys to simultaneously serve as both counsel of record and a witness. Cf. ABA Model Rule 3.7 (prohibiting counsel from serving as a witness in a trial in which he is also counsel under most circumstances); VA State Bar Guidelines 3.7 (prohibiting counsel from serving as an advocate in an adversarial proceeding in which he is a necessary witness).
4

Case 1:11-cv-00050-AJT-TRJ Document 68 Filed 11/06/13 Page 12 of 31 PageID# 1053
able to return as a result of the “judicial process.” See Pl’s Opp. at 15. This is incorrect. The
Court issued no such order, and in fact, as explained to the Court at the hearing on Plaintiff’s
motion for emergency relief, there is a process in place to resolve the travel difficulties of U.S.
citizens denied boarding on flights back to the U.S. See Piehota Dec. ¶33. That process was
triggered by Plaintiff’s denial of boarding, and, after this denial, Mr. Mohamed was able to travel expeditiously, less than a week later. After arriving at Dulles Airport, Plaintiff entered the U.S.6
Second, the “capable of repetition yet evading review” exception imposes two necessary
criteria: “(1) the challenged action is in its duration too short to be fully litigated prior to
cessation or expiration; and (2) there is a reasonable expectation that the same complaining party
will be subject to the same action again.” Williams v. Ozmint, 716 F.3d 801, 809-10 (4th Cir.
2013). However, courts also have cautioned that this is a narrow exception, which is limited to
the “exceptional situation[ ].” Id, quoting Los Angeles v. Lyons, 461 U.S. 95, 109 (1983).
Plaintiff wholly ignores the first criterion: that the injury must be inherently limited in duration
so as to preclude judicial review. Here, rather than challenging action of a finite duration,
Plaintiff alleges a fixed prohibition on air travel via his alleged placement on the No Fly List, and he does not specify any length of time with respect to his entry claims.7 As to the second
6 Plaintiff attaches a handful of newspaper articles in support of its allegation that U.S. citizens are frequently denied entry to the United States. The handful of articles submitted, even if taken at face value, do not support Plaintiff’s contention; rather, the news stories show that such individuals have been able to both return to and enter the United States. See Pl’s Ex. 6. In any event, Plaintiff cannot assert the rights of third parties. See Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009). 7 This is in contrast to the situation in U.S. v. Howard, 429 F.3d 843 (9th Cir. 2005), superseded by 463 F.3d 499 (9th Cir. 2006), superseded by 480 F.3d 1180 (9th Cir. 2007), the twice-superseded Ninth Circuit opinion in which the court retained appellate jurisdiction over arguments that the criminal defendants were improperly shackled during initial court hearings. Conditions of pre-trial confinement are as a matter of policy necessarily brief, thus ensuring that the shackling could not be subject to appellate review. See Howard v. U.S., 480 F.3d 1007, 1009 (9th Cir. 2007).
5

Case 1:11-cv-00050-AJT-TRJ Document 68 Filed 11/06/13 Page 13 of 31 PageID# 1054
criterion, as discussed above, Plaintiff has indicated that he will not be subject to the same injury again because he will not leave the U.S.8
C. Count One is Meritless because Plaintiff Was Not Denied Entry As previously established, Plaintiff has not been denied entry to the United States. He attempts to conflate the right of entry, which is a right of “citizenship,” with a right to travel internationally by a specific means of transportation. As an initial matter, there is no right to international travel, and such travel is “subordinate to national security and foreign policy considerations.” See Haig v. Agee, 453 U.S. 280, 306-07 (1981); Califano v. Aznavorian, 439 U.S. 170, 177 (1978). Because there is no right to international travel, the only right even arguably at issue is the right to actually enter the country. Plaintiff has not alleged any facts to support that claim. Although a citizen’s ability to enter and reside in the United States has a constitutional dimension, such a right is not explicitly delineated in the Constitution, and there have been very few occasions for courts to pass upon the contours of the citizen’s “right” to enter and reside in the United States. Plaintiff primarily cites dicta from cases on other issues, none of which stand for the proposition that the right to citizenship is any broader than the right to enter the United States. None of these cases even imply that the right to citizenship is a right to the most convenient form of travel. See, e.g., Balzac v. Porto Rico, 258 U.S. 298 (1922) (recognizing, in dicta, a right to domestic travel for U.S. citizens in Puerto Rico); Hernandez v. Cremer, 913 F.2d 230 (5th Cir. 1990) (finding that the INS had arbitrarily deprived a U.S. citizen of Fifth
8 Moreover, Plaintiff’s own experience indicates that an overseas “stranding” is not likely to recur. After he was allegedly stranded, he was subsequently able to obtain assistance when he was denied boarding on a flight back to the U.S., and he was permitted to enter at a U.S. port of entry.
6

Case 1:11-cv-00050-AJT-TRJ Document 68 Filed 11/06/13 Page 14 of 31 PageID# 1055
Amendment due process by excluding him from the country while processing him for an exclusion hearing intended for aliens). Plaintiff also cites decisions in which courts have upheld the power of the Government to deport the parents of minor U.S. children, even though such deportation made it difficult, as a practical matter, for the citizens to stay in the United States. Acosta v. Gaffney, 558 F.2d 1153 (3d Cir. 1977) (upholding deportation of the parents of a U.S. citizen even though it effectively forced the minor U.S. citizen to leave as well); Newton v. INS, 736 F.2d 336, 343 (6th Cir. 1984) (same); Ayala-Flores v. INS, 662 F.2d 444, 446 (6th Cir. 1981) (same).9
Plaintiff also leans heavily on a Fifth Circuit case which held that a U.S. citizen cannot be subject to criminal penalty for entering the country without a passport. See Worthy v. U.S., 328 F.2d 386, 394 (5th Cir 1964). Since the statute in question actually prohibited and punished the ingress of U.S. citizens where they had misused a validly issued passport, it is readily distinguishable from the present matter, where U.S. citizens generally are permitted to enter the country (and, indeed, are sometimes assisted in reaching a port of entry, as happened in the present case). Worthy does not stand for the broad right to travel that Plaintiff claims.
Perhaps recognizing that he has not pled a denial of any right of citizenship, Plaintiff now claims his right to enter the country was “burdened” because his alleged placement on the No Fly List made it more difficult to reach a port of entry in the United States. He cites no authority whatsoever for striking down Congressional or Executive action that may have made it less
9 The other cases cited by Plaintiff are similarly unhelpful in defining the nature of this right, and none are in this Circuit. See Cerrillo-Perez v. INS, 809 F.2d 1419,1423-25 (9th Cir. 1987) (ordering BIA to consider hardship to citizen children in case of separation); Lozada-Colon v. Dep’t of State, 2 F. Supp. 2d 43, 46 (D.D.C. 1998) (upholding denial of Puerto Rican resident’s attempt to renounce his U.S. citizenship); U.S. v. Valentine, 288 F. Supp. 957, 980 (D.P.R. 1968) (holding that citizens not fluent in English could be excluded from jury service without depriving Puerto Rican defendants of due process).
7

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convenient for a U.S. citizen to travel overseas.10 Indeed, it appears that what Plaintiff is
actually claiming is not a right of entry at all. Instead, Plaintiff is seeking to claim a very
different “right” – the right to travel from abroad by a particular means of transportation.
In lieu of any relevant precedent in support of Plaintiff’s novel theory that he is entitled to
a convenient means of travel, he analogizes the right to reside in the United States to the right to
marriage, citing Zablocki v. Redhail, 434 U.S. 374, 388 (1978). In Zablocki, the Court struck
down a state statute that prohibited (and indeed, criminalized) the decision to marry if the
individual had unsatisfied child support obligations. Id. at 375. There are nearly unlimited ways
to distinguish this case. First, the Zablocki Court’s analysis stemmed from the right to marry as
an aspect of the right to privacy, which is not at issue here. Second, the challenged statute
actually prohibited the protected activity under certain circumstances, whereas Mr. Mohamed’s
right to enter and reside in the country is unhindered. See 8 C.F.R. § 235.1(b). Third, the
Zablocki class was in fact prevented from marrying; Plaintiff was not prevented from entering the U.S.11
10 On the contrary, the government routinely engages in acts that might “burden” such travel, and none have been found to “burden” the right to enter. See, e.g., Acosta, 558 F.2d at 1158 (upholding deportation of parents of minor U.S. citizen); Haig v. Agee, 453 U.S. 280 (1981) (revoking a passport); Worthy v. Herter, 270 F.2d 905 (D.C. Cir. 1959); U.S. v. Flores-Montano, 541 U.S. 149, 152-53 (2004) (border searches); Rahman v. Chertoff, 530 F.3d 622, 624 (7th Cir. 2008) (same); 42 U.S.C. § 264 (quarantine); U. S. ex rel. Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963) (same). These actions – all of which have been upheld as lawful – can delay, complicate or render prohibitively expensive international travel, including one’s return to the United States. But these are routinely upheld as crucial to the protection of compelling public interests. 11 Plaintiff also speculates that hypothetical other individuals who are “elderly, feeble or destitute” will be deterred from international travel. See Pl’s Opp. at 11. But Plaintiff (who has filed an individual complaint and not a class action) cannot claim that his “right to return” is burdened because some other hypothetical plaintiff may be deterred from travelling abroad. Nor does he explain why the “elderly, feeble or destitute” are likely to be deterred by actions allegedly taken against Mr. Mohamed. To the extent he relies on language from Zablocki about a broader deterrent effect, unlike the present case,
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Even if Plaintiff’s novel theory of “burdens” on the right of entry were correct, he has not clearly identified a burden. In his brief (but not in the Complaint), the Plaintiff claims that the No Fly List increases “the amount of time, physical endurance, and permissions of third party countries Plaintiff would need in order to exercise his right to return to the United States.” Pl’s Opp. at 11. Plaintiff says nothing about the availability, frequency, or expense of other means of travel to the United States. According to his Complaint, less than a week transpired between the alleged denial of boarding and his return home, TAC ¶¶49-50. Such incidental delays do not rise to the level of a serious burden. If he had needed to travel by boat or by means of flight to an intermediary country – which he did not – he makes no allegation that he would have been unable to do so. Indeed, he acknowledges that a U.S. citizen “will find some way, however difficult, to return to the United States.” Pl’s Opp. at 16. Plaintiff also claims that the Kuwaiti government would not have permitted any other means of departure, but as discussed above, the laws and rules of other governments are not a basis for a claim against the United States.12
In any event, the import of Plaintiff’s argument here is that the Government could never prohibit a U.S. citizen from boarding a plane to the United States from abroad, regardless of the risk posed by that individual to aviation security, even temporarily, because to do so would be the equivalent of violating the individual’s fundamental right to enter the United States. This is
Zablocki was a class action and thus the Court’s reasoning could reach beyond the named plaintiff in that case. 12 At least in the case of Mr. Mohamed’s travel to Yemen as described in the Complaint, the allegations that the No Fly List subjects him to the permissions of third-party countries is particularly puzzling. Plaintiff does not allege that he attempted to take direct flights, or even that direct flights to Yemen exist. Accordingly, Mr. Mohamed’s travel to Yemen is always subject to the permissions of third-party countries, as well as subject to the permission of Yemen itself.
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an alarming, and plainly incorrect, proposition with potentially dangerous real-world consequences.
In sum, Plaintiff has no basis for immediate or prospective relief regarding his Fourteenth Amendment reentry claim or his APA claim related to reentry. II. PLAINTIFF’S CLAIMS ARE UNRIPE BECAUSE HE HAS FAILED TO
EXHAUST ADMINISTRATIVE REMEDIES. Although Plaintiff alleges that the agencies involved in administration of the No Fly List have treated him unfairly and complains that the process is insufficient, he has failed to take advantage of the very process he complains is deficient, despite having had over two years in which to do so. Plaintiff does not address at all the standing and ripeness cases indicating that judicial review is precluded where Plaintiff has avoided the very process he seeks to challenge. See Def’s MTD at 12-13 & n.8; see Ostergren v. Cuccinelli, 615 F.3d 263, 288 (4th Cir. 2010) (quoting Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 662 (9th Cir. 2002)). Instead, Plaintiff presumes that exhaustion can only be required as a matter of discretion as it was in Shearson v. Holder, 725 F.3d 588 (6th Cir. 2013), and argues that such discretion is not available or is inappropriate over his Administrative Procedures Act (“APA”) claims in light of Darby v. Cisneros, 509 U.S. 137 (1993). To begin, Darby does not apply to claims brought outside the APA, and Plaintiff has brought both APA and constitutional claims.13 See Darby, 509 U.S. at 153. So, even if Plaintiff were correct that Darby governed this case, his claims would be reduced to those he has properly stated under the APA. But Darby only holds that absent a separate exhaustion requirement, the APA provides for review of any final agency
13 Indeed, as noted infra at Part IV, there are almost no allegations relevant to Plaintiff’s APA claims, and the bulk of the Complaint is addressed to his constitutional claims.
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action, and in that case, agency regulations explicitly indicated that administrative appeals were optional. Here, it is clear that Congress intended that agencies be permitted to resolve claims of inappropriate denial of boarding based on one’s alleged status on the No Fly List. Plaintiff concedes that Congress established an administrative process for the very type of allegations he raises regarding security screening when attempting to travel via commercial air transportation. Congress required the Secretary of Homeland Security to “establish a timely and fair process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat.” 49 U.S.C. § 44926(a).14
Plaintiff further argues that exhaustion would be futile and would subject him to irreparable injury. He does not, and cannot, dispute the fact that DHS TRIP inquiries regarding individuals who allegedly are on the No Fly List are routed to TSC for review. Accordingly, TSC can and does provide relief via DHS TRIP. Plaintiff instead argues that this relief is itself futile because it provides inadequate notice and hearing and does not inform the petitioner of his or her status with respect to the No Fly List. The Shearson Court rejected this precise argument, noting that even if the process was ultimately deemed inadequate, the process could nonetheless serve to afford at least partial relief, remedy errors, and clarify the issues for review. See Shearson v. Holder, 725 F.3d 588 (6th Cir. 2013). While DHS TRIP does not provide for a hearing in which a complainant would be privy to any sensitive or classified information that may pertain to him, it does result in the appropriate agencies reviewing his specific allegations
14 The Secretary is further required to ensure that the process includes a method to maintain a record of individuals who have been misidentified and “have corrected erroneous information.” 49 U.S.C. § 44926(b)(2). Congress also enacted 49 U.S.C. § 44903, requiring TSA to “establish a procedure to enable airline passengers, who are delayed or prohibited from boarding a flight because [it was] determined that they might pose a security threat, to appeal such determination and correct information contained in the system.” Id. § 44903(j)(2)(C).
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and correcting any errors they identify. DHS TRIP can result in an individual being removed
from the No Fly List. Moreover, through DHS TRIP, a complainant receives a Redress Control
number that can be used when making future air travel plans, potentially preventing future travel-related difficulties.15
Next, Plaintiff argues that exhaustion is inappropriate where the administrative process
cannot review his constitutional claims, citing the Ninth Circuit decision in Latif. But the Latif
Plaintiffs did in fact submit DHS TRIP inquiries, and the Ninth Circuit was opining on a
different question – whether, after exhaustion, the Plaintiffs’ due process claims had to be heard
in the Court of Appeals under 49 U.S.C. § 46110. See Latif v. Holder, 686 F.3d 1122, 1129 (9th
Cir. 2012). And the statement that “DHS TRIP does not appear to provide any mechanism” for a
due process challenge misses the point entirely. DHS TRIP actually provides the process being
challenged and could afford at least a partial remedy for Plaintiff’s claims and develop an
administrative record.
Finally, Plaintiff argues that filing for DHS TRIP would subject him to irreparable harm.
Even if Plaintiff were still under arrest in Kuwait, it is unlikely that he would have a plausible argument.16 But he has not been in detention for almost three years and can identify no possible
15 Plaintiff also repeats the argument that because the DHS TRIP determination letters do not provide the petitioner’s status, they are “non-substantive” and “not orders.” As previously explained, this is at best an argument why DHS TRIP does not provide adequate process, not an argument as to why they are not orders or why the process is futile. 16 To be clear, Mr. Mohamed was not in a Kuwaiti deportation facility “because Defendants had placed him on the No-Fly List.” See Pl’s Opp. at 24. Rather, accordingly to his own allegations, Plaintiff was in a Kuwaiti deportation facility because the Kuwaiti Government did not renew his visa and did not want him in Kuwait. The only alleged consequence of his alleged placement on the No Fly List is that he was denied boarding on a flight on which he may have been deported a few days earlier. According to his allegations, he was not held incommunicado during those few days; indeed, he successfully retained counsel and filed a lawsuit. It would have been a simpler matter to file a DHS TRIP inquiry, which would have been resolved long before now with no possible harm done to Plaintiff.
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harm that would result from the DHS TRIP process (or would have resulted) if he had pursued the obvious step of utilizing the process available. He complains that the process is “openended,” but although there is no hard deadline by which response to a DHS TRIP inquiry must issue, the agencies generally must respond within a reasonable amount of time.17 III. DHS TRIP SATISFIES PLAINTIFF’S PROCEDURAL DUE PROCESS.
If the Court were to reach Plaintiff’s procedural due process claim, Plaintiff has failed to plead deprivation of a cognizable liberty interest and failed to demonstrate that the DHS TRIP is inadequate. In light of the paramount governmental interests in the context of aviation and national security, and taking into consideration each of the Mathews factors, see Mathews v. Eldridge, 424 U.S. 319 (1976), the redress process made available to Mr. Mohamed, which culminates in impartial judicial review, is appropriately balanced and should be upheld.
A. Plaintiff has not Alleged Deprivation of a Cognizable Liberty Interest With respect to the first Mathews factor, Plaintiff alleges deprivation of his interest in international travel, of his “right to return” and of an interest in his reputation. None of these alleged deprivations rises to the level of liberty interest under the due process clause. To the extent there has been any such deprivation, the liberty interest is attenuated and carries little weight in light of the government’s compelling interests in aviation security. First, Plaintiff claims “the practical effect” of his alleged placement on the No Fly List “is to shut down the
17 Plaintiff also complains that the TSDB is not properly updated, but the information cited is wholly irrelevant because it does not relate to the redress process or to the No Fly List. The 2009 OIG Audit information cited relates only to nomination procedures and found that FBI was not acting quickly enough to update the TSDB as investigations opened, closed or changed. See Pl’s Ex. 3. Insofar as this data has any relevance here, it is sorely out of date; more recent investigation has shown improvements to the nominations process. See Pl’s Ex. 4 (2012 GAO reports detailing changes in watch-listing practices).
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possibility for travel.” Pl’s Opp. at 27.18 As Defendants established in the Motion to Dismiss, the liberty interest in international travel does not extend to any particular means of transportation. Defs’ MTD at 18-19.
Rather than dealing with the precedent to that effect, Plaintiff leans heavily on the single interlocutory district court decision to the contrary in Latif, which held that placement on the No Fly List was a deprivation of a liberty interest for the purposes of the Due Process Clause. Latif v. Holder, __ F. Supp. 2d __, 2013 WL 4592515 (D. Or. Aug. 28, 2013).19 The Government respectfully disagrees with that decision. The Latif Court distinguished the cases holding that there is no liberty interest in any particular means of transportation because those cases “involve burdens on the right to interstate travel as opposed to international travel.” Latif, 2013 WL 4592515, at *8; compare Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) (holding there is no right to air travel). But restrictions on international travel are subject to less scrutiny than those on interstate travel. See, e.g., Fisher v. Reiser, 610 F.2d 629, 637-38 (9th Cir. 1979); see also Califano, 439 U.S. at 177. If restrictions on a specific means of interstate travel do not trigger or offend the Constitution, this is even more clearly true for international travel. See Haig v. Agee, 453 U.S. at 306-07 (recognizing that the freedom to travel abroad is “subordinate to national security and foreign policy considerations”); Regan v. Wald, 468 U.S. 222, 240-43 (1984) (citing “the traditional deference to executive judgment in this vast external realm of foreign affairs” in upholding international travel restrictions) (internal quotation marks omitted).
18 Plaintiff’s reliance on Zemel v. Rusk, 381 U.S. 1 (1965) is misplaced. Those Plaintiffs did not allege their travel was difficult or burdensome; rather, they were totally unable to travel without a proper passport. Accordingly, they had been wholly deprived of a liberty interest in international travel. 19 The court in Latif has not yet resolved the plaintiffs’ Due Process claims, having asked for supplemental briefing on the availability of judicial review for DHS TRIP determinations.
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Moreover, in Latif the Court found that international air travel is not “a mere convenience in light of the realities of our modern world,” given the potential that individuals may want or need to travel overseas quickly for various reasons. Latif, 2013 WL 4592515, at *8. But the question of whether a protected liberty interest in air travel exists abroad does not turn on the relative convenience of international air travel; that question goes primarily to the degree of deprivation. Whether there is an interest in the first instance depends on other factors, such as the diminished scope of personal entitlements abroad as opposed to at home, and the role of the Executive (as opposed to the courts) in foreign affairs and national security. These factors counsel that the individual’s liberty interest is diminished, not increased, in the context of international as opposed to interstate travel.20
Second, Plaintiff presses again his “right to return” to the United States, by his preferred means of transportation. As established, there is no such right and he was not deprived of his right to enter the country. And it is particularly weak as a Mathews factor given the ease with which Plaintiff actually entered the United States.
Plaintiff also presses his “stigma-plus” claim, but apparently concedes there was no public disclosure of his alleged status, much less a public disclosure that has affected a legal right or status. See, e.g., Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012) (requiring a “plus” that altered the plaintiff’s legal status). Plaintiff instead appears to argue that the confidential sharing of watchlisting information within the government affects his travel plans and that the 20 Plaintiff also cites to the allegations in Latif that portions of the No Fly List are shared with foreign countries, who may take action against the listed individuals as a result. As discussed supra note 2, the Court has no ability to redress actions taken by a foreign government, regardless of whether or not such action was based on intelligence allegedly shared by the United States. Plaintiff further cites a sentence in the Latif decision that references “ship captains” as potential recipients of watchlisting information. It is unclear what the basis was for this statement by the Latif court. In any case, there is no allegation here that Mr Mohamed’s watchlist status was or would be so shared
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hypothetical intelligence-sharing with foreign governments could affect him. But intelligencesharing within the government is not a public disclosure, much less intelligence-sharing with foreign governments. Moreover, Defendants have already established that boarding an aircraft is not a legal right. Accordingly, Plaintiff’s reliance on Humphries v. County of Los Angeles, 554 F.3d 1170, 1188 (9th Cir. 2008), rev’d by Los Angeles County v. Humphries, __ U.S. __, 131 S. Ct. 447 (2010) is misplaced. There, state officials consulted a child abuse registry for purposes of assessing entitlement to state benefits and eligibility for employment — benefits afforded by state law. Here, there are no such benefits, and there is no “plus.”21
Finally, it bears noting that even if the Court were to find a deprivation of some liberty interest, the Plaintiff’s “deprivation” of his preferred means of transportation pales in light of the substantial government interests at issue. See Def’s MTD at 21-23.
B. DHS TRIP Provides Due Process Plaintiff alleges several deficiencies in the DHS TRIP process. First, he claims that DHS TRIP has a high risk of error. But the cited statistics related to purported deficiencies in the nomination process, not the redress process, and have long since been superseded by events, including numerous improvements in watchlisting processes. See Pl’s Ex. 4 (2012 GAO reports detailing changes in watch-listing practices); see also Piehota Dec. ¶¶8-20 (describing nomination and review process); id. ¶¶26-32 (describing redress process). For example, a General Accounting Office (“GAO”) 2012 report explains that, while the TSDB does contain
21 The citation to Doe v. Dep’t of Pub. Safety ex rel. Lee, 271 F.3d 38 (2d Cir. 2001), rev’d 538 U.S. 1 (2003), is similarly unavailing. The Second Circuit opinion, reversed by the Supreme Court on other grounds, found a liberty interest in not being a registered sex offender, a status to which various legal obligations attach. Even assuming the reversed Second Circuit opinion was correct, this case is readily distinguishable because Plaintiff’s alleged status has not been published and he has not alleged that any such legal obligations arise from his alleged status.
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some errors, as any database does, Defendants have taken affirmative steps to create new safeguards to ensure that mistakes are minimized and that a process exists to correct those mistakes. See, e.g., id. at 12. Given Plaintiff’s reliance on this older data, absent from his presentation is the DOJ OIG’s conclusion (as early as 2007) that the No Fly List contained no discernible errors. U.S. DOJ OIG, Follow-up Audit of the Terrorism Screening Center, Audit Report 07-41 (2007), (public version), xiii, at http://www.justice.gov/oig/reports/FBI/a0741/final.pdf). And this is all without reference to the implementation of Secure Flight in 2011, which, the GAO concluded, substantially increased accuracy and removed the frequency of errors in the Government’s watchlisting databases as a whole. GAO-12-476 at 42–43.
More generally, Plaintiff claims that a “standardless” procedure has a high risk of error. The available evidence establishes, however, that there are standards, established by both statute and agency guidance. See, e.g., Piehota Dec. ¶12. Although the full content of the guidance is not available to the public, it is used by the agency and might be reviewable by a court in an appropriate case.
Second, Plaintiff argues that he is entitled to pre-deprivation due process. But there are many instances in which pre-deprivation process is not constitutionally required. The Supreme Court has held that “due process is not denied when postponement of notice and hearing is necessary” to ensure prompt government action in a variety of circumstances, such as where advance warning might frustrate the purpose of the action. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679 (1974); see also Fed. Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 240-41 (1988). It would be facially absurd to reach out to suspected terrorists and inform them
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that they are being considered for inclusion on the No Fly List, and much more irrational to provide the suspected terrorist with the specific underlying intelligence supporting the belief that he or she is a threat to civil aviation. Terrorist organizations could leverage that information to avoid deploying operatives who were under suspicion and to use only those who were not yet deemed suspicious. See generally Defs’ MTD at 22-23 (collecting cases on maintaining the secrecy of watchlisting); Giuliano Dec. ¶¶13-22 (explaining the specific harms that could result from disclosure of status or derogatory information); see also Al Haramain Islamic Found., Inc. v. Dep’t of Treasury, 686 F.3d 965, 980 (9th Cir. 2012) (“[T]he Constitution certainly does not require that the government take actions that would endanger national security.”); Global Relief Found., Inc. v. O’Neill, 315 F.3d 748, 754 (7th Cir. 2002) (“The Constitution would indeed be a suicide pact if the only way to curtail enemies’ access to assets were to reveal information that might cost lives….” ) (internal citation omitted). The process would plainly obviate the purpose of watchlisting if it permitted suspected terrorists to know who was (and therefore who was not) suspected.22
Plaintiff does not address the copious case law establishing that due process does not require that classified information be disclosed. See Jifry v. FAA, 370 F.3d 1174, 1181–84 (D.C. Cir. 2004) (upholding ex parte review of wholly classified administrative record because due process did not require that plaintiffs be given the “specific evidence” upon which the determinations are based); Tabbaa v. Chertoff, 509 F.3d 89, 93 n.1 (2d Cir. 2007); Stehney v. Perry, 101 F.3d 925, 931–32 (3d Cir. 1996) (finding that judicial review of the merits of an
22 Plaintiff’s citation to an asylum case in support of his argument for predeprivation process is off the mark. See Rusu v. INS, 296 F.3d 316, 321-22 (4th Cir. 2002). Such petitioners are entitled to a hearing before being deported permanently from the United States, never to return, and they often have a significant personal interest in remaining in the United States.
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Executive Branch decision to grant or deny a security clearance would violate separation-ofpowers principles); Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 207 (D.C. Cir. 2001) (“[T]hat strong interest of the government [in protecting against the disclosure of classified information] clearly affects the nature … of the due process which must be afforded petitioners.”). As the D.C. Circuit explained in NCRI, disclosure of classified information “is within the privilege and prerogative of the executive, and we do not intend to compel a breach in the security which that branch is charged to protect.” Id. at 208–209.
Importantly, Plaintiff apparently seeks disclosure to him, and not solely to an impartial adjudicator, such as the court of appeals. This demand is clearly misguided. See Jifry, 370 F.3d at 1181–84 (rejecting due process claim arising from withdrawal of airman’s certificates, in part because of the availability of ex parte, in camera judicial review); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 164 (D.C. Cir. 2003) (rejecting “claim that the use of classified information disclosed only to the court ex parte and in camera” concerning the designation of a foreign terrorist organization violated due process); Global Relief Found., Inc. v. O’Neill, 315 F.3d 748, 754 (7th Cir. 2002) (statute not unconstitutional because it “authorizes the use of classified evidence that may be considered ex parte by the district court”); Patterson v. FBI, 893 F.2d 595, 600 n.9, 604–605 (3d Cir. 1990) (unfairness remedied by “in camera examination by the trial court of the withheld documents and any supporting or explanatory affidavits”); Islamic Am. Relief Agency v. Unidentified FBI Agents, 394 F. Supp. 2d 34, 45 (D.D.C. 2005), aff’d in part, 477 F.3d 728 (D.C. Cir. 2007) (recognizing in IEEPA context plaintiff’s review of the administrative record is “limited only to those portions of the administrative record that are not classified” while the Court “has before it both the classified
19

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and unclassified administrative record”). As these cases demonstrate, the availability of review by a neutral decisionmaker, even when that review is ex parte and in camera, is a significant factor in assessing due process and, because such review is provided here, warrants rejection of Plaintiff’s claim. See, e.g., Jifry, 370 F.3d at 1181–84; see also Meridian Int’l Logistics, Inc. v. United States, 939 F.2d 740, 745 (9th Cir. 1991) (civil litigant’s “interests as a litigant are satisfied by the ex parte/in camera decision of an impartial district judge”); cf. Stehney, 101 F.3d at 936 (finding that an agency may revoke a security clearance without affording the holder of the clearance “[t]he right to confront live witnesses, review information from prior investigations, or to present live testimony” because affording those rights would not “improve[] the fairness of the revocation process”); Holy Land Found., 333 F.3d at 164.
In Jifry, the government revoked airman certificates to certain individuals. Assuming arguendo that this withdrawal implicated a property interest, the Court concluded that the pilots’ interests, even though their livelihood was implicated, “pales in significance to the government’s security interests in preventing pilots from using civil aircraft as instruments of terror.” 370 F.3d at 1183.23 Moreover, “[w]hatever the risk of erroneous deprivation,” that risk was countered by the pilots’ ability to file an administrative challenge, obtain de novo administrative review, and seek ex parte, in camera judicial review of the record. Id. Thus, the Court concluded, “[i]n light of the governmental interests at stake and the sensitive security information, substitute procedural safeguards may be impracticable, and in any event, are unnecessary under our precedent.” Id. Unlike the asylum process or sex offender registry cases cited by Plaintiff, Mr. Mohamed’s claim is closely analogous to that rejected in Jifry. And, as in Jifry, Mr. Mohamed’s
23 Notably, this holding did not depend on the merits of the revocation, i.e., that the pilots were appropriately deemed a security risk. 370 F.3d at 1183.
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interest in further process pales in comparison to the Government’s interest in protecting the nation’s airways.
Finally, Plaintiff argues that “it is premature at this stage of the litigation to determine whether the governmental interest requires dismissal.” Pl’s Opp. at 35-36. But the adequacy of DHS TRIP can be decided as a matter of law. The parties agree on what DHS TRIP entails and the only questions currently presented by the due process claim are the validity of Plaintiff’s claimed “liberty interest” and the adequacy of the Defendants’ stated justifications for the DHS TRIP process. Plaintiff’s suggestion that it is necessary to develop the record is not accompanied by any indication that more information is needed or that there is a dispute about facts relevant to the operation of the redress process.24 IV. THE GOVERNMENT’S TERRORIST WATCHLISTING PROCEDURES ARE
NOT ARBITRARY, CAPRICIOUS, OR CONTRARY TO LAW. Plaintiff asserts, for the first time, that he has an APA claim, separate from his constitutional claims, and that Defendants’ action was arbitrary and capricious. Neither the Complaint nor the Opposition articulates any basis for that claim or any way in which he believes it was arbitrary and capricious (other than the previously articulated constitutional claims). Accordingly, the claim is not adequately pled.25 Plaintiff is correct that review of such claims, when they are made, is generally on the basis of an administrative record, but there is
24 Plaintiff’s citation to the Latif decision here is unavailing. The Court merely asked for supplemental briefing on the available process and the government interest. The parties are actually in agreement in that case that the due process challenge can be decided based on stipulated facts. See, e.g., 2013 WL 4592515, at *14; and Stipulated Facts, Dkt #s 41, 84, 115, Case No. 3:10-cv-00750 (D. Ore.). 25 Plaintiff also argues, contrary to well-established precedent, that de novo review is appropriate. See Defs’ Opp. at 24-26. In any case, the narrow exception cited hypothetically in Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 414 (1971) appears in 5 U.S.C. §702(2)(F) (“unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court”), which is not applicable here.
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nothing inappropriate or even unusual about the use of supporting affidavits. See, e.g., Acumenics Research & Tech. v. DOJ, 843 F.2d 800, 806 (4th Cir. 1988) (permitting reliance on affidavit that elaborated and explained the record); Clifford v. Pena, 77 F.3d 1414, 1418 (D.C. Cir. 1996) (“there is nothing improper in receiving declarations that merely illuminate reasons obscured but implicit in the administrative record.”); see also Camp v. Pitts, 411 U.S. 138, 14143 (1973). In any case, it is quite impossible to compile an appropriate administrative record without knowing what aspects of the agency’s actions are alleged to be arbitrary and capricious.
CONCLUSION For the foregoing reasons, Federal Defendants’ Motion to Dismiss Plaintiff’s Third Amended Complaint should be granted.

