Kovac v. Wray
Opinion
Sam A. Lindsay, United States District Judge
Before the court is Defendants' Motion to Dismiss (Doc. 8), filed April 13, 2018. After careful consideration of the pleadings, motion, response, reply, and applicable law, the court denies in part and grants in part Defendants' Motion to Dismiss.
I. Factual Background and Procedural History
Plaintiffs are Adis Kovac ("Mr. Kovac"), Bashar Aljame ("Mr. Aljame"), Abraham Sbyti ("Mr. Sbyti"), Suhaib Allababidi ("Mr. Allababidi"), and Fadumo Warsame ("Ms. Warsame") (sometimes collectively, "Plaintiffs"). Plaintiffs are United States citizens and are all Muslims. Plaintiffs allege that they are included in the Government's Terrorism Screening Database ("TSDB" or "watchlist") which, among other things, has prevented them from boarding commercial flights that traverse United States airspace or caused them to be subjected to additional screening when traveling by air or entering the country at a land border or port.
On January 17, 2018, Plaintiffs filed their Complaint for Injunctive and Declaratory Relief ("Complaint") (Doc. 1), contending that their alleged inclusion on the watchlist and the lack of an adequate process of redress for those individuals placed erroneously on the watchlist violate their rights to due process and equal protection under the Fifth Amendment of the United States Constitution, the non-delegation doctrine of the United States Constitution, and the Administrative Procedure Act. Defendants are officials of multiple government agencies charged with oversight of portions of the TSDB, including implementation, maintenance, and redress processes: Christopher Wray, Director of the Federal Bureau of Investigation ("FBI"); Charles Kable, Director of the Terrorist Screening Center ("TSC"); Deborah Moore, Director of Transportation Security Redress ("TSR") and of the Department of Homeland Security Traveler Redress Inquiry Program ("DHS TRIP"); Joseph McGuire, Director of the National Counterterrorism Center ("NCTC");1 David Pekoske, Administrator of the Transportation Security Administration ("TSA"); and Kevin McAleenan, Commissioner of United States Customs and Border Protection ("CBP")2 (sometimes collectively, "Defendants"). Compl. ¶¶ 19-24. Defendants are sued in their official capacities only. Id.
*732Plaintiffs assert federal subject matter jurisdiction under
A. Statutory and Regulatory Background
1. The TSA
The TSA, an agency within the DHS, has the duty to secure all modes of transportation, including aviation security.
2. The TSC and the TSDB ("No Fly List" and "Screening List")
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Sam A. Lindsay, United States District Judge
Before the court is Defendants' Motion to Dismiss (Doc. 8), filed April 13, 2018. After careful consideration of the pleadings, motion, response, reply, and applicable law, the court denies in part and grants in part Defendants' Motion to Dismiss.
I. Factual Background and Procedural History
Plaintiffs are Adis Kovac ("Mr. Kovac"), Bashar Aljame ("Mr. Aljame"), Abraham Sbyti ("Mr. Sbyti"), Suhaib Allababidi ("Mr. Allababidi"), and Fadumo Warsame ("Ms. Warsame") (sometimes collectively, "Plaintiffs"). Plaintiffs are United States citizens and are all Muslims. Plaintiffs allege that they are included in the Government's Terrorism Screening Database ("TSDB" or "watchlist") which, among other things, has prevented them from boarding commercial flights that traverse United States airspace or caused them to be subjected to additional screening when traveling by air or entering the country at a land border or port.
On January 17, 2018, Plaintiffs filed their Complaint for Injunctive and Declaratory Relief ("Complaint") (Doc. 1), contending that their alleged inclusion on the watchlist and the lack of an adequate process of redress for those individuals placed erroneously on the watchlist violate their rights to due process and equal protection under the Fifth Amendment of the United States Constitution, the non-delegation doctrine of the United States Constitution, and the Administrative Procedure Act. Defendants are officials of multiple government agencies charged with oversight of portions of the TSDB, including implementation, maintenance, and redress processes: Christopher Wray, Director of the Federal Bureau of Investigation ("FBI"); Charles Kable, Director of the Terrorist Screening Center ("TSC"); Deborah Moore, Director of Transportation Security Redress ("TSR") and of the Department of Homeland Security Traveler Redress Inquiry Program ("DHS TRIP"); Joseph McGuire, Director of the National Counterterrorism Center ("NCTC");1 David Pekoske, Administrator of the Transportation Security Administration ("TSA"); and Kevin McAleenan, Commissioner of United States Customs and Border Protection ("CBP")2 (sometimes collectively, "Defendants"). Compl. ¶¶ 19-24. Defendants are sued in their official capacities only. Id.
*732Plaintiffs assert federal subject matter jurisdiction under
A. Statutory and Regulatory Background
1. The TSA
The TSA, an agency within the DHS, has the duty to secure all modes of transportation, including aviation security.
2. The TSC and the TSDB ("No Fly List" and "Screening List")
In September 2003, Former Attorney General John Ashcroft established the TSC to consolidate the Government's approach to terrorism screening. Compl. ¶ 29. The TSC is a multi-agency center administered by the FBI. The TSC "develops and maintains the federal government's consolidated TSDB" that serves as "the federal government's master repository for suspected international and domestic terrorist records used for watch list related screening."
The procedure for submission of identity information for inclusion in the TSDB is known as the "nomination process." Piehota Statement at 11. Government agencies "nominate" individuals who may qualify for inclusion and submit those "nominations" to the NCTC for inclusion in its Terrorist Identities Datamart Environment ("TIDE") database.
"Before placing any information into the TSDB, the TSC utilizes a multi-level review process to ensure that the nomination meets the criteria for inclusion. Generally, nominations to the TSDB must satisfy two requirements."
