UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Nasser Beydoun, 

Plaintiff, 

v. 

Loretta Lynch, Christopher M. 

Piehota, and James B. Comey, 

Defendants. 

________________________________/

Case No. 14-cv-13812 

Judith E. Levy 

United States District Judge 

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO 

DISMISS [15] 

 Nasser Beydoun brought suit against Loretta E. Lynch, Attorney 

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

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

alleging that the redress process by which he may challenge his 

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

Screening Database, violates the Due Process Clause of the Fifth 

Amendment and the Administrative Procedure Act. Defendants filed a 

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

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

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dismissed for failure to name a necessary party, and plaintiff’s oral 

motion for leave to amend is denied as futile. 

I. Background 

a. Overview of the Selectee List and redress procedures 

Both the No-Fly List and the Selectee List are subsets of the 

Terrorist Screening Database, which is maintained by the Terrorist 

Screening Center (“TSC”), an agency overseen by the FBI. (Dkt. 15 at 

15, 17-19.) “The [Terrorist Screening Database] is a consolidated 

database containing identifying information of persons about whom 

there is a reasonable suspicion that they are known or suspected 

terrorists.” (Id. at 18; see Dkt. 1 at 2, 7.) Individuals on the No-Fly 

List are not permitted to fly, while those on the Selectee List are subject 

to “enhanced screening,” after which they may board a commercial 

flight and travel by air. (Dkt. 15 at 19-20.) 

The Transportation Security Administration is responsible for 

implementing the No-Fly and Selectee Lists and must “perform[] . . . the 

passenger prescreening function of comparing passenger information to 

the automatic [S]electee and [N]o[-F]ly [L]ists and utilize all 

appropriate records in the consolidated and integrated terrorist watch 

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list maintained by the [TSC] in performing that function.” (Id. at 19 

(quoting 49 U.S.C. § 44903(j)(2)(C)(ii)).) 

 Individuals who wish to challenge their suspected inclusion on 

the Selectee or No-Fly List may seek redress through the Department of 

Homeland Security’s Redress Inquiry Program (“DHS TRIP”). (Dkt. 15 

at 15 (citing 49 C.F.R. §§ 1560.201–.207); see Dkt. 23 at 18.) After a 

redress inquiry form is submitted, the “TSA, in coordination with the 

TSC and other appropriate Federal law enforcement or intelligence 

agencies, if necessary, will review all the documentation and 

information requested from the individual, correct any erroneous 

information, and provide the individual with a timely written response.” 

(Dkt. 15 at 21 (quoting 49 C.F.R. § 1560.205(d)).) These written 

responses vary in content, “but generally state whether corrections have 

been made as a result of the redress inquiry and DHS TRIP’s review.” 

(Id. at 21-22 (citing Dkt. 6-3).) 

b. Plaintiff’s allegations 

Plaintiff Nasser Beydoun is an American citizen and resident of 

the state of Michigan, who “frequently needs to travel several times per 

month for work purposes.” (Dkt. 1 at 3-4.) During these travels, 

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plaintiff has been “selected for secondary and additional screening at 

different domestic airports” and “subjected to unwarranted and 

excessive delays.” (Id. at 2.) The restrictions placed on plaintiff’s travel 

include “excess delays, secondary screening, being singled out at check 

points, and being singled out for additional screening at the gate,” all of 

which have “impeded Plaintiff’s business matters, . . . humiliated 

Plaintiff,” and caused plaintiff to miss “countless flights.” (Id. at 8.) 

These delays and restrictions on plaintiff’s travel are “apparently due to 

the [TSA]’s representation that he is on the Selectee List.” (Id. at 3.) 

Plaintiff brings two claims against Loretta E. Lynch, Christopher 

M. Piehota, and James B. Comey, in their official capacities. (See id. at 

4.)1 Plaintiff also purports to represent a class of “all those who are 

believed to be included on the No[-]Fly and Terrorist Watch List, have 

been the victim of harassment and disparate treatment at airports 

when attempting to board their flights, and have not been given any 

legitimate means of redress.” (Id. at 9-11.) 