Dated: November 6, 2013

Respectfully submitted,

STUART DELERY ASSISTANT ATTORNEY GENERAL CIVIL DIVISION

NEIL H. MCBRIDE UNITED STATES ATTORNEY

DIANE KELLEHER ASSISTANT BRANCH DIRECTOR FEDERAL PROGRAMS BRANCH

AMY POWELL

ATTORNEY

U.S. DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

20 MASSACHUSETTS AVENUE, N.W.

WASHINGTON, D.C. 20001

TELEPHONE: (202) 514-3948

FAX:

(202) 616-8202

E-MAIL:

amy.powell@usdoj.gov

22

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__/S/_____________________________

R. JOSEPH SHER

ASSISTANT UNITED STATES ATTORNEY

OFFICE OF THE UNITED STATES ATTORNEY

JUSTIN W. WILLIAMS UNITED STATES ATTORNEYS

BUILDING

2100 JAMIESON AVE.,

ALEXANDRIA, VA. 22314

TELEPHONE: (703) 299-3747

FAX:

(703) 299-3983

E-MAIL

JOE.SHER@USDOJ.GOV

ATTORNEYS FOR THE DEFENDANTS

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CERTIFICATE OF SERVICE
I certify that I electronically filed the foregoing with the Clerk of Court using the
CM/ECF system, which will send a notification of such filing (NEF) to the following counsel of
record:
Gadeir Abbas Council on American Islamic Relations 453 New Jersey Avenue, SE Washington, DC 20003 Phone: (202) 742-6410 Fax: (202) 488-0833 gabbas@cair.com

DATED: NOV. 6, 2013

_/S/______________________________

R. JOSEPH SHER

ASSISTANT UNITED STATES ATTORNEY

OFFICE OF THE UNITED STATES ATTORNEY

JUSTIN W. WILLIAMS UNITED STATES

BUILDING

2100 JAMIESON AVE.,

ALEXANDRIA, VA. 22314

TELEPHONE: (703) 299-3747

FAX:

(703) 299-3983

E-MAIL

JOE.SHER@USDOJ.GOV

ATTORNEYS’

24

 
 Case 1:11-cv-00050-AJT-MSN Document 188 Filed 04/13/15 Page 1 of 5 PageID# 2278

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

__________________________________________

)

GULET MOHAMED,

)

)

Plaintiff,

)

)

v.

) Case No. 1:11-CV-0050

)

ERIC H. HOLDER, JR., in his official capacity as )

Attorney General of the United States, et al.,

)

)

Defendants.

)

__________________________________________)

NOTICE REGARDING NEW REDRESS PROCEDURES

As reflected in prior filings in this case, the Government has been in the process of

revising its redress procedures for claims involving denials of boarding on covered aircraft, see

49 C.F.R. § 1560.3, submitted through the Department of Homeland Security Traveler Redress

Inquiry Program (known as DHS TRIP). This revision process has been directed at improving

the redress procedures, including by increasing transparency relating to the No Fly List. In

connection with this effort, while the Government’s revision process was ongoing, certain

individual DHS TRIP inquiries — such as those submitted by plaintiffs in Latif v. Holder, No.

3:10-750 (D. Or.), Tarhuni v. Holder, No. 3:13-001 (D. Or.), and Fikre v. FBI, No. 3:13-899 (D.

Or.) — have been reopened and reevaluated under revised procedures. In accordance with

Defendants’ prior representation that they would notify the Court when these revised procedures

would be made available to similarly situated U.S. persons, Defendants now provide notice that

such procedures are now available.

Under the previous redress procedures, individuals who had submitted inquiries to DHS

TRIP generally received a letter responding to their inquiry that neither confirmed nor denied

Case 1:11-cv-00050-AJT-MSN Document 188 Filed 04/13/15 Page 2 of 5 PageID# 2279
their No Fly status. Under the newly revised procedures, a U.S. person who purchases a ticket, is denied boarding at the airport, subsequently applies for redress through DHS TRIP about the denial of boarding, and is on the No Fly List after a redress review, will now receive a letter providing his or her status on the No Fly List and the option to receive and/or submit additional information. If such an individual opts to receive and/or submit further information after receiving this initial response, DHS TRIP will provide a second, more detailed response. This second letter will identify the specific criterion under which the individual has been placed on the No Fly List and will include an unclassified summary of information supporting the individual’s No Fly List status, to the extent feasible, consistent with the national security and law enforcement interests at stake. The amount and type of information provided will vary on a case-by-case basis, depending on the facts and circumstances. In some circumstances, an unclassified summary may not be able to be provided when the national security and law enforcement interests at stake are taken into account.
This second letter will also provide requesters an opportunity to be heard further concerning their status. Written responses from such individuals may be submitted and may include exhibits or other materials the individual deems relevant. Upon DHS TRIP’s receipt of an individual’s submission in response to the second letter, the matter will be reviewed by the Administrator of the Transportation Security Administration (TSA) or his/her designee in coordination with other relevant agencies, who will review the submission, as well as the unclassified and classified information that is being relied upon to support the No Fly listing, and will issue a final determination. TSA will provide the individual with a final written determination, providing the basis for the decision (to the extent feasible in light of the national
2

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security and law enforcement interests at stake) and will notify the individual of the ability to seek further judicial review under 49 U.S.C. § 46110.
The Government will be closely monitoring the initial implementation of these newly revised procedures on an interagency basis, and will, as circumstances warrant, consider whether further revisions to the process are necessary. As previously stated, the Government stands ready to apply the new redress procedures to Plaintiff should he choose to avail himself of them.

Dated: April 13, 2015

Respectfully submitted,

BENJAMIN C. MIZER ACTING ASSISTANT ATTORNEY GENERAL CIVIL DIVISION

DANA BOENTE UNITED STATES ATTORNEY

ANTHONY J. COPPOLINO DEPUTY BRANCH DIRECTOR FEDERAL PROGRAMS BRANCH

JOSEPH C. FOLIO III

SAMUEL M. SINGER

TRIAL ATTORNEYS

U.S. DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

20 MASSACHUSETTS AVENUE, N.W.

WASHINGTON, D.C. 20001

TELEPHONE: (202) 305-4968

FAX:

(202) 616-8460

E-MAIL:

joseph.folio@usdoj.gov

_/S/______________________________ R. JOSEPH SHER ASSISTANT UNITED STATES ATTORNEY OFFICE OF THE UNITED STATES ATTORNEY JUSTIN W. WILLIAMS UNITED STATES ATTORNEYS BUILDING 2100 JAMIESON AVE., ALEXANDRIA, VA. 22314 TELEPHONE: (703) 299-3747
3

Case 1:11-cv-00050-AJT-MSN Document 188 Filed 04/13/15 Page 4 of 5 PageID# 2281

FAX: E-MAIL

(703) 299-3983 JOE.SHER@USDOJ.GOV

ATTORNEYS FOR THE DEFENDANTS

4

Case 1:11-cv-00050-AJT-MSN Document 188 Filed 04/13/15 Page 5 of 5 PageID# 2282

CERTIFICATE OF SERVICE
I certify that I electronically filed the foregoing with the Clerk of Court using the
CM/ECF system, which will send a notification of such filing (NEF) to the following counsel of
record:
Gadeir I. Abbas The Law Office of Gadeir Abbas
1155 F Street NW, Suite 1050 Washington, DC 20004 Phone: 720-251-0425 Fax: 720-251-0425 gadeir.abbas@gmail.com

DATED: APRIL 13, 2015 2100

_/S/______________________________

R. JOSEPH SHER

ASSISTANT UNITED STATES ATTORNEY

OFFICE OF THE UNITED STATES ATTORNEY

JUSTIN W. WILLIAMS UNITED STATES

BUILDING

JAMIESON AVE.,

ALEXANDRIA, VA. 22314

TELEPHONE: (703) 299-3747

FAX:

(703) 299-3983

E-MAIL

JOE.SHER@USDOJ.GOV

ATTORNEYS’

5

 
 Case 1:11-cv-00050-AJT-TRJ Document 144 Filed 10/30/14 Page 1 of 3 PageID# 1723

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

GULET MOHAMED,

)

)

Plaintiff,

)

v.

)

)

ERIC H. HOLDER, JR., eta/.,

)

)

______________D_e_fe_n_da_n_ts_. ______))

Civil Action No. 1: 11-cv-50 (AJT/TRJ)

ORDER

Presently pending are Defendant's Motion to Dismiss [Doc. No. 104] and Plaintiffs Motion to Compel (Doc. No. 91]. By Order dated September 15,2014 [Doc. No. 139], the Court required the defendants to submit certain documents listed on its privilege log as privileged under the state secrets privilege and law enforcement privilege. On October 17, 2014, the defendants submitted the documents in camera, ex parte, as required. The Court has reviewed those documents and based on that review has concluded as follows:
1. Certain of the submitted documents appear to contain confidential, security sensitive information that may fall appropriately within a law enforcement privilege. However, the information presented to date by the defendants in support of the state secrets privilege as to these documents is insufficient to allow the Court to conclude that "there is a reasonable danger" that disclosure of these documents to at least the plaintiffs counsel, under the protections of an adequate protective order, would disclose information that would "expose military matters which, in the interest of national security, should not be divulged." U.S. v. Reynolds, 345 U.S. I, 10 (1953).

Case 1:11-cv-00050-AJT-TRJ Document 144 Filed 10/30/14 Page 2 of 3 PageID# 1724
2. None of the documents are so related to plaintiffs procedural due process claims as to prevent either the plaintiff or the defendant from presenting or defending against those claims without the use of any of these documents, particularly in light of the public declarations submitted by the defendants, which describe in detail the procedures used in connection with the placement of an individual on the No Fly List. In this regard, the state secrets privilege is a judicially created rule of evidence, not a doctrine of sovereign immunity or non-justiciability, whose applicability and consequences, where applicable, are best considered within a specific context during the actual adjudication of any claims to which it may apply. 1
3. Based on the above determinations, there is no need at this time for the Court to rule definitively on the state secrets privilege as it applies to these documents, since it appears to the Court that the case may proceed to a final adjudication of the procedural due process claims without such a ruling. Likewise, it appears to the Court that the plaintiff has no need for these documents to adequately present its procedural due process claims, a view the plaintiff himself has espoused. Nevertheless, to the extent that the defendants contend during the actual adjudication of these claims, within the context of either summary judgment or any evidentiary hearing, that it cannot adequately defend against such claims without the use of a specific
1 This approach may be particularly appropriate where an applicable state secrets privilege would need to be reconciled with any Congressional mandate to provide "a timely and fair process" for individuals affected by the No Fly List, including an opportunity to "correct information contained in the system." See 49 U.S.C.A. § 44926(a) ( "(t]he Secretary of Homeland Security shall establish a timely and fair process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat . . .")and 49 U.S.C. § 44903(j)(2)(C)(iii)(l) (requiring that there be an opportunity for a passenger prohibited from boarding an aircraft "to correct information contained in the system"). See also In re NSA Telecomms Records Litig., 564 F. Supp. 2d 1109, 1121 (N.D. Cal. 2008) (finding that the Foreign Intelligence Surveillance Act (FISA) preempts and displaces the state secrets privilege for the purposes of plaintiffs claims).
2

Case 1:11-cv-00050-AJT-TRJ Document 144 Filed 10/30/14 Page 3 of 3 PageID# 1725
document claimed to be protected under the state secrets privilege, the Court will consider that claim in that specific context.
4. It appears to the Court that it may be possible for plaintiffs procedural due process claims to be adjudicated by way of summary judgment motions; and that the adjudication of those claims may eliminate the need, in whole or in part, to adjudicate the balance of plaintiffs claims.
For the above reasons, it is hereby ORDERED that Defendants' Motion to Dismiss [Doc. No. 104] be, and the same hereby is, DENIED as to plaintiffs procedural due process claims, without prejudice, as stated herein; and it is otherwise taken under advisement, pending further orders of the Court; and it is further ORDERED that Plaintiffs Motion to Compel (Doc. No. 91] be, and the same hereby is, DENIED as the documents submitted pursuant to the Court's Order dated September 15,2014, without prejudice to its renewal based on the positions advanced by the defendants in connection with the adjudication of plaintiffs procedural due process claims; and it is further ORDERED that any motions for summary judgment pertaining to plaintiffs procedural due process claim be filed on or before December I, 2014, with oppositions and replies filed in accordance with Local Civil Rules 7 and 56. In that regard, the parties are directed to file with any summary judgment motions, to the maximum extent possible, stipulated facts. The Clerk is directed to forward copies of this Order to all counsel of record.
Alexandria, Virginia October 30, 2014
3

 
 Case 1:11-cv-00050-AJT-TRJ Document 102 Filed 05/28/14 Page 1 of 38 PageID# 1380

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

__________________________________________

)

GULET MOHAMED,

)

)

Plaintiff,

)

)

v.

) Case No. 1:11-CV-0050

)

ERIC H. HOLDER, JR., in his official capacity as )

Attorney General of the United States, et al.,

)

)

Defendants.

)

__________________________________________)

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL

Pursuant to Local Rule 7(F)(1) and this Court’s Rule 16(B) Scheduling Order,

Defendants, through their undersigned counsel, hereby respectfully submit this opposition to

Plaintiff’s motion to compel Defendants’ response to interrogatories and requests for production.

ECF No. 91 (“Motion”).

Case 1:11-cv-00050-AJT-TRJ Document 102 Filed 05/28/14 Page 2 of 38 PageID# 1381
TABLE OF CONTENTS
INTRODUCTION......................................................................................................................... 1 BACKGROUND ........................................................................................................................... 2 ARGUMENT................................................................................................................................. 4
I. The State Secrets Privilege ....................................................................................4 A. The State Secrets Privilege Protects Against Disclosure of Information That Reasonably Could Be Expected to Harm National Security. ..............5 1. Procedural Requirements for Privilege Assertion .......................... 7 2. Judicial Review of the Privilege Assertion .......................................... 7 3. Impact of the Exclusion of Privileged Evidence..............................10 4. Attorney General’s Policy .........................................................................10 B. The Attorney General Has Properly Asserted the State Secrets Privilege.11 C. Disclosure of the State Secrets Implicated by Plaintiff’s Motion to Compel and over Which the Government Asserts Privilege Reasonably Could Be Expected to Cause Significant Harm to National Security. .......................12
II. Defendants’ Objections and Privilege Assertions Should Be Upheld and Are Sufficiently Particularized...................................................................................15
III. Information and Documents Sought by Plaintiff Have Been Properly Withheld as Irrelevant under Rule 26(b)(1) or Because Searches for the Information Requested Would Be Unduly Burdensome..................................17 A. Information and Documents Sought by Plaintiff Have Been Properly Withheld as Irrelevant under Rule 26(b)(1)...............................................17 1. Information and Documents that Pre-Date Plaintiff’s Alleged Inclusion on the No-Fly List ....................................................................18 2. Discovery Requests Related to Individuals Other than Plaintiff20 B. Searching for the Requested Material Would Be Unduly Burdensome. ...22
IV. The Law Enforcement Privilege .........................................................................26 V. Sensitive Security Information ...........................................................................31 CONCLUSION ........................................................................................................................... 34
ii

Case 1:11-cv-00050-AJT-TRJ Document 102 Filed 05/28/14 Page 3 of 38 PageID# 1382
INTRODUCTION Plaintiff seeks the production of highly sensitive national security and law enforcement information that is protected from disclosure by privilege. In this suit, he challenges his alleged placement on the No Fly List, a subset of the Terrorist Screening Database (“TSDB”), and seeks prospective injunctive relief removing him from the No Fly List and related databases. Defendants, the Terrorist Screening Center (“TSC”) and the Federal Bureau of Investigation (“FBI”), have made reasonable discovery responses.1 Ultimately, however, Plaintiff’s discovery requests seek information that is sensitive and rooted in this nation’s counterterrorism efforts. Defendants have agreed to produce unprivileged and unclassified documents and information detailing the policies and procedures governing the No Fly List, final reviews and audits of the TSDB, and statistics about the TSDB, Selectee List, and No Fly List; but the parties were nonetheless unable to reach agreement on the proper scope of discovery and the applicability of privileges. Plaintiff’s challenge to his alleged placement on the No Fly List hinges on highly sensitive national security and law enforcement information that is properly protected from disclosure under the law, including: (1) information that could tend to reveal whether or not the Plaintiff has been the subject of an investigation, including the contents of any relevant counterterrorism investigative files, to the extent they exist; (2) information that could tend to reveal the basis, nature, status, or results of any FBI counterterrorism investigation or intelligence operation; and (3) information that could tend to reveal whether particular sources
1 Plaintiff’s Fourth Amended Complaint added the Department of Homeland Security (“DHS”) and the Transportation Security Administration (“TSA”) as defendants. See ECF No. 84 (order), 85 (complaint). Plaintiff has not served requests for discovery on DHS or TSA, and if such discovery is served, TSA and DHS would provide appropriate responses, which could include additional objections that were not asserted by either TSC or FBI.

Case 1:11-cv-00050-AJT-TRJ Document 102 Filed 05/28/14 Page 4 of 38 PageID# 1383
and methods were used by the FBI in any counterterrorism investigation or intelligence operation (if any) of Plaintiff, his associates, or others. This information, which is sought in discovery and/or relevant to the claims and defenses in this matter, is properly protected by the state secrets privilege. As explained in the declaration of Attorney General Eric H. Holder, Jr., as well as the supporting FBI classified declaration submitted to the Court for its ex parte and in camera review, disclosure of the information Plaintiff seeks reasonably could be expected to cause significant harm to national security. As a result, the Attorney General has asserted the state secrets privilege over this information, and based on this privilege assertion, Defendants have separately moved for dismissal. Discovery should not proceed until that motion is resolved.
In addition, Plaintiff’s discovery requests implicate a number of other types of privileged information, including law enforcement sensitive information and Sensitive Security Information (“SSI,” which is protected from disclosure by statute). Much of this information is irrelevant to Plaintiff’s claims, including information that predates any of the alleged events in this case, information about individuals other than Plaintiff, and information that cannot be readily or reliably obtained from the TSDB. The burden involved in attempting to assemble this information far outweighs any arguable relevance to the matter at hand, and in any event, much of the information is protected by the law enforcement privilege, as established by the separate classified declaration of John Giacalone, Assistant Director of the FBI’s Counterterrorism Division, which is also submitted to the Court for its ex parte and in camera review. Plaintiff’s Motion should therefore be denied.
BACKGROUND Plaintiff is a naturalized U.S. citizen who was denied boarding on one flight returning to the United States in early 2011, but was able to return on a different flight a few days later. ECF
2

Case 1:11-cv-00050-AJT-TRJ Document 102 Filed 05/28/14 Page 5 of 38 PageID# 1384
No. 85 (“Fourth Am. Compl.”) ¶¶ 7, 51-52. His Fourth Amended Complaint purports to make three claims: a “right to citizenship” claim based on denial of his alleged right to return to the United States (essentially a substantive due process claim, as discussed below); a procedural due process claim; and an Administrative Procedure Act claim. See generally id. This Court, however, has already partly dismissed Plaintiff’s “citizenship” claim, finding that his “own allegations establish that … he was able to board a flight on January 20, 2011 and reenter the United States without incident on January 21, 2011.” See ECF No. 70 (“Mem. Op.”) at 27; ECF No. 71 (order dismissing in part). The Court held that such a delay did not amount to a constitutional deprivation. Mem. Op. at 27; see also ECF No. 92 (order denying Plaintiff’s motion to reconsider dismissal of the return claim). In the same ruling, the Court allowed Plaintiff to proceed with his substantive and procedural due process claims, namely: (1) whether the disabilities he alleges flow from his alleged inclusion on the No Fly List unconstitutionally burden “the exercise of his right of exit and reentry;” and (2) whether “DHS TRIP provides sufficient process to defeat” Plaintiff’s procedural due process claim.” Mem. Op. at 27-31. Finally, the Court found that Plaintiff’s APA claim “essentially conflate[s] with his constitutional claims.” Id. at 31.
On February 19, 2014, Plaintiff served discovery requests on the FBI and TSC that sought a wide array of information about watchlisting dating to 2003. See Pl’s 1st Set of Requests for Production, ECF No. 91 (Motion Exh. A-1) (“RFPs”); Pl’s 1st Set of Interrogatories (Motion Exh. A) (“Interrogatories”). The parties conferred, and Defendants responded to the requests for discovery (Motion Exhs. B & B-1). Since that time, Defendants have produced approximately 500 pages of documents. Defendants have also created a privilege log for withheld documents, and, as set forth herein, the privileged information being withheld is
3

Case 1:11-cv-00050-AJT-TRJ Document 102 Filed 05/28/14 Page 6 of 38 PageID# 1385
properly protected by law. Defendants have also lodged classified and/or law enforcement
sensitive declarations in support of their assertions of privileges in response to Plaintiff’s discovery requests.2
ARGUMENT
I. The State Secrets Privilege
Plaintiff’s Motion seeks the production of classified and otherwise privileged national
security information that is subject to withholding under the state secrets privilege. For example,
Plaintiff seeks documents or information concerning: (1) the basis for an individual’s placement
or alleged placement in the TSDB (e.g., RFP 8 (seeking documents “regarding the inclusions of
U.S. citizens in the No-Fly List while they are abroad”), RFP 9 (seeking documents “concerning
TSC’s processing of Traveler Redress Inquiry Program (TRIP) complaints from person placed in
the No-Fly List, Selectee List, or TSDB”), RFP 11 (seeking documents regarding Plaintiff);
Interrogatory 10 (“For the years 2003 to the present, as to each U.S. citizen who has been
removed from the TSDB, Selectee List, or the No-Fly List, or whose placement thereon has been
changed from one list to another, list specific reasons for said removal or change.”)); and (2)
2 Defendants’ privilege log must be lodged for ex parte and in camera review in order to avoid disclosing information to Plaintiff that would reveal the very privileged information Defendants are trying to protect. See Fed. R. Civ. P. 26(b)(5)(ii) (requiring party to describe the nature of the documents, communications, or tangible things not produced or disclosed,” but that a party need not do so by “revealing information itself privileged or protected.”); United States v. Abu Ali, 528 F.3d 210, 245 (4th Cir. 2008) (“validity of [evidentiary] privileges may be tested by in camera and ex parte proceedings before the court for the limited purpose of determining whether the asserted privilege is genuinely applicable.”) (internal quotation marks omitted). These principles apply with equal force to the provision of privilege logs, where the submission of details associated with privileged documents could itself reveal privileged information. See Bassiouni v. CIA, 392 F.3d 244, 246-47 (7th Cir. 2004) (agency may acknowledge the existence of responsive documents but withhold information about the number or volume of responsive documents or their content, where such descriptive information is itself, or would tend to reveal, classified or otherwise protected information); see also CIA v. Sims, 471 U.S. 159, 179 (1985) (“It is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.”).
4

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watchlisting policies and procedures (e.g., RFP 1 (seeking “documents regarding policy standards and procedural and substantive rules used to determine inclusion on the No-Fly List.”)).
As set forth herein and in the accompanying declarations, disclosure of such information in this litigation reasonably could be expected to cause significant harm to national security. Accordingly, the Attorney General of the United States has now formally asserted the state secrets privilege to protect that information from disclosure. Because the privilege has been properly invoked and supported, the Court should uphold the state secrets privilege assertion, deny Plaintiff’s motion to compel with respect to the information over which the Government has asserted this privilege, and, for the reasons set forth in Defendants’ simultaneously-filed dispositive motion, dismiss Plaintiff’s lawsuit.
A. The State Secrets Privilege Protects Against Disclosure of Information That Reasonably Could Be Expected to Harm National Security.
The Supreme Court has long recognized the Government’s ability to protect state secrets from disclosure in litigation. See United States v. Reynolds, 345 U.S. 1, 7–8 (1953) (discussing Totten v. United States, 92 U.S. 105 (1875)); Gen. Dynamics Corp. v. United States, 131 S. Ct. 1900 (2011) (“We have recognized the sometimes-compelling necessity of governmental secrecy by acknowledging a Government privilege against court-ordered disclosure of state and military secrets.”); El-Masri v. United States, 479 F.3d 296, 304 (4th Cir. 2007). The privilege to protect state secrets derives from the President’s Article II authority over foreign affairs and national defense matters. See United States v. Nixon, 418 U.S. 683, 710 (1974); see also El-Masri, 479 F.2d at 303–304 (noting “constitutional dimension” of privilege). For these reasons, as one court has observed, the privilege to protect state secrets “must head the list” of various privileges recognized in courts. See Halkin v. Helms, 598 F.2d 1, 7 (D.C. Cir. 1978) (“Halkin I”); see also
5

Case 1:11-cv-00050-AJT-TRJ Document 102 Filed 05/28/14 Page 8 of 38 PageID# 1387
El-Masri v. Tenet, 437 F. Supp. 2d 530, 536 (E.D. Va. 2006) (privilege to protect state secrets is “of the highest dignity and significance”), aff’d, 479 F.3d 296 (4th Cir. 2007).
As relevant here, the state secrets privilege is an evidentiary privilege that excludes privileged evidence from a case.3 El-Masri, 479 F.3d at 303; Mohamed v. Jeppesen Dataplan, Inc, 614 F.3d 1070, 1077 (9th Cir. 2010) (en banc) (citing Reynolds). Analyzing a state secrets privilege claim under the Reynolds doctrine involves three steps. First, a court must determine that the procedural requirements for invoking the state secrets privilege have been satisfied, in particular, whether the head of the department or agency responsible for the evidence at issue has personally considered the need to protect the information and formally asserted privilege. See El-Masri, 479 F.3d at 304. Second, a court must decide whether the evidence the Government seeks to protect qualifies as privileged under the state secrets doctrine and should thus be excluded. See id. In making this determination, courts may assess only whether there is a “reasonable danger” that disclosure would harm national security, and must give the “utmost deference” to the Government’s judgment on the risk of harm to national security. See id. at 305. Third, if the privilege assertion is upheld, a court must assess whether the excluded evidence is so central to the litigation that dismissal is required, or whether the case can proceed in the ordinary course without the privileged information. Id. at 306-08. Defendants will address each of these requirements in turn.
3 Courts have recognized this as one of two overarching applications of the state secrets privilege doctrine. Another application (not raised in this case) based on the Supreme Court’s 1875 decision in Totten v. United States, 92 U.S. 105 (1875), permits dismissal where it is apparent that the very subject matter of the action will require the disclosure of state secrets that would result in harm to national security. See Jeppesen, 614 F.3d at 1077-78 (discussing the “Totten bar”); see also Gen. Dynamics, 131 S. Ct. at 1906–07; Tenet v. Doe, 544 U.S. 1, 8–10 (2005).
6

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1. Procedural Requirements for Privilege Assertion First, as a procedural matter, “[t]he privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party.” Reynolds, 345 U.S. at 7. Reynolds emphasized that the state secrets privilege “is not to be lightly invoked,” and several procedural constraints on its assertion “give practical effect to that principle.” El-Masri, 479 F.3d at 304. Specifically, to invoke the privilege: (1) there must be a “formal claim of privilege”; (2) the claim must be “lodged by the head of the department which has control over the matter”; and (3) the claim must be made “after actual personal consideration by that officer.” Reynolds, 435 U.S. at 7–8. Accordingly, an assertion of the state secrets privilege is no ordinary or simple occurrence; rather, it constitutes a judgment at the highest levels of the Executive Branch that the disclosure of privileged information reasonably could be expected to harm national security.
2. Judicial Review of the Privilege Assertion After a court has confirmed that the procedural prerequisites for asserting the privilege are satisfied, it must determine whether the information that the United States seeks to shield is privileged from disclosure. See El-Masri, 479 F.3d at 304. The standard of review governing an invocation of the state secrets privilege is highly deferential. As set forth in Reynolds, the court must assess whether, under the particular circumstances of the case, “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” Reynolds, 345 U.S. at 10.4 Under this standard, courts give
4 The law is clear that the privilege encompasses a range of information broader than military matters, to include information that would result in “impairment of the nation’s defense capabilities, disclosure of intelligence-gathering materials or capabilities, and disruption of diplomatic relations with foreign governments.” Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983); accord Gen. Dynamics, 131 S. Ct. at 1905 (“Protecting our national security sometimes
7

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“utmost deference” to the Government’s judgment as to whether a disclosure would risk harm to national security. See Nixon, 418 U.S. at 710 (discussing privilege for military or diplomatic secrets and recognizing that courts have traditionally shown “utmost deference” to these areas of Article II duties); El-Masri, 479 F.3d at 305 (recognizing “utmost deference” standard); Kasza, 133 F.3d at 1166 (same); Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 547 (2d Cir. 1991) (same); see also Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007) (observing that, in evaluating the need for secrecy, courts must “acknowledge the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find ourselves second guessing the Executive in this arena.”).
In adjudicating a state secrets claim, the court does not balance the respective needs of the parties for the information. Rather, once the privilege is properly invoked and the court is satisfied that there is a reasonable danger that national security would be harmed by the disclosure of state secrets, the privilege is absolute. “Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.” Reynolds, 345 U.S. at 11; El-Masri, 479 F.3d at 304; Zuckerbraun, 935 F.2d at 547; Kasza, 133 F.3d at 1166; see also In re Under Seal, 945 F.2d 1285, 1287 n.2 (4th Cir. 1991) (state secrets privilege “renders the information unavailable regardless of the other party’s need in furtherance of the action”).5
requires keeping information about our military, intelligence, and diplomatic efforts secret.”); see also Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998). 5 See also Northrop Corp. v. McDonnell Douglas Corp., 751F.2d 395, 399 (D.C. Cir. 1984) (state secrets privilege “cannot be compromised by any showing of need on the part of the party seeking the information”); Ellsberg, 709 F.2d at 57 (“When properly invoked, the state secrets privilege is absolute. No competing public or private interest can be advanced to compel disclosure of information found to be protected by a claim of privilege.”).
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The absolute nature of the state secrets privilege applies to exclude the evidence regardless of the nature or significance of the claim at issue, including where constitutional claims are at stake. See El-Masri, 479 F.3d at 311-12 (state secrets protected in constitutional tort challenge to alleged unlawful rendition by CIA); Halkin I, supra; Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982) (“Halkin II”) (state secrets protected in constitutional challenge to alleged unlawful surveillance); Molerio v. FBI, 749 F.2d 815 (D.C. Cir. 1984) (state secrets protected where First Amendment associational rights at issue). The court may consider the necessity of the information to the case only in connection with assessing the sufficiency of the Government’s showing that there is a reasonable danger that disclosure of the information at issue would harm national security. “[T]he more plausible and substantial the government’s allegations of danger to national security, in the context of all the circumstances surrounding the case, the more deferential should be the judge’s inquiry into the foundations and scope of the claim.” Ellsberg, 709 F.2d at 59.
Consequently, classified declarations may be submitted for ex parte, in camera review in cases where the state secrets privilege is invoked. El-Masri, 479 F.3d 29, 30; Fitzgerald v. Penthouse Int’l, Ltd., 776 F.2d 1236 (4th Cir. 1985); Molerio, 749 F.2d at 819, 822; Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 281 (4th Cir. 1980) (en banc).6
6 See, e.g., In re United States, 872 F.2d 472, 474 (D.C. Cir. 1989) (classified declaration of assistant director of the FBI’s Intelligence Division submitted for in camera review in support of Attorney General’s formal invocation of state secrets privilege); Fazaga v. FBI, 884 F. Supp. 2d 1022, 1030 (C.D. Cal. 2012) (Government submission of ex parte, in camera declarations to support privilege); Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 53 n.15 (D.D.C. 2010) (same); Tilden v. Tenet, 140 F. Supp. 2d 623, 626–27 (E.D. Va. 2000) (same). The examination of ex parte material is not, however, required when the Court can decide the question on the basis of unclassified material. See Reynolds, 345 U.S. at 8-10 (“we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case” and where the court can determine that the “occasion for the privilege is appropriate . . . the court should not jeopardize the security which the privilege is
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3. Impact of the Exclusion of Privileged Evidence “If the subject information is determined to be privileged [as a result of the invocation of the state secrets privilege], the ultimate question to be resolved is how the matter should proceed in light of the successful privilege claim. El-Masri, 479 F.3d at 304. The court’s determination that “a piece of evidence is a privileged state secret removes it from the proceedings entirely,” Id. at 306. What this exclusion means for a particular litigation “will vary from case to case.” Id. (quoting Sterling, 416 F.3d at 348); Fitzgerald, 776 F.2d at 1243-44. In some cases, after the privileged evidence is excluded, “the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.”’ Al-Haramain, 507 F.3d at 1204 (quoting Ellsberg, 709 F.2d at 64). But the law is clear that dismissal is required where state secrets are inextricably bound up in any consideration of the merits. Gen. Dynamics Corp., 131 S. Ct. at 1903-1906; El-Masri, 479 F.3d at 308 (“[A] proceeding in which the state secrets privilege is successfully interposed must be dismissed if the circumstances make clear that privileged information will be so central to the litigation that any attempt to proceed will threaten that information’s disclosure.”); Fitzgerald, 776 F.2d at 1241–42 (“[I]n some circumstances sensitive military secrets will be so central to the subject matter of the litigation that any attempt to proceed will threaten disclosure of the privileged matters.”). The requirements for dismissal are discussed in more detail in Defendants’ separately filed memorandum in support of their motion to dismiss the Complaint.
4. Attorney General’s Policy In addition to the foregoing requirements in established case law, on September 23, 2009, the Attorney General announced a new Executive branch policy governing the assertion and
meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.”).
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defense of the state secrets privilege in litigation. Under this policy, the U.S. Department of Justice will defend an assertion of the state secrets privilege, and seek dismissal of a claim on that basis, “only when doing so is necessary to protect against the risk of significant harm to national security.” See Exhibit 1 to Holder Declaration (State Secrets Policy); see also Jeppesen, 614 F.3d at 1077 (discussing Policy). Moreover, “[t]he Department will not defend an invocation of the privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States government; (iii) restrain competition; or (iv) prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security.” State Secrets Policy at 2. The Attorney General also established detailed procedures — followed in this case — for review of a proposed assertion of the state secrets privilege in a particular case. Those procedures require submissions by the relevant Government departments or agencies specifying “(i) the nature of the information that must be protected from unauthorized disclosure; (ii) the significant harm to national security that disclosure can reasonably be expected to cause; (iii) the reason why unauthorized disclosure is reasonably likely to cause such harm; and (iv) any other information relevant to the decision whether the privilege should be invoked in litigation.” Id. In addition, the Department will only defend an assertion of the privilege in court with the personal approval of the Attorney General following review and recommendations from senior Department officials. Id. at 3.
B. The Attorney General Has Properly Asserted the State Secrets Privilege. The state secrets privilege has been properly asserted in this case. The Attorney General has formally asserted the privilege after personal consideration of the matter. See Declaration of Eric Holder, Attorney General (“Holder Decl.”), Attached as Exhibit 1. Moreover, Joshua Skule,
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Acting Assistant Director of the Counterterrorism Division of the FBI, has submitted an in

camera, ex parte classified declaration, which attests that the disclosure of the information over

which the Government asserts the privilege could reasonably be expected to cause significant

harm to the national security of the United States. See In Camera, Ex parte Declaration of

Joshua Skule (“Skule Decl.”). The Government’s claim of privilege is thus properly raised.