Plaintiffs allege that Defendants have not stated publicly "the entirety of what standards or criteria are applied to determine whether an American citizen on the consolidated watch list will be placed on the No-Fly List, Selectee List ('SSSS') or other list that is distributed to the TSA, CBP or other screening agencies." Compl. ¶ 61. Plaintiffs contend that the "standards for watch list inclusion do not evince even internal logic."
3. The DHS TRIP
Congress has specifically directed the DHS to establish a redress procedure for individuals wrongly identified as a threat.
The Secretary of Homeland Security shall establish a timely and fair process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they *734were 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.
Congress has required the TSA to "establish a procedure to ensure airline passengers, who are delayed or prohibited from boarding a flight because the advanced passengers prescreening system determined that they might pose a security threat, to appeal such determination and correct information contained in the system,"id. § 44903(j)(2)(C)(iii)(I), and to "establish a timely and fair process for individuals identified as a threat under [the passenger screening system] to appeal to the [TSA] the determination and correct any erroneous information."
Pursuant to this authority, the TSA established and administers the DHS TRIP, through which travelers may request the correction of any erroneous information if they believe they have been unfairly or incorrectly delayed or denied boarding on an aircraft or entering a sterile area as a result of the watchlist. See
Plaintiffs allege that the DHS TRIP process is inadequate, as it fails to provide "a fair and effective mechanism through which they can challenge the TSC's decision to place them on the terrorist watch list." Compl. ¶ 108.
B. Individual Plaintiffs' Allegations
Mr. Kovac is a United States citizen and an American Muslim residing in New Jersey.
The remaining four Plaintiffs allege that they are on the "Selectee List" and, thereby, are subject to extra screening at airports and land border crossings.
Mr. Sybti is a United States citizen and an American Muslim residing in Dallas, Texas.
Mr. Aljame is a United States citizen and an American Muslim residing in Dallas, Texas.
Mr. Allababidi is a United States citizen and an American Muslim residing in Dallas, Texas.
Ms. Warsame is a United States citizen and an American Muslim residing in Dallas, Texas.
Each Plaintiff contends, upon information and belief, that his or her nomination to and designation on the federal terror watchlist was made based solely upon a hunch (formed upon race, ethnicity, national origin, religious affiliation, guilt-by-association, or First Amendment protected activities).
Plaintiffs allege they were never charged or convicted of a terrorism-related offense, provided notice of the factual bases for their respective placements on the watchlist before or after their listings, given a meaningful opportunity to contest their designation, or given notice of the deprivation of their liberty interests or violation of their constitutional rights.
C. This Lawsuit
Plaintiffs have filed a five-count Complaint based on their alleged inclusion in the TSDB and the alleged lack of an adequate process of redress for challenging erroneous placement on the "No Fly List" or "Screening List." In Count I, titled "Failure to Provide Post-Deprivation Notice and Hearing in Violation of the Fifth Amendment Right to Procedural Due Process," Plaintiffs contend that their alleged inclusion on the watchlist and the associated stigmatizing label of "known or suspected terrorist," without notice or a constitutionally adequate legal mechanism to challenge the placement, deprive them of their protected liberty interest in traveling free from unreasonable burdens, freedom from false stigmatization, and nonattainder (the interest against being singled out for punishment without trial), in violation of their constitutional right to procedural due process.
In Count II, titled "Deprivation of Protected Liberties in Violation of Fifth Amendment Right to Substantive Due Process," Plaintiffs contend that their alleged inclusion on the watchlist and the associated stigmatizing label of "known or suspected terrorist," unduly burden these same liberty interests, as Defendants' interference is not necessary to further a compelling governmental interest and has not been narrowly tailored to achieve that interest, in violation of their constitutional right to substantive due process.
In Count III, titled "Unlawful Agency Action in Violation of the Administrative Procedure Act,
In Count IV, titled "Violation of the Fifth Amendment to the United States Constitution (Equal Protection)," Plaintiffs contend that Defendants' actions detailed in the Complaint "have had a discriminatory effect upon and have disparately impacted Plaintiffs and other similarly situated American citizens who are Muslim American travelers, and not travelers of other faiths," in violation of their constitutional right to equal protection.
In Count V, titled "Violation of the United States Constitution (Non-Delegation)," Plaintiffs contend that Defendants, in implementing and disseminating the watchlist and in providing an inadequate redress procedure, "have illegally acted beyond their authority" in violation of the non-delegation doctrine.
Plaintiffs seek the following declaratory judgment and injunctive relief:
1. A declaratory judgment that Defendants' policies, practices, and customs violate the Fifth Amendment to the United States Constitution *738and the Administrative Procedure Act;
2. A declaratory judgment that Defendants' policies, practices, and customs violate the non-delegation doctrine of the United States Constitution;
3. An injunction that:
a. requires Defendants to remedy the constitutional and statutory violations identified above, including the removal of Plaintiffs from any watch list or database that burdens or prevents them from flying or entering the United States across the border; and,
b. requires Defendants to provide individuals designated on the federal terror watch list with a legal mechanism that affords them notice of the reasons and bases for their placement on the federal terror watch list and a meaningful opportunity to contest their continued inclusion on the federal terror watch list.
On April 13, 2018, Defendants moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In support, they contend that: (1)
II. Legal Standards
A. Rule 12(b)(1) - Lack of Subject Matter Jurisdiction
A federal court has subject matter jurisdiction over civil cases "arising under the Constitution, laws, or treaties of the United States," or over civil cases in which the amount in controversy exceeds $ 75,000, exclusive of interest and costs, and in which diversity of citizenship exists between the parties.
In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, "a court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts."