 

1 Former Attorney General of the United States Eric H. Holder, Jr., was named in 

the complaint, but current Attorney General of the United States Loretta E. Lynch 

has been substituted as the proper party pursuant to Rule 25(d) of the Federal 

Rules of Civil Procedure. 

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Plaintiff first claims that his inclusion on the Selectee List violates 

the Due Process Clause of the Fifth Amendment of the United States 

Constitution. (See id. at 11-12.) Plaintiff alleges that he has been 

deprived of his due process interests “in traveling free from 

unreasonable burdens within, to, or from the United States of America,” 

“to be free from the false allegation that he is a terrorist or that he is 

associated with terrorist activities,” and in “not being singled out for 

punishment,” all without adequate post-deprivation process. (Id.) 

According to plaintiff, the DHS TRIP process lacks sufficient “postdeprivation notice and an opportunity to contest the deprivation of his 

right[s],” because it “presently provides no meaningful opportunity for 

Plaintiff to provide exculpatory evidence in an effort to be taken off the 

No-Fly or Terrorist Watch Lists.”2 (Id.) 

Plaintiff next claims that defendants’ actions violate Sections 

706(2)(A) and (2)(B) of the Administrative Procedure Act (“APA”). (Dkt. 

1 at 13-14 (citing 5 U.S.C. §§ 706(2)(A)–(2)(B).) Plaintiff alleges that 

 

2 Plaintiff says he can still fly, so he cannot be on the No-Fly List. If plaintiff 

intends this allegation to be on behalf of purported class members who are on the 

No-Fly List, the Court notes that plaintiff would be an inadequate class 

representative. Because plaintiff otherwise refers to his placement on the Selectee 

List throughout his complaint and response, the Court interprets plaintiff’s 

allegation here to mean that there is “no meaningful opportunity for Plaintiff to 

provide exculpatory evidence in an effort to be taken off the [Selectee]” List. 

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because defendants failed to provide him, “at a minimum, notice and 

opportunity to contest his placement on the [S]electee [L]ist after being 

targeted and harassed at the airport,” defendants’ actions were 

“arbitrary, capricious, an abuse of discretion, otherwise not in 

accordance with the law, and contrary to constitutional rights, power, 

privilege, or immunity, and should set aside as unlawful.” (Id.) 

At the hearing, the Court noted that defendants had argued that 

plaintiff’s constitutional and APA claims were “coextensive,” and asked 

plaintiff’s counsel, “is your APA claim limited to stating that the 

administrative decision violated the Constitution?” Plaintiff’s counsel 

responded: “Yes, your Honor. In a nutshell, yes.” 

II. Standard 

When deciding a motion to dismiss under Rule 12(b)(6) of the 

Federal Rules of Civil Procedure, the Court must “construe the 

complaint in the light most favorable to the plaintiff and accept all 

allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 

2012). “To survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to state a claim to relief that 

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A 

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plausible claim need not contain “detailed factual allegations,” but it 

must contain more than “labels and conclusions” or “a formulaic 

recitation of the elements of a cause of action.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007). 

III. Analysis 

Plaintiff failed to name the TSA as a defendant, a necessary party 

when challenging the DHS TRIP redress process, so his due process and 

APA claims must be dismissed. At the hearing, plaintiff’s counsel asked 

that plaintiff be granted leave to amend the complaint if the Court were 

inclined to dismiss the case, so that plaintiff could directly challenge his 

placement on the Selectee List. Because plaintiff fails to establish that 

his purported placement on the list deprives him of a constitutionally 

protected life, liberty, or property interest, leave to amend is denied. 

a. Plaintiff failed to name the TSA, a necessary party, as 

a defendant 

As alleged, plaintiff brings due process and APA challenges to the 

DHS TRIP redress procedures, not his placement on the Selectee List. 

According to the Sixth Circuit in Mokdad v. Lynch, a challenge to the 

DHS TRIP redress process is a challenge to a TSA order. Mokdad v. 