C. Disclosure of the State Secrets Implicated by Plaintiff’s Motion to Compel and over Which the Government Asserts Privilege Reasonably Could Be Expected to Cause Significant Harm to National Security.

The United States has demonstrated in the accompanying declarations that disclosure of

the information over which the Attorney General has asserted privilege reasonably could be

expected to cause significant harm to national security. While “the Government need not

demonstrate that injury to the national interest will inevitably result from disclosure,” Ellsberg,

709 F.2d at 58, the showing it has made here is more than sufficient to demonstrate that the

information at issue should be protected from disclosure. The Government’s descriptions of the

information at issue and the harms to national security at stake are fully set forth in the Skule

Declaration and are also explained in the unclassified, public Declaration of Attorney General

Eric H. Holder, Jr.

The Attorney General has asserted the state secrets privilege over the following

categories of information, as described in unclassified terms:

•

Subject Identification: Information that could tend to confirm or deny

whether a particular individual was or was not the subject of an FBI

investigation or intelligence operation. This includes the existence of any

records about Plaintiff contained in the Terrorist Identities Datamart

Environment (“TIDE”), which is classified in its entirety, as well as the

contents of any TIDE records that might exist about Plaintiff, whether

presently contained in the TIDE database or contained in any FBI

counterterrorism investigative files about Plaintiff, should such exist. This

also includes the contents of any FBI counterterrorism investigative or

operational files about Plaintiff, should they exist.

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•

Reasons for Investigation and Results: Information that could tend to reveal

the predicate for an FBI counterterrorism investigation or intelligence

activity of a particular person, any information obtained during the course of

such an investigation or intelligence operation, and the status and results of

the investigation or operation. This includes information (if any) obtained by

the FBI from the U.S. Intelligence Community related to the reasons for any

investigation or operation and information regarding Plaintiff or any of his

associates that could tend to reveal the predicate for, information obtained in,

or results of a counterterrorism investigation or operation.

•

Sources and Methods: Information that could tend to reveal whether

particular sources and methods, such as classified policies and procedures,

were used by the FBI in any counterterrorism investigation or intelligence

activity (if any) of Plaintiff or his associates. This includes information

related to whether court-ordered searches or surveillance, confidential human

sources, and other investigative or operational sources and methods were

used by the FBI in a counterterrorism investigation of or intelligence activity

regarding a particular person, the reasons such methods were used, the status

of the use of such sources and methods, and any results derived from such

methods. In addition, this category includes the Government’s Watchlisting

Guidance, which sets forth the full details of how and why the Government

selects individuals for watchlisting.

The Attorney General has explained in unclassified terms on the public record why the

disclosure of the above information reasonably could be expected to cause significant harm to

national security. Disclosure of the identities of subjects of counterterrorism investigations or

intelligence activity could alert those subjects (or their associates) to the Government’s interest

in them and cause them to attempt to evade detection, destroy evidence, and undertake counter-

actions that could put confidential informants or federal agents at risk. Holder Decl. ¶ 8.

Disclosure that an individual is not the subject of an investigation, or was formerly the subject of

an investigation, also presents the same risk of significant harm to national security. Id. ¶ 9.

Confirming that someone is the subject of an investigation, while leaving the status of others

unconfirmed, would enable individuals and terrorists groups alike to manipulate the system to

discover whether they or their members are subject to investigation, or motivate them to act

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while they know they are not being monitored. Id. ¶ 9. Similarly, disclosure that an individual was formerly the subject of a counterterrorism investigation could also reasonably be expected to cause significant harm to national security interests. Id. ¶ 10. Such disclosures provide valuable information about the Government’s intelligence or could motivate a person whose previous intentions had not been detected to act. Id.
For closely related reasons, disclosure of the reasons for, and substance of, a counterterrorism investigation or intelligence activity reasonably could be expected to cause significant harm to national security by revealing to subjects what the FBI or U.S. Intelligence Community knows or does not know about their plans. Holder Decl. ¶¶ 11-13. Further, disclosure of the reason for an investigation could provide insights to terrorists as to what type of information is sufficient to trigger a Government inquiry, and what sources and methods the Government employs to obtain information on a person. Id. Disclosure of these sources and methods would reasonably be expected to cause significant harm not only by revealing the identities of particular subjects, but also by providing adversaries with insight into the specific ways in which the Government goes about detecting and preventing terrorist attacks. Id. ¶¶ 1012.
Finally, disclosure of the Watchlisting Guidance, a sensitive but unclassified compilation of policies and procedures, which is drafted by the National Security Council and approved by the National Security Council Deputies Committee, could also cause significant harm to national security. Holder Decl. ¶ 14. The Guidance is disseminated solely within the watchlisting community, and has never been publicly released. Id. ¶ 14. The Guidance sets forth, in detail, the Government’s current, comprehensive watchlist scheme related to the identification and placement of individuals in terrorism screening watchlists. Id. ¶ 14. If released, it would provide
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a roadmap to undermine these important efforts. Thus, disclosure of the Watchlisting Guidance
reasonably could be expected to cause significant harm to national security. Id. ¶ 14.
Defendants have fully and sufficiently demonstrated the grounds for the state secrets
privilege assertion in this case, and accordingly, the privileged information described by the
Attorney General, and set forth in more detail in the supporting ex parte, in camera Skule
Declaration, should be excluded from the case. Defendants’ separately-filed memorandum in
support of the motion to dismiss demonstrates that the privileged information is central to
resolution of the case, and the Complaint should be dismissed as a result.
II. Defendants’ Objections and Privilege Assertions Should Be Upheld and Are Sufficiently Particularized. Plaintiff contends in his motion to compel that Defendants’ objections are insufficiently
particularized. See Motion at 2-6. This is not the case. As reflected in their responses,
Defendants identified the bases on which they were either not able to provide information or noted limitations on their ability to provide it.7
Plaintiff’s motion ignores that almost all of Defendants’ interrogatory objections and
answers specify the grounds for the objection, including the unreasonably long timeframe sought
in the discovery requests, the range of information sought about persons other than Plaintiff, and
7 In his motion to compel, Plaintiff does not challenge Defendants’ objections to searching for and producing draft and deliberative material. Some of Plaintiff’s discovery requests on their face seek information protected from disclosure by the deliberative process privilege, which must be protected in civil discovery. See, e.g., RFP No. 5 (requesting information related to the “proposed abandonment or diminished use of the No-Fly List as a security measure”); RFP No. 6 (requesting information related to the “proposed increase in the use of the No-Fly List as a security measure”); RFP No. 7 (requesting information related to “proposed alternatives to the use of the No-Fly List”) (emphasis added to all). The deliberative process privilege protects drafts, recommendations, internal analyses, and other internal documents to protect the quality and candor of administrative decision-making. See, e.g., Dep’t of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1, 8 (2001); City of Va. Beach v. Dep’t of Commerce, 995 F.2d 1247, 1253 (4th Cir. 1993). Plaintiff did not address this issue in his motion to compel, and the information is properly protected from disclosure.
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the fact that certain information is not ordinarily tracked in the relevant databases.8 The only
interrogatory objection that Plaintiff alleges is “boilerplate” is the objection based on privileges.
Plaintiff states, however, that the alleged lack of specificity with respect to this objection (and
Defendants’ privilege-based objections to Plaintiff’s document requests) would be remedied with
a privilege log and/or other specific identification and invocation of the relevant privileges.
Motion at 5. This is precisely what Defendants have provided: Defendants today have lodged
(ex parte and in camera) a privilege log and declarations asserting and explaining the relevant
privileges and identifying the documents and information covered by the privileges.9 Plaintiff’s
argument that Defendants did not identify, with the requisite specificity, the grounds upon which
they rely for their objections to the document requests is also unpersuasive. Plaintiff complains
that FBI and TSC listed “identical objections to virtually all of plaintiff’s document requests,”
including objections based on the undue burden of production and the requested documents not
being reasonably calculated to lead to the discovery of admissible evidence. Motion at 3-4.
Plaintiff ignores, however, the request-specific portions10 of these TSC and FBI objections.11
8 This is in contrast to the cases Plaintiff cites that deal with wholesale failure to specify the grounds for any objections. See Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 363 (D. Md. 2008) (describing defendant’s objections as “boilerplate, non-particularized” where there was no effort to specify the burdens or relevance issues associated with the discovery requests). 9 Moreover, it is not surprising that Defendants asserted a variety of privileges in response to Plaintiff’s discovery requests. When, as here, a lawsuit challenges the Plaintiff’s alleged placement on the No Fly List--a watchlist designation designed to protect national security-potentially responsive records may well implicate classified and law enforcement information, as well as Sensitive Security Information. 10 See, e.g. Motion, Exh. B-1 at 5-38 (specific objections to the wording of each request, including, for example, objection to use of the phrase “actual and/or proposed alternatives” in RFP 7); at 4 (objecting to discovery to the extent it seeks discovery not reasonably calculated to lead to the discovery of admissible evidence because the “only claims currently before the Court relate to the process by which Plaintiff was placed on the No Fly list, and this [request] sweeps beyond information and procedures considered with respect to his alleged placement, if any, on the No Fly list”); at 27 (objecting to RFP 9 as overly broad and unduly burdensome because it
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Similarly unpersuasive is Plaintiff’s argument that Defendants’ purported failure to specify when or how they will make documents available constitutes a waiver of objections. See Motion at 14. At most, the cases he cites suggest that promising to produce documents at an unspecified time could be grounds for filing a motion to compel. See Jayne H. Lee, Inc. v. Flagstaff Inds. Corp., 173 F.R.D. 651, 656 (D. Md. 1997); Mezu v. Morgan State Univ., 269 F.R.D. 565, 574 (D. Md. 2010). They do not say anything about waiving objections, and in any event, Defendants have in fact since produced documents to Plaintiff. III. Information and Documents Sought by Plaintiff Have Been Properly Withheld as
Irrelevant under Rule 26(b)(1) or Because Searches for the Information Requested Would Be Unduly Burdensome. A. Information and Documents Sought by Plaintiff Have Been Properly
Withheld as Irrelevant under Rule 26(b)(1). In his discovery requests, Plaintiff seeks a wide array of information irrelevant to his claims in both substance and time. Rule 26(b)(1) limits the scope of discovery to “nonprivileged matter that is relevant to any party’s claim or defense.” Cappetta v. GC Servs. Ltd., No. 08-288, 2008 WL 5377934, at *2 (E.D. Va. Dec. 24, 2008); Fed. R. Civ. P. 26(b)(1). Limiting discovery to information relevant to a party’s claim or defense permits the court to regulate sweeping or contentious discovery. See Fed. R. Civ. P. 26(b)(1), Advisory Comm. Commentary (2000 Amendments). The limitation also requires a showing of “good cause” to seek broader
seeks information about all persons in the TSDB who have ever filed DHS TRIP complaints, but Plaintiff has never filed for DHS TRIP and “accordingly, such information is neither relevant for Plaintiff’s claims nor reasonably calculated to lead to the discovery of admissible evidence”). 11 Moreover, Defendants cannot waive the objection to documents not being in their possession, custody, or control, as the Federal Rules only provide for requests for discovery of documents that are in the opposing party’s “possession, custody or control.” Fed. R. Civ. P. 34(a). Similarly, Plaintiff’s objection to TSC/FBI’s use of “to the extent that” in its discovery responses, Motion at 3, is unavailing. Plaintiff cites no authority in support of this argument.
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discovery, which must also be limited to the information that is relevant to the subject matter of the action. Id. Plaintiff’s motion seeks numerous categories of information that are irrelevant to any party’s claim or defense. The motion should be denied with respect to these requests.
1. Information and Documents that Pre-Date Plaintiff’s Alleged Inclusion on the No-Fly List
First, although Plaintiff’s claims relate to his alleged placement on the No Fly List, which he alleges to have occurred sometime after March 1, 2009, he seeks information and documents from six years prior to that date. See Interrogatories 3-16, 18 (seeking information from 2003 through the present); RFP 1-13 (seeking documents from 2003 through the present). Plaintiff offers no reason sufficient to justify such an expansive timeframe. See Vanguard Military Equip. Corp. v. David B. Finestone Co., 6 F. Supp. 2d 488, 495 (E.D. Va. 1997) (interrogatory appropriately tailored to the time frame in which the fraudulent conduct was alleged to have occurred); Melton v. Simmons, No. 1:08-458-3, 2009 WL 454619, at *2 (W.D.N.C. Feb. 23, 2009) (denying motion to compel documents related to prior periods of confinement, not related to plaintiff’s claim about current confinement).
Plaintiff’s three attempts to justify the request for pre-2009 information are unpersuasive. First, although Plaintiff alleges that he was placed on the No-Fly List sometime after he left the United States (by plane) in March 2009, “in fact plaintiff only assumes he was placed on that List at that time, but he could have been placed on it years earlier.” Motion at 6. Unfounded speculation cannot justify compelling an opposing party to respond to otherwise irrelevant discovery requests. See Greenbelt Ventures, LLC v. Wash. Metro. Area Transit Auth., 481 F. App’x 833, 837 n.1 (4th Cir. 2012) (per curiam) (although plaintiff speculated that the object of the discovery it seeks must exist, plaintiff provided no colorable basis for this conclusion, and as
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a result, the district court properly denied plaintiff’s discovery request as nothing but a “fishing expedition.”).
Next, Plaintiff argues that the 2003-2009 documents are relevant because “whatever investigatory steps defendants took” leading up to their alleged inclusion of him on the No Fly List “must have been effected before March 2009,” and the “criteria and processes utilized to formulate who should be on the List . . . have changed over time, depending upon a host of factors, including political pressure.” Motion at 6. Notably, though, with regard to Plaintiff’s discovery requests about the criteria for inclusion on the No Fly List, Defendants responded that they would search for potentially responsive policies or procedures that were in effect on (i.e., may pre-date) March 1, 2009, the time after which Plaintiff alleges he was placed on the No Fly List. See RFP 1 and 8; see also RFP 10 (same, for redress policies and procedures). Defendants’ response thus includes any documents which are even arguably relevant to Plaintiff’s alleged placement. Additionally, with regard to the request for all documents regarding Plaintiff, RFP 11, Defendants erroneously noted a temporal objection to this request. Therefore, there is no dispute on this basis because Defendants have agreed to search for pre-March 1, 2009 documents in limited instances (inclusion or redress policies related to the No Fly List; documents about Plaintiff) where they may lead to relevant information.
Finally, Plaintiff claims that the Court should compel production of pre-2009 documents and information because these would shed light on “two of the three factors in a procedural due process analysis,” including the risk of erroneous deprivation through the procedures used, the probable value of additional safeguards, and the burdens of additional safeguards. Motion at 7. Plaintiff, however, fails to explain how pre-2009 documents regarding prior processes and procedures for administering the No Fly List would provide information relevant to his due
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process claim. As explained above, because the only relevant procedures are those that were in place when Plaintiff was allegedly placed on the No-Fly List, whether or not pre-2009 documents would shed light on statistics correlated to a prior version of No Fly List procedures is ultimately immaterial to Plaintiff’s claims. Plaintiff brings claims on behalf of himself, and only himself, and the Complaint contains no factual allegations related to any pre-2009 events. Discovery going back for the past eleven years is not reasonably related to the claims he asserts. For these reasons, the motion to compel production of pre-March 1, 2009 documents (save for the four exceptions already agreed to by Defendants, RFPs 1, 8, 10, 11) should therefore be denied.
2. Discovery Requests Related to Individuals Other than Plaintiff Plaintiff has not brought a class action suit. Nor has he pled a claim that implicates the religion, nationality, or experiences of any individual. The discovery requests targeted at individuals other than Plaintiff (Interrogatories 7, 8, 9, 10.; RFP 8,10, 12, 18), therefore, are not sufficiently related to the operative claims and defenses in this action so as to warrant production of the requested information. See Webb v. Green Tree Servicing LLC, Civ. No. 11-2105, 2012 WL 3139551, at *3 (D. Md. July 27, 2012) (denying motion to compel because the requested information about tenants other than plaintiff would not yield relevant information).12
12 For example, with respect to requests related to DHS TRIP, because Defendants have explained that DHS TRIP provides constitutionally adequate process, Defendants have agreed to search for and produce policies and procedures related to redress as well as final reports of any audits, investigations, or assessments about DHS TRIP. Plaintiff nonetheless seeks to compel production of all documents related to every DHS TRIP complaint related to the TSDB ever forwarded to TSC, a hugely overbroad discovery request implicating highly sensitive classified, law enforcement, and Privacy Act-protected information about other individuals not even tangentially related to the events of the Fourth Amended Complaint or any processes allegedly applied to Plaintiff. Plaintiff himself did not apply for redress through DHS TRIP, and Defendants’ reasonable search is likely to find any documents even arguably relevant to Plaintiff’s claims.
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Plaintiff’s primary argument to justify the relevance of these requests is that they are relevant to his substantive due process claim. See Motion at 16 (“Plaintiff believes defendants have a policy and practice of placing citizens on the No Fly List while abroad in order to coerce them into acting as informants once home. . . . Because defendants use the No Fly List in this coercive manner – to try to create this kind of leverage rather than to advance flight security – the No Fly List is plainly not narrowly tailored to advance a compelling governmental interest.”). Plaintiff fails to establish that the requested information and documents about individuals other than Plaintiff are relevant to any operative claim or defense. Notably, in the substantive due process count of the Fourth Amended Complaint, Plaintiff says nothing about this alleged coercive use of the No Fly List, see Fourth Am. Compl. ¶¶ 58, 62, and this allegedly improper “use” therefore cannot serve as a basis for arguing that the requested information would be relevant to his claim. Moreover, to the extent Plaintiff attempts to rely on the part of the substantive due process claim alleging that he was denied a constitutional right of return in January 2011, the Court has already dismissed this claim. Mem. Op. at 27; see also Adair v. EQT Prod. Co., 294 F.R.D. 1, at *6 (W.D. Va. 2013) (sustaining relevance objection to producing category of documents where plaintiffs’ counsel conceded that category was relevant only insofar as a constitutional claim remained before the Court in a case, and court had already dismissed the claim seeking a declaratory judgment that a statute was unconstitutional). As a result, Defendants’ relevance objections should limit any discovery in this case.
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B. Searching for the Requested Material Would Be Unduly Burdensome. The Court should also deny several aspects of the Motion because Plaintiff seeks to compel searches and production that would be unduly burdensome.13 This Circuit has held that, “[e]ven assuming that this information is relevant (in the broadest sense), the simple fact that requested information is discoverable . . . does not mean that discovery must be had.” Nicholas v. Wyndham Int’l Inc., 373 F.3d 537, 543 (4th Cir. 2004). Though parties must produce information necessary to establish claims, courts should not permit them “to go fishing.” Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007) (internal citations omitted). As such, courts retain discretion to determine if a discovery request is too broad or oppressive, id.; see also Fed. R. Civ. P. 26(b), and have wide discretion in balancing the needs and rights of the parties. Surles, 474 F.3d at 305. Specifically, the Federal Rules of Civil Procedure instruct district courts to limit discovery where the burden or expense outweighs the likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. See Fed. R. Civ. P. 26(b)(2)(C)(iii); D.J.’s Diamond Imports, LLC v. Brown, No. WMN-11-2027, 2013 WL 1345082, at * 2, 5 (D. Md. April 1, 2013) (denying motion to compel where the value of substantive response to the interrogatory in the context of case is outweighed by “likely burden it would place on Defendant”); Webb v. Green Tree Servicing LLC, Civ. No. 11-2105, 2012 WL 3139551, at * 2, 5 (D. Md. July 27, 2012)
13 Defendants objected to discovery requests on the grounds that information and documents were not in their possession and control; Plaintiff does not appear to be moving to compel such information and documents. See, e.g., Motion at 9 (appearing to limit request to documents “defendants have” and requesting that “material under defendants’ control which is responsive to this question should thus be produced”).
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(denying motion to compel where burdensome interrogatories were not relevant to proving elements of Plaintiff’s claims).
1. TSDB-Related Information In several of his interrogatories, Plaintiff seeks information that is not included in the TSDB. As set forth herein, and as reflected even in Plaintiff’s complaint, the TSDB was created in order to provide a mechanism for sharing identifying information about persons against whom the United States should focus screening activities. The database thus includes information relevant for screening purposes, such as name, birthdate, nationality, passport number, and country of issuance. In his discovery requests, Plaintiff asks Defendants to provide him with information about persons included in the TSDB and its subset lists -- such as their citizenship status (Interrogatories 4, 7, 8, 10), religious affiliation (Interrogatory 8), place of birth/naturalization status (Interrogatory 8, 7) and the reasons why individuals were placed on and/or removed from the watchlist (Interrogatory 6, 9, 10) -- regardless of whether the TSDB tracks this information as part of its ordinary operations. See Declaration of G. Clayton Grigg (“Grigg Decl.”), attached as Exhibit 2 (filed ex parte and in camera in full, redacted version filed herewith) ¶ 31 (TSDB does not track individuals as U.S. citizens);14 id. ¶ 30 (TSDB includes a free-form field for “place of birth,” but the results of any search of this field vary depending on how the information was entered; moreover, a search of this field would not provide accurate
14 The manner by which the TSDB records citizenship status has changed over time. From 2003 through 2008, the TSDB did not track U.S. citizenship status. Grigg Decl. ¶ 31. In 2008, the TSDB began tracking individuals as USPERs, which includes both U.S. citizens and lawful permanent resident aliens. Id. Beginning on May 18, 2012, the TSDB also began tracking the lawful permanent resident (LPR) status of individuals; however, it did so only for individuals newly added to the TSDB. Id. Thus, for individuals in the TSDB prior to May 18, 2012, the TSDB did not track them by LPR status, but only by USPER/non-USPER status. Id. Moreover, this information is not always reliable because in some cases it is presumed based on other facts, and in other places it may be fraudulent. Id.
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information about the places of birth of USPERS on the No Fly list because, as of this month only 26% of persons in the TSDB have a populated “place of birth” field); ¶ 35 (TSC does not, in the usual course of business, track or aggregate the basis for rejection of a nomination for inclusion in the TSDB); see also Motion Exh. B at 17 (TSDB does not track religious affiliation). These requests are both burdensome and unlikely to yield probative information.
First, the requests are burdensome. To obtain the information about TSDB-listed individuals that the TSDB does not track in its normal course, Defendants would need to review all of the information available as part of the individual’s TSDB record, and all documentation underlying each individual’s TSDB entry, including documents housed in different locations. See Grigg Decl. ¶ 16. While the precise number of TSDB records is sensitive, privileged information, it can be said that the number is quite large. TSC provided an artificial baseline estimate that a comprehensive review of an individual’s TSDB record and the underlying information could take one hour, depending on the size and complexity of the record and other limitations.15 Id. ¶ 24. For reviews of rejected nominations, using a theoretical baseline of fifteen minutes to review a record,16 the task would require over 3,500 hours of employee time, nearly six months for four senior TSC analysts. Id. ¶ 36.
Second, even if such searches were not unduly burdensome, they would not be likely to yield probative information. As explained above, Plaintiff has not brought a class action suit or 15 As noted in the Grigg Declaration, this estimate is theoretical because no review of this type has ever been attempted. Grigg Decl. ¶ 24. While uncomplicated records with minimal information, few versions, and easily accessibly underlying information could be reviewed in much less time, other record reviews can take several hours or days, depending on complexity, impediments, limitations, and other factors or circumstances. Id. Moreover, there is a distinct possibility that, even after exhausting all review resources, an analyst might not find responsive information at all. Id. 16 This is a conservative baseline considering all the factors involved in a record review. It assumes that TSC would only review its internal records and not seek any underlying source documents. Grigg Decl. ¶ 36.
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pled a claim that implicates the religion, nationality, or experiences of any individual, meaning that the discovery requests targeted at individuals other than Plaintiff (Interrogatories 7, 8, 10; RFP 8, 10, 12, 18), are not related to the operative claims and defenses in this action. Further, Defendants do not know if the information sought by Plaintiff is even included in the documents underlying a TSDB entry. For example, because the TSDB does not track a person’s religion (Interrogatory 8), there is no way to identify the religion of a person on the No Fly List by looking at the TSDB entry for that person. See Motion, Exh. B at 17. There is also no way to know, without looking, whether that person’s religion is reflected in the underlying records. Id. Even where religion could be guessed or surmised from the underlying records, the accuracy of any such information cannot be guaranteed. Id. As a result, even if Defendants could perform this search, the results would not be probative of the claims or defenses at issue in this case. The issue of burden aside, while Plaintiff suggests that the Court require a statistical sampling, Motion at 11 n.7, there is no way to know whether that sampling would ever be representative or informative.
Ultimately, what Plaintiff wants is for Defendants to create a database they do not have, and for the TSDB to track information it does not track. Plaintiff’s demand that Defendants create new records in discovery is unreasonable on its face,17 because a party responding to a Rule 34 document request cannot be compelled to prepare or create new documents. See
17 It is also unreasonable to demand that Defendants produce data that is inherently unreliable. For example, Defendants should not be required to produce information derived from a field in the TSDB that is not mandatory because any conclusions drawn from the number of individuals who have information in that voluntarily completed field will be inaccurate, and therefore unlikely to provide much benefit to Plaintiff. See Fed. R. Civ. P. 26(b)(2)(C) (Court must limit extent of discovery where it determines that the burden or expense of the proposed discovery outweighs its likely benefit); Brady v. Conseco, Inc., No. 08-05746, 2009 WL 5218046, at *2 (N.D. Cal. Dec. 29, 2009) (denying motion to compel related to interrogatories that the court found to be of marginal relevance, especially given the speculative nature of the argument defendant intended to make based on the requested information).
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Paramount Pictures Corp. v. Replay TV, No. 01–9358, 2002 WL 32151632, at *2 (C.D. Cal.
2002). The same is true for information requested in an interrogatory response when such
information is not readily accessible, such as U.S. citizenship status or the basis for removing an
individual from the No Fly List. See Interrogatories 4, 6-10, 18. See, e.g., Kolon Indus. Inc. v.
E.I. Dupont de Nemours & Co., No. 12-1587, 2014 WL 1317695, *9-10 (4th Cir. Apr. 3, 2014)
(upholding district court order finding that compilation of data from multiple sources was unduly
burdensome, even if relevant). Plaintiff’s belief that this information must be more readily
accessible provides no basis for this Court to order production. Susko v. City of Weirton, No.
5:09–1, 2011 WL 98557, at *4 (N.D. W.Va. Jan. 12, 2011) (noting that “mere speculation that
documents exist is not a sound basis” for permitting discovery).18
IV. The Law Enforcement Privilege
Plaintiff moves to compel the production of several kinds of documents, and also to
compel answers to a number of interrogatories, that Defendants are not required to provide because the requested information is protected by the law enforcement privilege.19 The types of
information sought by Plaintiff that are subject to the law enforcement privilege include (1)
18 Plaintiff’s motion does not expressly address a number of Defendants’ objections and their corresponding proposals for limiting overly broad requests. Read liberally, requests for “all documents regarding assessments of the No Fly List’s utility as a security measure” (RFP 4) and “all documents concerning TSC’s processing of Traveler Redress Inquiry Program (TRIP) complaints” (RFP 9) encompass a huge swath of information and sweep well beyond information reasonably related to Plaintiff’s alleged placement on the No Fly List. Defendants’ proposed limitations include the narrowing of several document requests to “policies and procedures” (RFP 8 and 9), and the proposed exclusion of deliberative materials (RFP 2-7, 9, 1213). Plaintiff does not challenge these reasonable limitations, by which Defendants nonetheless agreed to conduct reasonable searches for relevant policies and procedures and relevant final reports and assessments of the efficacy of the watchlisting program. Similarly, Plaintiff does not move to compel Defendants to produce documents not within their possession or control. 19 To the extent that information is protected by overlapping privileges (such as the law enforcement privilege, or Sensitive Security Information, for example), the privileges apply independently of one another. A ruling that the one privilege is inapplicable does not foreclose the availability and protection of other privileges.
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Plaintiff’s status on the No Fly List (RFP 11; Interrogatory 1); (2) information about Plaintiff, if any, contained in FBI and TSC files (RFP 11; Interrogatories 1, 17); (3) the identities of FBI agents and TSC personnel (Interrogatories 1-2); (4) information about the specific criteria for inclusion in the TSDB or on the No Fly and Selectee Lists (RFP 1-10, 12-13); and (5) policies and procedures about TSC’s implementation and maintenance of, as well as redress related to, the TSDB, Selectee List, and No Fly List (RFP 1-10, 12-13; Interrogatories 5, 8, 11-12). This information is properly withheld pursuant to the law enforcement privilege.20 In support of this privilege, Defendants have submitted the ex parte, in camera declaration of John Giacalone, Assistant Director of the FBI’s Counterterrorism Division.
“[L]aw enforcement agencies must be able to investigate crime without the details of the investigation being released to the public in a manner that compromises the investigation.” Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 574 (4th Cir. 2004). “The purpose of th[e] [law enforcement] privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.” In re Dep’t of Investigation of the City of N.Y., 856 F.2d 481, 484 (2d Cir. 1988). The privilege “may [also] be asserted to protect … disclosure of the contents of law enforcement investigatory files.” In re Sealed Case, 856 F.2d 268, 271 (D.C.
20 If the case were to go forward notwithstanding the Defendants’ arguments for dismissal, as noted in Defendants’ responses, there are limited, discrete pieces of unclassified information that Defendants may be willing to consider providing to Plaintiff’s counsel pursuant to an appropriate protective order. But see In Re the City of New York, 607 F.3d 923, 936-37 (2d Cir. 2010) (describing protective orders associated with law enforcement sensitive information as “deeply flawed procedure that cannot fully protect the secrecy of information in this case; it merely mitigates—to some degree—the possibility of unauthorized disclosure.”). As explained in Defendants’ Motion to Dismiss, Defendants maintain that this matter cannot be properly litigated on the current record, even with the inclusion of those discrete pieces of unclassified information.
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Cir. 1988). “[T]he reasons for recognizing the law enforcement privilege are even more
compelling” when “the compelled production of government documents could impact highly
sensitive matters relating to national security.” In re U.S. Dep’t of Homeland Sec., 459 F.3d 565,
569 (5th Cir. 2006).
A proper review of an assertion of the law enforcement privilege involves two steps.
“First, the party asserting the law enforcement privilege bears the burden of showing that the
privilege indeed applies to the documents at issue” by showing that the documents contain
information pertaining to law enforcement techniques and procedures, information that would
undermine the confidentiality of sources, information that would endanger witness and law
enforcement personnel, information that would undermine the privacy of individuals involved in
the investigation, or information that would seriously impair the ability of a law enforcement
agency to conduct future investigations. In re New York City, 607 F.3d 923, 948 (2d Cir.
2010).21 Second, once the privilege is determined to apply, “the district court must balance the
public interest in nondisclosure against ‘the need of a particular litigant for access to the
21 Plaintiff, like Defendants, cites In re City of New York when discussing the law enforcement privilege. See Motion at 5. The Fourth Circuit has not directly addressed the standard that a district court should apply to evaluate the Government’s assertion of the law enforcement privilege. In the other contexts, district courts in the Fourth Circuit have looked to district court decisions in sister circuits, including the Second Circuit, for guidance. See Martin v. Cooper, 287 F.R.D. 348, 350-51 (D. Md. 2012) (citing, in a 42 U.S.C. § 1983 lawsuit, King v. Conde, 121 F.R.D. 180, 198 (E.D.N.Y. 1988)); Wolfe v. Green, 257 F.R.D. 109, 112 (S.D.W. Va. 2009) (same); Bellamy-Bey v. Baltimore Police Dep’t, 237 F.R.D. 391, 393 (D. Md. 2006) (same); Johnson v. Rankin, Case No. 2:11-cv-0415, 2011 WL 5358056, at *1 (E.D. Va. Nov. 7, 2011) (citing, in the context of a motion to quash a subpoena duces tecum, Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D. Pa. 1973)); see also Madsen v. Rogers, Case No. 97-cv-11234, 1999 WL 651578, at *3 (E.D. Va. Jul. 20, 1999) (citing, in the context of a motion to quash a subpoena duces tecum, the law regarding the FOIA exemption for investigative information). Relative to those cases decided in other contexts, In re City of New York (which vacated an order compelling the production of certain sensitive law enforcement documents in a national security case) is most apposite to the issues raised in this matter. See Martin, 287 F.R.D. at 351 n.4 (“In re City of New York [is] a case involving national security [and] is distinguishable from typical § 1983 actions regarding police misconduct.”).
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privileged information.’” Id. (quoting In re Sealed Case, 856 F.2d at 272). There is a strong presumption against lifting the privilege that may be rebutted only by a showing that the lawsuit is non-frivolous and brought in good faith, that the information sought is not available through other discovery or from other sources, and that the party has a compelling need for the privileged information. Id. Third, “[i]f the presumption against disclosure is successfully rebutted [], the district court must then weigh the public interest in nondisclosure against the need of the litigant for access to the privileged information before ultimately deciding whether disclosure is required.” Id. The information sought by Plaintiff in discovery here meets this test and is protected from disclosure by the law enforcement privilege, as set forth below and in the ex parte, in camera Giacalone Declaration.
First, Plaintiff requests information that would or may reveal his purported placement (and the placement of others) in the TSDB, as well as on the No Fly or Selectee Lists. See, e.g., RFP 11 (all documents regarding Plaintiff); Interrogatory 1 (all persons who played any role in nominating or placing Plaintiff on the No Fly List). To the extent such information exists, its disclosure implicates information pertaining to law enforcement techniques and procedures, see In re New York City, 607 F.3d at 948, as well as the contents of law enforcement investigatory files, In re Sealed Case, 856 F.2d at 271. As set forth in the Giacalone Declaration, disclosure of watchlist status reveals sensitive law enforcement information and provides valuable information to those attempting to circumvent the law.
Second, Plaintiff seeks disclosure of all documents and information about him in the possession of the FBI and TSC. See RFP 11, Interrogatories 1 and 17. Yet, if such documents or information exists, they would constitute confirmation of an investigatory interest in Plaintiff, as well as demonstrate the nature and substance of any such interest, as described in the Giacalone
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Declaration. See In re Sealed Case, 856 F.2d at 271. As a result, Plaintiff cannot show a substantial need for these records, in light of the clear law enforcement nature of such records, and the accompanying dangers from disclosure.
Third, Plaintiff requests the production of documents and information regarding the criteria for including or excluding individuals from watchlists. See RFP 1-10, 12-13; Interrogatory 10. As noted before, the disclosure of such criteria risks undermining the effectiveness of the watchlist. See In re New York City, 607 F.3d at 948. The Giacalone Declaration demonstrates that release of this information would risk circumvention of the law and cause harm to national security because disclosure of the criteria that the Government uses to nominate, add, or remove individuals from its watchlists would weaken the effectiveness of the watchlists by providing criminals and terrorists the means by which they can learn or manipulate their watchlist status.22
Fourth, Plaintiff requests disclosure of the policies and procedures for implementing and maintaining the watchlists, and for providing redress. See RFP 1-10, 12-13; Interrogatories 5, 8, 11-12. As noted before, the use of the watchlist is an effective counterterrorism tool, and disclosures about the policies and procedures for watchlisting risks undermining its effectiveness. See In re New York City, 607 F.3d at 948. Disclosing the policies and procedures by which the watchlists are implemented and maintained, and by which redress is provided,
22 Moreover, Plaintiff contends he has been improperly placed on the no Fly List, but his requests seek information about the TSDB generally. This broad request for law enforcement protected information overreaches and would require Defendants to disclose sensitive information that is not implicated by Plaintiff’s claims. Indeed, in an earlier decision in this case, this Court held that TSDB status (if any), standing alone, would not constitute a valid claim or provide a sufficient basis for jurisdiction. See Mohamed v. Holder, No. 11-50, 2011 WL 3820711, at *6 n.1, 7 (E.D. Va. Aug. 26, 2011) (concluding that a plaintiff must allege something more than mere inclusion on a watchlist to state a constitutional claim or to establish standing).
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would provide a roadmap to the specific ways in which the Government identifies persons for
watchlisting, as well as the ways in which that information is shared both inside and outside of
the United States Government. Revealing this kind of information would weaken the
Government’s ability to proactively and effectively identify persons who should be watchlisted.
See generally Giacalone Declaration. Like Plaintiff’s other requests, these requests seek
information far beyond Plaintiff’s alleged and allegedly improper No Fly List placement and
thus are not sufficiently related to his claims to justify the harms that would result from disclosure. See supra at III.A. 23
V. Sensitive Security Information
Some of the information Plaintiff seeks in discovery also constitutes Sensitive Security
Information (“SSI”), a category of information related to transportation security which is protected by statute.24 By statute, the TSA Administrator25 must “prescribe regulations
prohibiting the disclosure of information obtained or developed in carrying out security . . . if the
[Administrator] decides that disclosing the information would . . . be detrimental to the security
of transportation.” 49 U.S.C. § 114(r)(1)(C). Accordingly, TSA has defined SSI and set forth a
23 Plaintiff also seeks the disclosure of the identities of law enforcement personnel involved in the allegations at issue in Complaint. The law enforcement privilege, however, protects information that would undermine the privacy of individuals involved in any law enforcement investigations, as well as information that would endanger law enforcement personnel. See In re New York City, 607 F.3d at 948; see also generally Giacalone Decl. 24 See Pub. L. No. 93-366, §§ 202, 316, 88 Stat. 409, 415-17 (1974); Pub. L. No. 107-71, §101, 115 Stat. 597, 597-604 (2001) (transferring this authority from the Federal Aviation Administration to the newly created TSA). 25 The TSA Administrator was formerly known as the Under Secretary of Transportation for Security because TSA was originally a part of the Department of Transportation. TSA’s functions, as well as the Under Secretary’s, were transferred to the Department of Homeland Security pursuant to section 403(2) of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (codified at 6 U.S.C. § 203(2)). The Under Secretary is now known as the Administrator of TSA. See 49 C.F.R. § 1500.3.
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list of certain categories of information that are SSI. See generally 49 C.F.R. § 1520.5 (defining
SSI and providing a list of particular categories of SSI). Plaintiff’s discovery requests seek information about the No Fly and Selectee Lists and related security measures.26 49 C.F.R. §§
1520.5(a)(3); 1520.5(b)(8); 1520.5(b)(9)(i) and (ii), 1520.5(b)(8); and 1520.5(b)(11).
TSA regulations limit access to SSI to “covered persons” with a “need to know.” See 49
C.F.R. §§ 1520.7 and 1520.11. Covered persons include federal employees who have a need to
know SSI if access to the information is necessary for the performance of their official duties.
See 49 C.F.R. §§ 1520.7 and 1520.11. In order for a covered person to have access to specific
SSI, that covered person must have an operational need to know, for example, “when the person
requires access to specific SSI to carry out. . . transportation security activities . . ..” 49 C.F.R. §
1520.11(a)(1).
Non-covered persons, such as plaintiff’s counsel, do not gain access to SSI simply by
filing a lawsuit. See, e.g., Chowdhury v. Nw. Airlines Corp., 226 F.R.D. 608, 610-15 (N.D. Cal.
2004) (holding that 49 U.S.C. §114(s), now 49 U.S.C. §114(r), creates an evidentiary privilege
because it directs “the TSA to withhold disclosure of information if the TSA believes that
26 See, e.g., RFP 1, 3 (policy standards, rules, and training about the decision to include persons on the No Fly List); RFP 2 (reviews and audits of the No Fly List); RFP 4, 5, 6 (assessments and reviews of the utility of No Fly List as a security measure); RFP 7 (No Fly List alternatives); Interrogatories 11, 12, 17 (safety measures associated with flights bearing persons allegedly on the No Fly List). These requests track the categories of SSI reflected in TSA’s SSI regulation. See, e.g., 49 C.F.R. § 1520.5(b)(9)(i), (ii) (reflecting that SSI includes “security programs and contingency plans”; “[d]etails of any security inspection or investigation of an alleged violation of aviation, maritime, or rail transportation security requirements of Federal law that could reveal a security vulnerability, including the identity of the Federal special agent or other Federal employee who conducted the inspection or audit”; “Security screening information”; “Any procedures, including selection criteria and any comments, instructions, and implementing guidance pertaining thereto, for screening of persons, accessible property, checked baggage, U.S. mail, stores, and cargo, that is conducted by the Federal government or any other authorized person.”).
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disclosure would be detrimental to air transportation safety,” unless TSA issues regulations
permitting such disclosure when it is not deemed harmful). As a general matter, SSI may not be
disclosed to a non-covered person except with the express consent of the TSA Administrator or
his designee. See 49 C.F.R. § 1520.9(a)(2). Further, TSA’s designation of information as SSI is
reviewable only in the United States Courts of Appeals – not in United States District Courts. 49 U.S.C. § 46110(a).27
In the context of civil litigation in federal district court, Congress has created a statutory
mechanism that allows for the possibility that individuals, who are not otherwise covered persons
with a need to know, may obtain access to certain SSI subject to specific conditions and strict
controls. Section 525(d) of the DHS Appropriations Act, 2007, Pub. L. 109-295, § 525(d), 120 Stat. 1355 (Oct. 4, 2006), as reenacted, (“Section 525(d)”)28 provides that a party or party’s
counsel seeking access to specific SSI must demonstrate to TSA a substantial need for relevant
SSI in the preparation of their case and further show that they are unable without undue hardship
to obtain the substantial equivalent of the information by other means. In addition, such
individuals must successfully undergo a criminal history check and terrorist threat assessment
like that performed for aviation workers, and the district court must enter a protective order that protects the SSI from unauthorized or unnecessary disclosure.29 Section 525(d) further provides
27 See, e.g., Lacson v. U.S. Dep’t of Homeland Sec., 726 F.3d 170, 172 (D.C. Cir. 2013); Robinson v. Napolitano, 689 F.3d 888 (8th Cir. 2012); MacLean v. Dep’t of Homeland Sec., 543 F.3d 1145, 1149 (9th Cir. 2008). 28 Section 525 has never been codified, but Section 525(d) has been reenacted in each subsequent act of Congress providing appropriations to the Department of Homeland Security. See, e.g., Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div. E, § 522, 121 Stat. 1844, 2073-74 (Dec. 26, 2007); Consolidated Appropriations Act of 2014, Pub. L. No. 113-76, Div. F, § 510 (Jan. 17, 2014). 29 In addition, the Secretary of DHS may assess a civil penalty of up to $50,000 for each violation of 49 C.F.R. Part 1520 by persons provided access to SSI under Section 525(d). See § 525(d), 120 Stat. at 1382.
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that any order granting access to SSI is immediately appealable to the United States Courts of Appeal.
Although two of Plaintiff’s current counsel have passed background checks in connection with proceedings in the Court of Appeals, pursuant to 49 C.F.R. § 1520.15(e), such checks alone are insufficient to permit disclosure of SSI to them. Section 525(d) requires that the Court must first enter a protective order that protects SSI from “unauthorized or unnecessary disclosure and specifies the terms and conditions of access.” To date, no such protective order has been entered by the Court and, as a result, Defendants are prohibited by law from disclosing SSI to Plaintiff’s counsel. Moreover, given the Government’s motion to dismiss this case in light of the scope of the state secrets privilege, there is no reason for the Court to enter such an order at this time. In the event that this Court determines that the case can proceed, in spite of the Government’s arguments about the scope of the state secrets privilege, Defendants are prepared to propose a protective order that protects SSI and specifies the terms and conditions of access. If such a protective order is entered, Plaintiff’s counsel would be required to satisfy the other requirements of Section 525(d). In the meantime, Defendants have attempted to identify (among other privileges) materials containing SSI on their privilege log but are prohibited from producing them. 49 C.F.R. § 1520.(9)(a)(2). In the event that this case proceeds, and such materials are required to be produced, they must be referred to TSA for review as required by regulation. 49 C.F.R. § 1520.5(a)(9)(3). In the event discovery does proceed, and the requirements of Section 525(d) are met, TSA security experts will conduct a line-by-line review of any such documents to identify with specificity the SSI contained therein.
CONCLUSION For the foregoing reasons, the Court should deny the motion to compel.
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Dated: May 28, 2014