*739Den Norske Stats Oljeselskap As v. HeereMac Vof ,
B. Rule 12(b)(6) - Failure to State a Claim
To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly ,
In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mutual Auto. Ins. Co. ,
*740The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid claim when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v. Morgan Stanley Dean Witter ,
III. Analysis
A. Defendants' Challenge to the Court's Subject Matter Jurisdiction
As a threshold matter, Defendants argue that this court lacks subject matter jurisdiction to consider Plaintiffs' challenges to the adequacy of the DHS TRIP under
Whether a district court has subject matter jurisdiction to hear Plaintiffs' challenges to the DHS TRIP redress procedures and inclusion in the TSDB is an issue of first impression in the Fifth Circuit. The court begins with the language of the statute.
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 *741respect 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 (I) 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.
With section 46110, Congress arguably sought to limit the jurisdiction of the district courts by channeling review of a TSA final order to the courts of appeals. The Supreme Court has recognized that the scope of exclusive jurisdiction provisions such as section 46110 should include action by district courts that would enjoin the outcome of the relevant agency's order. City of Tacoma v. Taxpayers of Tacoma ,
necessarily precluded de novo litigation between the parties of all issues inhering in the controversy, and all other modes of judicial review. Hence, upon judicial review of the Commission's order, all objections to the order, to the license it directs to be issued, and to the legal competence of the licensee to execute its terms, must be made in the Court of Appeals or not at all.
In considering the application of section 46110 in this case, the court must focus on the nature of Plaintiffs' allegations. As previously summarized by the court, Plaintiffs assert five causes of action against six Defendants. Plaintiffs' allegations and causes of action, however, can be divided into two groups. First, Plaintiffs challenge the adequacy of redress procedures established to contest inclusion in the TSDB, *742contending that the procedures are unconstitutional and also unlawful under the APA. Second, Plaintiffs challenge their alleged placement on the "No Fly List" and "Screening List," arguing that their continued inclusion on these lists is unconstitutional and also unlawful under the APA. The court considers Defendants' jurisdictional challenges in the context of these two categories of claims asserted by Plaintiffs in the Complaint.
1. Plaintiffs' Challenges to the Adequacy of the DHS TRIP
In opposition to Defendants' jurisdictional challenge, Plaintiffs contend that section 46110 does not deprive this court of jurisdiction over their claims challenging the adequacy of the redress procedures under the DHS TRIP. In support, Plaintiffs rely primarily on an unpublished Fourth Circuit decision in which the court held that an action seeking removal from the No Fly List and challenging the adequacy of redress procedures was properly before the district court, as any remedy would involve both the TSA and the TSC, and the circuit court's authority under section 46110 only extended to the TSA's orders. See Mohamed v. Holder , No. 11-1924,
Because "TSC-not TSA-actually reviews the classified intelligence information about the travelers and decides whether to remove them from the List" and "established the policies governing that stage of the redress process," we agree that [the court of appeals] cannot, on section 46110 review, provide relief to an individual included on the No Fly List or in the TSDB by "simply amending, *743modifying, or setting aside TSA's orders by directing TSA to conduct further proceedings."
Ege ,
In support of their position that section 46110 deprives this court of subject matter jurisdiction over Plaintiffs' challenges to the adequacy of the DHS TRIP redress process, Defendants rely on Mokdad v. Lynch ,
In light of the foregoing, and having carefully considered the decisions of the Fourth Circuit in Mohamed , the Ninth Circuit in Latif , the D.C. Circuit in Ege , and the federal district courts in Wilwal and Elhady , the court finds the reasoning in these cases persuasive and similarly concludes that section 46110 does not bar its consideration of Plaintiffs' challenge to the adequacy of the redress process under the circumstances of this case, in which Plaintiffs are also raising broad constitutional challenges to their continued inclusion in the TSDB. The court, therefore, will deny Defendants' Rule 12(b)(1) motion to dismiss Plaintiffs' Complaint insofar as Plaintiffs' challenges relate to the adequacy of the redress procedures under the DHS TRIP.
2. Plaintiffs' Challenges to Placement on the Watchlist
As previously stated, Defendants also contend that the court lacks jurisdiction over Plaintiffs' challenges to their inclusion on the watchlist, as "all claims inescapably intertwined with orders that fall within the Section 46110 are subject to the statute's channeling effect, including claims against TSC for alleged placement in the TSDB." See Defs.' Mot. to Dismiss 7 (Doc. 8). For the reasons that follow, the court rejects Defendants' argument.
The purpose of the inescapable-intertwinement doctrine is to prevent a plaintiff from "circumvent[ing] the exclusive jurisdiction of the court of appeals by collaterally attacking an administrative order in a federal district court."
*744Ligon ,
First, Defendants' reliance on the doctrine of inescapable intertwinement is predicated on the court's acceptance of their primary jurisdictional argument, namely, that section 46110 bars the district court from hearing Plaintiffs' challenges to the adequacy of the redress procedure. The court has rejected Defendants' primary argument and, accordingly, need not reach their contingent argument that the doctrine of inescapable intertwinement also channels Plaintiffs' challenges to their inclusion in the TSDB to the courts of appeals.
Second, even were the court to consider Defendants' argument, the court notes that in Mokdad , discussed above, the Sixth Circuit rejected a nearly identical argument and stated:
[W]e decline to accept the government's invitation to expand the inescapable-intertwinement doctrine so as to find Mokdad's claim against the TSC is pulled within the ambit of the exclusive-review statute that applies to the TSA. Doing so not only would be inconsistent with existing law but also would run the risk of inadvertently expanding the number and range of agency orders that might fall under exclusive-jurisdiction provisions that Congress did not intend to sweep so broadly.
Mokdad ,
For these reasons, the court will deny Defendants' Rule 12(b)(1) motion to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction.