Lynch, 804 F.3d 807, 811 (6th Cir. 2015) (“To the extent that [plaintiff] 

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challenges the adequacy of the redress process, his claims amount to a 

challenge to a TSA order. Congress has specifically directed DHS and 

TSA—not TSC—to establish a redress process for travelers who believe 

they have been wrongly included on the No[-]Fly List.”) (quoting 49 

U.S.C. §§ 44926(a), 44903(j)(2)(C)(iii)(I), (G)(i)). Plaintiff failed to name 

the TSA as a defendant, a necessary party to challenge a TSA order, so 

his claims must be dismissed. See id. at 812 (“TSA is, therefore, a 

required party to [plaintiff]’s litigation about the adequacy of the 

redress procedures. . . . We dismiss without prejudice [plaintiff]’s 

claims challenging the adequacy of the redress process.”). 

Plaintiff argues that he is “not challenging the TRIP 

determination letter or the letter issued by the TSA, but instead, the 

determination of the DHS via the TRIP letter [and] . . . his apparent 

placement on the Selectee List itself.” (Dkt. 23 at 17.) Essentially, 

plaintiff argues that he is directly challenging his placement on the 

Selectee List, which would only implicate the TSC, not the TSA. See 

Mokdad, 804 F.3d at 811 (noting that the “TSC determines ‘. . . whether 

the status should be changed[, ]for example, No Fly to Selectee[]’”). 

Defendants reply that plaintiff “restyles his claims altogether, now 

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alleging that the lawsuit only intends to challenge ‘his apparent 

placement on the Selectee List itself.’”3 (Dkt. 25 at 8.) 

On the face of the complaint, plaintiff does not directly challenge 

his placement on the Selectee List. Plaintiff alleges in his due process 

claim that he “is entitled to a legal system that affords him postdeprivation notice and an opportunity to contest the deprivations of his 

rights,” and “[t]he DHS TRIP process presently presents no meaningful 

opportunity for Plaintiff to provide exculpatory evidence in an effort to 

be taken off the [Selectee] or Terrorist Watch Lists.” Plaintiff’s due 

process claim explicitly concerns the alleged lack of notice and hearing, 

and is thus a challenge to the DHS TRIP redress procedures. 

And plaintiff alleges in his APA claim that the “DHS TRIP process 

does not provide a meaningful mechanism for travelers who have been 

denied boarding or subjected to unwarranted additional screenings to 

correct erroneous information in the government’s terrorism databases,” 

and “fails to consider an important aspect of Congress’s instructions and 

violates § 706(2)(A) of the APA.” (Dkt. 1 at 13-14.) According to 

plaintiff, “Defendants’ failure to provide Plaintiff with a constitutionally 

 

3 Defendants neither admit nor deny that plaintiff is on the Selectee List.

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adequate remedy that affords, at a minimum, notice and an opportunity 

to contest his placement on the selectee list” violates the APA. (See 

Dkt. 1 at 14 (emphasis added).) As with plaintiff’s due process claim, 

his APA claim is a challenge to the DHS TRIP redress process. 

Even plaintiff’s requested relief involves the DHS TRIP redress 

procedure. Plaintiff requests that the Court “[e]njoin[] Defendants and 

requir[e] them to provide a valid legal mechanism that affords notice of 

the factual basis for the placement of individuals on the Selectee List 

and a meaningful opportunity to contest their inclusion onto said list.” 

(Dkt. 1 at 15.) Put differently, plaintiff seeks a new redress process. 

Plaintiff’s due process and APA claims are thus dismissed for failure to 

name a necessary party, the TSA. See Mokdad, 804 F.3d at 812. 

b. Leave to amend is denied as futile 

At the hearing on this motion, plaintiff’s counsel made an oral 

motion for leave to amend his complaint if the Court were in any way 

inclined to grant defendants’ motion to dismiss. Because amending the 

complaint as requested would be futile, plaintiff’s oral motion is denied. 

The Court specifically noted at the hearing that plaintiff had not 

sought “to amend to include TSA as a defendant.” Plaintiff’s counsel 

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responded: “We don’t want to include TSA, your Honor.” In Mokdad, 

the Sixth Circuit “dismiss[ed] without prejudice [plaintiff]’s claims 

challenging the adequacy of the redress process” because the plaintiff 

“failed to join TSA as a defendant.” Id. at 812. Here, plaintiff would 

not join the TSA as a defendant if leave to amend were granted, so 

granting plaintiff leave to amend his claims challenging the adequacy of 

the DHS TRIP redress process would be futile. 

