El Ali v. Barr

• Decision Date: 20 July 2020
• Docket Number: Civil Action No. 8:18-cv-02415-PX
• Parties: Rami Khaled EL ALI, et al., Plaintiffs, v. William BARR, et al., Defendants.
• Court: U.S. District Court — District of Maryland

473 F.Supp.3d 479

Rami Khaled EL ALI, et al., Plaintiffs,

v.William BARR, et al., Defendants.

Civil Action No. 8:18-cv-02415-PX

United States District Court, D. Maryland.

Signed July 20, 2020

Ahmed Mohamed, Pro Hac Vice, CAIR, Queens, NY, Caridad Pastor (Cardinale), Pastor & Associates, P.C., Troy, MI, Carolyn Homer, Latham & Watkins LLP, Gadeir F. Abbas, Justin Mark Sadowsky, Lena F. Masri, CAIR, Washington, DC, for Plaintiffs Khaled El Ali, Mohammad Paryavi, Hawa Wehelie, Abdirizak Wehelie, Shamsa Hashi Noor, Fatima Wehelie, Moustafa El-Shahat, Farid Sulayman, Mohamad Albadawi, Khalil Thadi, Esmaeel Paryavi, Faraz Siddiqui.

Ahmed Mohamed, Pro Hac Vice, CAIR, Queens, NY, Amy V. Doukoure, Pro Hac Vice, CAIR, Farmington Hills, MI, Caridad Pastor (Cardinale), Pastor & Associates, P.C., Troy, MI, Carolyn Homer, Latham & Watkins LLP, Gadeir F. Abbas, Justin Mark Sadowsky, Lena F. Masri, CAIR, Washington, DC, for Plaintiff Mutasem Jardaneh.

Ahmed Mohamed, Pro Hac Vice, CAIR, Queens, NY, Caridad Pastor (Cardinale), Pastor & Associates, P.C., Troy, MI, Carolyn Homer, Latham & Watkins LLP, Gadeir F. Abbas, Justin Mark Sadowsky, Lena F. Masri, CAIR, Washington, DC, Omar Saleh, Pro Hac Vice, CAIR, Sunrise, FL, Thania Clevenger, Pro Hac Vice, CAIR, Tampa, FL, for Plaintiffs Bilal Aburrashid, Fadi Suliman.

Ahmed Mohamed, Pro Hac Vice, CAIR, Queens, NY, Birjees Rehman, Pro Hac Vice, CAIR, South Plainfield, NJ, Caridad Pastor (Cardinale), Pastor & Associates, P.C., Troy, MI, Carolyn Homer, Latham & Watkins LLP, Gadeir F. Abbas, Justin Mark Sadowsky, Lena F. Masri, CAIR, Washington, DC, for Plaintiff John Doe.

Ahmed Mohamed, Pro Hac Vice, CAIR, Queens, NY, Carolyn Homer, Latham & Watkins LLP, Gadeir F. Abbas, Justin Mark Sadowsky, Lena F. Masri, CAIR, Washington, DC, for Plaintiffs Hicham Hall, Faatimah Knight, John Doe 2, Zijad Bosnic, Mahad Mohallim, Hashem Nader Sehwail.

Amanda Misasi, Pro Hac Vice, CAIR, Seattle, WA, Amy V. Doukoure, Pro Hac Vice, CAIR, Farmington Hills, MI, Birjees Rehman, Pro Hac Vice, CAIR, South Plainfield, NJ, Caridad Pastor (Cardinale), Pastor & Associates, P.C., Troy, MI, Carolyn Homer, Latham & Watkins LLP, Gadeir F. Abbas, Justin Mark Sadowsky, Lena F. Masri, CAIR, Washington, DC, Thania Clevenger, Pro Hac Vice, CAIR, Tampa, FL, for Plaintiffs Abdu Wakil Cyeef Din, Mirrakhmat Muminov, Anisa Muianovic, Mohamad Hachem, Ashraf Riad, Mustafa Kamel, Alaa Abunijem, Abdaljalil Hijaz, Abdallah Soueidan, Abdelmoniem Elamin, Hassan Shirwa, Fadhel Al-Sahlani.

Amanda Misasi, Pro Hac Vice, CAIR, Seattle, WA, Birjees Rehman, Pro Hac Vice, CAIR, South Plainfield, NJ, Caridad Pastor (Cardinale), Pastor & Associates, P.C., Troy, MI, Carolyn Homer, Latham & Watkins LLP, Gadeir F. Abbas, Justin Mark Sadowsky, Lena F. Masri, CAIR, Washington, DC, Thania Clevenger, Pro Hac Vice, CAIR, Tampa, FL, for Plaintiff Imad Kadoumi.

Antonia M. Konkoly, Christopher R. Healy, U.S. Department Of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

Paula Xinis, United States District Judge Plaintiffs are 39 individuals—37 U.S. citizens and two legal residents—who claim that inclusion in the Government's Terrorism Screening Database ("TSDB") and various related Watchlists impair or prohibit air and land travel in the United States.¹ Plaintiffs allege that their list status, or status by association with those on a list, subjects them to constitutionally impermissible detentions, searches, and screening at airports and land border entries, or in some cases, denial of air travel altogether. Relatedly, Plaintiffs allege that their list status has burdened their families and businesses, and inflicted other wide-ranging harms.

Plaintiffs have filed this mass action, averring that their inclusion in the TSDB and Watchlists violates (1) Procedural Due Process (Count I), (2) Substantive Due Process (Count II), (3) the Administrative Procedure Act (Counts III and IV), (4) the Equal Protection Clause (Count V), (5) the Fourth Amendment (Count VI), (6) the First Amendment (Count VII), (7) the Fifth Amendment Right against self-incrimination (Count VIII),² (8) The Religious Freedom Restoration Act (Counts X, XI, XII, and XIII), and (9) the non-delegation doctrine (Count XIV).