B. Ripeness and Exhaustion of Administrative Remedies - Mr. Kovac's Claims
Defendants argue that before bringing this action challenging his placement *745on the "No Fly List" and the inadequacy of the redress procedures, Mr. Kovac should be required to exhaust "the congressionally mandated administrative redress process" and, until that time, "his challenge to his alleged placement on the No Fly List is premature." Defs.' Mot. to Dismiss 8 (Doc. 8). Plaintiffs counter that there are no regulations regarding the DHS TRIP that mandate exhaustion and that "there is nothing 'hypothetical' about [Mr. Kovac's] claims." Pls.' Resp. 24 (Doc. 9). Plaintiffs further assert that Mr. Kovac filed for redress through the DHS TRIP and that, after Defendants filed their motion to dismiss, he received confirmation that he is on the "No Fly List."
Article III of the Constitution confines the federal courts to adjudicating actual "cases" and "controversies." U.S. Const. art. III, § 2. In an attempt to give meaning to Article III's "case or controversy requirement," the courts have developed a series of principles termed "justiciability doctrines." United Transp. Union v. Foster ,
Defendants appear to be using the doctrine of ripeness in this case to "express the exhaustion principle that administrative remedies should be tried before running to the courts."
In balancing these conflicting considerations, the Fifth Circuit has recognized that exhaustion should not be required in certain limited circumstances, including situations in which:
(1) the unexhausted administrative remedy would be plainly inadequate, (2) the claimant has made a constitutional challenge that would remain standing after exhaustion of the administrative remedy, (3) the adequacy of the administrative remedy is essentially coextensive with the merits of the claim (e.g., the claimant contends that the administrative process itself is unlawful), and (4) exhaustion of administrative remedies would be futile because the administrative agency will clearly reject the claim.
Dawson Farms, LLC v. Farm Serv. Agency ,
The court concludes that it would be inappropriate to require exhaustion in this case. First, contrary to Defendants' assertion, Congress has not mandated exhaustion of the DHS TRIP process, and there are no regulations regarding the DHS TRIP that mandate exhaustion. See
In addition, the DHS TRIP process would not provide Mr. Kovac with an opportunity to present for consideration his constitutional claims. The DHS TRIP 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. Consequently, at the conclusion of the DHS TRIP process, even were the TSC to voluntarily remove Mr. Kovac from the No Fly List, the underlying constitutional infirmities he alleges that allowed his name to be included on the list and distributed to airlines would remain in place, unreviewed and with no assurances that he would not suffer the same alleged injury in the future.
*747Also weighing against requiring further exhaustion in this case is Mr. Kovac's interest in a prompt adjudication of his claims, first filed over one year ago, coupled with the lack of any information pertaining to how long the process of further exhaustion would take. Cf. Coit Indep. Joint Venture v. Federal Sav. & Loan Ins. Corp. ,
Moreover, the court has no reason to believe that the DHS TRIP process would create a factual record more helpful than the one that already exists for the purposes of Mr. Kovac's constitutional claims, given the limited scope of the issues addressed in the DHS TRIP. As previously stated, Defendants acknowledge that Mr. Kovac was informed he was on the "No Fly List" after Defendants filed their motion to dismiss. See Reply 3 (Doc. 10).
Finally, Defendants' reliance on Shearson v. Holder ,
While there are deficiencies in the Redress Program process, we agree with the district court that Shearson should be required to exhaust her administrative procedures by submitting a traveler inquiry form through the Redress Program before she can proceed with this case. There is very little guidance in any Circuit considering administrative exhaustion as it pertains to the Redress Program and there is no case law in this Circuit. However, when considering the purposes of the exhaustion doctrine, making Shearson submit a Traveler Redress inquiry is reasonable to promote judicial efficiency and allow the agencies involved an opportunity to resolve problems with their procedures.
Shearson ,
Under these circumstances, the court rejects as untenable Defendants' position that Mr. Kovac's claims are not ripe and that he must further exhaust administrative remedies before he can proceed in this court. No order or remedy would necessarily result from further administrative process. In addition, in cases relied upon by Defendants, the plaintiffs had not even sought redress through DHS TRIP. Here, Mr. Kovac has not only filed a redress inquiry, but he has also been notified that he is on the No Fly List. Therefore, the court concludes Mr. Kovac's claims are ripe and declines to prevent review of his claims by creating an exhaustion requirement when none has been statutorily mandated.
C. Claims Against Defendant CBP
Defendants move to dismiss all claims against the CBP. In support, they argue that Plaintiffs fail to allege any wrongful acts by the CBP and do not seek a remedy with respect to the CBP. Defs.' Mot. to Dismiss 9 (Doc. 8). In their response, Plaintiffs do not address dismissal of the CBP.
When a party fails to pursue a claim or defense beyond the party's initial complaint, the claim is deemed abandoned or waived.
