Shearson v. Holder

• Decision Date: 05 August 2013
• Docket Number: No. 11–4234.,11–4234.
• Parties: Julia Anne SHEARSON, Plaintiff–Appellant, v. Eric H. HOLDER, Jr., Attorney General; Robert Mueller III, Director, Federal Bureau of Investigation; Timothy J. Healey, Director, Terrorist Screening Center; Michael E. Leiter, Director of the National Counterterrorism Center, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

725 F.3d 588

Julia Anne SHEARSON, Plaintiff–Appellant,

v.Eric H. HOLDER, Jr., Attorney General; Robert Mueller III, Director, Federal Bureau of Investigation; Timothy J. Healey, Director, Terrorist Screening Center; Michael E. Leiter, Director of the National Counterterrorism Center, Defendants–Appellees.

No. 11–4234.

United States Court of Appeals,Sixth Circuit.

Argued: Nov. 29, 2012.

Decided and Filed: Aug. 5, 2013.

ARGUED: Gadeir A. Abbas, Council on American–Islamic Relations, Washington, D.C., for Appellant. Sharon Swingle, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF: Gadeir A. Abbas, Council on American–Islamic Relations, Washington, D.C., for Appellant. Sharon Swingle, Mark B. Stern, United States Department of Justice, Washington, D.C., for Appellees.

Before: MARTIN, SILER, and DONALD, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

In January 2006, the United States Customs and Border Protection detained Julia Shearson, a U.S. citizen, and her daughter as they drove into the United States from Canada. Customs searched Shearson's car and then allowed her to enter the country. Shearson filed this lawsuit claimingviolations of the Fifth Amendment's Procedural Due Process clause, the Equal Protection clause, the First Amendment, the Administrative Procedure Act, and the Privacy Act. The district court dismissed all of Shearson's claims. Shearson appeals the district court's holding regarding her due process claim—that Shearson failed to exhaust her administrative remedies by submitting an inquiry through the Traveler Redress Inquiry Program. We agree with the district court that Shearson should have used the administrative remedies available and we AFFIRM the district court's judgment.

I.

Julia Shearson is the executive director of the Cleveland, Ohio chapter of the Council on American–Islamic Relations. In 2006, U.S. Customs and Borders Protection stopped Shearson and her daughter as they were driving from Canada into the United States. Customs removed her from her car, handcuffed her, and detained her for about two and one-half hours while they searched the car. Shearson claims that, when the customs officer swiped her passport, an “armed and dangerous” warning came up. Customs allowed Shearson to enter the United States, and Shearson filed a request under the Freedom of Information Act for documents related to her detention. She then sued to compel disclosure of the documents, which ultimately led to the release of customs files. The documents showed that Customs had detained and searched her because when Customs entered her name into its system, her name returned “an Armed and Dangerous” designation in Customs' terrorist database. The documents also revealed that she was a “POSITIVE VGTOF,” meaning her name was a positive match to the FBI's Violent Gang and Terrorist Organization File. Shearson asked the FBI to meet and discuss her alleged placement in its Violent Gang file. The FBI responded to her request by stating that its policy was neither to confirm nor deny whether someone was listed in its terrorist and gang files or watchlists. Instead, the FBI recommended that Shearson use an administrative remedy, the Department of Homeland Security's Traveler Redress Inquiry Program, which “serves as the central gateway for travelers to express concern when they believe they have been incorrectly delayed, denied boarding, identified for additional screening, or have otherwise experienced difficulties when traveling or seeking entry into the United States.” Shearson did not seek redress through the Redress Program and instead brought this action in district court.

Shearson believes that Customs detained her because her name appears in the Terrorist Screening database. Created in 2003, the Terrorist Screening Center “consolidates the federal government's approach to terrorism screening and [ ] provides for the appropriate and lawful use of terrorist information in screening processes.” The Terrorist Screening Center maintains a database, called the Terrorist Screening Database, that compiles all the information about individuals suspected of or known to be involved in terrorist activity. The Terrorist Screening Database disseminates this information to different watchlists that various U.S. security agencies use. For example, information from the Database contributes to watchlists compiled by the FBI, the Transportation Security Administration, and the Department of State.