Respectfully submitted,

STUART F. DELERY ASSISTANT ATTORNEY GENERAL CIVIL DIVISION

DANA J. BOENTE UNITED STATES ATTORNEY

DIANE KELLEHER ASSISTANT BRANCH DIRECTOR FEDERAL PROGRAMS BRANCH

AMY E. POWELL

JOSEPH C. FOLIO, III

ATTORNEYS

U.S. DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

20 MASSACHUSETTS AVENUE, N.W.

WASHINGTON, D.C. 20001

TELEPHONE: (202) 514-9836

FAX:

(202) 616-8460

E-MAIL:

amy.powell@usdoj.gov

_/S/______________________________

R. JOSEPH SHER

ASSISTANT UNITED STATES ATTORNEY

OFFICE OF THE UNITED STATES ATTORNEY

JUSTIN W. WILLIAMS UNITED STATES ATTORNEYS

BUILDING

2100 JAMIESON AVE.,

ALEXANDRIA, VA. 22314

TELEPHONE: (703) 299-3747

FAX:

(703) 299-3983

E-MAIL

JOE.SHER@USDOJ.GOV

ATTORNEYS FOR THE DEFENDANTS

35

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CERTIFICATE OF SERVICE

I certify that I electronically filed the foregoing with the Clerk of Court using the

CM/ECF system, which will send a notification of such filing (NEF) to the following counsel of

record:

Gadeir Abbas Nina Kraut THE COUNCIL ON AMERICAN- ISLAMIC RELATIONS 453 New Jersey Avenue, SE Washington, D.C. 20003 Telephone: (202) 742-6410 Fax: (202) 488-0833 Email: gabbas@cair.com Email: nkraut@cair.com

DATED: MAY 28, 2014

_/S/______________________________

R. JOSEPH SHER

ASSISTANT UNITED STATES ATTORNEY

OFFICE OF THE UNITED STATES ATTORNEY

JUSTIN W. WILLIAMS UNITED STATES

BUILDING

2100 JAMIESON AVE.,

ALEXANDRIA, VA. 22314

TELEPHONE: (703) 299-3747

FAX:

(703) 299-3983

E-MAIL

JOE.SHER@USDOJ.GO

ATTORNEYS’

36

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

__________________________________________

)

GULET MOHAMED,

)

)

Plaintiff,

)

)

v.

) Case No. 1:11-CV-0050

)

ERIC H. HOLDER, JR., in his official capacity as )

Attorney General of the United States, et al.,

)

)

Defendants.

)

__________________________________________)

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
EXHIBIT 1 – DECLARATION OF ERIC H. HOLDER, JR.

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Exhibit 1

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USDOJ Seal
Office of the Attorney General WashingtonD.C.20530
September 23, 2009
MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES MEMORANDUM FOR THE HEADS OF DEPARTMENT COMPONENTS
FROM: The ATTORNEY GENERAL
SUBJECT: Policies and Procedures Governing Invocation of the State Secrets Privilege
I am issuing today new Department of Justice policies and administrative procedures that will provide greater accountability and reliability in the invocation of the state secrets privilege in litigation. The Department is adopting these policies and procedures to strengthen public confidence that the U.S. Government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests. The policies and procedures set forth in this Memorandum are effective as of October 1. 2009. and the Department shall apply them in all cases in which a government department or agency thereafter seeks to invoke the state secrets privilege in litigation.
1. Standards for Determination
A. Legal Standard. The Department will defend an assertion of the stale secrets privilege ("privilege") in litigation when a government department or agency seeking to assert the privilege makes a sufficient showing that assertion of the privilege is necessary to protect information the unauthorized disclosure of which reasonably could be expected to cause significant harm to the national defense or foreign relations ("national security'") of the United States. With respect to classified information, the Department will defend invocation of the privilege to protect information properly classified pursuant to Executive Order 12958, as amended, or any successor order, at any level of classification, so long as the unauthorized disclosure of such information reasonably could be expected to cause significant harm to the national security of the United States. With respect to information that is nonpublic but not classified, the Department will also defend invocation of the privilege so long as the disclosure of such information reasonably could be expected to cause significant harm to the national security of the United States.
B. Narrow Tailoring. The Department's policy is that the privilege should be invoked only to the extent necessary to protect against the risk of significant harm to national security. The Department will seek to dismiss a litigant's claim or case on the basis of the state secrets privilege only when doing so is necessary to protect against the risk of significant harm to national security.

Case 1:11-cv-00050-AJT-TRJ Document 102-1 Filed 05/28/14 Page 13 of 15 PageID# 1430

Memorandum for Heads of Executive Departments and Agencies Memorandum for the Heads of Department Components Subject: State Secrets Privilege

Page 2

C. Limitations. The Department will not defend an invocation of the privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States government; (iii) restrain competition; or (iv) prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security.
2. Initial Procedures for Invocation of the Privilege
A. Evidentiary Support. A government department or agency seeking invocation of the privilege in litigation must submit to the Division in the Department with responsibility for the litigation in question1 a detailed declaration based on personal knowledge that specifies in detail: (i) the nature of the information that must be protected from unauthorized disclosure; (ii) the significant harm to national security that disclosure can reasonably be expected to cause; (iii) the reason why unauthorized disclosure is reasonably likely to cause such harm; and (iv) any other information relevant to the decision whether the privilege should be invoked in litigation.
B. Recommendation from the Assistant Attorney General. The Assistant Attorney General for the Division responsible for the matter shall formally recommend in writing whether or not the Department should defend the assertion of the privilege in litigation. In order to make a formal recommendation to defend the assertion of the privilege, the Assistant Attorney General must conclude, based on a personal evaluation of the evidence submitted by the department or agency seeking invocation of the privilege, that the standards set forth in Section 1(a) of this Memorandum are satisfied. The recommendation of the Assistant Attorney General shall be made in a timely manner to ensure that the State Secrets Review Committee has adequate time to give meaningful consideration to the recommendation.
3. State Secrets Review Committee
A. Review Committee. A State Secrets Review Committee consisting of senior Department of Justice officials designated by the Attorney General will evaluate the

1 The question whether to invoke the privilege typically arises in civil litigation. Requests for invocation of the privilege in those cases shall be addressed to the Civil Division. The question whether to invoke the privilege also may arise in cases handled by the Environment and Natural Resources Division (ENRD), and requests for invocation of the privilege shall be addressed to ENRD in those instances. It is also possible that a court may require the Government to satisfy the standards for invoking the privilege in criminal proceedings. See United States v. Araf, 533 F.3d 72, 78-80 (2d Cir. 2008); but see United States v. Rosen, 557 F.3d 192. 198(4thCir. 2009). In such instances, requests to submit filings to satisfy that standard shall be directed to the National Security Division.

Case 1:11-cv-00050-AJT-TRJ Document 102-1 Filed 05/28/14 Page 14 of 15 PageID# 1431

Memorandum for Heads of Executive Departments and Agencies Memorandum for the Meads of Department Components Subject: State Secrets Privilege

Page 3

Assistant Attorney General's recommendation to determine whether invocation of the privilege in litigation is warranted.

B. Consultation. The Review Committee will consult as necessary and appropriate with the department or agency seeking invocation of the privilege in litigation and with the Office of the Director of National Intelligence. The Review Committee must engage in such consultation prior to making any recommendation against defending the invocation of the privilege in litigation.

C. Recommendation by the Review Committee. The Review Committee shall make a recommendation to the Deputy Attorney General, who shall in turn make a recommendation to the Attorney General.2 The recommendations shall be made in a timely manner to ensure that the Attorney General has adequate time to give meaningful consideration to such recommendations.

4. Attorney General Approval

A. Attorney General Approval. The Department will not defend an assertion of the privilege in litigation without the personal approval of the Attorney General (or, in the absence or recusal of the Attorney General, the Deputy Attorney General or the Acting Attorney General).

B. Notification to Agency or Department Head. In the event that the Attorney General does not approve invocation of the privilege in litigation with respect to some or all of the information a requesting department or agency seeks to protect, the Department will provide prompt notice to the head of the requesting department or agency.

C. Referral to Agency or Department Inspector General. If the Attorney General concludes that it would be proper to defend invocation of the privilege in a case, and that invocation of the privilege would preclude adjudication of particular claims, but that the case raises credible allegations of government wrongdoing, the Department will refer those allegations to the Inspector General of the appropriate department or agency for further investigation, and will provide prompt notice of the referral to the head of the appropriate department or agency.

In civil cases, the review committee's recommendation should be made through the Associate Attorney General to the Deputy Attorney General, who shall in turn make a recommendation to the Attorney General.

Case 1:11-cv-00050-AJT-TRJ Document 102-1 Filed 05/28/14 Page 15 of 15 PageID# 1432

Memorandum for Heads of Executive Departments and Agencies Memorandum for the Heads of Department Components Subject: State Secrets Privilege
5. Reporting to Congress

Page 4

The Department will provide periodic reports to appropriate oversight committees of Congress with respect to all cases in which the Department invokes the privilege on behalf of departments or agencies in litigation, explaining the basis for invoking the privilege.

6. Classification Authority
The department or agency with classification authority over information potentially subject to an invocation of the privilege at all times retains its classification authority under Executive Order 12958, as amended, or any successor order.

7. No Substantive or Procedural Rights Created
This policy statement is not intended to, and does not, create any right or benefit. substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 1 of 32 PageID# 1433

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

__________________________________________

)

GULET MOHAMED,

)

)

Plaintiff,

)

)

v.

) Case No. 1:11-CV-0050

)

ERIC H. HOLDER, JR., in his official capacity as )

Attorney General of the United States, et al.,

)

)

Defendants.

)

__________________________________________)

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
EXHIBIT 2 – DECLARATION OF G. CLAYTON GRIGG

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 2 of 32 PageID# 1434
UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION UNITED ST ATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

GU LET MOHAMED, Plaint{[(, v.
ERI C H. HOLDER, JR., et al., D efendants.