*748Black v. Panola Sch. Dist. ,
D. Plaintiffs' Constitutional and APA Claims
Defendants move to dismiss Counts I through V of the Complaint on numerous grounds, some of which overlap. With respect to Plaintiffs' substantive due process claims (Count II), Defendants' overriding argument is that the court should dismiss these claims because Plaintiffs' inclusion in the TSDB has not deprived them of any "fundamental right" as required to establish a substantive due process violation. In particular, Defendants contend that inclusion on the No Fly List (in the case of Mr. Kovac) or Screening List (in the case of the remaining four Plaintiffs) does not result in a burden sufficient to maintain a substantive due process claim. Defendants make similar arguments in support of their motion to dismiss Plaintiffs' procedural due process claims (Count I), contending that Plaintiffs have not alleged a sufficient deprivation of any liberty interests and that, even if they have, the DHS TRIP redress procedures are constitutionally adequate. Defendants move to dismiss Plaintiffs' APA claims (Count III) on similar grounds, arguing that their APA claims are largely coextensive with their constitutional claims and, therefore, fail for the same reasons. Defendants further contend that Plaintiffs cannot separately demonstrate that the DHS TRIP redress process is arbitrary or capricious in violation of the APA. In support of their motion to dismiss Plaintiffs' equal protection claims (Count IV), Defendants contend that the watchlist criteria are facially neutral and Plaintiffs' allegations of disparate impact are conclusory, formulaic, and insufficient to state a claim for a violation of their rights to equal protection. Finally, in support of their motion to dismiss Plaintiffs' claims that the watchlist constitutes an unconstitutional delegation of legislative power in violation of the non-delegation doctrine (Count V), Defendants argue that Plaintiffs fail to state a claim because consideration of the applicable statutes reveals that Congress has provided "intelligible principles" both as to the goals the TSA should seek to achieve and also how it should go about achieving them.
In the interest of clarity and to minimize redundancies, the court will first address Plaintiffs' substantive due process claims (Count II), as many of Defendants' arguments undergird and overlap with those made in support of dismissing Plaintiffs' procedural due process claims (Count I).
1. Plaintiffs' Substantive Due Process Claims (Count II)
In Count II, titled "Deprivation of Protected Liberties in Violation of Fifth Amendment Right to Substantive Due Process," Plaintiffs contend that their inclusion on the watchlist and the associated stigmatizing label of "known or suspected terrorist," unduly burden "their liberty interests in travel, freedom from false stigmatization, and nonattainder." Compl. ¶ 260. Plaintiffs further allege that Defendants' interference is not necessary to further a compelling governmental interest and has not been narrowly tailored to achieve that interest, in violation of their *749constitutional right to substantive due process. Id. ¶¶ 259-270. Plaintiffs also contend that Defendants' actions are arbitrary and capricious, lack even a rational relationship to any legitimate government interest, and have unduly deprived them of their constitutional rights. The court first addresses Plaintiffs' contention that Defendants' actions have unduly burdened their right to travel, sometimes referred to in the pleadings as their right to movement, in violation of the substantive due process clause.
a. Right to Travel
Plaintiffs allege that, by maintaining them on the No Fly List (in the case of Mr. Kovac) and Selectee List (in the case of Messrs. Sbyti, Aljame, and Allababidi, and Ms. Warsame, sometimes collectively, the "Screening List Plaintiffs"), Defendants have placed an undue burden on their fundamental right to travel.8 Defendants contend that Plaintiffs have failed to allege an undue burden on a fundamental right and any substantive due process challenge based on the right to travel or to movement must, therefore, be dismissed. For the reasons that follow, the court rejects Defendants' argument with respect to Mr. Kovac, who is on the No Fly List, but agrees with their argument with respect to the Screening List Plaintiffs.
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 ,
Plaintiffs' substantive due process claim therefore depends, in part, on whether they have a fundamental right of travel that 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. Reno v. Flores ,
"Freedom to travel throughout the United States has long been recognized as a basic right under the Constitution." Dunn v. Blumstein ,
While the right to interstate travel is firmly established, the United States has a history of judicially sanctioned restrictions on citizens' international travel in the interests of foreign affairs and national security including, among others, restrictions on the issuance and use of passports and the imposition of travel bans. See, e.g., Regan v. Wald ,
"The constitutional right of interstate travel is virtually unqualified."...By contrast the "right" of international *751travel 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 ,
The court first turns to Mr. Kovac's substantive due process claim.
i. Mr. Kovac
To support his claim that the No Fly List violates the constitutional guarantee of substantive due process, Mr. Kovac, a United States citizen, claims that he has a constitutionally protected fundamental right to travel, sometimes labeled a right to movement, both domestically and internationally, and that the No Fly List violates that right. Mr. Kovac's allegations of present and future harms arise from his inability to fly. He alleges that he is on the Government's "No Fly List" and, thereby, is prevented from boarding flights that travel into, out of, or through United States airspace. Compl. ¶¶ 121-152. Defendants have confirmed that Mr. Kovac is on the No Fly List. See Reply 3 (Doc. 10). Mr. Kovac further alleges that because his TSDB entry is annotated in a way to deny him the ability to fly through United States airspace, he has been denied boarding and, since October 17, 2014, he has not been able to fly. Compl. ¶ 144.
For these reasons, Mr. Kovac contends that his placement on the No Fly List unduly burdens his right to interstate and international travel, which, as previously discussed, is "an important aspect of the citizen's 'liberty' guaranteed in the Due Process Clause of the Fifth Amendment." Aptheker v. Secretary of State ,
Whether Mr. Kovac's alleged disabilities as a result of his inclusion on the No Fly List unconstitutionally burden the exercise of his right to interstate or international travel cannot be decided at this stage as a matter of law. Mr. Kovac's factual allegations, taken as true, suffice to make plausible his substantive due process claim.9 Otherwise stated, Mr. Kovac has plausibly *752alleged at this stage of the litigation that his inclusion in the No Fly List caused him to suffer a deprivation of a liberty interest as that term is historically understood.
ii. The Screening List Plaintiffs
The Screening List Plaintiffs allege that they have been victims of regular secondary inspections, prolonged searches, interrogations, and restrictions traveling abroad. According to the Screening List Plaintiffs, they have still been admitted to board flights. Defendants contend that the Screening List Plaintiffs have not pleaded a deprivation of the right to travel because the screenings merely caused travel delays. Defs.' Mot. to Dismiss 10 (Doc. 8). In response, the Screening List Plaintiffs argue that inclusion on the Selectee List violates their right to movement or travel insofar as it causes large domestic delays, and its international dissemination restricts their ability to travel abroad. Even taking their allegations as true, the Screening List Plaintiffs, unlike Mr. Kovac, have not stated a substantive due process violation.
