UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Nasser Beydoun, 

Plaintiff, 

v. 

Eric Holder, Jr., et al., 

Defendants. 

________________________________/

Case No. 14-cv-13812 

Hon. Judith E. Levy 

OPINION AND ORDER GRANTING DEFENDANTS’ 

MOTION TO STAY [6] 

Plaintiff Nasser Beydoun brought this class action complaint 

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

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

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

provide post-deprivation notice and hearing. These allegations stem 

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

additional screening by the Transportation Security Administration 

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

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failure to provide a constitutionally adequate remedy to challenge 

plaintiff’s inclusion on the Selectee List. (Dkt. 1). 

Before the Court is defendants’ motion to stay the case pending 

the Sixth Circuit’s decision in Mokdad v. Holder, Case No. 14-1094, a 

case defendants argue will provide controlling precedent regarding the 

Court’s subject matter jurisdiction to consider claims like those in this 

case. Defendants further move the Court to permit their answer or 

response to this complaint to be filed thirty days after the Sixth Circuit 

issues its decision in Mokdad. Plaintiff opposes the motion arguing that 

the matter before the Sixth Circuit is distinguishable from this case. 

 For the reasons set forth below, the Court grants defendants’ 

motion to stay and orders that defendants’ answer or response to the 

complaint be filed within thirty days of the Sixth Circuit’s ruling in 

Mokdad. 

I. Background 

The TSA has established Security Directives with respect to two 

groups of people it has determined to pose a potential risk to aviation 

safety. The first group is made up of individuals who are placed on a 

No Fly List and are entirely prohibited from flying. The second group 

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includes those placed on the Selectee List who must undergo additional 

screening before they are allowed to fly. Both of these lists are subsets 

of the Terrorist Screening Database (“TSDB”). (Dkt. 6-4). 

For those individuals who believe they have been wrongly placed 

on either of these lists, Congress developed the Department of 

Homeland Security Traveler Inquiry Program (“DHS TRIP”), which it 

describes as “a timely and fair redress process for individuals who 

believe they were delayed or prohibited from boarding a commercial 

aircraft because they were wrongly identified as a threat.” 49 U.S.C. 

§44926. Once an inquiry is made by an individual regarding his or her 

placement on either of the lists, the “TSA, in coordination with the TSC 

and other appropriate federal law enforcement or intelligence agencies, 

if necessary, will review all the documentation and information 

requested from the individual, correct any erroneous information, and 

provide the individual with a timely written response.” 49 C.F.R. § 

1560.205(d). Upon completion of the review, DHS TRIP sends a final 

determination letter describing the agency’s findings to the 

complainant. 

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In Mokdad, the plaintiff challenged his alleged placement on the 

No Fly List as well as the constitutionality of DHS TRIP. Defendants 

moved to dismiss, arguing that the Sixth Circuit had original 

jurisdiction over the plaintiff’s claims. 

The relevant portion of 49 U.S.C. § 46110 states: 

[A] person disclosing a substantial interest in an order 

issued by the Secretary of Transportation (or the Under 

Secretary of Transportation for Security with respect to 

security duties and powers designated to be carried out by 

the Under Secretary or the Administrator of the Federal 

Aviation Administration with respect to aviation duties and 

powers designated to be carried out by the Administrator) in 

whole or in part under this part, part B, or subsection (l) or 

(s) of section 114 may apply for review of the order by filing a 

petition for review in the United States Court of Appeals for 

the District of Columbia Circuit or in the court of appeals of 

the United States for the circuit in which the person resides 

or has its principal place of business. 

**** 

When the petition is sent to the Secretary, Under Secretary, 

or Administrator, the court [of appeals] has exclusive 

jurisdiction to affirm, amend, modify, or set aside any part of 

the order and may order the Secretary, Under Secretary, or 

Administrator to conduct further proceedings...the court 

may grant interim relief by staying the order or taking other 

appropriate action when good cause for its action exists. 

49 U.S.C. § 46110 (emphasis added). 

The District Court dismissed the case on jurisdictional grounds, 

finding that, since any claim related to the No Fly list required review 

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of statutory mandates imposed upon the TSA, the law granted exclusive 

jurisdiction of the claim with the courts of appeals. See Dkt. 6-4; 49 

U.S.C. § 46110. 

The question before the Sixth Circuit in Mokdad is whether 49 

U.S.C. § 46110, a statute vesting the courts of appeals with exclusive 

jurisdiction to consider challenges of final orders of the TSA, governs 

challenges to an alleged denial of boarding an airplane as well as 

challenges to the administrative redress process afforded by DHS TRIP. 

The Sixth Circuit heard oral argument on this question on October 8, 

2014. (Dkt. 6 at 9). 

In this case, plaintiff alleges due process violations and unlawful 

agency action due to his placement on the Selectee List, and defendants’ 

failure to provide a constitutionally adequate remedy to challenge his 

inclusion on that list. (Dkt. 1). Beydoun argues that his placement on 

the Selectee List has resulted in excessive delays in his travel. (Id.) He 

further alleges that he made three redress inquiries with DHS TRIP. 