Case No. l l-CY-00050

DECLARATION OF G. CLAYTON GRIGG SUBMITTED IN CAMERA, EX PARTE
l, G. Clayton Grigg, hereby declare:
I. (U) I am the Deputy Director for Operations of the Terrorist Screening Center (TSC). f
became Deputy Director at TSC in September 2013. I have been a Special Agent with the
Federal Bureau of Investigation (FBI) since 1997 and have served in a variety of criminal
investigati ve, counterterrori sm, and senior management positions.
2. (U) This declaration is based on my personal knowledge and my review and consideration o f
information available to me in my official capacity, including infom1ation furni shed by TSC
1 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a " need to know", as defined In 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result In civil penalty or other action. For U.S. government agencies, public disclosure is governed by S
u.s.c. S52 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 3 of 32 PageID# 1435
UNCLASSIFlED//LAW ENFORCEMENT SENSIT IVE SENSITIVE SECURITY INFORMATION
personnel, FBI Special Agents, Federal Air Marshals, and/or other government agency employees or contract employees in the course of their officia l duties. 3. (U) Each paragraph in this declaration is marked with letters indicating the level of classification and restrictions on dissemi nation applicable to that paragraph. Paragraphs marked with a '·U" arc unclassified. Paragraphs marked with "LES" are considered to be Law Enforcement Sensiti ve. Paragraphs marked with "SS I" are considered Sensitive Security Information. 4. (U) I am aware that plaintiff has asked the Court to compel the defendants, including the TSC to respond more full y to Plaintiff's interrogatories and to produce documents responsive to Plaintiff's requests for production. l vetified the responses to the P laintiff' s First Set of Interrogatories. I make this declaration to apprise the Court of the nature and scope of information conta ined in the Terrorist Screening Database (TSDB), and thereby explain how unduly burdensome the search for and production of the information sought by Pl aintiff would be.
(U) OVERVIEW OF THE CONSOLIDATED U.S. TERRORIST WATCHLIST 5. (U) The TSDB is the federal government's conso lidated ten-orist watchli st. The TSDB
contains names and other identifying information, such as name and date or birth of
2 UNCLASSIFIED//LAW ENFORCEMENT SENSIT IVE
SENSIT IVE SECU RITY JNFOR MAT ION
WARNING: This record contains Sensitive Security Information that Is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a " need to know", as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agenc.ies, public disclosure is governed by S U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 4 of 32 PageID# 1436
UNCLASSIFJED//LAW ENFORCEMENT SENSIT IVE SENSITIVE SECURITY INFORMATTON
individuals known or suspected to be or lo have been engaged in conduct constituting, in preparation for. in aid of, or related to teJTorism. The TDSB does not contain the underlying classified intelligence or other sensiti ve Law enforcement information that is the basis for the individual's inclusion in the database. 6. (U) The TSDB was created and is maintained by TSC, a multi-agency federal government center administered by the FBI. TSC receives identity infonnation about domestic terrorists from the FBI. Identity in fo rmation about suspected international terrorists is supplied by the National Counte11errorism Center (NCTC), which serves as the central agency for gathering and analyzing intelligence obtained by the U.S. Government pertaining to international teJTorism. 7. (U) Upon receipt o f this identity information, TSC reviews these nominations received from the FBI and NCTC. and conducts a review of the underlying intelli gence or information that demonstrates the nature of an individual 's or group's association with terrori sm or terrorist activities maintained by those entities to determine whether an individual meets the criteria for inclusion in the TSDB (tJ1is underlying information is known as derogatory information or ''derog"). Inclusion generall y requires a determination that there is reasonable suspicion to believe that the ind ividual is known or suspected to be or have engaged in conduct
3 UNCLASSTFI ED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a " need to know", as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by 5 U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 5 of 32 PageID# 1437
UNCLASSIFIED//LAW ENFORCEMENT SENS IT IVE
SENSITIVE SECURITY INFORMATION
constituting, in preparation for, in aid of: or related to terrorism. 1 That determination must be made on the basis of objective factual information. 8. (U//LES
-
9. (U//LES/SST)
4 UNC LASSIFIED//LAW ENFORCEMENT SENSIT IVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensit ive Security lnfotmatlon that Is cont,rolled under 49 C.f.R. parts 15 and 1520. No part of this record may be disclosed to persons without a "need t o know", as defined in 49 C.F.R. parts lS and 1520, e• cept with the written permission of the Administrator of the Transportation Security Administrat ion or the Secretary of Transportation. Unauthorized release may result In civil penalty or other action. For U.S. government agencies, p ublic disclosure is governed by S U.S.C. 552 and 49 CFR parts 15 a nd 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 6 of 32 PageID# 1438 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
l0. (U//LES/SSI)
11. (U//LES/SSl)
12. (U) TSC and the nominating agencies seek to ensure the continuing accuracy of the information in the TSDB. An intelligence or law enforcement agency that nominated an
5 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive security Information that is controlled under 49 C.F.R. parts 15 and 1S20. No part of this record may be d isclosed to persons without a "need to know", as defined In 49 C.F.R. parts 15 and 1520, e><cept with the written permission of the Adm inistrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result In civil penalty or other action. For U.S. government agencies, public disdosure is governed by S U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 7 of 32 PageID# 1439
UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
indi vidual to the TSDB because of suspected ties to international terrorism must promptly notify the NCTC of any information that might require modification or deletion of an individual from the TSDB, and the NCTC must then transmit that information to TSC. The FBl is Iikewise required to promptly notify TSC if it receives information suggesting the need to modify or delete a record from the TSDB with respect to an individual suspected of links to domestic terrorism. 13. (U) In addition to these required reviews by the nominating agencies, TSC performs its own reviews of the records of individuals included in the TSDB to verify that there is adequate support for the inclusion of an individual in the database. At the outset, as previously discussed, TSC conducts a review when an individual is newly nominated for inclusion in the TSDB, wh ich is referred to as an "ADD" nomination. The TSC may conduct additional reviews of the records of an individual included in the TSDB on other occasions. When a person in the TSDB is encountered- fo r example, when attempting to board a U.S.-bound flight-and the encounter yields new or previously unknown information, the TSC will conduct a review of that person's record . Similarly, ifTSC is provided with new intelligence or with any changes to the biographic, biometric or derogatory information for an individual in the TSDB, TSC conducts a review of that person's records. In both instances, any
6 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a "need to know", as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by 5 U.S.C. 5S2 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 8 of 32 PageID# 1440
UNCLASSIFIED//LAW ENFORCEMENT SENSITl VE SENSITIVE SECU RITY INFORMATION
resulting modifications or changes are referred to as a "MODIFY" nomination. Separately, the TSC provides US PERS included in the TSDB with an additional layer of analysis by conducting bi-annual reviews of all USPER records. This review consists of an analytical assessment of the underlying derogatory infonnation that supports the USPER's watchlisting status. 14. (U//LES/SS I)
7 UNCLASSI FIED//LAW ENFORCEMENT SENSIT IVE
SENSITIVE SECURITY INFORMATI ON
WARNING: This record contains Sensitive Security Information that ls controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a "need to know", as defined In 49 C.F.R. parts lS and 1S20, except with the written permiuion of the Administrator of the TraMportatlon Security Administration or the Secretary of Transporbtion . Unauthorized release mav result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by 5 U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 9 of 32 PageID# 1441
UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURJTY I NFORMATION
--
-
8 UNCLASS IFIED//LAW ENFORCEMENT SENSIT IVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contaln.s Sensitive Security Information that is controlled under 49 C.F.R. parts lS and 1520. No part of this record may be disclosed to persons without a "need to know", as defined in 49 C.F.R. parts 15 and 1520, except with the written permbsion of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthoriud release may result In civil penalty or other action. For U.S. government agencies, public disclosure is governed by S U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 10 of 32 PageID# 1442
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15. (U) The TS DB has some " free form" input fields, wh ich means that they do not follow a specific recognized template for infom1ation such as a "(123) 456-7890" phone number standard or a ··I 23-45-6789" standard for recording social security numbers. By the very nature of a free form input field, although TSC is able to search for information entered into such a .field, the fie lds arc not optimized for tracking of specific types of information. Free fonn input fi elds are text boxes which allow users to input unstructured text without restricting parameters other than the total number of characters. For example. in the ..Place of Birth"' field (which is not a required TSDB field). information entered in th is field ranges from no information, to cities, to country abbreviations (e.g., New York, United States, US or USA). Add itiona ll y, in certain circumstances. there may be multiple d ifferent inputs in the field. Although an individual can have only one place of birth, many records contain multiple entries in this field, based on reporting from the underlying source documents. In cases in which an individual claims multiple identities and uses conflicting infonnation, all identifiers, whether fraudu lent or not, are included in the TSDB. Conseq uently, the type and form of information entered in free form fields (if anything is entered at all) can vary greatly and the accuracy and consistency of any search cannot be guaranteed. The fact of free fom1 input fields makes searches (and therefore some interrogatory responses) more burdensome
9 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that is controlled under 49 C.F.R. parts lS and 1520. No part of
this record may be disclosed to persons without a "need to know", as defined in 49 C.F.R. parts 15 and 1520, except with the
written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by S U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 11 of 32 PageID# 1443
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a nd impractical, if not impossible. Searching for a key te rm would be limited by the infonnation in the field ; and only info rmation in the field matching the search term would be recogn ized. Searches for inte1Togatory responses would be at best incomplete and full accuracy could onl y be ach ieved by manual searches of all records.
(U) BURDEN ASSOCIATED WITH A REVIEW OF INFORMATION NOT TRACKEDINTHETSDB 16. (U) When Plaintiff seeks information that is not tracked by, or is not avail able in the TSDB. any attempt by TSC to discover the information requested would require the expenditure of a substantial amount of resources. A search for information not tracked by or available in the TSDB would requi re a review of two separate c lasses of info1mation: (a) the information available as part of an indi vidual ' s TSDB record; and, (b) the "derogatory'' information underlying an indi vidual' s nomination to the TSDB, which may be fou nd in a multitude of locations. A search for the infonnation requested by Plaintiff throu gh each of these classes of infonnation wou ld involve several different layers of review. The volume and specificity of the search requested also adds to the substantial burden.
10 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that Is controlled under 49 C.F. R. parts lS and 1520. No part of this record may be disclosed to persons without a "need to know", as defined in 49 C.F.R. parts 1S and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the secretary of Transportat ion. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by 5 U.S.C. S52 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 12 of 32 PageID# 1444
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(U) BURDEN ASSOC IATED WITH A COMPREHENSIVE REVIEW OF A TSDB RECORD 17. (U) With regard to information available as part of an individual's TSDB record. an analyst's search for the requested in fo rmation wo uld begin with a review of all of the information in a person·s TS DB record (i.e.. all information included in the TSDB about a person). A typical record includes all available information (including that which is at a minimum required to conduct effecti ve screening and any additional in formation provided or added thereto) entered about that person as of the date that the TSDB is reviewed. See, e.g.. Exh. 2 at 7 (sample TS DB entry). ln some instances. a review of the entire record may not be required because it is possible that an answer may be readily determined fro m a brief rev iew of the record . In other instances, tho ugh, the requested in fo nnation will not be apparent or exist at all , and so an analyst must review care full y the entirety of a person's record. 18. (U) In addition to the most current record, however, the TSDB , since 2006, also includes a ll prior versions of a person's record. Each time a record is edited. the T SDB saves the record as a new version. There fore, in order to review all information about a person in the TSDB, an analyst must review not onl y the current version of the record for a person in the TSDB, but a lso all previous versions of that person' s TS DB record that are available. The number of versions of a record fo r a person in the TSDB can vary widely. but some ind ividuals may
11 UNCLASSJFIED//LAW ENFORCEMENT SENSITIVE
SENS ITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that Is cont.rolled under 49 C.F.R. parts 15 and 1520. No part of this record may be d isclosed to persons without a "need to know", as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation . Unauthorize d release may result In civil penalty or other action. For U.S. government agencies, public disclosure Is governed by 5 U.S.C. 552 and 49 CFR parts lS and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 13 of 32 PageID# 1445
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SENSITIVE SECURITY INFORM.ATION have several hundred different versions. Cunently, there is no way for the TSC to determine efficiently the dit1erence between each of these versions without a version-by-version review; each version must be reviewed to detennine what changes to the record occurred with that version. 19. (U) The burden of reviewing an individual's TSDB record would vary depending on the length, age and complexity of tJ1e file, but regardless, any review would consume a substantial amount oftime.
20. (U//LES)
12 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security lnfonnation that is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a "need to know", as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary ofTransportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by 5 U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 14 of 32 PageID# 1446 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
21. (U//LES
13 UNCLASSIFIED//LAW ENFORCEMENT SENSJTIVE
SENSITIVE SECURITY INFO R MATI ON
WARNING: This record contains Sensitive Security Information that ls controlled under 49 C.F.I\. parts 15 and 1520. No part of this record may be d isclosed to persons without a "need to know", as defined In 49 C.F.R. parts 15 and 1520, e><cept with the written permission of the Administrator of the Transportation Security Administration or the secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by S U.S.C. SS2 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 15 of 32 PageID# 1447
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22. (U//LES)
-
23 . (U) The analyst would next conduct a review of all FBI holdings. This invo.lves a review of
any and all documents, called serials, housed in various FB I. databases. These databases may contain summaries ofa reporting or source document with an attachment providing further
14 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a "neecl to know", as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary ofTransportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, pui>lic disclosure is governed by 5 U.S.C. SS2 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 16 of 32 PageID# 1448
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SENSITIVE SECURlTY INFORMATION information on the particular topic or individual discussed. Older case Gies may not be readil y accessible. The case files may pre-date electronic filing o r storage for example and thus the information may not be stored on an FBI database. A special hand file search would be required in these instances and could be quite lengthy and time consuming. The process would involve identifying the physical records, determining where the records are located
and stored, and conducting a complete review of the records to identify any relevant
documents or infonnation. These source documents, including databases and paper based records, are typically classi fied and information stored therein is compartmentalized, subject to numerous dissem ination and access controls. For sensitive cases, only the case agent and
his immed iate case team have access to the information. A TSC analyst would therefore
have to request from and coordinate with the case agent to access the information in question.
(U//LES)
24. (U) Given the complexity and multiplicity of variables which could contribute to a record review, it is not possible for the TSC to make a precise estimate of how long it would take to conduct a review of an average TSDB record. Accordingly, I will utilize an artificial baseline estimate o f one hour per record to complete a comprehensive review of that individual TSDB record - for which the basis is theoretical as no such review o f thjs scale or
15 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Inform ation that is controlled under 49 C.F.R. parts lS and 1520. No part of this record may be disclosed to persons without a "need to know", as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other a ction. For U.S. government agencies, public disclosure is governed by 5 U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 17 of 32 PageID# 1449
UNCLASSIFIED//LAW ENFORCEMENT SENSITI VE SENSITIVE SECURITY INFORMATION
type has been previously attempted - taking into account each of the aforementioned factors, including the size and complexity of the record, how many of aforementioned steps (including duration and invo lvement of each step) and how many limitations are encountered (ex istence of source material, access to source material. etc.). Uncomplicated records with minimal information, few versions, and easily accessible underlying derogatory information could be reviewed in much less time. Conversely, some record reviews could take several hours or days. depending on complexity, impediments and limitations. This estimate shows that a competent. thorough and accurate completion of the searches requested in Plaintiffs interrogatories would levy an unreasonable burden on the Government. Significantly, there is also a distinct possibility that after exhausting all review resources, an analyst may not find responsive information at all. For instance, after a comprehensive review of the underlying source infonnation. information that would lead to a conclusion or reasonable inference regarding, for example. religious affiliation, place of birth, etc., may not exist. 25. (U//LES)
16 UNCLASSIFJED//LAW ENFORCEMENT SENSITJVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that is controlled under 49 C.F.R. parts 15and1520. No part of this record may be disclosed to persons without a "need to know'', as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by S
u.s.c. 552 and 49 CFR parts lS and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 18 of 32 PageID# 1450 UNCLASSIFIED//LA W ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
26. (U//LES)
17 UNCLASSIFIED//LAW EN.FORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains sensitive security Information that Is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a "need to know", as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary ofTransportation. Unauthorlud release may result In civil penalty or other action. For U.S. government agencies, public d isclosure is governed by 5 U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 19 of 32 PageID# 1451 UNCLASSlFIED//LA W ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
18 UNCLASSlFIED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a "need to know", as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by S U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 20 of 32 PageID# 1452 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
(U) THE BURDEN ASSOCIATED WITH THE TYPES OF INFORMATION SOUGHT BY PLAINTIFF 27. (U//LES/SSI)
19
UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARN ING: This record contains Sensitive Security Information that is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a "need to know", as defined in 49 C.F.R. parts 15 and lSZO, except with the written permission of the Administrator of the Transportation Secority Administration or the Secretary of Transportation . Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by S
u.s.c.552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 21 of 32 PageID# 1453 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
28. (U//LES/SSI)
20
UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a "need to know", as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of tne Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by S U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 22 of 32 PageID# 1454 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
29. (U//LES/SSI)
21
UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a "need to know", as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by S
u.s.c. 552 a nd 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 23 of 32 PageID# 1455
UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
30. (U) Furthe r, e ven if such a burdensome search for information were conducted, it may not yield complete, accurate. or reliable information. First, if the field is completed, the TSC could conduct a search for specific tem1s but, because the fie ld is free-form , the results may vary depending upon how the infom1ation was entered over time into the TSDB (e.g.. New York City, NY, United States, US, USA). Second, even if any such information could be provided the information does not provide an accurate, overall picture of the places of birth of U.S. persons on the No Fly List. For example, as of May 2014. only 26% of persons in the TSDB have a populated '·place of bi11h'' field, and this includes persons fo r whom multiple places of birth are li sted. Third , any data entered into the place of birth field wou ld be based on the reporting from the underlying records. The reporting on the underlying record itself may not be accurate or verifiable. The individual may have provided fraudulent infomrntion (e.g., in an immigration or visa application) or self-reported a place of birth that is not the person' s actual place of birth, thus the information in the record is inaccurate. but still part of the indi vidual's underlying record.
3 1. (U) Searchesfor citizenship h1formation. Several of the interrogatories- Interrogatories 4, 7. 8. and I0-seek information about or based upon the U.S. citizenship status of persons in the TSDB or on the No Fly List. The manner by which the TSDB records c iti zenship status
22 UNCLASSI FI ED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a "need to know", as d efined In 49 c.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transporta tion Security Administration or the Secretary of Transportation. Unauthorized release may result In civil penalty or other action. For U.S. government agencies, public disclosure is governed by 5 U.S.C. 552 and 49 CfR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 24 of 32 PageID# 1456
UNCLASSIFIED//LAW ENFORCEMENT SENSIT IVE SENSITIVE SECURITY INFORMATION
has changed over the years. As discussed in the interrogatory responses, the TSDB does not
track individuals as U.S. citizens. From 2003 through 2008, the TSDB did not track U.S. citizenship status. In 2008, the TSDB began tracking individuals as USPERs. which, as defined by Executive Order 12,333. includes both U.S. citizens and permanent resident aliens. Beginning on May 18, 2012, the TSDB also began tracking the lawful pennanent resident (LPR) status of indi viduals; however, it did so onJ y for individuals newly added to the TSDB. In other words, for individuals in the TSDB prior to May 18, 20 12. the TSDB did not track them by LPR status but rather only as a US PER or non-USPER. Additionally, there are instances in which infonnation about whether an individual is an USPER or non-USPER (since 2008), or as an LPR or non-LPR (since 20 12), is not verified but rather is presumed based upon other facts. T here are also instances in which the informat ion regarding the USPER or LPR status that is used for identifying purposes may be fraudulent. 32. (U) In light of the way in which the TSDB has tracked U.S. citizenship status over the years, Defendants have answered these interrogatories to the extent possible based on available US PER data after 2009.
33. (U//LES/SSI)
23
UNCLASSIFULD//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that ls controlled under 49 C. F.R. parts 15 and 1520. No part of this record may be dlsclosed to persons w ithout a Hneed to know", as defined In 49 C.F.R. parts 15 and 1520, except w it h the written permission o f the Administrator of the Transportation Security Administrat ion or the Secretary of Transportat.ion. Unauthorized release may r esult in civil penalty or other action. For U.S. government agencies, public disclosure is governed by S U.S.C. 552 and 49 CFR parts l S and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 25 of 32 PageID# 1457 UNCLASSIFIED//LA W ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
24
UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that is controlled under 49 C.F.R. parts lS and 1520. No part of this record may be disclosed to persons without a "need to know", as defined in 49 C.F.R. pam lS and 15ZO, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary ofTransportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by 5 U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 26 of 32 PageID# 1458 UNCLASS lFIED//LAW ENFORCEMENT SENSIT IVE SENSIT IVE SECURJTY INFOR MAT ION
34. (U//LES/SSI
25 UNCLASSI FIED//LAW ENFORCEMENT SENS IT IVE
SENS IT I VE SECURITY INFORMATI ON
WARNING: This record contains Sensitive Security Information that is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclos,ed to persons without a #need t o know", as defined in 49 C.F.R. parts lS and 1520, eiccept with the written permission o f the Administrator of the Transportation Security Administration or the Secretary of Transportation . Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by 5 U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 27 of 32 PageID# 1459
UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
35. (U) With regard to PlaintifP s request fo r informat ion about rejected nominations (Interrogatories 6 and I8), as explained in the interrogatory responses, the TSC does not. in the usual course of business. track or aggregate the basis for the rejecti on of a nomination for inclusion in the TSDB. When a nomination for incl usion in the TSDB is rejected. TSC records require only that a rejected nomination be identi lied as havi ng insufficient ·'minimum criteria.'' TSC personnel reviewing a nomination are able to provide additional details about the basis for the rejection of a nomination in a free-fo rm part of the record. However, because of the free form nature of this field, text provided may, may not, or may on ly partially address the basis for tbe rejection. Therefore, any purported statement about the basis for a rejection cannot be considered to represent the full or complete actual basis for the
26 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record contains Sensitive Security Information that is controlled under 49 C. F.R. parts 15 and 1S20. No part of this record may be disclosed to persons without a "need to know", a s de fined in 49 C.f.R. parts lS and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by 5 U.S.C. S52 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 28 of 32 PageID# 1460
UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
decision. The current version of TSDB stores a free-form/text reject comment field that may be used to label the reject reason (as described in paragraph 15, above). The TSC SOP (Standard Operating Procedure) requires some form of (unclassified) content in the comments field of all rejected nominations. The content does not require that lhe reason for the rejection be specified. This comment-but-not-reason requirement has always been standard procedure. Additionally, because the field is free-form/text, there is no uniform comment structure nor required level of detail regarding the particular reason(s) for the nomination rejection, thus there are potential inconsistencies in that documentation. As noted previously, TSC identifies an "add" nomination as an initial request to watchlist a new individual. Presently (under current TSC SOP), during the add nomination review process, a record may be rejected for one or more of the following reasons:
a) (U) Lack of Minimum rdentifying Criteria (MIC): the nomination does not contain sufficient identifying information to warrant inclusion in TSDB and supported systems;
b) (U) Lack of Minimum Substantive Derogatory Criteria (MSDC): the nomination does not contain sufficient derogatory information to warrant inclusion in TSDB and supported systems;
27 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING: This record conta ins Sensitive Security Information that is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a "need to know", as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by 5 U.S.C. 552 and 49 CFR parts lS and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 29 of 32 PageID# 1461
UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
c) (U) System/Business Rule: nomination failed TSDB system and/or business rules set-up to ensure proper entry of nominations (~, duplicate nominations already received by TSDB and nominations lacking a name).
36. (U) TSC's Data Management Team (DMT) has identified approximately 13,244 TSDB record rejections since 2009 (with an additional 939 records deleted through system/business rule computer automated action). A manual review of the record of a rejected nomination to determine the reason for a rejection should not typically be as time-consuming as the comprehensive evaluation associated with th e review of an entire TSDB record. However, assuming a theoretical baseline of approximately 15 minutes per record (with similar considerations described in paragraph 24 above, including record complexity and availability of information), and also based on the assumption that TSC would only view its internal records and not seek out any underlying source documents, such a review would consume approximately 3,546 analyst-hours. At that rate, in order to complete the review of 13,244 records within 6 months, four (4) senior analysts would be needed and staffed full-time (to the exclusion of any and all other operational activity) to complete the project. Such a burdensome search would be compounded should a review and analysis of underlying source documents be required.
28
UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
WARNING: Th is record contains Sensitive Security Information that is controlled under 49 C.F.R. parts 15 and 1520. No part of this record may be disclosed to persons without a "need to know'', as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by S U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 30 of 32 PageID# 1462
UNCLASSIFIED//LA W ENFORCEMENT SENS ITIVE SENSITIVE SECURITY lNFORMATlON
37. (U) A furthe r complication exists, however. The standards for watchli sting placement and the standard operating proced ures (SOP) associated with nominations have changed over the years. T he refore, any search or review of in formation regarding the basis for a rej ected nomination would have to be assessed based upon the watchlistng standards and operating procedures that were in effect as of the time of the no mination. for standards that have not been in effect for a long period of time, a nalysis and review of such records would require additional time because an analyst vvould have to apply outdated and (currently) unused watchlisting standards and operating procedures simply to conduct a competent reviev.., of the underlying info rmation on those older records to detennine if responsive info rmation ex ists. Analysts would be required to undergo training to achieve fan1ilia ri ty with each of the
a pplicable prior watc hlisting policies and guidance and remember to apply the appropriate
ones to the affected records for the particular time period in question to accurately attempt to recreate tbe environmental factors that existed at the time.
SUMMARY OF ESTIMATED TIME TO CONDUCT REVIEW SOUGHT BY PLAINTIFF 38. (U//LES/SST)
29
UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
WARNING: This record cont ains Sensitive Security Information that ls controlled under 49 C.F.R. parts lS and 1520. No part of this record may be disclosed to persons without a "need to know", as defined In 49 C.F.R. parts 15 and 1520, except with the written permis.sion o f the Administrator of the Transportation Security Admini.strat.ion or the Secretary of Transportation. Unauthorized release may result In c.ivil penalty or other action. For U.S. government agencies, public dlsdosure is governed by 5
u.s.c. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 31 of 32 PageID# 1463
UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY INFORMATION
.. -
-
30 UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURI TY I NFORMATI ON
WARNING: This record contains Sensitive Security Information that ls controlled under 49 C.F.R. parts lS and 1520. No part of this record may be disclosed to persons without a "need to know", as defined in 49 C.F.R. parts 15 and lSZO, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by S U.S.C. 552 and 49 CFR parts 15 and 1520.

Case 1:11-cv-00050-AJT-TRJ Document 102-2 Filed 05/28/14 Page 32 of 32 PageID# 1464

UNCLASSIFIED//LAW ENFORCEMENT SENSITIVE SENSITIVE SECURITY fNFORMATJON
Pursuant to 28 U.S.C. §1746, Tdeclare under penalty of perjury that the foregoing is true and correct.
Executed this 2.t- day of May, 2014, in Vienna, Virginia.

:~ ? <:::"
G. Clayton G

- ,..,. ~

Deputy Director for Operations

Terrorist Screening Center

31 UNCLASSIFIED// LAW ENFORCEMENT SENSITIVE
SENSITIVE SECURITY INFORMATION
WARNING : This record contains Sensitive Security Information that Is controlled under 49 C.F.R. parts lS and 1S20. No part of this record may be disclosed to persons without a "need to know'', as defined in 49 C.F.R. parts 15 and 1520, except with the written permission of the Administrator of the Transportation Security Administration or the Secretary of Transportation. Unauthorized release may result in civil penalty or other action. For U.S. government agencies, public disclosure is governed by S U.S.C. SS2 and 49 CFR parts 15 and 1520.

 
 Case 1:11-cv-00050-AJT-MSN Document 188 Filed 04/13/15 Page 1 of 5 PageID# 2278

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

__________________________________________

)

GULET MOHAMED,

)

)

Plaintiff,

)

)

v.

) Case No. 1:11-CV-0050

)

ERIC H. HOLDER, JR., in his official capacity as )

Attorney General of the United States, et al.,

)

)

Defendants.

)

__________________________________________)

NOTICE REGARDING NEW REDRESS PROCEDURES

As reflected in prior filings in this case, the Government has been in the process of

revising its redress procedures for claims involving denials of boarding on covered aircraft, see

49 C.F.R. § 1560.3, submitted through the Department of Homeland Security Traveler Redress

Inquiry Program (known as DHS TRIP). This revision process has been directed at improving

the redress procedures, including by increasing transparency relating to the No Fly List. In

connection with this effort, while the Government’s revision process was ongoing, certain

individual DHS TRIP inquiries — such as those submitted by plaintiffs in Latif v. Holder, No.

3:10-750 (D. Or.), Tarhuni v. Holder, No. 3:13-001 (D. Or.), and Fikre v. FBI, No. 3:13-899 (D.

Or.) — have been reopened and reevaluated under revised procedures. In accordance with

Defendants’ prior representation that they would notify the Court when these revised procedures

would be made available to similarly situated U.S. persons, Defendants now provide notice that

such procedures are now available.

Under the previous redress procedures, individuals who had submitted inquiries to DHS

TRIP generally received a letter responding to their inquiry that neither confirmed nor denied

Case 1:11-cv-00050-AJT-MSN Document 188 Filed 04/13/15 Page 2 of 5 PageID# 2279
their No Fly status. Under the newly revised procedures, a U.S. person who purchases a ticket, is denied boarding at the airport, subsequently applies for redress through DHS TRIP about the denial of boarding, and is on the No Fly List after a redress review, will now receive a letter providing his or her status on the No Fly List and the option to receive and/or submit additional information. If such an individual opts to receive and/or submit further information after receiving this initial response, DHS TRIP will provide a second, more detailed response. This second letter will identify the specific criterion under which the individual has been placed on the No Fly List and will include an unclassified summary of information supporting the individual’s No Fly List status, to the extent feasible, consistent with the national security and law enforcement interests at stake. The amount and type of information provided will vary on a case-by-case basis, depending on the facts and circumstances. In some circumstances, an unclassified summary may not be able to be provided when the national security and law enforcement interests at stake are taken into account.
This second letter will also provide requesters an opportunity to be heard further concerning their status. Written responses from such individuals may be submitted and may include exhibits or other materials the individual deems relevant. Upon DHS TRIP’s receipt of an individual’s submission in response to the second letter, the matter will be reviewed by the Administrator of the Transportation Security Administration (TSA) or his/her designee in coordination with other relevant agencies, who will review the submission, as well as the unclassified and classified information that is being relied upon to support the No Fly listing, and will issue a final determination. TSA will provide the individual with a final written determination, providing the basis for the decision (to the extent feasible in light of the national
2

Case 1:11-cv-00050-AJT-MSN Document 188 Filed 04/13/15 Page 3 of 5 PageID# 2280

security and law enforcement interests at stake) and will notify the individual of the ability to seek further judicial review under 49 U.S.C. § 46110.
The Government will be closely monitoring the initial implementation of these newly revised procedures on an interagency basis, and will, as circumstances warrant, consider whether further revisions to the process are necessary. As previously stated, the Government stands ready to apply the new redress procedures to Plaintiff should he choose to avail himself of them.

Dated: April 13, 2015

Respectfully submitted,

BENJAMIN C. MIZER ACTING ASSISTANT ATTORNEY GENERAL CIVIL DIVISION

DANA BOENTE UNITED STATES ATTORNEY

ANTHONY J. COPPOLINO DEPUTY BRANCH DIRECTOR FEDERAL PROGRAMS BRANCH

JOSEPH C. FOLIO III

SAMUEL M. SINGER

TRIAL ATTORNEYS

U.S. DEPARTMENT OF JUSTICE

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

20 MASSACHUSETTS AVENUE, N.W.

WASHINGTON, D.C. 20001

TELEPHONE: (202) 305-4968

FAX:

(202) 616-8460

E-MAIL:

joseph.folio@usdoj.gov

_/S/______________________________ R. JOSEPH SHER ASSISTANT UNITED STATES ATTORNEY OFFICE OF THE UNITED STATES ATTORNEY JUSTIN W. WILLIAMS UNITED STATES ATTORNEYS BUILDING 2100 JAMIESON AVE., ALEXANDRIA, VA. 22314 TELEPHONE: (703) 299-3747
3

Case 1:11-cv-00050-AJT-MSN Document 188 Filed 04/13/15 Page 4 of 5 PageID# 2281

FAX: E-MAIL

(703) 299-3983 JOE.SHER@USDOJ.GOV

ATTORNEYS FOR THE DEFENDANTS

4

Case 1:11-cv-00050-AJT-MSN Document 188 Filed 04/13/15 Page 5 of 5 PageID# 2282

CERTIFICATE OF SERVICE
I certify that I electronically filed the foregoing with the Clerk of Court using the
CM/ECF system, which will send a notification of such filing (NEF) to the following counsel of
record:
Gadeir I. Abbas The Law Office of Gadeir Abbas
1155 F Street NW, Suite 1050 Washington, DC 20004 Phone: 720-251-0425 Fax: 720-251-0425 gadeir.abbas@gmail.com

DATED: APRIL 13, 2015

_/S/______________________________

R. JOSEPH SHER

ASSISTANT UNITED STATES ATTORNEY

OFFICE OF THE UNITED STATES ATTORNEY

JUSTIN W. WILLIAMS UNITED STATES

BUILDING

2100 JAMIESON AVE.,

ALEXANDRIA, VA. 22314

TELEPHONE: (703) 299-3747

FAX:

(703) 299-3983

E-MAIL

JOE.SHER@USDOJ.GOV

ATTORNEYS’

5

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

GULET MOHAMED,
Plaintiff, V. ERIC H. HOLDER, JR., et al,
Defendants.

)

) )

)

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

) )

) )

)

MEMORANDUM OPINION

Plaintiff Gulet Mohamed (Plaintiff or "Mohamed") has challenged his alleged placement

on the No Fly List. The No Fly List is a list of persons who are precluded from flying on

commercial aircraft because they are suspected terrorists. Compiled by the Terrorism Screening

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

(TSA) through commercial airlines, the No Fly List is intended to ensure aircraft safety as well

as to restrict the ability of suspected terrorists to move freely in furtherance of terrorist activities,

within the United States and internationally. Mohamed is an American citizen who was denied boarding on an international flight by an American carrier. He has not been convicted of,

charged with or alleged to have committed a criminal offense related to terrorism or otherwise;

and when applied to such an American citizen, the No Fly List represents, as the United States

concedes, an unprecedented application of Executive branch authority in the name of national

security through secret administrative proceedings based on undisclosed information according

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

placement on the No Fly List. That constitutional inquiry presents unsettled issues that are
complicated in their resolution by the criteria used to compile the No Fly List and the classified
information that, of necessity, is used to determine whether a person satisfies that criteria.
Presently pending are the parties' cross-motions for summary judgment with respect to
Mohamed's claim in Count 3 of his Fourth Amended Complaint that he was denied a meaningful
opportunity to challenge his inability to fly on commercial aircraft, in violation of his Fifth
Amendment procedural due process rights. ^Specifically, Mohamed claims that he has not been
providednotice of his placement on the No Fly List, either before or after he was denied
boarding, or a meaningful opportunity to refute any derogatory information that was used to
place him on theNo Fly List. He claims, in effect, thathe hasbeendenied the opportunity to establish that he poses no threat to commercial aviation. He further claimsthat as result of these
constitutional violations, he has been denied his liberty interests in (1) traveling by air, (2) being
able to return to the United States after travelling abroad; and (3) being free from false
govemmental stigmatization as a terrorist. See Fourth Amended Complaint, Doc. No. 85, K64.
In their summary judgment motion, defendants claim that the Department of Homeland Security's Traveler Redress Inquiry Program (DHS TRIP), the review process by which a person
denied boarding may request a review of his status, was constitutionallyadequate, any
constitutional infirmities with that process have been cured through revised review procedures,
' The Fourth Amended Complaint setsforth three causes of action titled: (1) Violation of U.S. Citizens' Right to Reside in United States and to Reenter the United States from Abroad in
violation of the Fourteenth Amendment (Count 1 - Right to Citizenship); (2) Unlawful Agency Action in violation of 5 U.S.C. §§ 702, 706 (Count 2 - Unlawful Agency Action); and (3) Failure to Provide Pre or Post Deprivation Notice and Hearing in violation of the Fifth Amendment (Count 3 - procedural due process). The Court previously dismissed Count 1 in part as it related to Plaintiffs specific claim that he was unconstitutionally denied reentry into the United States in January 2011. See Mohamed v. Holder^ 995 F. Supp. 2d 520 (E.D.Va. 2014).

and Mohamed's procedural due process claims are therefore moot. They also contend in the alternative that should the Court not grant summary judgment in their favor, Mohamed's procedural due process claims should nevertheless be dismissed on the basis of the state secrets privilege. Doc. No. 159.
For the reasons stated herein, the defendants' Motion for Partial Summary Judgment is DENIED and Plaintiffs Motion for Partial Summary Judgment as to Count 3 is GRANTED in part and DENIED in part. Briefly summarized, the Court first concludes that DHS TRIP, as that process existed at the time that Mohamed was denied boarding, did not provide a constitutionally adequate opportunityto challenge his denial of boarding. Second, after a review of documents and information submitted by the defendants in camera and exparte, the Court concludes that there is no information protected from disclosure under the state secrets privilege that is necessary either for Mohamed to establish liability under his procedural due process claims or
for the defendants to establish an available defense to that claim. Third, based on the current
record, the Court cannot conclude as a matter of law whether the revised DHS TRIP process now available to Mohamed is constitutionally adequate.
The Court further concludes that the constitutional adequacy of the revised DHS TRIP cannot be made until after Mohamed requests a review of his status under that revised process, the TSC and TSA respond, and an administrative record is compiled that allows a reviewing court to assess, to the extent it deems appropriate: (1) whether Mohamed has received notice that he is, in fact, on the No Fly List; (2) if on the No Fly List, the level of factual detail provided to Mohamed concerning the reasons for his inclusion on the No Fly List, including whether he has been provided the specific criteria relied on and the specific factual findings used to satisfy that specific criteria; (3) whether the factual information provided allow a reasonable opportunity

to rebut any derogatory information used for his placement on the No Fly List; (4) what factual
information was withheld from Mohamed concerning the reasons for his inclusion, the reasons for withholding that information and whether additional material information could have been provided, either directly or through alternative means, such as summaries or redacted documents; (5) what information Mohamed provided or had an opportunity to provide, and in what form, including whether he appropriately responded to any specific requests for information; and (6) whether Mohamed's status is at the appropriate level of security restrictions for the level of threat sufficiently established by that administrative record.
I. Background
The factual and procedural history of this case are set forth in detail in this Court's January 22, 2014Memorandum Opinion. See Mohamed v. Holder, 995 F. Supp. 2d 520, 522-27 (E.D.Va. 2014).
Briefly summarized, Mohamed is a U.S. citizenof Somali descent, who alleges that in 2009, at the age of 16, he temporarily left the United States to travel to Yemen, Somalia and Kuwait in order to meet family, study Arabic and attend school. Beginning on December 20, 2010, Kuwait authorities detained him at a deportation facility, during which time he alleges he was interrogated, beaten and tortured. FBI agents visited him twice at the deportation facility, once on December 28, 2010 and again on January 12, 2011. On January 16, 2011, Mohamed's family purchased a ticket for him to return to the United States at the suggestion of Kuwaiti
officials, who delivered the ticket to Mohamed and transported him to the airport, where he was denied boarding. On January 18, 2011, Mohamed filed this action against the defendants, which include the heads of the Department of Justice (DOJ), Federal Bureau of Investigation (FBI), Terrorist Screening Center (TSC), Department of Homeland Security (DHS), and the

Transportation SecurityAdministration (TSA) (hereafter "the defendants"), seeking, inter alia,
emergency relief to return to the United States. Doc. No. 1. On January 20,2011, the defendants
advised the Court that arrangements had been made for Mohamed to return to the United States.
Mohamed returned to the United States via commercial airliner on January 21,2011.
The process for inclusion on the No Fly List has also been discussed in previous
opinions.^ SeeMohamedv. Holder.^o. 1:1 l-CV-50 AJT/TRJ, 2011 WL3820711, at *10 (E.D.
Va. Aug. 26, 2011); Mohamed v. Holder, 995 F. Supp. 2d 520, 525-27 (E.D.Va. 2014). Briefly
summarized, the Terrorist Screening Center ("TSC") is responsible for maintaining the Terrorist
Screening Database (TSDB), of which the No Fly List is a subset. The standard for inclusion in
the TSDB is "reasonable suspicion to establish that the individual is a known or suspected
terrorist." Doc. No. 158-1,Grigg Decl. at H15. The defendants have alternatively phrased this
standard as "knownor appropriately suspected to be or to have engaged in conduct constituting,
in preparation for, in aid of, or related to terrorism." Doc. No. 158-2, Declaration of Michael
Steinbach, Assistant Director of FBI Counterterrorism Division, at K12. See HSPD-6. Certain
government agencies may nominate individuals to be included on the TSDB. Nominations must
^Congressional authorization for the No Fly Listhas been limited. Following 9/11, Congress
directed that the TSA, "in consultation with other appropriate Federal agencies and air carriers, establish policies and procedures requiring air carriers (A) to use information from government
agencies to identify individuals on passenger listswho may be a threatto civil aviation or national security; and (B) if such an individual is identified, notify appropriate law enforcement agencies, preventthe individual from boarding an aircraft, or take other appropriate action with respect to that individual." 49 U.S.C. § 114(h)(3). It mandated, however, that DHS "shall establish a timely and fair process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraftbecausethey were wrongly identified as a threat under the regimes utilized by the Transportation Security Administration, United States Customs
and Border Protection, or any other office or component of the Department of Homeland Security." 49 U.S. § 44926(a). DHS is also required to "establish a procedure to enable airline passengers, who are delayed or prohibited from boarding a flight because the advanced passenger prescreening system determined that they might pose a security threat, to appeal such determination and correct information contained in the system." 49 U.S. 44903(j)(2)(C)(iii). DHS TRIP was established by the Executive branch in response to these congressional mandates.

be supported by sufficient identifying information as well as substantive criteria, also known as
"derogatory information."
To be included on the No Fly List subset, there must be a reasonable suspicion that the
individual meets additional, heightened derogatory criteria beyond that required for inclusion in
the TSDB, namely, reasonable suspicion that the individual is a known or suspected terrorist
based on meeting one of the following criteria:
The individual poses a threat of (1) committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1)) or an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5)) with respect to an aircraft; (2) committing an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5)) with respect to the homeland; (3) committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1)) against any U.S. Government facility abroad and associated or supporting personnel, including U.S. embassies, consulates and missions, military installations, U.S. ships, U.S aircraft, or other auxiliary craft owned or leased by the U.S. Government; or (4) engaging in or conducting a violent act of terrorism and who is operationally capable of doing so.
Doc. No. 158-1, Declaration of G. Clayton Grigg, Deputy Director for Operations of TSC, at H
18. The reasonable suspicion must be supported by "articulable" intelligence and must be based
on the "totality of circumstances" and intelligence reviewed.
Over the course of the litigation, defendants have filed several motions to dismiss this
action in its entirety on a variety of grounds. See Doc. Nos. 10, 22, 58 (challenging Mohamed's
standingto bring the action, the Court's jurisdiction over the action, and the legal sufficiencyof
Mohamed's allegations). With respect to jurisdiction, by Order dated August 26, 2011, the Court
dismissed certain claims and transferred others to the Fourth Circuit Court of Appeals on the
grounds that the Fourth Circuit Court of Appeals had exclusive jurisdiction pursuant to 49 U.S.
C. §49110(a), See Mohamedv. Holder, No. 1:1l-CV-50 AJT/TRJ, 2011 WL 3820711, at *10 (E.D. Va. Aug. 26, 2011). On May 28, 2013, the Fourth Circuit concluded that its exclusive
jurisdiction pxirsuant to 49 U.S. C. §49110 did not extend to claims and remedies against TSC

and remanded the case for further proceedings. Doc. No. 45.^ On January 22, 2014, following
that remand, the Court held that Mohamed had standing to bring his remanded claims and that his remanded claims were ripe for review, despite Mohamed's failure to request review of his status under the DHS TRIP. It also granted the defendants' motion to dismiss Mohamed's claim, asserted in Count 1, that he was prevented from re-entering the United States in January 2011in violation of his constitutional right of return to the United States. It denied the motion to dismiss any remaining substantive due process claims in Count 1, his Administrative Procedure Act claim in Count 2, and his procedural due process claims in Count 3. 995 F. Supp. 2d. at 539.
On May 28,2014, the defendants filed a motion to dismiss the case in its entirety based on their invocation of the state secrets privilege. See Doc. Nos. 104-105. On September 15,2014, after reviewing the declarations of certain high level officials from the TSC, as well as the Attorney General, the Courtordered the defendants to submit for exparte, in camera review those documents pertainingto the due process claims that they considered covered by the state secrets privilege and law enforcement privilege. Doc. No. 139. The defendants complied and on October 30, 2014, after reviewing those documents in camera, the Court concluded that those documents were not "so related to [Mohamed]'s procedural due process claims as to prevent either the plaintiffor the defendant from presenting or defending against those claims withoutthe use of any of [those] documents." The Court therefore denied the defendants' motion to dismiss Mohamed's procedural due process claims based on defendants' invocation of the state secrets privilege. Doc. No. 144. The Court specifically advised, however, that "to the extent that the defendants contend during the actual adjudication of these claims, within the context of either summary judgment or any evidentiary hearing, that it cannot adequately defend against such
Its mandate became effective on July 22, 2013. Doc. No. 47.

claims without the use of a specific document claimed to be protected under the state secrets
privilege, the Court will consider that claim in that specific context." Id.
On December 9, 2014, cross-motions for summary judgment were filed as to Mohamed's
procedural due process claim. Doc. Nos. 158,161. In their motion for summary judgment,
defendants again invoked the state secrets privilege to dismiss the procedural due process claim
as an alternative grounds for their summary judgment motion. On January 30, 2015, the Court
heard oral argumenton those cross-motionsfor summaryjudgment. Following that hearing, it
scheduledan exparte, in camera closed hearing "to provide the defendants with the opportunity
to provide and the Court to consider additional information concerning the defendants' claims
concerning the existence of statesecrets andtheirrelevance to the pending procedural due
process claims." Doc. No. 173. The Court also identified in that Order specific issues to be
discussed in that closed hearing, which the Court held on March 17, 2015. See Id. at p. 2-3.''
The Court identified the following issues to be discussed in closed session:
(1) state secrets or national security information the defendants may wish to present to the Court not reflected in the documents previously filed exparte, in camera
and under seal;
(2) how the under seal documents as to which the state secrets privilege is claimed precludes adjudication of the procedural due process claimswithouttheir use and
disclosure;
(3) how the defendants apply the criteria for placement on the No Fly List consistent with the restrictions listed in its publically disclosed criteria;
(4) any criteria other than those publicly disclosed for the purposes of placing United States citizens on the No Fly List;
(5) how defendants distinguish between United States citizens that are placed on the No Fly List and those placed on the Selectee List and the need to have a level of security beyond those protections afforded through the Selectee List;
(6) whether, and if so, how national security considerations make it impractical or otherwise undesirable to submit for exparte, in cawera judicial review and approval the placement of United States citizens on the No Fly List, either before a citizen's placement on the No Fly List or within a specific time period after placement on the No Fly List;
and
8

II. Legal Standard
Summaryjudgment is appropriate only if the record shows that "there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., All U.S. 242, 247-48 (1986);
E\ans V. Techs. Apps. & Serv. Co.. 80 F.3d 954, 958-59 (4th Cir.1996). The party seeking
summary judgment has the initial burden to show the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material fact exists "if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248. Once a motion for summary judgment is properly made and
supported, the opposing party has the burden of showing that a genuine dispute exists.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The facts shall
be viewed, and all reasonable inferences drawn, in the light most favorable to the non-moving
party. Id. at 255; see also Lettieri v. Equant Inc., 478 F.3d 640, 642 (4thCir.2007). To defeat a properly supported motion for summary judgment, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial."Anderson, 477 U.S. at 247^8. Whether a
fact is considered "material" is determined by the substantive law, and "[o]nly disputes over
facts that might affect the outcome of the suit underthe governing law will properly preclude the
entry of summary judgment." Id. at 248.
(7) whether, and if so, how national security considerations make it impractical or otherwise undesirable for United States citizens who challenge their inability to board a commercial aircraft to receive information concerning their placement on the No Fly List under procedures comparable to those employed in criminal matters under the Classified Information Procedures Act ("CIPA"); and
(8) any other national security information that the defendants believe is necessary for the Court to consider in connection with its consideration of the procedural due process claims and any remedies that may be ordered with respect to any constitutional violations that the Court may ultimately find.