The Department of Homeland Security created the Traveler Redress Program in response to Congress's statutory mandate to “establish a timely and fair redress process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat.” 49 U.S.C. § 44926. The statute specifically required the Department to create a process for people who have had trouble “boarding a commercial aircraft.” Id. But the record in this case shows that the Program is used as a conduit for the complaints of those who enter and exit the United States by other means. The Department considers the Redress Program to be a “single, formal administrative redress process for a wide variety of claims, including: delayed or denied airplane boarding; delayed or denied entry into or exit from the United States at a port of entry or border checkpoint; and continuous referral for additional (secondary screening).” The Program provides assistance to both misidentified travelers and also travelers who have been told they are on a government watchlist.

When a traveler experiences trouble going through security he or she submits a traveler inquiry form to the Traveler Redress Inquiry Program and receives a Redress Control Number, which can be used to check on the status of his or her inquiry or used when he or she books a flight. Upon receipt of the traveler-inquiry form, the Redress Program reviews the “information submitted by the traveler and routes it to the appropriate DHS component office ... to determine whether the traveler is experiencing screening problems that relate to his or her placement on a government watchlist.” If the traveler has been misidentified, then the Redress Program attempts to update and correct the information in the traveler's record. The traveler then receives a determination letter.

If a traveler has been positively identified as being on a watchlist not overseen by Homeland Security, then the record indicates that the Program will “work directly with the appropriate government agency to review the individual's record and receive a determination as to the person's watchlist status.” If the traveler is a positive match to a name on the Terrorist Screening Database, then Homeland Security refers the inquiry to the Redress Unit of the Terrorist Screening Center. The record shows that the Terrorist Screening Center then, “in consultation with other agencies in the intelligence community, including the FBI and National Counterterrorism Center, will examine the underlying intelligence relating to the individual's watchlist status and make any necessary corrections or updates to the individual's watchlist status.” The changes may sometimes result in the government's removal of the traveler's name from the terrorist database. If the traveler has been misidentified, then the Program attempts to update and correct the information in the traveler's record.

Finally, after the traveler's records have been reviewed, the Program sends a determination letter telling the traveler, in general terms, that the government has considered the traveler's case, and that the relevant government agencies have reviewed the necessary documents. However, the determination letters do not “disclose whether or not [the individual] was, or still is, included on a watchlist or if there is other government interest in the individual that may be considered law enforcement sensitive.”

Shearson brought suit in the Northern District of Ohio, claiming her inclusion on a terrorist watchlist violated the Fifth Amendment's Due Process clause, the Equal Protection clause, the First Amendment, the Administrative Procedure Act, and the Privacy Act. Shearson sought prospective declaratory and injunctive relief. The government moved to dismiss the case, arguing that Shearson lacked standingto sue, and that she had failed to exhaust her administrative remedies by refusing to proceed through the Redress Program.

The district court granted the government's motion to dismiss. For Shearson's due process claim, the court dismissed on the grounds of exhaustion only. Regarding the due process claim, the court held that Shearson had demonstrated standing to sue, but that she had sued prematurely because the Redress Program could have possibly provided a remedy. Shearson appeals the district court's decision, arguing that she should not be required to exhaust because the Redress Program does not provide a meaningful remedy for her injuries. Shearson also asks this Court both to decide the merits of her due process claim and to use its powers to expunge the records the government maintains as support for her watchlist status. In its response brief, the government maintains that Shearson lacks standing.

II.

We review determinations of standing de novo. Pedreira v. Ky. Baptist Homes for Children, Inc., 579 F.3d 722, 728 (6th Cir.2009).

The district court determined that Shearson had standing, and we agree. To prove standing, a plaintiff must meet three requirements. First, the plaintiff must have suffered an injury in fact, which is “concrete, particularized, and actual or imminent.” Clapper v. Amnesty Int'l USA, –––U.S. ––––, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (citing Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 2752, 177 L.Ed.2d 461 (2010) (quotations omitted)). “Second, there must be a causal connection between the injury and the...