Pending before the Court is a Motion to Dismiss (ECF No. 49-1), filed jointly by 26 Defendants³ who, with the exception of the Watchlisting Advisory Council (WLAC), each head a federal agency and have been sued in their official capacities. Defendants contend that this Court lacks jurisdiction over the claims and, alternatively, that the claims fail as a matter of law. On June 18 and 26, 2020, the Court held a virtual hearing on the motion. ECF Nos. 70, 72. For the reasons below, Defendants’ motion will be granted in part and denied in part.

I. Background⁴

A. The TSDB and Watchlist Infrastructure

Plaintiffs have been the objects of an interagency watchlisting system, led by the WLAC. The WLAC is comprised of member agencies who are the defendants in this case. According to Plaintiffs, the WLAC is:

[A] government entity that promulgates decisions regarding all policies, procedures, practices and instructions pertaining to the federal terrorist watchlist, including, but not limited to: (1) watchlist nomination and removal procedures; (2) specific criteria used to nominate persons to the TSDB; (3) redress procedures; (4) vetting of information used to nominate persons to the TSDB; and, (5) dissemination of a person's designation in the TSDB to state and local authorities, courts, foreign governments, private corporations, private contractors, airlines, gun sellers, financial institutions, the captains of sea-faring vessels, and others.

ECF No. 48 ¶ 82. It is through the WLAC's interagency watchlisting system that Defendants have identified Plaintiffs as worthy of scrutiny and placement in the TSDB and Watchlists, to include the No Fly List, the Selectee List, and the Expanded Selectee List. Id. ¶ 3.

The WLAC operates by consensus and each member agency retains decision-making authority and veto power over all WLAC decisions. See, e.g. , id. ¶¶ 57, 64, 69. The member agencies play a variety of roles. Some nominate individuals to Watchlists, see, e.g. , id. ¶¶ 60, 61, 63, 68, 74, some accept nominations, see id. ¶¶ 59, 54, and some disseminate Watchlist information to "state and local authorities, courts, foreign governments, private corporations, private contractors, airlines, gun sellers, financial institutions, the captains of sea-faring vessels, and others." See e.g. , id. ¶¶ 57, 79, 80. Some conduct frontline screening of Watchlist listees, see, e.g. , id. ¶¶ 65, 66, 67,68, 75, while others develop policies for the frontline screening agencies. Id. ¶ 73, 74. The WLAC also reviews and approves by consensus written Watchlisting Guidance (WLG). ECF No. 67-1 at 5–6. The WLG governs the Watchlisting process and is considered government policy once adopted. Id.

The TSDB functions as a "master repository for suspected international and domestic terrorist records." Id. ¶ 93. The TSDB is developed and maintained by the Terrorist Screening Center ("TSC"), which was established in 2003 by Attorney General John Ashcroft to consolidate the government's approach to terrorism screening. Id. The TSC itself is a multi-agency center, administered by the Federal Bureau of Investigation ("FBI") and consisting of the Department of Homeland Security ("DHS"), the National Counterterrorism Center ("NCTC"), the Transportation Security Administration ("TSA"), and U.S. Customs and Border Protection ("CBP"). Id. ¶ 59; ECF No. 48-6 at 3 ("Overview of the U.S. Government's Watchlisting Process and Procedures as of January 2018").

The WLAC and the TSDB work as follows: agency members of WLAC "nominate" individuals to the TSDB. ECF No. 48-6 at 4; ECF No. 48 ¶¶ 60, 61, 63, 68, 74. The TSC reviews the individual nominee and, if he or she is "reasonably suspected of being a known or suspected terrorist," adds the individual to the TSDB. ECF No. 48-6 at 4, 6; ECF No. 48 ¶ 94. In particular, an individual is placed in the TSDB based on:

articulable intelligence or information which, based on the totality of the circumstances and, taken together with rational inferences from those facts, creates a reasonable suspicion that the individual is engaged, has been engaged, or intends to engage, in conduct constituting in preparation for, in aid or in furtherance of, or related to, terrorism and/or terrorist activities.

ECF No. 48-6 at 5. This inclusion standard, according to the Second Amended Complaint ("Amended Complaint"), is so broad and amorphous as to render it useless in identifying known or suspected terrorists. ECF No. 48 ¶ 220. In practice, TSDB inclusion is driven not by suspected terrorism but by an individual's race, ethnicity, country of origin, religion, religious practices, languages spoken, family, mere associations,⁵ travel history, and social media history—criteria determined by WLAC. Id. ¶¶ 82, 95, 199. Approximately 99% of all proposed additions to the TSDB are accepted each year, and between 2009 and 2016, the number of individuals added to the TSDB has tripled. Id. ¶ 14.

The TSDB has grown to over one million people whose inclusion, say Plaintiffs, has done nothing to improve national security. Id. A DHS-funded study performed by the University of Maryland assessed the efficacy of the TSDB and concluded that of the approximately 250 terrorist acts committed inside the United States over the last decade, none of the offenders were included in the database. Id. ¶¶ 179–80. The study demonstrates that the Watchlisting system would perform similarly if persons were included in TSDB by random selection rather than using the existing inclusion criteria. Id. ¶ 188.

The TSDB acts as a feeder for placement on the Expanded Selectee List, Selectee List, and No Fly List—Watchlists related to air travel. Id. ¶ 97. Everyone in the TSDB is automatically also on the Expanded Selectee List if minimum identifiers...