III. Analysis
A. The Procedural Due Process Claim (Count 3):
In Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the Supreme Court outlined the
applicable analysis for procedural due process claims as follows:
[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would
entail.
See also Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) ("The Mathews calculus [] contemplates a judicious balancing of these concerns, through an analysis of the risk of an erroneous deprivation of the private interest if the process were reduced and the probable value, if any, of additional or substituteprocedural safeguards.") (internal citations omitted).
For the purposes of the Mathews constitutional analysis, the Court concludes that Mohamed's liberty interests implicated by any placement on the No Fly List are strong and the government's interestin protecting the safety of commercial aircraft is compelling. The Court
also concludes that the administrative process used to place a person on the No Fly List has an
inherent, substantial risk of erroneous deprivation, particularly with respect to a total exclusion through the No Fly List as opposed to heightened security screening through the Selectee List; and that additional procedures, other than those under DHS TRIP, as originally structured, would
reduce the risk oferroneous placement onthe No Fly List. ^
^DHS TRIP, as it existed when Mohamed was denied boarding, provided no opportunity to learn
of or rebut any derogatory information or, indeed whether that person was, in fact, on the No Fly List. Rather, when a person requested review of his status, DHS TRIP first determined whether
10

The Court previously wrote at length concerning the nature of these competing interests within the context of defendants' motion to dismiss Plaintiffs procedural due process claim. See Mohamed v. Holder, 995 F. Supp. 2d at 527-533, which is incorporated herein by reference. The District Court in Latifv. Holder, 28 F. Supp. 3d 1134 (D. Oregon 2014) has also analyzed the constitutional adequacy of the DHS TRIP process, as it existed at the time Mohamed was denied boarding and filed this lawsuit. The Court adopts that analysis and can only marginally add to it with respect to the following issues that remain relevant to an assessment of the revised DHS
TRIP.
1. Plaintiffs claimed travel related rights: Central to the Mathews analysis in this case is the parties' dispute over the nature of the travel related liberty issues at stake. Mohamed refers to his right to travel as a "bundle of rights" that includes his right to "exit and return to the United States." Doc. No. 161 at p. 8. Mohamed asserts that the No Fly List has had the practical effect of preventing international travel. Defendants characterize Mohamed's liberty interest in international travel as "weak" and therefore subject to reasonable government regulation and subordinate to national security concerns. They distinguish international travel from the fundamental right to interstate travel, as
recognized in Saenz v. Roe, 526 U.S. 489,498 (1999) ("the *constitutional right to travel from one State to another' is firmly embedded in our jurisprudence."). They point to decisions that have recognized that a traveler does not have a constitutional right to "the most convenient mode
the traveler's identity is an identity listed in the TSDB. If it were a match, the TSC Redress Unit
then reviewed available information to determine whether the traveler is an exact match to a
TSDB identity and whether the traveler's status should be modified or maintained. DHS TRIP then would send the traveler a determination letter, which did not disclose whether the traveler is in fact on the No Fly List or any reasons why the person may be on the No Fly List, The letter constituted final agency action subject to judicial review in the U.S. Court of Appeals pursuant to 49 U.S.C. §46110.
11

of travel." See, e.g., Gilmore v. Gonzalez, 435 F.3d 1125,1137 (9th Cir. 2006) (plaintiff "does not possess a fundamental right to travel by airplane even though it is the most convenient mode of travel for him."); Town ofSouthold v. Town ofEast Hampton, 477 F.3d 38, 54 (2d Cir. 2007) ("travelers do not have a constitutional right to the most convenient form of travel[, and] minor restrictions on travel simply do not amount to the denial of a fundamental right"); Cramer v.
Skinner, 931 F.2d 1020, 1031 (5^"^ Cir. 1991) ("Minor restrictions ontravel simply do not amount
to the denial of a fundamental right that can be upheld only if the Government has a compelling justification.").
The general right of free movement is a long recognized, fundamental liberty. See Kent v. Dulles, 357 U.S. 116,125 (1958) ("The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without the due process of lawunder the FifthAmendment"); Zemel V. Rusk, 381 U.S. 1, 15 (1965). See also Kerry v. Din, 135 S. Ct. 2128, 2133 (2015) (plurality opinion, Scalia, J) (referencing Blackstone's recognition that "the"personal liberty of individuals" protected under the Magna Carta "consist[ed] in the power of locomotion, of changing situation, or removing one's person to whatsoever place one's owninclination may direct; without imprisonment or restraint.").
Mohamed also has a protected liberty interest in traveling internationally. "Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart
of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic to our scheme of values." Kent v. Dulles, supra, 357 U.S. at 126. It must be recognized that a
meaningful right of travel in today's world cannot be understood as cleanly divided between interstate and international travel or a right without any correlative rights with respect to the usual and available means in a modem society. To the extent courts have discussed the lack of
12

rights with respect to the "the most convenient mode" of transportation, they have done so, not within the context of a total ban, but with respect to reasonable regulations that still facilitated access and use. See, e.g. Gilmore, supra, 435 F.3d at 1137. Given the wide ranging impact on a person, previously discussed in this case, see 995 F. Supp. 2d at 528, the rights implicated by Mohamed's presumed placement on the No Fly List are strong and deserving of strong protections against unnecessary governmental restrictions.
2. Plaintiffs Reputational Interests: Coupled with Mohamed's travel related rights are his reputational interests and his claims of reputational harm. A person has certain rights with respect to governmental action that alters or extinguishes a right or status previously recognized by state law, known as a "stigma-plus." Paul V. Davis, 424 U.S. 693, 711 (1976). See Evans v. Chalmers, 703 F.3d 636, 654 (4th Cir. 2012) ("[A] plaintiff bringing a "stigma-plus" claim under Paul must allege both a stigmatic statement and a "state action that 'distinctly altered or extinguished' " his legal status."). The Court previously discussed "the broad range of consequences that might be visited upon such a person if that stigmatizing designation were known by the general public." 995 F. Supp. 2d at
529.
The Court has previously ruled that a person's listing on the No Fly List, in itself, does not infringe any protected liberty interest. See Id. at 528. There is also a substantial question whether the dissemination of the No Fly List within or among government agencies or to
airlines, standing alone, would satisfy the public disclosure prong of a stigma-plus claim. ^See
Johnson v. Martin, 943 F.2d 15,17 (7th Cir. 1991) (Intra- and inter-govemmental communications are not public statements for the purposes of showing stigmatization); Tarhuni
^Mohamed points to the No Fly List's dissemination to agencies throughout the U.S. government, to 22 foreign governments, and to ship captains. Doc. No. 161 at p. 13.
13

V. Holder, 8 F. Supp. 3d 1253, 1275 (D. Or. 2014). Nevertheless, a person's placement on the No Fly List would likely become known over time to persons beyond government agencies or the airlines, with accompanying adverse consequences visited upon a restricted person. For example, any member of the general public who would actually witness a person being excluded from boarding might draw an adverse inference concerning that person's reputation. More likely to inflict reputational harm are other scenarios not hard to imagine where a person's inability to fly would become known to those outside of government and have adverse consequences, such as to a person's actual or prospective employer who would call upon that personto travel by air, or to extended family members whom a person might not be able to visit except through air travel, or to members of religious, professional or social organizations in which participation might require air travel. Thus, while Mohamed's constitutionally protected reputational interests
are not as strong as his travel related interests, and both are subject to appropriate restrictions,^
they underscore the need overall for strong procedural protections for Mohamed's travel related
rights.
3. Pre-deprivation notice or judicial review. Mohamed argues that the nature of the defendants' procedures will necessarily lead to mistaken determinations and erroneous placements on the No Fly List and that additional procedures wouldreduce that risk, without impairing legitimate governmental interests, even where there are national security concerns, reflecting the sentiments expressed in such cases as
^See, e.g., ZemeU supra, 381 U.S. at 15 (the petitioner's due process rights were notviolated
when the Secretary of State refused to validate his visa for travel to Cuba); Haig v. Agee, 453 U.S. 280, 306 ("the freedom to travel abroad with a.... passport issued by the sovereign is subordinate to national security and foreign policy considerations; as such, it is subject to reasonable governmental regulation."). See also Califano v. Aznavorian, 439 U.S. 170,176-77 (1978) ("legislation which is said to infringe the freedom to travel abroad is not to be judged by the same standard applied to laws that penalize the right of interstate travel").
14

Hamdi v. Rumsfeld, 542 U.S. at 528 (holding unconstitutional the government procedures used to determine whether an American citizen may be detained as an "enemy combatant" since they did not sufficiently provide notice of the facts for that classification and an opportunity to rebutthose factual assertions before a neutral decision maker); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 171 (1951) (Frankfurter, J., concurring) ("Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss
notice of the case against him and opportunity to meet if); Hernandez v. Cremer, 913 F.2d 230, 238 (5th Cir. 1990) ("The extremely broad discretion delegated to the [government] concerning control over our nation's borders and the lack of any written guidelines regarding the exercise of that discretion render the decision-making process virtually standardless."); Gete v. LN.S.,\2\ F.3d 1285,1297 (9th Cir. 1997) ("v^thout knowing the exact reasons ... as well as the particular statutory provisions and regulations they are accused of having violated, they may not be able to clear up simple misunderstandings or rebut erroneous inferences drawn by [the government]"); see also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) ("An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."). More specifically, Mohamed contends that under Fourth Circuit law some predeprivation process is required, relying on Sciolino v. City ofNewport News, 480 F.3d 642, 652 (4th Cir. 2007), where the court ruled that a post-deprivation hearing is not sufficiently "meaningful" to allow a dismissed public employee to clear his name. See also Rusu v. INS, 296 F.3d 316, 321 (4th Cir. 2002) (asylum petitioners must be afforded an opportunity to be heard);
15

Perry v. Norfolk, No. 98-2284, 1999 WL 731100 (4th Cir. Sept. 20, 1999) (placement on child abuser registry must be preceded by notice and hearing). In response to these positions, the defendants contend that even under the pxQ-Latif DHS TRIP there are sufficient safeguards to make the risk of erroneous deprivation low since two agencies - the nominating agency and TSC - must review the nomination to ensure that there is sufficient supporting information, and the supporting information requires concrete, "appropriately restrictive" criteria to be met. See Hodel V. Va. Surface Mining & Reclamation Ass % 452 U.S. 264, 301 (1981). They further contend that any constitutional inadequacies in those procedures have been eliminated under the currently operating DHS TRIP.
The lack of any independentreview of No Fly List placements by a neutral decisionmaker, coupled with the limited disclosures and opportunity to respond by a person who requests that his status be reviewed, raise a substantial risk of erroneous deprivation, regardless of the internal procedures used to determine placement on theNo Fly List. Onthe other hand, predeprivation notice andhearing would alertan individual, andthrough him or her, others, whom the government suspects of terrorist activity, and thereby compromise on-going investigations and endanger those persons involved in those investigations. SeeIbrahim v. DHS, — F.Supp.2d -, 2014 WL 6609111, at *18 (N.D. Cal. Jan. 14, 2014) ("the Executive Branch must be free to maintain its watchlists in secret, just as federal agents must be able to maintain in secret its investigations into organized crime, drug trafficking organizations, prostitution, child-
pornography rings, and so forth. To publicize such investigative details would ruin them.").^
^The defendants point out that in 2013 "a substantial number of U.S. persons onthe No Fly List
never attempted to board a commercial aircraft" and the Court generally agrees with their assessment that such notice might cause suspects to "lower their profile, change their location, or take other countermeasures to avoid detection and circumvent surveillance," long before the
16

Given the effects pre-deprivation notice would have on the government's compelling interests, the Court concludes that a balancing of the respective interests does not weigh in favor
ofpre-deprivation notice. See GRF v. O'Neill, 315 F.3d 748, 754 (7^ Cir. 2002) ("Risks oferror
rise when hearings are deferred, but these risks must be balanced against the potential for loss of life if assets should be put to violent use."). The Court therefore concludes that so long as postdeprivation notice and hearing are sufficiently robust, pre-deprivation notice and hearing are not constitutionally required. See Gilbert v. Homar, 520 U.S. 924, 930 (1997) ("on many occasions, [] where a State must act quickly, or where it would be impractical to provide pre-deprivation process, post-deprivationprocess satisfies the requirements of the Due Process Clause"); Fields
V. Durham, 909 F.2d 94, 97 (4^ Cir. 1990) (to determine whether a procedural due process
violation has occurred, courts must consult the entire panoply of pre-deprivation and post-
deprivation process provided by the state). See also Holy Land Found. For Relief& Dev. v. Ashcroft, 219 P. Supp. 2d 57 (D.D.C. 2002), aff'd, 333 F,3d 156,163-64 (D.C. Cir. 2003) (holding that pre-deprivation process is not constitutionally required within the contextof immediate asset blocking to prevent financial assistance to terrorism); but cf. Haramain Islamic Found. V. Dep't ofTreasury, 686 F.3d 965 (9th Cir. 2011) (where there are no national security concerns, OFAC must provide a Specially Designated Global Terrorist(SDGT) designee a "timely" statement of reasons for the investigation); Nat'l Council ofResistance ofIran v. Dep't ofState, 251 F.3d 192 (D.C. Cir. 2001) (absent adequate showing to the court that earlier notification would impinge on security and foreign policy goals, target organizations for Foreign
Terrorist Organization (FTO) designation must receive pre-deprivation notice that they are under
government's interest in their activity might otherwise have come to their attention. Doc. No. 159atp.l7.
17

consideration for designation, the unclassified portions of the administrative record relied on in making the determination and an opportunity to rebut the administrative record).
The Court has also considered the constitutional need for pre-deprivation judicial review, or review by some other independent decision maker comparable, in effect, to those constitutionally required exparte, in camera procedures associated with the Fourth Amendment's warrant requirement for searches and seizures. See, e.g., United States v. Jones, 132 S. Ct. 945, 947 (2012). Given the liberty interests at stake and the substantial and enduring impacta No Fly List placementhas on those liberty interests, much recommends a pre-
deprivation exparte, in camerajudicial review, either before or within a reasonable time aftera person is listed on theNo Fly List. Forexample, unlike a Title III wiretap, or GPS vehicle tracking, the No Fly List represents the imposition of an openended disability, the effects of which can be far reaching and not undone easily, even after one is removed from the List. The prospects for disclosure through that sealed process to affected individuals would be
exceptionally low.
The defendants strongly objectto pre-deprivation judicial reviewprincipally on the grounds that it would distract them from theirmission and compromise their ability to best assess and protect against terrorists threats. But the Court sees in the substance of many of their objections claims that reduce to administrative inconvenience and insufficient resources, and a concern that such oversight would induce an undesirably cautious approach to No Fly List placement. See Doc. No. 184-1, Declaration of Michael Steinbach, Assistant Directorof the Counterterrorism Division, FBI, at fl 8-10, 13-16 (describing the "significant burden" ofjudicial approval, either before placement or soon after, would impose, including "hinder[ing] the FBI's ability to act quickly to address and possibly prevent threats, and shifting the "focus of concern"
18

away from "making predictive judgments as to the risk a person may pose," to "whether the basis of the determmation would be clear to a judicial officer, who lacks similar expertise"). The Court is not in a position to assess adequately the merits of many of defendants' objections. In any event, and notwithstanding that pre-deprivation judicial review would effectively address many of the substantial objections to a placement on the No Fly List, there is no express statutory authorization for such pre-listing judicial review; and there are substantial constitutional and practical issueswith respectto imposing such a requirement. In the absence of additional evidence concerning the revised DHS TRIP, the Court cannot conclude that pre-deprivation
judicial review and approval is constitutionally required, appropriate or even available. ^
B. Defendants' alternative motion to dismiss based on the State Secrets Privilege The defendants have renewed their assertion of the state secrets privilege in the context of
the cross motions for summary judgment on Plaintiff's procedural due process claims.'® In
assessing defendants' invocation of the state secrets privilege, the Courtengages in a three-step process. First, the Courtmust determine whether the assertion of the privilege is procedurally proper. Second, the Court must independently determine whether the information claimedto be privileged is, in fact, protected under the state secrets privilege. Third, the Court must determine whether the case can proceed if the information is protected by the state secrets privilege. See Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070,1080 (9th Cir.2010); United States v.
^The No Fly List, as it presently exists, has been in effect for over ten years, with extensive
experience under it. Substantial constitutional and other objections have been raised and, to some extent, sustained with respect to it. Those objections have raised challenging and unresolved issues concerning the rights of American citizens within the context of the War on Terrorism. It may be helpful to the courts' dealing with these issues for Congress, at this point, to assess further that experience and further clarify its expectations for the constitutionally adequate treatment of affected travelers, particularly those who are American citizens.
See infra at p. 7-8, Doc. No. 144 at p. 2-3.
19

Reynolds, 345 U.S. 1, 10 (1953)); alsoAbilt v. C.LA., No. 1:14-CV-01031-GBL-ID, 2015 WL 566712, at *5 (E.D. Va. Feb. 10,2015).
1. Procedural Requirements for Invoking the Privilege Defendants' assertion of the state secrets privilege must satisfy three procedural requirements. "First, the state secrets privilege must be asserted by the United States. It 'belongs to the Government and ... can neither be claimed nor waived by a private party.' Second, '[tjhere must be a formal claim of privilege, lodged by the head of the department which has control over the matter.' Third,the department head's formal privilege claim may be made only 'after actual
personal consideration by that officer.'" El-Masri v. United States^ 479 F.3d296, 304(4thCir. 2007) (quoting Reynolds, supra, 345 U.S. at 7-8). The Court concludes that the defendants have properly asserted the privilege procedurally. The defendants have all been sued intheir official capacity as heads of various departments of the United States government. The defendants' assertion of the privilege has been accompanied by a publicly filed sworn declaration by former Attorney General Eric H. Holder, Jr., filed in connection with defendants' May 28,2014 motion to dismiss. Doc. No. 104-1 ("AG Declaration"). The AG Declaration fiirther declares that "after carefiil and personal consideration of the matter,... disclosure of the three categories of information [described in the Declaration]... couldreasonably be expected to cause significant
harm to national security". M atH5."
" The AG Declaration also states that the invocation of the state secrets privilege is consistent with Executive Branch policy issued on September 23, 2009 that the "Department will not
defend an invocation of the privilege in order to ... conceal violations of the law, inefficiency, or administrative error ... prevent embarrassment... or prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security." Doc. No. 104-1 at p. 8.
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2. Evaluation of the Privilege Claim and How the Case Should Proceed "After a court has confirmed that the Reynolds procedural prerequisites are satisfied, it must determine whether the information that the United States seeks to shield is a state secret, and thus privileged from disclosure. This inquiry is a difficult one, for it pits the judiciary's search for truth against the Executive's duty to maintain the nation's security —" El Masri,
supra, 479 F.3d at 304-05. This balancing leaves the judiciary "firmly in control of deciding
whether an executive assertion of the state secrets privilege is valid, but subject to a standard mandating restraint in the exercise of its authority." Id. Nevertheless, "[a] court is obliged to honor the Executive's assertion of the privilege if it is satisfied, 'from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interests of national security, should not be divulged." Idat 305 (quoting
Reynolds, 345 U.S. at 10).'^
In their motion for summary judgment on the procedural due process claim, the defendants identify two specific types of evidence over which they assert the state secrets privilege: first, "evidence underlying Plaintiffs alleged placement on the No Fly List" and second, "information about the process provided to Plaintiff in order to evaluate the risk of erroneous deprivation in the value of substitute procedures." Doc. No. 159 at p. 38-39. In support of this position, they have provided both a publically filed unclassified summary and an exparte, in camera classified summary.
Since Reynolds, Courts have expanded the state secrets privilege to matters related to "foreignaffairs," El Masri, 479 F.3d at 303, and "generally to national security concerns" such as information that could cause "impairment of the nation's defense capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments." Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983).
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The public summary references three categories of information protected under the state
secrets privilege: (1) subject identification (i.e. information that could tend to confirm or deny
whether a particular individual was or was not the subject of an FBI investigation or intelligence
operation); (2) reasons for investigation and results; and (3) sources and methods. The summary
does not identify or describe any specific information but rather generally describes why
information within these categories would be protected. The reasons include:
• Disclosure "would alert those subjects to the Government's interest in them and could cause them to attempt to flee, destroy evidence, or alter their conduct so as to avoid detection ... [and] would seriously impede law enforcement and intelligence officers' ability to determine their whereabouts or gain further intelligence on their activities." Doc. No. 104-1 at ^ 8;
• "[K]nowledge that [subjects of government interest]were under investigation could enable subjects to anticipate the actions of law enforcement and intelligence officers,possibly leading to counter-surveillance that could place federal agents at higher risk, and to ascertainthe identities of confidential informants or other intelligence sources, placing those sources at risk." Id. H8;
• "[I]f the fact that some persons are not subject to investigation is disclosed, while
the status of others is left unconfirmed, the disclosure would reveal that the FBI
has had an investigative interest as to those other particular persons ... [which] would enable individuals and terrorist groups alike to manipulate the system to discover whether they or their members are subject to investigation." Id. at H9;
• Individuals who discover that they are not being monitored could be motivated to commit terrorist acts. Id. at H9;
• Disclosing reasons for and results from an FBI counterterrorism investigation or an intelligence activity would "reveal to subjects who are involved in or planning to undertake terrorist activities what the FBI or the intelligence community knows or does not know about their plans and the threat they post to national security." Id.dX\\\\
• Even for those subjects without terrorist intentions, disclosure of the reasons could "reveal sensitive intelligence information about them, their associates, or a particular threat that would harm other investigations" and "could provide insights to persons intent on committing terrorist attacks as to what type of information is sufficient to trigger an inquiry by the United States Government, and what sources and methods the FBI may employ to obtain information about a person." Id at^f 11;
22

• Disclosure of sources and methods "could reveal not only the identities of particular subjects but also the steps taken by the FBI in counterterrorism matters." /of. at ^ 12;
• "Any effort to draw distinctions between disclosures that would and would not cause harm to national security interests would itself reveal sensitive FBI counterterrorism investigative or intelligence information," and disclosure of information as to one individual but not another, "then the very act of resisting
disclosure would itself reveal the information that the Government seeks to
protect." /c/. at II13.
Defendants argue that this case cannot proceed because privileged information is at the
heart of the case and is required to litigate both Mohamed's claims and the defendants'
defenses.'^ Claiming that defendants are attempting to invoke theprivilege for purely tactical
reasons, Mohamed emphasizes that "the record [] already ... provides the facts needed to sustain
his claims now." Doc. No. 119 at p. 4. He points to his willingness to litigate without further
discovery from the defendants and "that the government has litigated to the merits claims similar
to Mohamed's, at trial and on summary judgment, without inadvertent disclosure of state
secrets," id. at p. 7, referring to the Latifcase, in whichthe state secrets privilege did not prevent
the adjudication of similar due process claims.
The Court has reviewed and considered all of the submitted information in each ofthese
categories, including the classified declarations, the underlying classified documents themselves,
and the government's representations and explanations provided to the Court in its closed
hearing on March 17, 2015. Based on that review, the Court concludes that there are aspects of
the information and documents at issue that are protected under the state secrets privilege. The
The defendants point specifically to Mohamed's discovery requests, "seeking information related to his claims and allegations, namely, information concerning the watchlisting program generally and his situation individually." Doc. No. 105 at p. 5; see also Doc. No. 168 at p. 19 (where defendants argue for dismissal on the basis that "exclusion of evidence pursuant to the privilege prevents Defendants from fully litigating several aspects of the procedural due process claim, as well as from presenting a harmless error defense.").
23

Court also concludes that some of that information may be relevant and necessary for an adjudication of Mohamed's damages claims. However, even were all the information protected under the state secrets privilege, as the defendants claim (which the Court does not find), none of that information is necessary to establish either Mohamed's claim that he was denied constitutionally required procedural due process in connection with his denial of boarding or an available defense to that claim. The information claimed to be protected by the state secrets privilege in this action is not so central to Mohamed's procedural due process claims so as to prevent the adjudication of those claims on the merits. That procedural due process claim does not require reliance on any protected fact specific analysis that may have resulted in any placement on the No Fly List; rather, it requires an analysis of the procedures afforded to any U.S. citizen who is denied boarding on an aircraft, procedures that the defendants describe in detail in their public filings. For these reasons, the Court again concludes that the case need not be dismissed since the Court can adjudicate whether Mohamed had a constitutionally adequate opportunity to contest his status without any information claimed to be protected under the state secrets privilege.
C, Plaintiffs remedy Mohamed seeks as a remedy for this constitutional violation that he be removed from the No Fly List, as well as an award of compensatory and punitive damages. However, at this point, Mohamed's remedy is limited to a constitutionally adequate opportimity to contest any
The Court reaches this conclusion without the need to consider whether a level of protection short of the complete non-disclosure provided under the state secrets privilege would be adequate to protect information without endangering national security, such as the type of protective orders, redactions and summaries routinely used for highly sensitive information in other types of cases, both civil and criminal.
24

placement on the No Fly List, with an adjudication of any damages claims subject to further consideration following the outcome of that process or Mohamed's choice to forego that process.
On June 24,2014, the District Court in Latifv. Holder, supra, a case involving a similar challenge to the No Fly List, ordered the government to "fashion new procedures that provide Plaintiffs with the requisite due process described herein without jeopardizing national security" which must include "notice .. .to permit each Plaintiff to submit evidence relevant to the reasons for their respective inclusions on the No-Fly List" and "any responsive evidence that Plaintiffs submit in the record to be considered at both the administrative and judicial stages of review," which may involve providing the plaintiffs "with unclassified summaries of the reasons for their respective placement on the No-Fly List or disclose the classified reasons to properly-cleared counsel." 28 F. Supp. 3d at 1161-62. On April 13, 2015, the government reported to the Court that it was adopting for all persons seeking a review of their status those revisions to the DHS TRIP made in response to the Zfl/z/Court's order. See Doc. No. 188.
Under the newly revised procedures, individuals who are denied boarding and apply for redress through DHS TRIP will now receive a letter stating whether or not a person is listed on the No Fly List, with the option to receive and/or submit additional information. If the individual elects to receive additional information, DHS TRIP will provide a second, more detailed letter identifying the specific criterion under which the individual has been placed on the No Fly List as well as "an unclassified summary of information supporting the individual's No Fly List status, to the extent feasible, consistent with the national security and law enforcement interests at stake." Id. The government explains that the amount and type of information provided will vary on a case-by-case basis, and in some circumstances, an unclassified summary may not be possible. The second letter will also invite the individual to submit written responses.
25

including exhibits and other materials that the individual deems relevant. The ISA Administrator or his or her designee will review such submissions, together with the unclassified and classified information that is being relied upon to support the No Fly listing, and then will issue a fmal determination. TSA will provide the individual with a final written determination containing the basis for the decision and notifying the individual of the ability to seek further judicial review under 49 U.S.C. § 46110.
The Court cannot conclude based on the present record whether the revised DHS TRIP, as described above, will provide a constitutionally adequate opportunity for Mohamed to have his status reviewed. Rather, the revised DHS TRIP process, as described to the Court, would appear to allow for both a constitutionally adequate post-deprivation review and also a reviewing court to be presented with an administrative record that allows a sufficient assessment concerning whether Mohamed was, in fact, given a constitutionally adequate opportunity to challenge any placement on the No Fly List. More specifically, the Court sees nothing in the revised DHS TRIP that would preclude an adequate post deprivation process and the creation of an administrative record that reflects (1) whether, if on the No Fly List, Mohamed was provided the specific criteria relied on and the specific factual findings used to satisfy that specific criteria, such that he was in a position to respond to the substance of any derogatory information relied upon for the purposes of that placement; (2) whether there was a reasonable opportunity for Mohamed to submit evidence that he does not satisfy the No Fly List criteria; (3) what information was relied on for the No Fly List placement but withheld fi-om Mohamed, the reasons for withholding that information and the reasonableness of any such decisions, including whether additional material information could have been provided, either directly or through alternative means, such as summaries or redacted documents; (4) the extent to which Mohamed
26

provided information, or could have provided information, that met the substance of any reasons
advanced by the government for his placement on the No Fly List and the TSA's response to any
explanatory, clarifying, or exculpatory information; and (5) whether Mohamed's status is at the
appropriate level of security restrictions for the level of threat sufficiently established by that
administrative record, including why measures short of a total ban on air travel is warranted.
In short, how the revised DHS TRIP would in fact operate with respect to Mohamed's request
for review of his status cannot be assessed with any certainty at this time; and the Court cannot
therefore conclude as a matter of law, based on the present record, that Mohamed would not have
a constitutionally adequate post-deprivation remedy through the revised DHS TRIP. That
process would also allow the Court of Appeals for the Fourth Circuit to consider whether it has
appropriate subject matter jurisdiction pursuant to 49U.S.C. § 46110,'^ orwhether further
agency review would occur in this Court pursuant to the Administrative Procedure Act, 5 U.S.C.
§703.
D. Remaining claims.
The specific criteria that would place someone on the Selectee List, whereby air travel is permitted under heightened security screening, as opposed to the No Fly List and its total ban on air travel, is not clear from the public record and that issue remains unclear to the Court even in light of the totality of the information provided to the Court.
Substantial issues exist concerning whether and in what form DHS TRIP adequately provides for judicial review of a decision to place someone on the No Fly List. See Ege v. United States Department ofHomeland Security, 2015 WL 1903206, — F.3d — (D.C. Cir. 2015) (Court of Appeals has no jurisdiction pursuant to 49 U.S.C. § 46110 to order a person removed from the No Fly List); Latifv. Holder, 686 F.3d 1122,1129 (9th Cir. 2012) (in action against TSA and TSC pursuant to 49 U.S.C. § 46110, Court of Appeals lacked subject matter jurisdiction to address the plaintiffs' procedural challenge to the DHS TRIP process). See also Doc. No. 45, in which the Fourth Circuit ruled that it did not have exclusive jurisdiction pursuant to 49 U.S.C. § 46110 because Mohamed's requested relief, removal from the No Fly List, would require orders against TSC as well as TSA. The Court does not believe it appropriate at this point to address this issue, which should be decided in the first instance by the Fourth Circuit upon review of a
DHS TRIP decision.
27

The parties are directed to file with the Court no later than August 7, 2015 a report concerning what issues remain to be decided following the Court's rulings herein. Mohamed should also state whether at this point he wishes to request review of his status under the revised DHS TRIP, and if so, whether this action should be stayed pending the completion of that process. The parties should also state whether the Court's rulings herein should be certified under Fed. R. Civ. P. 54(b) as a final judgment.
IV. Conclusion
For the above reasons, the Court finds and concludes that Plaintiff is entitled to judgment as a matter of law on Count 3 of his Fourth Amended Complaint, and Plaintiffs Partial Motion for Summary Judgment [Doc. No. 161] will therefore be GRANTED in part and DENIED in part, and the defendant's Motion for Partial Summary Judgment [Doc. No. 158] will be
DENIED.
An appropriate Order will issue.