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 ,
As recently stated by the Sixth Circuit in a similar case affirming the district court's conclusion that placement on the Selectee List did not amount to the deprivation of a fundamental right to travel:
The district court correctly held that Plaintiffs did not allege that any protected interest was violated by them being on the Selectee List. While Plaintiffs may have been inconvenienced by the extra security hurdles they endured in order to board an airplane, these burdens do not amount to a constitutional violation. Importantly, Plaintiffs have not actually been prevented from flying altogether or from traveling by means other than an airplane. Therefore, Plaintiffs' cases are distinguishable from those in which the plaintiffs claimed they could not fly at all because they were on the No Fly List.
Beydoun v. Sessions ,
For these reasons, the court determines that the Screening List Plaintiffs have failed to state a claim that their inclusion in the Screening List caused them to suffer a deprivation of a liberty interest based on their right to travel, as that term is historically understood.
b. Plaintiffs' Reputational Interest
In addition to alleging a deprivation of the right to travel as part of their substantive due process claims, Plaintiffs allege an infringement of their constitutionally *753protected interest in their reputations, also described as their "right to be free from false government stigmatization as individuals who are known or suspected to be terrorists." Compl. ¶ 253. There is no "constitutional doctrine converting every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Paul v. Davis ,
The Supreme Court has recognized a constitutionally protected interest in "a person's good name, reputation, honor, or integrity." Wisconsin v. Constantineau ,
In the Complaint, Plaintiffs allege that Defendants have publicly labeled them as "individuals who are 'known or suspected to be' terrorists, or who are otherwise associated with terrorist activity[.]" Compl. ¶ 34. Plaintiffs allege based on their personal experiences, government and other public reports, that Defendants disseminate watchlist records for each Plaintiff to other government agencies, foreign governments like the European Union, private corporations, local authorities such as police officers and captains of sea-faring vessels. Id. ¶¶ 44, 151, 190, 215, 234, 247. Plaintiffs also contend that their alleged watchlist status functions to motivate traffic stops and to prohibit individuals from purchasing guns, obtaining Hazmat licenses, or working in sterile areas of airports. Id. ¶¶ 46-53. They further allege that watchlist information is shared with municipal courts, which then use the information to make bail determinations. Id. ¶ 54.
The court concludes that these allegations are insufficient, as they are not factual allegations sufficient to plead public stigmatization. Plaintiffs have not alleged that the TSA has disclosed to the general public their purported placement on a watchlist, or that Defendants otherwise publicly labeled them as "individuals who are 'known or suspected to be' terrorists, or who are otherwise associated with terrorist activity[.]" See Compl. ¶ 253. Although Plaintiffs allege that Defendants have revealed their alleged TSDB status to certain third party stakeholders, including "state and local authorities," "foreign governments," "gun sellers," and the "captains of sea-faring vessels," see id. ¶ 20, they do not allege that Defendants have disclosed *754their purported status to the general public. Plaintiffs do not allege, for example, that there is a public list of persons to whom guns cannot be sold, or that such lists are posted at gun retailers, or that similar lists exist for use by the captains of "sea-faring vessels" or car dealerships, or that any such information is otherwise made public by or at the behest of Defendants within their community.
With respect to Plaintiffs' allegations that their boarding passes are stamped with the designation "SSSS," purportedly to reflect watchlist status, they do not allege that the purported significance of the designation is known to the general public or that the public knows what their passes contain. Further, as Defendants aptly point out, several courts have correctly observed that "[s]ince every air passenger is subjected to a search, there is virtually no 'stigma attached to being subjected to search at a known, designated airport search point.' " Defs.' Mot. to Dismiss 15 (Doc. 8) (quoting United States v. Hartwell ,
In sum, the court agrees with Defendants that "unsupported speculation that watchlist status is shared widely amongst various entities cannot support a claim absent any plausible allegations that the Plaintiffs have been the subject of such information sharing and meaningfully harmed as a result." Defs.' Mot. to Dismiss 16 (Doc. 8). The only allegation Plaintiffs have put forward in this regard is that they have been screened at airports and inspected at border crossings. As already stated, there is no stigma attached to lawful screening and inspection.10
*755In sum, Plaintiffs' allegations pertaining to the "stigma" prong of the "stigma plus" test are "merely consistent with" Defendants' purported liability and "stop[ ] short of the line between possibility and plausibility of entitlement to relief." See Iqbal ,
Moreover, even assuming Plaintiffs had adequately alleged the "stigma" prong of the "stigma plus" test, with respect to the Screening List Plaintiffs, they have not adequately alleged a change in legal status under the "plus" prong. The "plus" prong must be satisfied by a change in "a right or status previously recognized by ... law," Paul ,
Viewing all well-pleaded allegations as true, the court concludes that the Screening List Plaintiffs have failed to adequately allege that they experienced a change in "a right or status previously recognized by ... law." Paul ,
For these reasons, the court concludes that Plaintiffs have failed to allege a violation of their rights to substantive due process based on a constitutionally protected right to their reputations, sometimes described as a liberty interest in being free from false governmental stigmatization, *756and will grant Defendants' Motion to Dismiss these claims.
c. Plaintiffs' Interest in Nonattainder
Plaintiffs also contend that their alleged inclusion on the watchlist and the associated stigmatizing label of "known or suspected terrorist," without notice or a constitutionally adequate legal mechanism to challenge the placement, deprive them of their protected liberty interest in nonattainder. Compl. ¶ 258. 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. Administrator of Gen. Servs. ,
Defendants fail to make any argument in their motion to dismiss with respect to Plaintiffs' asserted liberty interest in nonattainder. Accordingly, the court need not address this issue.