Plaintiff amending his complaint to directly challenge his 

placement on the Selectee List would also be futile. Plaintiff’s 

requested amendment would fail to establish that his placement on the 

list violates a life, liberty, or property interest protected by the Due 

Process Clause, and thus would not state a claim. 

To establish a procedural due process violation under 42 U.S.C. 

§ 1983, plaintiff must show: (1) that he had a protected life, liberty, or 

property interest; (2) that the federal government deprived him of that 

protected interest; and (3) “that the state did not afford [him] adequate 

procedural rights before depriving [him] of [his] protected interest.” 

Wedgewood L.P. I v. Twp. of Liberty, 610 F.3d 340, 349 (6th Cir. 2010). 

Plaintiff argues that he was deprived of his right to “travel[] free from 

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unreasonable burdens within, to, or from the United States of America,” 

his “right to his reputation and to be free from the false allegation that 

he is a terrorist or . . . associated with terrorist activities,” and his 

“liberty interest in not being singled out for punishment without trial or 

without due process of law.” (Dkt. 1 at 11-12; see Dkt. 23 at 20-33.) 

First, under existing case law, plaintiff fails to sufficiently allege 

that he was deprived of his right to travel. Government action 

implicates the right to travel under the Due Process Clause when it 

“actually deters travel, when impeding travel is its primary objective, or 

when it uses a classification that serves to penalize the exercise of the 

right.” Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986) 

(internal quotations and citations omitted). “[T]ravelers do not have a 

constitutional right to the most convenient form of travel[, and] minor 

restrictions on travel simply do not amount to the denial of a 

fundamental right.” Town of Southold v. Town of East Hampton, 477 

F.3d 38, 54 (2d Cir. 2007); see Gilmore v. Gonzales, 435 F.3d 1125, 1136 

(9th Cir. 2006) (“[T]he Constitution does not guarantee the right to 

travel by any particular form of transportation.”); Cramer v. Skinner, 

931 F.2d 1020, 1031 (5th Cir. 1991) (“Minor restrictions on travel 

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simply do not amount to the denial of a fundamental right that can be 

upheld only if the Government has a compelling justification.”). 

Thus a law that has an “incidental or negligible” burden on the 

right to travel does not rise to the level of a due process violation, 

because such a burden could “hardly be said to deter or penalize travel.” 

See, e.g., LULAC v. Bredesen, 500 F.3d 523, 535 (6th Cir. 2007) (“The 

state’s denial of state-issued photograph identification to temporary 

resident aliens may arguably result in inconvenience, requiring the 

bearer of a certificate for driving to carry other personal identification 

papers, but this inconvenience can hardly be said to deter or penalize 

travel. To the extent this inconvenience burdens exercise of the right to 

travel at all, the burden is incidental and negligible, insufficient to 

implicate denial of the right to travel.”). 

Plaintiff argues that “the burdens imposed by the restrictions 

placed on Plaintiff by virtue of being placed on the Selectee List are far 

greater than any of the burdens imposed by the restrictions placed on 

the plaintiffs” in those cases. (Dkt. 23 at 14 (citing Latif v. Holder, 28 F. 

Supp. 3d 1134 (D. Or. 2014)).) Plaintiff cites Latif v. Holder, in which 

the district court “conclude[d] . . . that [p]laintiffs have constitutionally5:14-cv-13812-JEL-MJH Doc # 27 Filed 07/14/16 Pg 13 of 18 Pg ID 272
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protected liberty interests in traveling internationally by air, which are 

significantly affected by being placed on the No[-]Fly List,” because 

placement on the No-Fly List resulted in the plaintiffs being “denied 

boarding on flights over United States airspace.” See Latif, 28 F. Supp. 

3d at 1143, 1149. 

But here, plaintiff does not allege that he has been denied 

boarding because of his purported inclusion on the Selectee List. Nor 

does he allege that enhanced screening has deterred him from flying. 