Alexandria, Virginia July 16, 2015

Anthony J. Tj
United States/District Judge

28

 
 Case 1:11-cv-00050-AJT-MSN Document 190 Filed 07/16/15 Page 1 of 2 PageID# 2339

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

GULETMOHAMED,

Plaintiff,
V.

Civil Action No, 1:11-cv-50 (AJT/MSN)

ERIC H. HOLDER, JR., et al.

Defendants.

ORDER
This matter is before the Court on the parties' cross-motions for summary judgment on Plaintiffs procedural due process claim [Doc. Nos. 158 and 161], as set forth in Count 3 of Plaintiffs Fourth Amended Complaint. Upon consideration of the Motions, the memoranda and exhibits submitted in support thereof and in opposition thereto, and for the reasons stated in the accompanying Memorandum Opinion, it is hereby
ORDERED that Plaintiffs Partial Motion for Summary Judgment [Doc. No. 161] be, and the same hereby is, GRANTED in part and DENIED in part; it is GRANTED to the extent that the Court concludes that Plaintiff was not provided a constitutionally adequate opportunity to challenge his denial of boarding under the process then available to him; and it is otherwise DENIED; it is further
ORDERED that the defendants' Motion for Partial Summary Judgment or, in the Alternative, Dismissal in Part [Doc. No. 158] be, and the same hereby is, DENIED; it is further
ORDERED that the parties shall each file with the Court no later than August 7, 2015 a report concerning what issues remain and the other information requested in the accompanying Memorandum Opinion.

Case 1:11-cv-00050-AJT-MSN Document 190 Filed 07/16/15 Page 2 of 2 PageID# 2340

The Clerk is directed to forward copies of this Order to all counsel of record

Alexandria, Virginia July 16,2015

Anthony J. Tri
United State^ETistrict Judge

 
 Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 1 of 18 PageID# 2490 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

GULET MOHAMED, PLAINTIFF,
v. ERIC H. HOLDER, ET. AL,
DEFENDANTS.

Hon. Judge Trenga
Case No. 1:11-CV-00050
FIFTH AMENDED COMPLAINT
FOR DAMAGES AND INJUNCTIVE AND DECLARATORY RELIEF

INTRODUCTION 1. Subsequent to the torture and detention, carried through foreign intermediaries, that the United States inflicted on Mr. Mohamed, Defendants—various agencies and government officials— prevented him from returning home to the United States. Defendants exiled Mr. Mohamed by placing him on a “No Fly List” without any notice or hearing.
2. Defendants placed Mr. Mohamed on its No Fly List while he was abroad in order to pressure him to forgo his right to counsel, submit to invasive questioning, and become an informant for the FBI upon returning to the United States. Since 2010, there are have been almost two dozen publicly documented instances in which Defendants have replicated this pattern of conduct, repeatedly subjecting traveling Muslim citizens to No Fly List placement for substantially similar purposes and in similar contexts.
3. The regularity of such occurrences indicates that Defendants utilize the No Fly List, not just to protect commercial aircraft, but rather to coerce a specific subset of Americans—Muslim citizens—to forgo their rights, obstruct their ability to move freely, and otherwise give Defendants’ agents leverage over listed persons.
1

Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 2 of 18 PageID# 2491 4. Defendants’ continued inclusion of Mr. Mohamed on the No Fly List substantially burdens his fundamental right to return and reside in the United States. His inclusion deprives him of his liberty interest in traveling by plane and being free from the government-imposed stigma that being on a terrorist watch list inflicts.
5. The only thing preventing Mr. Mohamed from completing one of the five primary obligations of his faith—the Islamic pilgrimage to Mecca—is his inclusion on Defendants’ No Fly List. The year that Mr. Mohamed is removed from the No Fly List is the year he travels by plane to Mecca and returns to the United States. As a citizen, Mr. Mohamed wants to know that Defendants will never again deprive him of his right to return to the United States.
6. In the aftermath of Mr. Mohamed’s return, Defendants have failed to provide him with a meaningful opportunity to rebut Defendants’ conclusion—evinced by Mr. Mohamed’s inclusion on the No Fly List—that he is a national security threat and thus unable to travel by plane.
PARTIES 7. Plaintiff Gulet Mohamed, 23, is a naturalized U.S. citizen. He was born in Somalia and immigrated to the United States at the age of three. Mr. Mohamed is a resident of Alexandria, Virginia. On December 20, 2010, when Mr. Mohamed went to renew his Kuwaiti visitor’s visa at an airport in Kuwait, he was detained by unknown assailants, tortured and interrogated for more than one week. He was transferred to a deportation facility on December 28, 2010 where he awaited deportation back to the United States. Despite Kuwait’s desire to return Mr. Mohamed to the United States, Kuwaiti authorities were unable to deport him by air due to Defendants’ actions. After this legal action commenced, Defendants allowed Mr. Mohamed to return to the United States.
8. Defendant Eric H. Holder, Jr. is the Attorney General of the United States and heads the
2

Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 3 of 18 PageID# 2492 Department of Justice ("DOJ"), a department of the United States government that oversees the Federal Bureau of Investigation ("FBI"). The FBI administers the Terrorist Screening Center ("TSC"), which was created to consolidate the government's approach to terrorism screening. The TSC develops and maintains the federal government's consolidated Terrorist Screening Database (the "watch list"), of which the No Fly List is a component. Defendant Holder is sued in his official capacity.
9. Defendant James B. Comey is Director of the Federal Bureau of Investigation which administers the TSC. He is sued in his official capacity.
10. Defendant Timothy Healy is the Director of the TSC and is sued in his official capacity.
11. Defendant Jeh C. Johnson is the Secretary of Homeland Security and oversees the Department of Homeland Security (DHS). DHS administers the Traveler Redress Inquiry Program (TRIP). He is sued in his official capacity.
12. Defendant John S. Pistole is the Administrator for the Transportation Security Administration (TSA). TSA is one of the front-line agencies that implement TSC’s watch lists. He is sued in his official capacity.
13. Defendants Unknown TSC Agents are the individuals that placed Plaintiff on the No Fly List and deprived him of due process. Specifically, Defendant Unknown TSC Agents are the person or persons who executed the paperwork, keystrokes, or other approval mechanism that placed Mohamed on the No Fly List, who reviewed the derogatory information and/or TSDB nomination regarding Mohamed and concluded that he qualified for No Fly List placement, who possessed agency authority over TSC’s redress unit, and who possessed agency authority to determine the DHS TRIP I-complaint review process that TSC’s redress unit would undertake. 14. Defendant Unknown TSA Agents are the person or persons who possessed agency authority to implement the congressional directive contained in 49 US 44926 and who possessed agency
3

Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 4 of 18 PageID# 2493 authority to implement the congressional directive contained in 49 US 44903(j)(2)(C)(iii).
JURISDICTION
15. This is a complaint for damages and injunctive and declaratory relief based upon civil rights and constitutional violations committed by the Terrorist Screening Center, Federal Bureau of Investigation, and U.S. Department of Justice in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and the Administrative Procedure Act.
16. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702.
17. The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
18. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because Defendants are officers of agencies of the United States sued in their official capacity and because this judicial district is where Plaintiff Mohamed resides and where a substantial part of the events or omissions giving rise to the claim occurred.
FACTUAL ALLEGATIONS
A. The Federal Government's Terrorist Watch List 19. In September 2003, Attorney General John Ashcroft established the Terrorist Screening Center (“TSC”) to consolidate the government's approach to terrorism screening. The TSC, which is administered by the FBI, develops and maintains the federal government's consolidate Terrorist Screening Database (the "watch list"). TSC's consolidated watch list is the federal government's master list of suspected international and domestic terrorist records used for watch list-related screening.
4

Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 5 of 18 PageID# 2494 20. TSC sends records from its terrorist watch list to other government agencies that in turn use those records to identify suspected terrorists. For example, applicable TSC records are provided to the Transportation Security Administration ("TSA") for use by airlines in prescreening passengers and to U.S. Customs and Border Protection ("CBP") for use in screening travelers entering the United States.
21. Thus, while the TSC maintains and controls the database of suspected terrorists, it is the front-line agencies like the TSA that carry out the screening function. In the context of air travel, when individuals make airline reservations and check in at airports, either TSA or the airline conducts a name-based search of the individual to determine whether he or she is on a watch list.
22. Front-line screening agencies like TSA do not make determinations that place or remove individuals from watch lists.
23. Two government entities are primarily responsible for nominating individuals for inclusion in the terrorist watch list—the National Counterterrorism Center ("NCTC") and the Federal Bureau of Investigation (“FBI”).
24. The NCTC, which is managed by the Office of the Director of National Intelligence, relies on information from other federal departments and agencies when including known or suspected international terrorists in its Terrorist Identities Datamart Environment ("TIDE") database. The NCTC reviews TIDE entries and recommends specific entries to the Terrorist Screening Center for inclusion in the watch list. TIDE is the source of all international terrorist identifier information included in the watch list.
25. The FBI nominates individuals to be included on the watch list but does not limit its nominations to persons it believes pose a threat to commercial aircraft. The FBI also nominates individuals it considers as a broader threat to domestic or international security.
5

Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 6 of 18 PageID# 2495 26. TSC makes the final decision on whether a nominated individual meets the minimum requirements for inclusion into the watch list as a known or suspected terrorist and which screening systems will receive the information about that individual.
27. The minimum requirements for inclusion, as a 2006 Department of Justice Inspector General’s report concluded, were “any degree of a terrorism nexus.”
28. A 2007 GAO report found that the TSC accepts almost 100 percent of nominations made to the watch list.
29. Defendant Healy, Director of the TSC, has testified that in evaluating whether an individual meets the criteria for inclusion on the consolidated watch list, the TSC determines whether the nominated individual is "reasonably suspected" of having possible links to terrorism. According to the TSC, "reasonable suspicion requires articulable facts which, taken together with rational inferences, reasonably warrant the determination that an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of or related to terrorism and terrorist activities." Defendants have not stated publicly what standards or criteria are applied to determine whether an individual on the consolidated watch list will be placed on the No Fly List.
30. Under these standards, the number of records in the consolidated watch list has swelled to an estimated one million names, representing the identities and aliases of approximately 400,000 individuals. Once an individual has been placed on the watch list, the individual remains on the list until the agency that supplied the initial information in support of the nomination determines that the individual should be removed.
31. The number of individuals on the No Fly List more than doubled from 10,000 person in
6

Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 7 of 18 PageID# 2496 2011 to 21,000 in 2012. In 2012, 500 American citizens were on the No Fly List.
32. While no government agency discloses a persons’ status on the No Fly List before they try to fly, listed persons who unsuccessfully attempt to fly are regularly told—by TSA agents, other US government personnel, or airline personnel—that they are on the No Fly List.
33. In response to intelligence failures that permitted Nigerian citizen Umar Farouk Abdulmutallab, a would-be bomber, to fly from Amsterdam to Detroit on December 25, 2009, the Defendants have dramatically expanded the watch list as a whole and the No Fly List in particular. At a recent Senate hearing, Russell E. Travers, Deputy Director of the National Counterterrorism Center, stated that "[t]he entire federal government is leaning very far forward on putting people on lists," and that the watch list is "getting bigger, and it will get even bigger."
B. Inadequacy of Redress Procedure 34. The government entities and individuals involved in the creation, maintenance, support, modification, and enforcement of the No Fly List, including Defendants, have not provided travelers with a fair and effective mechanism through which they can challenge their inclusion on the No Fly List either before or after the placement
35. An individual who has been barred from boarding an aircraft on account of apparent inclusion on the No Fly List has no avenue for redress, because the only agency with the authority to place and remove persons on the No Fly List—TSC—has no administrative process.
36. The TSC, which is administered by the FBI, does not accept redress inquiries from the public, nor does it directly provide final disposition letters to individuals who have submitted redress queries through DHS TRIP.
37. Individuals who utilize DHS TRIP after having been prevented from flying must complete
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Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 8 of 18 PageID# 2497 a standard form and submit it to the Department of Homeland Security Traveler Redress Inquiry Program ("DHS TRIP"). The DHS TRIP Program provides each individual with a "Redress Control Number" associated with the individual's report. However, by bureaucratic design, DHS does not know why TSC places any person on its No Fly List and lacks the authority to remove someone or to even know that TSC has removed someone from its list.
38. For those cases in which TSC makes a determination regarding a particular individual's status on the watch lists, including the No Fly List, the front-line screening agency responds to the individual with a letter that neither confirms nor denies the existence of any terrorist watch list records relating to the individual. The government does not provide the individual with any opportunity to confront, or to rebut, the grounds for his possible inclusion on the watch list.
39. The only "process" available to listed individuals, either before or after their placement on the No Fly List, is to submit their names and other identifying information to an agency that cannot remove any person from the No Fly List.
PLAINTIFF’S ALLEGATIONS 40. On or about March of 2009, Mr. Mohamed temporarily left the United States to learn Arabic and connect with members of his family living abroad. His first destination was Sanaa, Yemen, where he studied Arabic for a few weeks. However, out of concern for his safety given the instability of the country, he traveled to Somalia and stayed with relatives for several months. Finally, on or about August of 2009, he moved to Kuwait to continue his Arabic studies and stay with an uncle. Mr. Mohamed entered each country lawfully and maintained lawful status for the duration of his travels abroad.
41. Since Mr. Mohamed has been in Kuwait, he successfully renewed his visitor’s visa twice. Both times, Mr. Mohamed went to a Kuwaiti airport, followed proper procedures, and received
8

Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 9 of 18 PageID# 2498 90-day extensions for his visitor’s visa without incident.
42. On December 20, 2010, Mr. Mohamed went to the Kuwait International Airport, near Kuwait City, to renew his visa, just as he had done every three months since he arrived in Kuwait. After an abnormally long wait of several hours, Mr. Mohamed contacted his brother in Virginia via email to inform him that the visa process was taking longer than usual. This is the last communication anyone received from Mr. Mohamed for more than a week.
43. While at the airport, two men in civilian clothes approached Mr. Mohamed, handcuffed him, blindfolded him, escorted him to a waiting SUV, and drove him to an undisclosed location approximately fifteen minutes from the airport. During Mr. Mohamed’s abduction, he was repeatedly beaten and tortured by his interrogators. Mr. Mohamed’s interrogators struck him in the face with their hands regularly and in Mr. Mohamed’s estimate more than a hundred times. The interrogators whipped his feet and forced by his interrogators to stand for prolonged periods of time. At one point, the interrogators threatened to run currents of electricity through Mr. Mohamed’s genitals. In another instance, Mr. Mohamed’s arms were tied to a ceiling beam and left in that position until he lost consciousness.
44. Mr. Mohamed’s interrogators inflicted these beatings, torture, and grave threats onto Mr. Mohamed for more than a week. Mr. Mohamed remained blindfolded and handcuffed most of the time.
45. The subject matter of the interrogators’ questioning—communicated by one interrogator in perfect American English—indicates that Defendants Unknown Agents not only facilitated Mr. Mohamed’s illegal detention, interrogation, and torture but participated directly. The English speaking interrogator, Defendant Unknown Agent, asked Mr. Mohamed detailed questions about his American siblings, referencing non-public facts regarding his family. For example,
9

Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 10 of 18 PageID# 2499 Defendant Unknown Agent knew the educational attainment of several siblings, their names, and indicated that Defendant Unknown Agent was aware that Mr. Mohamed’s father was deceased.
46. Furthermore, Mr. Mohamed was asked questions not about his actions within Kuwait but questions pertaining to individuals such as Anwar Al-Awlaki of particular interest to the United States. It is highly implausible that Kuwaiti officials would ask such questions and torture an American citizen—in light of the dependent relationship Kuwait maintains with the United States—without the knowledge and approval of the United States. 47. On Tuesday, December 28, 2010, Mr. Mohamed’s interrogators transferred him to a deportation facility. In this facility, Mr. Mohamed was placed with individuals awaiting deportation, receiving visits from family, and benefiting from the facility’s reasonable treatment.
48. At this deportation facility, Mr. Mohamed conversed with a prisoner who covertly kept a mobile phone in his cell. Mr. Mohamed asked to use it, because his family still knew neither what happened to him nor his present location. Mr. Mohamed made a call to his family, telling them where he was and what had happened to him. He spoke with and retained one of his attorneys, Gadeir Abbas, soon after.
49. Kuwaiti officials told members of Mr. Mohamed’s family that they are holding him at the behest of the United States government and are willing to release him since they have no interest in keeping him in custody. Kuwaiti officials attempted to deport Mr. Mohamed but told members of his family that the United States has placed him on the No Fly List which is preventing his deportation. Mr. Mohamed’s placement on the No Fly List was confirmed by the United States in conversations reported in the press.
50. Also on December 28, 2010, FBI agents visited Mr. Mohamed. Once he informed them
10

Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 11 of 18 PageID# 2500 that he was represented by legal counsel in the United States and did not wish to answer their questions, the FBI agents suggested that they had some control over his detention by telling Mr. Mohamed that they could expeditiously procure his release from detention if Mr. Mohamed spoke to them. The agents told Mr. Mohamed that he would remain in detention indefinitely if he did not speak to them.
51. On or about January 12, 2011, FBI agents again visited Mr. Mohamed. Again, Mr. Mohamed informed the agents that he would not answer their questions present. The FBI agents persisted, asking him questions for several hours despite Mr. Mohamed’s repeated entreaties for the interrogation to stop and essentially continuing the interrogation where Mr. Mohamed’s torturers stopped. The FBI agents threatened Mr. Mohamed with future interrogations, criminal charges, and during the interrogation the agents physically intimidated Mr. Mohamed by crowding him and yelling. A Kuwaiti official intervened to calm the FBI agents down and request that the interrogation be brought to an end.
52. On January 16, 2010, at the direction of Kuwaiti officials, Mr. Mohamed’s family purchased a ticket for him back to the United States and delivered that ticket to Kuwaiti officials. When Kuwaiti officials took Mr. Mohamed to the airport on January 16, 2010, however, Mr. Mohamed was not allowed onto the United Airlines flight.
53. After this legal action commenced, Defendants allowed Mr. Mohamed to return to the United States on January 21, 2011.
54. Defendants have utilized the No Fly List in a similar manner against other Muslim citizens. Publicly documented examples of Defendants using the No Fly List to exile American citizens abroad while communicating to such persons that becoming an FBI informant or submitting to interrogation overseas without counsel could resolve their placement include:
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Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 12 of 18 PageID# 2501 Amayan Latif, Raymond Knaeble, Faisal Nabin Kashem, Elias Mustafa Mohamed, Steven Washburn, Najib Ghaleb, Mashaal Rana, Jamal Tarhuni, Mustafa Elogbi, Stephen Persaud, and Yonas Fikre.
55. Publicly documented examples of American citizens simply exiled abroad by Defendants placing them on the No Fly List include: Kevin Iraniha, Abdullatif Muthanna, Mashaal Rana, Ali Ahmed, Saadiq Long, and Amr Abulrub. And finally, there examples of Defendant placing or maintaining citizens who are in the United States on the No Fly List, because they declined to become an FBI informant or submit to interrogation, including: Michael Migliore, Amir Meshal, Salah Ahmed, and Ibraheim Mashal.
CLAIMS FOR RELIEF
COUNT I – Substantive Due Process [Facial and As-Applied] VIOLATION OF U.S. CITIZENS' RIGHT TO RESIDE IN UNITED STATES
AND TO REENTER THE UNITED STATES FROM ABROAD
Right to Citizenship (Fourteenth Amendment)
56. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
57. By the actions described above, Defendants, acting under color of law and through their agents, have deprived and continue to deprive Mr. Mohamed of his rights guaranteed by the Fourteenth Amendment of the United States Constitution.
58. As a United States citizen, Mr. Mohamed has an absolute right to return to the United States from abroad.
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Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 13 of 18 PageID# 2502 59. The particular reasons Defendants relied upon to place Mohamed on the No Fly List sustain a fact-specific, as applied substantive due process challenge to the No Fly List. 60. Mohamed’s general circumstances sustain a broad, as-applied substantive due process challenge to the No Fly List. Mohamed is a citizen who has not been charged with a crime, his placement on the No Fly List violates his substantive due process rights. Based on being uncharged and a citizen, Mohamed challenges the No Fly List on this broad, as-applied basis. 61. Mohamed’s placement on the No Fly List is not narrowly tailored to a compelling interest, both because he is an innocent citizen and the US has more effective alternatives and because the specific basis of his placement does not warrant the deprivation imposed. 62. Mohamed’s substantive due process challenge is also facial. There are no circumstances in which the No Fly List is narrowly tailored to a compelling interest. There are more effective alternatives to the No Fly List that allow the US to further its compelling interests. 63. By placing Mr. Mohamed on the No Fly List while he was abroad, Defendants Unknown TSC Agents prevented Mr. Mohamed from boarding an aircraft to return to the United States, even though no other means existed by which he may return to the United States, thus violating the constitutional rights of Mr. Mohamed. Kuwaiti officials indicated that they were ready to deport Mr. Mohamed to the United States but were being prevented from doing so by Defendants
13

Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 14 of 18 PageID# 2503
Unknown TSC Agents. Defendants Unknown TSC Agents knew or should have known that their actions violated Mr. Mohamed’s clearly established citizenship rights.
64. By maintaining Mr. Mohamed on the No Fly List, Defendants have substantially burdened his fundamental right to return to the United States in the immediate future. It is only Defendants’ inclusion of Mr. Mohamed on the No Fly List that prevents him from again departing the United States to visit family in Somalia and Canada and to complete a religious pilgrimage to Mecca, Saudi Arabia, and Defendants’ overbroad actions substantially burden Mr. Mohamed’s right to return to the United States.
COUNT II UNLAWFUL AGENCY ACTION 5 U.S.C. §§ 702, 706
65. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
66. Defendants' actions described herein were and are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional right and should be set aside as unlawful pursuant to 5 U.S.C. § 706. Defendants' violations of Plaintiffs' constitutional and statutory rights constitute agency actions that are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity in violation of 5 U.S.C. § 706. 67. Defendants’ placement of Mr. Mohamed on the No Fly List violate his Fourteenth Amendment right to return to the United States and his Fifth Amendment liberty interests in traveling by air and being free from false governmental stigmatization as a terrorist.
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COUNT III (Fifth Amendment: Procedural Due Process – Failure to Provide Pre or Post
Deprivation Notice and Hearing)
68. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
69. Defendants have failed to provide Mr. Mohamed with a meaningful opportunity to challenge his inclusion on the No Fly List either prior or subsequent to his placement, depriving him of his liberty interest in (1) being able to return to the United States, (2) traveling by air like other American citizens, and (3) being free from false governmental stigmatization as a terrorist.
70. By failing to provide Mr. Mohamed with a constitutionally sufficient legal mechanism for challenging his inclusion on the No Fly List, Defendants have deprived Mr. Mohamed of his constitutionally protected liberty interests without due process of law. As a result, Mohamed has endured substantial damage to his reputation, to his ability to visit family and friend, to move about the country and world, and has been unable to complete a religious pilgrimage to Mecca.
COUNT IV (Non-Delegation Violation – Congress’ Watchlist Delegation was Unconstitutional and Defendant TSA Lacks Congressional Authorization to Administer DHS TRIP
as it Currently Exists) 71. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 72. Congress has not provided the Executive branch with intelligible principles from which the Executive can implement its watch list schemes regarding civil aviation and
15

Case 1:11-cv-00050-AJT-MSN Document 205 Filed 12/28/15 Page 16 of 18 PageID# 2505
national security. 73. The Executive branch’s assignment of the watch listing function to TSC violates Congress’s directive that TSA determine who belongs on federal watch lists and the consequences that flow from being on those lists. 74. Congress has not delegated to TSA the authority to create a process that can culminate in the removal of individuals from the TSDB. 75. In the alternative, Congress’s delegation to TSA to create a redress process is defective because the Executive branch has allocated watch list authority in a manner that prevents TSA from creating a redress process. 76. As a result, Defendants have illegally acted beyond their authority.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request the following relief: a. An injunction that:
i. requires Defendants to remedy the constitutional violations identified above, including the removal of Plaintiff from any watch list or database that unduly burdens his fundamental right to return to the United States
ii. requires Defendants to provide Plaintiff with meaningful notice of the grounds for his inclusion on a government watch list, and an opportunity to rebut the government's charges and to clear his name either prior or subsequent to inclusion; and
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iii.requires Defendants to cease operating the TSDB in a manner that violates Congress’ directives
iv. requires Defendants to cease operating DHS TRIP in a manner that violates Congress’ directives
b. A declaration that the actions of Defendants are illegal and violation Mr. Mohamed’s constitutional and civil rights;
c. An award of compensatory and punitive damages to Mr. Mohamed—determined in a jury trial—in an amount that is fair, just, and reasonable
d. Awards attorneys' fees, costs, and expenses of all litigation. e. Grants such other relief as the Court may deem just and appropriate
Respectfully submitted,
__/s/______________________ Gadeir Abbas The Law Office of Gadeir Abbas 1155 F Street NW, Suite 1050 Washington, D.C. 20004 Telephone: (720) 251-0425 Email: gadeir@abbaslawfirm.com Licensed in VA; not in DC – practice limited to federal matters Attorney for Plaintiff Gulet Mohamed
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CERTIFICATE OF SERVICE I hereby certify that on December 28, 2015, a true and correct copy of the foregoing was served electronically on all parties of record through the U.S. District Court for the Eastern District of Columbia Electronic Case Filing System (ECF) and that the documents are available on the ECF system.
__/s/______________________ Gadeir Abbas The Law Office of Gadeir Abbas 1155 F Street NW, Suite 1050 Washington, D.C. 20004 Telephone: (720) 251-0425 Fax: (720) 251-0425 Email: gadeir@abbaslawfirm.com Licensed in VA; not in DC – practice limited to federal matters Attorney for Plaintiff Gulet Mohamed
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 Case 1:11-cv-00050-AJT-MSN Document 257 Filed 07/20/17 Page 1 of 22 PageID# 3442

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

GULET MOHAMED,

)

)

Plaintiff,

)

)

v.

)

)

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

)

)

Defendants.

)

____________________________________)

Civil Action No. 1:11cv0050 (AJT/MSN)

MEMORANDUM OPINION

In this action, Plaintiff Gulet Mohamed (“Mohamed”) has challenged his presumed

placement on the No Fly List (the “List”), a register of persons compiled by the Terrorism

Screening Center who are prohibited from flying on commercial airlines. In support of his

claims, Mohamed contends that the No Fly List is unconstitutional and is otherwise unlawful

when applied to (1) a United States citizen; (2) who has not been convicted, arrested or charged

with any crime; and (3) as to whom the government has not demonstrated that there is probable

cause to believe that he has committed any crime or is about to commit any crime. The Court has already addressed Plaintiff’s constitutional challenge based on procedural due process.1

1 On December 9, 2014, the parties each filed motions for summary judgment as to Mohamed’s procedural due process claim only. (See ECF Nos. 158, 161.) The Court determined that the DHS Traveler Redress Inquiry Program (“DHS TRIP”), a process by which a person denied boarding may request a review of his status, was constitutionally inadequate at the time Mohamed was denied boarding, that the revised DHS TRIP procedures (“DHS TRIP II”) were not constitutionally invalid on their face, and that the constitutional adequacy of the revised procedures could not be assessed as applied until after Mohamed requested a status review under the revised system and the reviewing court had an administrative record before it. See Mohamed v. Holder (“Mohamed I”), 995 F. Supp. 2d 520 (E.D. Va. 2014); Mohamed v. Holder (“Mohamed II”), No. 1:11–cv–50 (AJT/MSN), 2015 WL 4394958 (E.D. Va. July 16, 2015). In its Order, the Court also outlined the procedural and substantive protection the Court would expect from the revised DHS TRIP review process. On December 18, 2015, the Court ordered “that plaintiff file on or before January 4, 2016, a Notice concerning whether he intends to ask for review under the revised DHS TRIP, and if so, how this matter should proceed in light of that decision.” (ECF No. 204.) On January 4, 2016, Mohamed filed a notice stating, “Plaintiff Gulet Mohamed will file a DHS TRIP complaint no later than January 18, 2016.” (ECF No. 206.) Despite these representations, it appears that the Plaintiff has not requested any such review of his presumed placement on the No Fly List.