2. Plaintiffs' Procedural Due Process Claims (Count I)
In Count I, titled "Failure to Provide Post-Deprivation Notice and Hearing in Violation of the Fifth Amendment Right to Procedural Due Process," Plaintiffs contend that their alleged inclusion on the watchlist and the associated stigmatizing label of "known or suspected terrorist," without notice or a constitutionally adequate legal mechanism to challenge the placement, deprive them of their protected liberty interest in traveling free from unreasonable burdens, freedom from false stigmatization, and nonattainder, in violation of their constitutional right to procedural due process. Id. ¶¶ 248-258. Defendants move to dismiss Plaintiffs' procedural due process claims, arguing that Plaintiffs have failed to allege the deprivation of a protected interest and that, even if they have, the legal mechanism for challenging their placement on the watchlist is constitutionally adequate.
The Due Process Clause of the Fifth Amendment provides that "[n]o person shall be ... deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. "In procedural due process claims, the deprivation by state action of a constitutionally protected interest in 'life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Zinermon v. Burch ,
"The requirements of procedural due process apply only to the deprivation of interests encompassed by the [Constitution's] protection of liberty and property." Board of Regents of State Colleges v. Roth ,
a. Deprivation of a Cognizable Liberty Interest
Plaintiffs contend that their inclusion on the watchlist deprives them of the following interests protected by due process: (1) "a liberty interest in traveling free from unreasonable burdens," which they sometimes refer to as a "right to movement"; (2) a liberty interest in the "right to be free from false government stigmatization"; and (3) "a liberty interest in nonattainder." Compl. ¶¶ 252-254. In analyzing Plaintiffs' substantive due process claims, the court has already concluded, supra , that Mr. Kovac has adequately alleged a range of protectable interests, including his right to travel, that have been affected adversely by his inclusion on the No Fly List. Further, all Plaintiffs have alleged that inclusion on the watchlist violates their liberty interest in nonattainder, and Defendants did not provide any arguments that support dismissal of this claim.
b. The Constitutional Adequacy of the DHS TRIP
The "central meaning of procedural due process" is that "[p]arties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified." Fuentes v. Shevin ,
Defendants contend that the TSC's policies governing the TSDB and the "revised DHS TRIP procedures" allow for a constitutionally adequate mechanism for due process. In response, Plaintiffs argue that because Defendants refuse to notify individuals whether they are included in the TSDB, this denies them an opportunity to participate in challenging their status. As previously noted, the "revised DHS TRIP procedures" referenced by Defendants in their motion to dismiss and reply brief are not properly before the court at the motion-to-dismiss stage. See supra note 4.
Viewing all well-pleaded allegations in the Complaint as true, as the court must when considering a motion to dismiss under Rule 12(b)(6), it concludes that Plaintiffs allege plausibly that the DHS TRIP redress procedures do not provide them constitutionally sufficient due process. As another district court recently concluded in rejecting a similar motion to dismiss a procedural due process claim brought by plaintiffs challenging the constitutionality of the DHS TRIP redress procedures, the "ultimate due process merits of the TSDB's governing procedures and DHS TRIP are tethered to the Mathews factors, which are 'fact-intensive consideration[s],' and which 'when considered within the context of [these] allegations, necessarily require an evidentiary record beyond that presented to the Court in connection with the Government's motion to dismiss.' "
*758Elhady ,
For these reasons, the court cannot conclude, as a matter of law, that the DHS TRIP provides sufficient process to defeat Plaintiffs' procedural due process claims. The court determines, therefore, that Plaintiffs have pled "enough facts to state a claim to relief that is plausible on its face." Twombly ,
3. Plaintiffs' APA Claims (Count III)
Defendants next move to dismiss Plaintiffs' claims that the policies and redress procedures related to the watchlist violate the APA. Under the APA, the reviewing court must affirm an agency decision unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
Plaintiffs allege that Defendants violated the APA's protection against arbitrary agency actions by placing them in the TSDB "without a constitutionally adequate legal mechanism," which they contend was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Compl. ¶¶ 256, 266, 272, 279. Defendants argue that Plaintiffs' APA claims are "largely coextensive with their constitutional claims." Defs.' Mot. to Dismiss 24 (Doc. 8). Defendants further contend that "the [APA] claim would fail for the same *759reasons the procedural due process claim does, and Plaintiffs cannot separately demonstrate that the DHS TRIP process is arbitrary or capricious in violation of the APA."
For these reasons, the court will deny Defendants' Motion to Dismiss Count III of the Complaint.