Rather, plaintiff alleges that he has suffered “excess delays, secondary 

screening, being singled out at check points, and being singled out for 

additional screening at the gate.” According to plaintiff, he has still 

“been permitted to [board flights].” (Dkt. 1 at 3.) 

At the hearing, plaintiff’s counsel argued that these incidents of 

additional screening and questioning unfairly harassed and humiliated 

his client, because he should never have been on the Selectee List. The 

Court fully acknowledges this harm. However, plaintiff’s allegations do 

not rise to the level of a due process violation, because he alleges that he 

can still fly after additional screening and has not been deterred from 

flying. 

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Second, plaintiff fails to sufficiently allege that his placement on 

the Selectee List has caused him reputational harm that rises to the 

level of a constitutional violation. For a reputational harm to infringe 

on a protected liberty interest, plaintiff must meet the “stigma-plus” 

test, that is, plaintiff must demonstrate that the government’s action 

“damaged his . . . reputation (the stigma) and that it ‘deprived [him] of 

a right previously held under [the] law’ (the plus).” See Doe v. Michigan 

Dept. of State Police, 490 F.3d 491, 502 (6th Cir. 2007) (quoting Paul v. 

Davis, 424 U.S. 693, 708 (1976)). 

Assuming that plaintiff sufficiently alleges the stigma element, he 

fails to sufficiently allege that he was deprived of a right previously 

held under the law. To satisfy this part of the test, plaintiff must allege 

that he “legally could not do something that []he could otherwise do.” 

See Miller v. California, 355 F.3d 1172, 1179 (9th Cir. 2004); Latif, 28 F. 

Supp. 3d at 1150 (inclusion on the No-Fly List sufficient under the plus 

prong because plaintiffs could no longer fly). Here, plaintiff says that 

he can still fly, albeit after enhanced screening. He thus fails to allege 

that he was deprived of a right he previously held. 

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Third, plaintiff fails to sufficiently allege that his purported 

placement on the Selectee List singles him out for punishment without 

trial or due process in violation of the Due Process Clause. Courts first 

look to legislative intent to determine whether a “restriction on liberty 

constitutes impermissible punishment or permissible regulation.” 

United States v. Salerno, 481 U.S. 739, 747 (1987). “Unless Congress 

expressly intended to impose punitive restrictions, the 

punitive/regulatory distinction turns on ‘whether an alternative 

purpose to which [the restriction] may rationally be connected is 

assignable for it, and whether it appears excessive in relation to the 

alternative purpose assigned [to it].’” Id. (quoting Schall v. Martin, 467 

U.S. 253, 269 (1984)) (alterations in original). 

Plaintiff alleges that “Defendants’ actions have singled out 

Plaintiff for punishment . . . by placing unwarranted and unjust 

additional screening and scrutiny on Plaintiff when attempting to fly.” 

(Dkt. 1 at 12.) But Congress charged the TSA with managing the dayto-day security functions of air transportation for the purpose of 

preventing terrorist attacks, and granted the TSA authority to “issue 

. . . such regulations as are necessary to carry out [its] functions.” 49 

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U.S.C. § 114(l)(1). “There is no doubt that preventing danger to the 

community is a legitimate regulatory goal.” Salerno, 481 U.S. at 747. 

And regulations that provide for additional security screening at 

airports under certain circumstances are rationally related to the goal 

of preventing danger to the community. In this case, plaintiff does not 

sufficiently allege that the additional screening would be “excessive in 

relation to” that general goal. 

Even if plaintiff were granted leave to amend his complaint to 

directly challenge his placement on the Selectee List, he fails to plead 

the deprivation of a constitutionally protected life, liberty, or property 

interest. Plaintiff’s APA claim would similarly fail, because Plaintiff’s 

counsel stated at the hearing that the APA claim is based solely on the 

alleged constitutional violation. Leave to amend plaintiff’s complaint 

would be futile, and his oral motion is denied. 

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IV. Conclusion 

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

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

DENIED. 

IT IS SO ORDERED. 

Dated: July 14, 2016 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on July 14, 2016. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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