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Now pending before the Court are the parties’ cross-motions for summary judgment (ECF Nos. 217 & 221) on Plaintiff’s remaining challenges to the No Fly List on the grounds that the No Fly List (1) violates the constitutional guarantee of substantive due process (Count I); (2) constitutes an unlawful agency action (Count II); and (3) violates the non-delegation principle (Count IV).2 Fifth Amended Complaint (ECF No. 205) (the “FAC”).
For the reasons stated below, the Court concludes that the No Fly List is not unconstitutional on substantive due process grounds, it is not unlawful under the non-delegation doctrine, and it does not exceed agency authority. Accordingly, the Court grants Defendants’ motion, and denies Plaintiff’s motion, as to Counts I, II, and IV.
I. BACKGROUND3 Mohamed, a U.S. citizen originally from Somalia, left the United States in 2009 at age sixteen to travel to Yemen, Somalia, and Kuwait for the purposes of visiting family, learning Arabic, and studying. On December 20, 2010, Mohamed went to an airport in Kuwait to renew his visa, but Kuwaiti authorities detained him. He alleges that over the next week, they interrogated, beat, and otherwise tortured him.4 FBI agents visited him twice during this time. On January 16, 2011, Mohamed’s family purchased an airplane ticket for him to return to the United States. Kuwaiti officials brought him to the airport, but he was denied boarding. On January 18, 2011, Mohamed filed this action against the heads of the Department of Justice (“DOJ”), Federal Bureau of Investigation (“FBI”), Terrorist Screen Center (“TSC”), Department
2 Although the parties have only filed motions for summary judgment as to Counts I (substantive due process) and IV (non-delegation principle), the parties’ fully briefed positions as to Count IV are inseparable from the issues presented in Count II (unlawful agency action); and the Court has therefore considered and ruled on Count II as well. 3 The facts, as stated here, are undisputed unless otherwise noted. For a more complete description concerning the background of this case, see Mohamed I, 995 F. Supp. 2d at 522-27; Mohamed II, 2015 WL 4394958, at *2-4. 4 Defendants agree that Mohamed was held by Kuwaiti authorities but dispute what occurred during his confinement. These issues are not relevant to the presently-pending motions.
2

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of Homeland Security (“DHS”), and Transportation Security Administration (“TSA”) (collectively, the “Defendants”) seeking, inter alia, emergency relief to return to the United States. The Court held a hearing the same day but continued the hearing when Defendants advised the Court that they would allow Mohamed to re-enter the United States. Mohamed returned on a commercial flight three days later on January 21, 2011 and has not been criminally charged or detained since he returned. He alleges that he remains on the No Fly List, however.
The No Fly List is a subset of the Terrorist Screening Database (“TSDB”), sometimes referred to as the “watchlist,” an archive of information which is assembled and maintained by the TSC based on nominations from government agencies and supported by identifying information as well as “derogatory information,” which must meet certain substantive criteria. In order to be placed in the TSDB, there must be “reasonable suspicion to establish that the individual is a known or suspected terrorist[,]” Declaration of G. Clayton Grigg, Deputy Director for Operations of TSC (ECF No. 158-1) (“Grigg Decl.”) ¶ 15; and the person must be “known or appropriately suspected to be or to have engaged in conduct constituting, in preparation for, in aid of, or related to terrorism,” Declaration of Michael Steinbach, Assistant Director of the FBI Counterterrorism Division (ECF No. 158-2) (“Steinbach Decl.”) ¶ 12. See also Directive on Integration and Use of Screening Information to Protect Against Terrorism, HSPD–6 (Sept. 16, 2013).
As articulated by the Government, the overarching purpose of the No Fly List is twofold: (1) to protect commercial aircraft from terrorism and (2) to restrict the ability of persons suspected of terrorism to travel for the purposes of advancing their terrorist objectives. See Defendants’ Memorandum of Law in Support of Defendants’ Motion for Summary Judgment (ECF No. 225) (“Defs.’ Mem. Supp. Defs.’ Mot.”) 25-26 (“The No Fly List . . . protects the
3

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national security by both preventing [radicalized] individuals from traveling abroad to engage in
violence or become further radicalized . . . and by preventing foreign fighters who have traveled
to conflict zones abroad from using the transportation system to harm or gain entry into the
United States . . . .”); see also id. at 23 (“[A] preventative screening system necessarily needs to
cover not only . . . those who . . . are likely to commit terrorist attacks, but also those who are
reasonably suspected of posing a threat, regardless of whether they are known to have concrete
plans to engage in the acts the No Fly List is designed to thwart.”). In addition to the substantive
criteria that must be satisfied for placement in the TSDB, placement on the No Fly List requires
the additional determination that there is “reasonable suspicion” that:
The individual poses a threat of (1) committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1)) or an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5)) with respect to an aircraft; (2) committing an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5)) with respect to the homeland; (3) committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1)) against any U.S. Government facility abroad and associated or supporting personnel, including U.S. embassies, consulates and missions, military installations, U.S. ships, U.S aircraft, or other auxiliary craft owned or leased by the U.S. Government; or (4) engaging in or conducting a violent act of terrorism and who is operationally capable of doing so.
Grigg Decl. ¶ 18. Moreover, this reasonable suspicion standard must be supported by
“articulable” intelligence and must be based on the “totality of circumstances” and intelligence reviewed.5 Id. ¶ 16.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate only if the
record shows that “there is no genuine issue as to any material fact and that the moving party is
5 Although the Government has never made public the number of individuals included either in the TSDB or on the No Fly List, it appears from publicly available information that the No Fly List includes substantially fewer individuals than the TSDB. For this reason, it would appear that the substantive showing to qualify for inclusion in the TSDB is necessarily less than for inclusion on the No Fly List; however, it is not apparent from the record how suspicions and information sufficient to qualify for inclusion in the TSBD would be insufficient for additional inclusion on the No Fly List.
4

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entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 95859 (4th Cir. 1996). The party seeking summary judgment has the initial burden to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To defeat a properly supported motion for summary judgment, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 247-48 (“[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”). Whether a fact is considered “material” is determined by the substantive law, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. The facts must be viewed, and all reasonable inferences drawn, in the light most favorable to the nonmoving party. Id. at 255; see also Lettieri v. Equant Inc., 478 F.3d 640, 642 (4th Cir. 2007).
III. JUSTICIABILITY Defendants first argue that Plaintiff lacks standing to assert his claims to the extent that they relate to his right to exit and reenter the United States by traveling internationally. Article III of the Constitution prohibits federal courts from hearing certain types of cases. In order to be justiciable, a “case[]” or “controvers[y]” must exist. U.S. Const. art. III, § 2, cl. 1. Courts have
5

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developed multiple doctrines to determine whether a “case or controversy” exists, one of which is the doctrine of standing. At the summary judgment stage, in order to establish standing, the plaintiff must set forth specific facts to demonstrate that (1) he has “suffered an ‘injury in fact’ . . . which is (a) concrete and particularized . . . and (b) ‘actual or imminent, not conjectural or hypothetical’”; (2) there exists “a causal connection between the injury and the conduct complaint of”; and (3) “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted).
Plaintiff alleges two forms of injury: (1) that the United States “prevented [him] from boarding an aircraft to return to the United States in January 2011,” FAC ¶ 63, and (2) that the United States “ha[s] substantially burdened his fundamental right to return to the United States in the immediate future,” id. ¶ 64. Defendants contend that Plaintiff lacks standing to assert claims because he successfully reentered the United States in January 2011, and his future inability to reenter the United States is too speculative. See Defs.’ Mem. Supp. Defs.’ Mot. 33-34. The Court has already considered and dismissed Plaintiff’s constitutional claim based on the events surrounding his return to the United Stated in January 2011.6 However, in its prior ruling, the Court declined to dismiss claims related to Mohamed’s allegations of future harm.
Mohamed claims that were he not on the No Fly List, as he assumes he is, he would travel outside of the United States to visit relatives and to discharge obligations of his faith, but has not done so out of fear that he will not be able to reenter the United States. Plaintiff’s decision not to engage in international travel because of the difficulties he reasonably expects to encounter upon return to the United States is sufficient to demonstrate standing. See Suhre v.
6 Briefly summarized, the Court rejected Plaintiff’s claim on the grounds that under the particular circumstances, the four to five-day delay he experienced in returning to the United States did not unduly burden his right of reentry. Mohamed I, 995 F. Supp. 2d at 537.
6

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Haywood Cty., 131 F.3d 1083, 1088 (4th Cir. 1997) (“Forcing an Establishment Clause plaintiff to avoid the [Government action] of which he complains in order to gain standing to challenge it only imposes an extra penalty on individuals already alleged to be suffering a violation of their constitutional rights.”); Hernandez v. Cremer, 913 F.2d 230, 234-35 (5th Cir. 1990) (finding plaintiff who testified that he “would like to return to Mexico, but did not ‘want to run the risk of something like this happening again’” had standing to challenge government procedural requirements for investigating claims of border entry applicants (citation omitted)); see also Suhre, 131 F.3d at 1091 (“[P]ast injury [i]s probative of likely future injury.”). Accordingly, the Court concludes that Mohamed has standing to assert all of his claims related to the No Fly List.
IV. COUNT I: PLAINTIFF’S SUBSTANTIVE DUE PROCESS CLAIM Plaintiff asserts what he characterizes as a “facial challenge” to the No Fly List and also an “as applied” challenge on substantive due process grounds. However, upon closer examination of those claims, Plaintiff’s “facial challenge” and “as applied” challenge are fundamentally the same since Plaintiff’s “as applied” challenge is not based on any claim that there is an insufficient factual basis to place the Plaintiff on the No Fly List based on the criteria used for that purpose. Instead, Mohamed argues that the No Fly List necessarily violates substantive due process because the criteria used allows placement on the No Fly List of any person who, like the Plaintiff, is (1) a United States citizen; (2) who has never been convicted, arrested or charged with any crime; and (3) as to whom the government has not demonstrated that there is probable cause to believe that he has committed any crime or is about to commit any crime.7 In this regard, Mohamed takes the position that because nothing more than a “predictive
7 In Count I, Mohamed variously articulates his substantive due process challenge as “fact-specific, as applied,” “broad, as-applied,” and “facial.” See FAC ¶¶ 59-62. Specifically, he argues in the alternative that (1) his designation, (2) the designation of any U.S. citizen not charged with a crime, and (3) the List, in any application,
7

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judgment” is used to determine who among the general population of “innocents” presents a
sufficient threat of future terrorist related conduct, the protections of substantive process requires
that the criteria for placement on the No Fly List exclude the above described category of
American citizens. For these reasons, and while acknowledging that protecting the public
against terrorist threats is a compelling government interest, Mohamed contends that the criteria
used is not narrowly tailored to pass constitutional muster and does not otherwise constitute a necessary regulation furthering a compelling state interest.8
To support his claim that the No Fly List violates the constitutional guarantee of
substantive due process, Mohamed centrally relies on the right of movement, as recognized by
the Supreme Court in Kent v. Dulles, 357 U.S. 116 (1958), Shapiro v. Thompson, 394 U.S. 618
(1969), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651 (1974), and subsequent
related holdings. Based on this right of movement, Mohamed claims that he also has a
constitutionally protected fundamental right to travel both domestically and internationally and that the List violates that right.9
The Due Process Clause of the Fifth Amendment guarantees that “[n]o person shall be . .
. deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.
Unlike procedural due process, substantive due process “protects individual liberty against
‘certain government actions regardless of the fairness of the procedures used to implement
them.’” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (citation omitted). It
each violate substantive due process. Because the Court concludes that none of Mohamed’s challenges violates substantive due process, it does not distinguish between the three forms of his claim. 8 Mohamed claims that the No Fly List actually makes us less safe by systematically allowing those who would do us harm the ability to gauge the Government’s interest in them and permitting them to take steps to avoid those regulations. 9 Plaintiff recognizes that “[w]hat Defendants call Mohamed’s right of reentry is only an aspect of his general right of movement.” Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment (ECF No. 232.) (“Pl.’s Mem. Opp’n Defs.’ Mot.”) 30. Other courts that have decided right of reentry claims have also analyzed such claims as aspects of the right to travel internationally rather than as distinctive rights. See, e.g., Hernandez v. Cremer, 913 F.2d 230, 234 (5th Cir. 1990).
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“provides heightened protection against government interference with certain fundamental rights and liberty interests,” which are held to a more exacting standard of strict scrutiny. Washington v. Glucksburg, 521 U.S. 702, 719 (1997). Mohamed’s substantive due process claim therefore depends, in part, on whether Plaintiff’s fundamental right of travel has been substantially burdened and is therefore subject to strict scrutiny. If a fundamental right is implicated and strict scrutiny therefore applies, a law will not be upheld unless the government demonstrates that the law is necessary to further a compelling governmental interest and has been narrowly tailored to achieve that interest. Hawkins v. Freeman, 195 F.3d 732, 739 (4th Cir. 1999); see also Reno v. Flores, 507 U.S. 292, 302 (1993). If a right is not fundamental, then the law that allegedly burdens the right is ordinarily subject to rational basis review, and will be deemed constitutional unless the plaintiff can demonstrate that it is not reasonably related to a rational government interest.10
A. Plaintiff’s Challenge is Subject to Strict Scrutiny. 1. There is a fundamental right to interstate, but not international, travel.
United States citizens enjoy the right to engage in both interstate and international travel. It is also well established that there is a fundamental right to interstate travel. See Califano v. Aznavorian, 439 U.S. 170, 176 (1978) (“[T]he constitutional right to interstate travel [has been] recognized by this Court for over 100 years.”). “The constitutional right of interstate travel is virtually unqualified.” United States v. Guest, 383 U.S 745, 757-58 (1966); see also Shapiro, 394 U.S. at 629 (“all citizens be free to travel throughout the length and breadth of our land
10 Courts have also recognized an “intermediate” level of scrutiny that applies to laws affecting certain “quasisuspect classes.” See Craig v. Boren, 429 U.S. 190 (1976) (gender); Mathews v. Lucas, 427 U.S. 495 (1976) (legitimacy of birth). A law that classifies people within these classes “must serve important government objects and must be substantially related to the achievement of those objectives. See Craig, 429 U.S. at 197.
9

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uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.”). However, the same cannot be said with respect to the right to international travel.
Historically, the Glucksburg analysis has applied to the determination of whether a right is fundamental. That analysis requires “a careful description of the asserted fundamental liberty interests,” which must be “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksburg, 521 U.S. at 720-21. The Supreme Court’s recent decision in Obergefell v. Hodges has expanded the scope of that analysis. See Obergefell, 135 S. Ct. 2584, 2598 (2015) (“History and tradition guide and discipline this inquiry but do not set its outer boundaries.”). Specifically, under Obergefell, in addition to considering the United States’ history and traditions, courts must also evaluate “any history and tradition of animus that motivates the legislative restriction on the freedom.” Sturniak v. Lynch, 159 F. Supp. 3d 643, 667 (E.D. Va. 2016).
In support of his claim that the fundamental right of travel extends to international as well as interstate travel, the Plaintiff relies generally on the historic protections afforded to the freedom of movement ever since before the founding of this country, including protections provided under the Articles of Confederation and international agreements to which the United States is party. See, e.g., Universal Declaration of Human Rights, adopted Dec. 10, 1948, art. XIII (All people have “the right to freedom of movement . . . [as well as] the right to leave any country, including his own, and to return to his country.”); International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, art. 12.1-12.4 (Everyone has the “right to liberty of movement . . . [and] shall be free to leave any country, including his own . . . [and] shall not be arbitrarily deprived of the right to enter his own country.”); see also Plaintiff’s Memorandum of
10

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Law in Support of Plaintiff’s Motion for Summary Judgment (ECF No. 222) (“Pl.’s Mem. Supp. Pl.’s Mot.”) 9-10.11 Mohamed also claims that Congress’s Article I authority to regulate commerce with foreign states anticipates an international “zone of movement.” Id. at 11. He argues that many First Amendment freedoms, such as the free exercise of religion, cannot be fully enjoyed without recognizing the right to travel internationally, such as by traveling to Mecca to fulfill the Islamic duty of hajj. Id. at 12. According to Mohamed, the Citizenship Clause12 also implies a fundamental right to international travel because a citizen’s right to be in the United States is obstructed if he or she cannot travel to the United States from an international destination. Id. at 12-13. Based on this long-standing recognition that the freedom of movement is a core constitutional value, Plaintiff asks this Court to “recognize zones of movement emanating from various constitutional guarantees . . . [j]ust as the Supreme Court in Griswold recognized ‘zones of privacy’ in threading together various constitutional guarantees.” Id. at 11.
There is much to warrant extending the fundamental right to travel or movement to include international travel. As Plaintiff correctly observes, the right to international travel is recognized by international agreements to which the United States is a party, and in today’s world, restricting a person’s right to international travel can, in some circumstances, have as profound an adverse effect on a person’s ability to exercise other liberty interests as a restriction on the right to interstate travel. As the Court has previously observed, interstate and international travel are increasingly seamless and we can no longer reasonably view interstate and international travel as discrete and separable activities. See Mohamed II, 2015 WL 4394958,
11 These international agreements have the legal force equivalent to an act of Congress. Foster v. Neilson, 27 U.S. (2 Pet.) 253, 315 (1829) (A treaty is “equivalent to an act of the legislature . . . .”), overruled on other grounds by United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833)). 12 “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” U.S. Const. amend. XIV, § 1.
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at *6 (“It must be recognized that a meaningful right of travel in today’s world cannot be understood as cleanly divided between interstate and international travel . . . .”).
Nevertheless, the United States also has a long history of judicially sanctioned restrictions on citizens’ international travel in the interests of foreign affairs and national security that would never have been countenanced with respect to interstate travel, including, among others, restrictions on the issuance and use of passports and the imposition of travel bans. See, e.g., Regan v. Wald, 468 U.S. 222, 242-44 (1984) (upholding regulations “preventing travel to Cuba by most American citizens”); Haig v. Agee, 453 U.S. 280, 293 (1981) (“The history of passport controls since the earliest days of the Republic shows congressional recognition of Executive authority to withhold passports . . . .”). Moreover, the Supreme Court has strongly implied, though it has not explicitly stated, that there is no fundamental right to international travel. See Haig, 453 U.S. at 307 (The Supreme Court “has often pointed out the crucial difference between the freedom to travel internationally and the right of interstate travel.”). The Supreme Court has also observed:
“The constitutional right of interstate travel is virtually unqualified.” . . . By contrast the “right” of international travel has been considered to be no more than an aspect of the “liberty” protected by the Due Process Clause of the Fifth Amendment. As such this “right,” the Court has held, can be regulated within the bounds of due process. Califano, 439 U.S. at 176 (quoting United States v. Guest, 383 U.S. 745, 757-58 (1966)). Implicitly rejecting the notion that international travel is a fundamental right, the Court in Haig explained that international travel “is subject to reasonable governmental regulation.” 453 U.S. at 306 (emphasis added). And under the recent Obergefell analysis, there has been no history or tradition of Congressional animus that has led it to restrict the freedom to travel internationally. For these reasons, there is very little jurisprudential basis upon which to recognize a fundamental right to international travel; and under the current state of the law, the constitutionality of the No
12

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Fly List based on its effect on any right to international travel must be assessed under the rational
basis test. Because the No Fly List will survive that level of review if it were to survive strict
scrutiny, the Court will first consider the constitutionality of the No Fly List based on its effect
on the fundamental right of interstate travel.
2. The No Fly List significantly interferes with the fundamental right to travel domestically.
A fundamental right will only be implicated by a government policy that, at a minimum,
“significantly interferes with the exercise of a fundamental right.” Zablocki v. Redhail, 434 U.S.
374, 388 (1978). The List significantly interferes with Mohamed’s fundamental right to
interstate travel and is therefore subject to strict scrutiny. See Mohamed II, 2015 WL 4394958,
at *6 (observing within the context of Plaintiff’s procedural due process claim that Plaintiff’s
liberty interest was “strong and deserving of strong protections against unnecessary government
restrictions.”). Although the List does not prevent designees from traveling domestically, it
limits their practical ability to do so. As the Court has already stated, “a meaningful right to
travel in today’s world cannot be understood as . . . a right without any correlative rights with
respect to the usual and available means in a modern society.” Mohamed II, 2015 WL 4394958, at *6.13
13 The Government glosses over the List’s effect on interstate travel, maintaining that “courts have repeatedly held that there is no right to travel by a particular means, even if it is the most convenient mode of travel.” Defendants’ Memorandum of Law in Reply in Support of Defendants’ Motion for Summary Judgment (ECF No. 242) (“Defs.’ Reply Supp. Defs.’ Mot.”) 13 n.8; see also Defendants’ Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment (ECF No. 228) (“Defs.’ Mem. Opp’n Pl.’s Mot.”) 15-16. However, none of these nonbinding precedents deal with a complete ban on any particular mode of travel, such as that which the List imposes. See Gilmore v. Gonzales, 435 F.3d 1125, 1136-37 (9th Cir. 2009) (TSA required passengers to present identification or be subject to search); Town of Southold v. Town of E. Hampton, 477 F.3d 38, 54 (2d Cir. 2007) (town law restricted high-speed ferry service to and from town); League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 535 (6th Cir. 2007) (state law limited issuance of drivers licenses to citizens and lawful permanent residents); Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999) (state law required provision of social security number to renew driver’s license); Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir. 1991) (federal law restricted flights from Texas airport to the four contiguous states only); Green v. Transp. Sec. Admin, 351 F. Supp. 2d 1119, 1128-30 (W.D. Wash. 2005) (passengers were subject to enhanced security screening of one hour or less prior to flying).
13

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The effect of the No Fly List on the fundamental right of interstate travel is at least as great as other effects on fundamental rights found to constitute significant interference. For example, in Zablocki v. Redhail, 434 U.S. 374 (1978), the Supreme Court found that a state law requiring a court order to marry under certain circumstances constituted a “significant interference” with the fundamental right to marry because it “significantly discouraged” marriage. 434 U.S. at 387 n.12. As this Court has previously discussed, placement on the No Fly List does far more than “significantly discourage” designees from traveling; it often absolutely bars them from so doing and effectively precludes them from engaging in a wide range of constitutionally protected activities. See Mohamed II, 2015 WL 4394958, at *6.14
B. The No Fly List Survives Strict Scrutiny. Under strict scrutiny, a law will be struck down unless the Government shows that it is “necessary to further a compelling governmental interest” and that it is “narrowly tailored to further that interest.” Grutter v. Bollinger, 539 U.S. 306, 308 (2003); see also Shapiro, 394 U.S. at 634 (1969) (Laws that burden interstate travel must “be necessary to promote a compelling governmental interest.”).
1. The government interest is compelling. There is obviously a compelling government interest in preventing terrorist attacks against commercial aviation. See, e.g., Haig, 453 U.S. at 307 (“It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.” (quoting
14 Because the List may be made available within and among U.S. government agencies, foreign governments, and airlines and other common carriers, it also has the potential to stigmatize a listed individual and thereby interfere with his employment prospects and general enjoyment of life. Although the Plaintiff does not specifically allege a “stigma-plus” claim (presumably because he cannot show the deprivation of a specific tangible “liberty” or “property” interest in connection with the stigma), see Paul v. Davis, 424 U.S. 693, 710-11 (1976), he nevertheless argues that the List restricts his enjoyment of other rights such as his right to freely practice his religion by attending religious conferences and his abilities to visit his family in California, study Arabic, travel with friends, and take vacations with his wife. See id. at 20-21; Pl.’s Mem. Supp. Pl’s Mot. 15.
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Aptheker v. Sec’y of State, 378 U.S. 500, 509 (1964))).15 As this Court previously stated, “[t]here can be no doubt that the government has the right and obligation to identify . . . and stop those who present such a [terrorist] threat.” Mohamed I, 995 F. Supp. 2d at 527. Indeed, it is “the most compelling of governmental duties.” Id.
2. The No Fly List is sufficiently necessary and, under properly applied procedural protections, narrowly tailored to further the government interest.
To survive strict scrutiny, a regulation must be “specifically and narrowly framed to accomplish” its purpose. Grutter, 539 U.S. at 333 (internal quotation marks omitted) (citation omitted). A regulation that is significantly under inclusive or over inclusive is not “narrowly tailored.” However, the Government need not first exhaust “every conceivable” alternative; rather, it must show that no “workable . . . alternatives” would achieve the Government’s interest. Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, 2420 (2013). Here, when administered with the properly applied procedural protections for review of a person’s status that are now embedded in the revised DHS TRIP II review process, the No Fly List is narrowly tailored to further the Government’s compelling interest in combating terrorism and protecting national security.
Mohamed argues that the List is both under inclusive and over inclusive and that the Government could use alternative means to achieve its interest. Mohamed claims that the List is under inclusive because it (1) only restricts movement by plane, (2) is easily evaded by changes in a designee’s appearance or identification to avoid detection, and (3) requires the Government to disclose its investigative interest, thereby endangering national security by alerting potential terrorists that the Government is monitoring them. Pl.’s Mem. Supp. Pl.’s Mot. 19-22.
15 See also Zemel v. Rusk, 381 U.S. 1, 13-17 (1965), Cole v. Young, 351 U.S. 536, 546 (1956); United States v. Sterling, 724 F.3d 482, 509 (4th Cir. 2013); United States v. Ghailani, 733 F.2d 29, 47 (2d Cir. 2013); Jifry v. FAA, 370 F.3d 1174, 1183 (D.C. Cir. 2004); United States v. Morison, 844 F.2d 1057, 1082 (4th Cir. 1988).
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Mohamed also contends that the List is over inclusive because it (1) bans mostly legal conduct, (2) classifies individuals based on inaccurate predictive judgments, and (3) prevents from flying even persons as to whom enhanced screening would adequately address the Government’s compelling interest. Id. at 22-24. In place of the List, as it is formulated under the current criteria, Plaintiff claims that the Government could adequately protect aviation safety by (1) searching designees prior to boarding, (2) investigating designees more thoroughly, (3) requiring additional security measures on airplanes, (4) arresting persons who present actual threats to aviation, and (5) tracking designees’ movements around the country. Id. at 24-28.
The Government contends that “the Executive Branch has developed carefully calibrated standards and criteria geared toward identifying those reasonably likely to commit violent acts of terrorism,” and “the Government has a host of procedures and safeguards in place to keep the risk of error to a minimum.” Defs.’ Mem. Opp’n Pl.’s Mot. 16-17. In that regard, the Government argues that, while there is some possibility that the List allows a person suspected of terrorism to learn of the government’s investigative interest and with that knowledge engaged in activities designed to evade detection, the List provides protections not otherwise obtainable and on balance provides a measure of security that exceeds any of the possible consequences that the Plaintiff cites. The Government further argues that it is entitled to make strategic decisions about the types of travel (i.e., by plane) that are most susceptible to terrorism because no single counterterrorism measure can thwart every attack, and other measures exist to address other threats. Concerning the List’s alleged over inclusiveness, the Government claims that the List does not prevent legal conduct apart from traveling by airplane and that U.S. security analysts are trained and over time have proven effective in making the predictive judgments involved with the List, as Congress directed the Executive Branch to make. It also points to the graduated
16

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nature of the entire watchlist system, which accounts for several different categories of threatening individuals but denies boarding to only one of them. It highlights that nominations to the List are subject to five independent levels of review, which narrow it to the most threatening individuals.
The Government also argues, based on the testimony of counterterrorism professionals, that Plaintiff’s proposed alternatives are inadequate. See Defs.’ Mem. Supp. Defs.’ Mot. 26-33. As an example, the Government contends that no level of screening can protect against some threats, such as those that use an “insider” airport employee, unless certain individuals are prevented entirely from accessing secured areas or boarding aircrafts. Id. at 31. It also argues that Plaintiff’s alternative of excluding U.S. citizens not convicted or charged with a crime is not a workable alternative because there are times when (1) the Government has a reasonable belief that an individual poses a substantial terrorist threat, but is not yet in a position to charge a crime; or (2) the Government has probable cause to believe the individual has committed a crime, but it would be dangerous or strategically detrimental to begin criminal proceedings. Id. at 27.
Assessing whether the List is appropriately tailored to pass constitutional muster raises unsettled issues concerning how and to what extent these types of Executive Branch judgments are subject to judicial review.16 As a general proposition, in the realm of national security, governmental determinations, such as these, are due deference but are not unreviewable. See Humanitarian Law Project, 561 U.S. 1, 34 (2010) (When “it comes to collecting evidence and drawing factual inferences in this area, ‘the lack of competence on the part of the courts is
16 In opposing the Government’s motion for summary judgment, the Plaintiff has taken the position that an evidentiary hearing is necessary for the Court to determine whether the No Fly List is “narrowly tailored” to achieve its objectives. The Court has concluded that given the deference to be accorded national security judgments, and the facial reasonableness and plausibility of the Government’s positions, as supported by detailed declarations of high level agency officials, the constitutional issues can be resolved on summary judgment. However, this conclusion is subject to reasonable debate. As the Court has previously observed, the No Fly List represents an unprecedented assertion of Executive Branch authority and Plaintiff’s position concerning the necessary record upon which to decide the constitutional issues is not insubstantial.
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marked,’ and respect for the Government’s conclusions is appropriate.” (internal citation omitted)); see also Kliendienst v. Mandel, 408 U.S. 753, 770 (1972) (concluding that where the government has provided a facially legitimate and bona fide reason, “the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who [claim they are injured by the visa denial]”); Washington v. Trump, 847 F.3d 1151, 1161 (9th Cir. 2017).
In assessing whether the No Fly List is narrowly tailored to serve a compelling government interest, the relevant context is not, as Plaintiff contends, all forms of public transportation that may be vulnerable to a terrorist threat, but rather, specifically, commercial aviation, with its special vulnerabilities. In that regard, the Government has provided cogent reasons as to why each of the alternatives to the List that Plaintiff has suggested would be inadequate. Moreover, whether the No Fly List is narrowly tailored also cannot be divorced from the procedures in place to review whether someone should be on the List. As reflected in the Court’s Memorandum Opinion dated July 16, 2015, the Court expects that through the DHS TRIP review process, a person who thinks he is on the No Fly List will have a meaningful opportunity to know and respond to the factual basis for his inclusion. The Court also expects that an administrative record will be created that gives a reviewing court the necessary information to determine whether the applicable criteria has been satisfied, whether there has, in fact, been a meaningful opportunity to know and challenge any derogatory information, and whether the “predictive judgments” embedded in that criteria are sufficiently anchored in facts to justify the substantial infringements that are imposed on a person by virtue of his inclusion on the No Fly List. See Mohamed II, 2015 WL 4394958, at *13.
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For all these reasons, Court finds that the List is necessary and sufficiently narrowly tailored to achieve a compelling government interest and therefore does not violate Plaintiff’s substantive due process rights.
C. The No-Fly List Passes Rational Basis Review as Applied to International Travel.
Under rational basis review, the plaintiff bears the burden to demonstrate that the Government’s chosen means is not “rationally related to a legitimate state interest.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). For the above reasons, the Government’s interest here is compelling, and the means chosen to achieve it are narrowly tailored. Therefore, the List also survives rational basis review as it applies to international travel.
V. COUNT IV: NON-DELEGATION In Count IV, Plaintiff claims (1) that Congress violated the non-delegation doctrine and (2) that TSC and TSA have exceeded their authority. See FAC ¶¶ 71-72 (“Congress’ [w]atchlist [d]elegation was [u]nconstitutional and Defendant TSA [l]acks [c]ongressional [a]uthorization to [a]dminister DHS TRIP as it [c]urrently [e]xists.” ). The non-delegation doctrine holds that “Congress may not constitutionally delegate its legislative power to another branch of Government.” Touby v. United States, 500 U.S. 160, 165 (1991). This doctrine “is rooted in the principle of separation of powers that underlies our tripartite system of Government.” Mistretta v. United States, 488 U.S. 361, 371 (1989). However, “[s]o long as Congress ‘. . . lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.’” Id. at 372 (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)).
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The Supreme Court has only twice sustained a non-delegation challenge. In Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), the statute at issue “provided literally no guidance for the exercise of discretion.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474 (2001). In the only other successful non-delegation challenge,17 the statute “conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition.’” Id.
After the September 11, 2001 terrorist attacks, Congress gave the TSA “responsib[ility] for security in all modes of transportation.” 49 U.S.C. § 114(d). Specific to aviation security, TSA must work with the FBI to “assess current and potential threats to the domestic air transportation system” and “decide on and carry out the most effective method for continuous analysis and monitoring of security threats to that system.” 49 U.S.C. § 44904(a). Congress directed TSA to “share . . . data on individuals identified . . . who may pose a risk to transportation or national security” and to “notif[y] . . . airport or airline security officers of the identity of [such] individuals.” 49 U.S.C. § 114(h)(1)-(2). TSA must also,
in consultation with other appropriate Federal agencies and air carriers, establish policies and procedures requiring air carriers (A) to use information from government agencies to identify individuals on passenger lists who may be a threat to civil aviation or national security; and (B) if such an individual is identified, notify appropriate law enforcement agencies, prevent the individual from boarding an aircraft, or take other appropriate action with respect to that individual. 49 U.S.C. § 114(h)(3). Congress also required that DHS “establish a timely and fair process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat under the regimes utilized by [TSA], United States Customs and Border Protection, or any other office or component of [DHS].” 49 U.S.C. § 44926(a). In
17 See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
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that regard, DHS is required to “establish a procedure to enable airline passengers . . . to appeal such determination [that they pose a security threat] and correct information contained in the system.” 49 U.S.C. § 44903(j)(2)(C)(iii).
Plaintiff largely conflates his argument concerning the non-delegation doctrine with his claim that TSA exceeded its statutory authority; he argues that the statute is drafted too vaguely and that this Court should therefore exercise constitutional avoidance so as to construe it in a way that disallows the List. The statute does not provide an “intelligible principle,” the Plaintiff contends, because it does not specifically describe what level of threat is necessary for TSA to deny a passenger boarding.
Upon review of the applicable statutes, the Court concludes that Congress has provided “intelligible principles” both as to the goals TSA should seek to achieve and also how it should go about achieving them, while leaving the day-to-day implementation of the scheme to TSA. Most importantly, Congress has specifically directed TSA to “prevent the individual [who may be a threat to civil aviation or national security] from boarding an aircraft,” 49 U.S.C. § 114(h)(3)(B), which is exactly what the List does.
VI. COUNT II: UNLAWFUL AGENCY ACTION In Count II, Plaintiff claims that the Defendants have committed unlawful agency action and asks this Court to construe 49 U.S.C. § 114 in such a way that the creation and use of the No Fly List exceeds any delegated authority.18 As discussed above, Congress has provided TSA with three different tangible means of addressing threats, one of which is to prohibit passengers
18 In further support of this position, Plaintiff also argues that in order to avoid the constitutional issues raised by the Defendants’ exercise of what the Defendants claim is their delegated authority, the Court should, under the doctrine of “constitutional avoidance,” construe that authority in a way that precludes the No Fly List, as it presently exists under the criteria for inclusion. Given that that the Court has rejected Plaintiff’s constitutional claims, there is no need to avoid any constitutional issue with respect to the No Fly List arising out of the exercise of delegated authority.
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from boarding aircrafts. TSA, in tum, has used that statutory authority to respond to different threat levels in different ways. For example, while some individuals are denied boarding, others who are perceived as lesser threats are placed on the Selectee List and are subject to additional screening. TSA has not undertaken an unlawful agency action that is arbitrary. capricious, an abuse of discretion, or not otherwise in accordance with law or contrary to a constitutional right but, rather, has acted within the scope of the authority delegated to it. 19 Accordingly, the Court grants Defendants summary judgment on Count IV.
VII. CONCLUSION For the reasons set forth above, this Court GRANTS Defendants' motion for summary judgment and DENIES Plaintiffs motion for summary judgment as to Counts I, II and IV, and those counts are DISMISSED. The Court will issue an appropriate order. The Clerk is directed to forward a copy of this Memorandum Opinion to all counsel of record.
Alexandria, Virginia July 20, 2017
19 Ahhough not briefed in his motion for summary judgment, Plaintiff has alleged in his complaint the related claim that '·Congress has not delegmed to TSA the authority to create a process that can culminate in the removal of individuals from the TSDB" and that "Congress's delegation to TSA to create a redress process is defective because the Executive Branch has allocated watchlist authority in a manner that prevents TSA from creating a redress process.·· FAC �f 74-75. In fact, Congress has specifically directed TSA to "establish a timely and fair process for individuals identified [under TSA's passenger screening system] to appeal to [TSA] the determination and correct any erroneous infom1ation.'' 49 U.S.C. §§ 44903U)(2)(C)(iii)(I), U)(2)(G)(i). Defendant has done that in the form of OHS TRIP and has revised its procedures in response to judicial decisions, including one in this litigation.
22

 
 Case 1:11-cv-00050-AJT-MSN Document 263 Filed 12/21/17 Page 1 of 2 PageID# 3471
FILED: December 21, 2017
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
___________________
No. 17-7235 (1:11-cv-00050-AJT-MSN)
___________________
GULET MOHAMED
Plaintiff - Appellant
v.
JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States; CHARLES H. KABLE, IV, in his official capacity as Director of the Terrorist Screening Center; UNKNOWN TSC AGENTS, in their individual capacity; ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland Security; DAVID P. PEKOSKE, in his official capacity as Administrator of the Transportation Security Administration; CHRISTOPHER A. WRAY, in his official capacity as Director of the Federal Bureau of Investigation
Defendants - Appellees
and
UNKNOWN AGENTS
Defendants
___________________
O R D E R ___________________
Upon consideration of the motion to voluntarily dismiss this case pursuant to
Rule 42(b) of the Federal Rules of Appellate Procedure, and there appearing no

Case 1:11-cv-00050-AJT-MSN Document 263 Filed 12/21/17 Page 2 of 2 PageID# 3472
opposition, the court grants the motion. For the Court--By Direction /s/ Patricia S. Connor, Clerk