4. Plaintiffs' Equal Protection Claims (Count IV)
In Count IV, Plaintiffs contend that Defendants' actions detailed in the Complaint "have had a discriminatory effect upon and have disparately impacted Plaintiffs and other similarly situated American citizens who are Muslim American travelers, and not travelers of other faiths," in violation of their constitutional right to equal protection. Compl. ¶ 283. Defendants move to dismiss Plaintiffs' equal protection claim, arguing that Plaintiffs' allegations "simply restate[ ] the 'threshold element' of the claim without any elaboration, fail[ ] to allege a plausible comparison to similarly situated groups, and thus [are] yet again an inadequate formulaic recitation of the claims." Defs.' Mot. to Dismiss 23 (citing Iqbal ,
As a threshold matter, the parties' failure to cite to the Fifth Amendment in the context of addressing alleged equal protection violations is erroneous. Because this case involves federal, not state, actors, the applicable equality guarantee is not the Fourteenth Amendment's explicit Equal Protection Clause; it is the guarantee implicit in the Fifth Amendment's Due Process Clause. See Sessions v. Morales-Santana , --- U.S. ----,
The Equal Protection Clause prohibits the government from "deny[ing] to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. This command "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr. ,
Plaintiffs do not dispute that the publicly disclosed criteria for placement on the watchlist are facially neutral. Instead, invoking Washington v. Davis , supra , Plaintiffs argue that they have "plead[ed] enough facts demonstrating the plausibility that Defendants compile their watch list with discriminatory intent." Pls.' Resp. 21 (Doc. 9). Plaintiffs contend they have plausibly pled intentional discrimination based on the disproportionate number of Muslims on the watchlist. Plaintiffs allege that persons living in Dearborn, Michigan, a town of approximately 100,000 residents with a high Arab and Muslim population, are disproportionately included on the watchlist. Compl. ¶¶ 7, 81. Plaintiffs also allege that travel to Muslim-majority countries-"travel that Muslim Americans are very likely to engage in"-is also a factor for inclusion on the watchlist. Id. ¶ 9. Plaintiffs further allege that, "Almost all publicly known instances of Americans being placed on the watch list [involve] Muslim[s] or persons who could be mistaken for Muslims."Id. ¶ 80. In addition, Plaintiffs refer to the "2013 Watchlisting Guidance" attached as Exhibit 1 to the Complaint, contending that it indicates that travel for no known lawful or legitimate purpose to a "locus of terrorist activity" can be a basis for being listed. Id. ¶ 83 According to the Complaint, although "locus of terrorist activity" is not defined, "upon information and belief, it likely includes any place where many Muslims reside." Id.
Even accepting the well-pleaded factual allegations in the Complaint as true (including the exhibits thereto),12 and recognizing that disparate impact can evidence discriminatory intent in certain circumstances, see supra , the court determines that Plaintiffs have failed to allege plausibly facts sufficient to support that the watchlist was created based on, or operates through, intentional discrimination. Further, the court agrees with Defendants that Plaintiffs have not alleged a plausible comparison to similarly situated groups. Addressing similar equal protection claims brought by plaintiffs who are United States citizens and Muslims challenging their inclusion on the watchlist, other district courts have recognized that watchlist criteria are facially neutral and concluded that similar allegations of disparate impact were insufficient to state a claim for violation of the Equal Protection Clause. See, e.g. , Elhady ,
For these reasons, the court will grant Defendants' Motion to Dismiss Count IV of the Complaint.
5. Plaintiffs' Non-Delegation Claim (Count V)
In Count V, Plaintiffs allege that the watchlist constitutes an unconstitutional delegation of legislative power. "Congress may not constitutionally delegate its legislative power to another branch of Government." Touby v. United States ,
As summarized previously, after the September 11, 2001 terrorist attacks, Congress gave the TSA "responsib[ility] for security in all modes of transportation."
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.
Congress also required that the DHS "establish a timely and fair process for *762individuals 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]."
Plaintiffs' arguments concerning the non-delegation doctrine overlap with their claims that the TSA exceeded its statutory authority. They argue that the above-referenced statutes are drafted too vaguely, and that this court should, therefore, exercise constitutional avoidance so as to construe them in a way that disallows the watchlist. Plaintiffs also contend the statutes do not provide an "intelligible principle" because they do not specifically describe what level of threat is necessary for the TSA to deny a passenger boarding.
Another district court recently rejected a similar non-delegation claim, stating:
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.
Mohamed , 266 F. Supp. 3d at 884 ; see also Abdi ,
For these reasons, the court will grant Defendants' Motion to Dismiss Count V of the Complaint.
IV. Conclusion
For the reasons herein stated, Defendants' Motion to Dismiss (Doc. 8) is granted in part and denied in part .
Defendants' Motion to Dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction is denied . Defendants' Motion to Dismiss Mr. Kovac's claims for failure to exhaust administrative remedies and ripeness is denied .
Defendants' Motion to Dismiss Mr. Kovac's claims pursuant to Rule 12(b)(6) for failure to state a claim is granted with *763respect to his Procedural Due Process Claim (Count I) and Substantive Due Process Claim (Count II), but only insofar as Counts I and II are based on his alleged liberty interest in his reputation under the stigma-plus test ; his Equal Protection Claim (Count IV); and his Non-Delegation Claim (Count V). These claims are dismissed without prejudice . Remaining, therefore, are: Mr. Kovac's Procedural Due Process Claim (Count I) and Substantive Due Process Claim (Count II) predicated on his alleged liberty interests in his right to travel and to nonattainder (which Defendants did not challenge); and his APA Claim (Count III).
Defendants' Motion to Dismiss Messrs. Sbyti's, Aljame's, and Allababidi's, and Ms. Warsame's claims pursuant to Rule 12(b)(6) for failure to state a claim is granted with respect to their Procedural Due Process Claims (Count I) and Substantive Due Process Claims (Count II), but only insofar as Counts I and II are based on their alleged liberty interests in their right to travel and in their reputations under the "stigma plus" test ; their Equal Protection Claims (Count IV); and their Non-Delegation Claims (Count V). These claims are dismissed without prejudice , with the exception of their due process claims predicated on the right to travel, which are dismissed with prejudice . Remaining, therefore, are: Messrs. Sbyti's, Aljame's, and Allababidi's, and Ms. Warsame's Procedural Due Process Claims (Count I) and Substantive Due Process Claims (Count II) predicated on their liberty interest in nonattainder (Count II) (which Defendants did not challenge); and their APA Claims (Count III).15
Finally, the court grants Defendants' Motion to Dismiss all claims against Defendant CBP, and these claims are dismissed with prejudice .
It is so ordered this 5th day of March, 2019.
Footnotes
363 F. Supp. 3d 721 (Kovac v. Wray) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.