In response to plaintiff’s most recent inquiry, the DHS issued a final 

agency decision recommending that he provide his redress number 

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when reserving airline tickets and when travelling to help avoid future 

delays. (Dkt. 6-3). 

II. Standard of Review 

A district court may stay a case in order to allow a higher court in 

a separate case to settle issues of law that have bearing on the matter 

to be stayed. See Marshel v. AFW Fabric Corp., 552 F.2d 471, 472 (2d 

Cir. 1977); Bechtel Corp. v. Local 215, Laborers’ Int’l Union of N. Am., 

544 F.2d 1207, 1215 (3d Cir. 1976). See also LaSala v. Needham & Co., 

Inc., 399 F. Supp.2d 421, 427 n.39 (S.D.N.Y. 2005) (noting that a stay is 

appropriate “where a higher court is close to settling an issue of law 

bearing on the action”). 

To determine whether a stay is warranted, a court must “weigh 

competing interests and maintain an even balance.” Landis v. North 

Am. Co., 299 U.S. 248, 254-55 (1936). The party seeking a stay “must 

make out a clear case of hardship or inequity in being required to go 

forward[] if there is even a fair possibility that the stay [requested] will 

work damage to some one else.” Id. at 255. “Especially in cases of 

extraordinary public moment, the [plaintiff] may be required to submit 

to delay not immoderate in extent and not oppressive in its 

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consequences if the public welfare or convenience will thereby be 

promoted.” Landis, 299 U.S. at 256. 

In making its determination, the Court weighs: “[1] the 

potentiality of another case having a dispositive effect on the case to be 

stayed, [2] the judicial economy to be saved by waiting on a dispositive 

decision, [3] the public welfare, and [4] the hardship/prejudice to the 

party opposing the stay, given its duration.” Michael v. Ghee, 325 F. 

Supp. 2d 829, 831 (N.D. Ohio 2004) (citing Landis, 299 U.S. at 255). 

III. Analysis 

A stay is warranted in this matter. The potentially dispositive 

impact of Mokdad, combined with the efficiency of waiting for the Sixth 

Circuit’s ruling, weighs heavily in favor of granting the stay. 

Plaintiff contends that the allegations before the Court are 

sufficiently distinguishable from those in Mokdad. He argues that the 

Selectee List, unlike the No Fly List, also affects a traveler dealing with 

travel where the TSA is not involved, such as land border crossings, 

which are administered by the TSC and the FBI. Plaintiff argues that 

his complaint should be construed as a broader constitutional challenge 

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to the administration of the Selectee List and the TSDB, rather than a 

narrow challenge to a final decision of the TSA. 

Construing plaintiff’s complaint in the broadest light possible, it is 

indisputable that a significant portion of his complaint challenges TSA 

final orders as well as claims inextricably intertwined with those 

orders. Plaintiff, for example, challenges his placement on the Selectee 

List and the failure to provide adequate post-deprivation notice and 

hearing, which are both arguably related to TSA final orders, as the 

TSA is responsible for passenger prescreening and administers the 

redress process for travelers complaining of delayed boarding. See 49 

U.S.C. § 44903(j)(2)(C)(ii)-(iii) ([the TSA] “shall... assume the 

performance of the passenger prescreening function of comparing 

passenger information to the automatic selectee list” and “shall 

establish a procedure to enable airline passengers, who are delayed..., 

to appeal such determination...”); 49 C.F.R. § 1560.105(b)(2) & 

1560.201-207. Even if the Court were to adopt the argument that 

administration of the Selectee List extends beyond TSA’s control, it is 

indisputable that the TSA is responsible for the redress process. 

Plaintiff does not provide authority to counter this view. See 49 U.S.C. 

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§ 46110; Dkt 7. Indeed, the redress process plaintiff engaged in 

concluded with a letter from DHS TRIP, a final order subject to 49 

U.S.C. § 46110. 

If the Sixth Circuit’s decision in Mokdad fails to be dispositive of 

all issues in this case, its ruling is still likely to significantly simplify 

this case. See Landis, 299 U.S. 248. Indeed, the Mokdad decision is 

likely to have precedential effect on questions of subject matter 

jurisdiction and to resolve at least some of the claims before the Court. 

This weighs in favor of granting a stay. See Ghee, 325 F.Supp.2d at 

831; Bandit Indus., Inc. v. Blue Cross & Blue Shield of Mich., 2013 WL 

5651444, at *1-2 (E.D. Mich. 2013). 

Furthermore, the alleged harm to the public welfare and alleged 

prejudice to plaintiff do not outweigh the benefits of a stay. In light of 

the fact that the Sixth Circuit held oral argument on Mokdad in 

October 2014, the delay caused by granting the stay should not be 

significant. 

Accordingly, IT IS HEREBY ORDERED that: 

Defendants’ Motion for Stay is GRANTED. 

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Defendants shall have thirty days to answer or respond to 

plaintiff’s complaint following the Sixth Circuit’s decision in Mokdad. 

Dated: February 13, 2015 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 February 13, 2015. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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