Beydoun v. Sessions

• Decision Date: 12 September 2017
• Docket Number: Nos. 16-2168/2406.,s. 16-2168/2406.
• Citation: 871 F.3d 459
• Parties: Nasser BEYDOUN (16-2168); Maan Bazzi (16-2406), Plaintiffs-Appellants, v. Jefferson B. SESSIONS, III, Attorney General, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

871 F.3d 459

Nasser BEYDOUN (16-2168); Maan Bazzi (16-2406), Plaintiffs-Appellants,

v.Jefferson B. SESSIONS, III, Attorney General, et al., Defendants-Appellees.

Nos. 16-2168/2406.

United States Court of Appeals, Sixth Circuit.

Argued: August 2, 2017

Decided and Filed: September 12, 2017

Rehearing En Banc Denied November 28, 2017

ARGUED: Nabih H. Ayad, AYAD LAW, P.L.L.C., Detroit, Michigan, for Appellants. Joshua Waldman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Nabih H. Ayad, AYAD LAW, P.L.L.C., Detroit, Michigan, for Appellants. Joshua Waldman, Sharon Swingle, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Before: CLAY, GRIFFIN, and THAPAR, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Plaintiffs Nasser Beydoun and Maan Bazzi each separately sued various federal government officials challenging their placement on the federal government's "Selectee List," which designates them for enhanced screening at the airport. Asserting that their Fifth Amendment right to due process was violated, Plaintiffs sought declaratory and injunctive relief, with the ultimate aim of having their names removed from the government's enhanced screening list. However, in both cases, the district court dismissed their complaints and, in Beydoun's case, determined that any amendment would be futile. Plaintiffs appealed, and we consolidated the cases for purposes of oral argument, given the similarity of the facts and arguments presented in both cases. For the reasons set forth below, we AFFIRM the judgments of the district court.

BACKGROUND

Plaintiff Nasser Beydoun is a United States citizen and resident of Dearborn, Michigan. According to his complaint, every time Beydoun attempts to board an airplane, he is subjected to "excessive delays, secondary screening, being singled out at check points, and being singled out for additional screening at the gate." As a result, Beydoun "has missed countless flights." He also claims that he has been humiliated and that his business ventures have suffered because he is subjected to extra security measures.

Plaintiff Maan Bazzi, who is also a United States citizen, similarly claims that he is only allowed to board flights after undergoing additional screening and experiencing excessive delays. For example, when Bazzi was flying from Brazil to Texas, he "was subjected to extra screening for approximately 10 minutes after receiving a boarding pass and was told to wait as [he] was going to be the last person boarded on the flight." After arriving in Texas, Bazzi underwent an additional hour of questioning and had his bags searched for explosives. Bazzi also had his passport "confiscated" for an hour at the Las Vegas airport and was taken for additional screening that lasted thirty minutes. At least once, Bazzi canceled one of his planned trips in order to avoid the "the stress and embarrassment of extra screening."

Based on their experiences going through airport security and boarding airplanes, Beydoun and Bazzi believe that they are on the Selectee List, which designates individuals for enhanced security screening due to the threat they may pose to "civil aviation or national security." See U.S. Gov't Accountability Office, GAO-08-110, Terrorist Watchlist Screening: Opportunities Exist to Enhance Management Oversight, Reduce Vulnerabilities in Agency Screening Processes, and Expand Use of the List 35 (2007). For example, individuals on the Selectee List "are to receive additional security screening prior to being permitted to board an aircraft, which may involve a physical inspection of the person and a hand-search of the passenger's luggage." Id.

The Selectee List is a subset of the government's Terrorist Screening Database ("TSDB"). The TSDB "is developed and maintained by the Terrorist Screening Center (TSC), a multi-agency center that was created in 2003 and is administered by the Federal Bureau of Investigation (FBI), which in turn is part of the Department of Justice." Mokdad v. Lynch , 804 F.3d 807, 809 (6th Cir. 2015). Officials from multiple agencies staff the TSC, including individuals from the FBI, the Department of Homeland Security ("DHS"), the Department of State, Customs and Border Protection, and the Transportation Security Administration ("TSA"). Id. "TSC personnel decide whether to accept or reject the ‘nomination’ of a person by the FBI or the National Counterterrorism Center (NCTC) to the TSDB" or the Selectee List. Id. at 810. "TSC also decides whether to remove a name from the TSDB after it receives a redress request that has been submitted through" DHS's Traveler Redress Inquiry Program ("DHS TRIP"). Id.

According to their complaints, Beydoun and Bazzi have both attempted to use the procedure established by DHS TRIP to challenge their inclusion on the Selectee List. However, each time, the government failed to remove them from the list and has only sent them generalized responses to their inquiries. In addition, in both cases, the government has neither confirmed nor denied that Plaintiffs are on the Selectee List.

Beydoun filed a complaint in federal district court on October 3, 2014, naming the Attorney General of the United States, the Director of the Federal Bureau of Investigation, and the Director of the Terrorist Screening Center, as Defendants. Beydoun asserted two claims against Defendants: one for failing to provide notice and a hearing to allow him to challenge his alleged inclusion on the Selectee List, in violation of the Fifth Amendment; and the other for unlawful agency action, pursuant to the Administrative Procedure Act ("APA") and 5 U.S.C. § 706. In addition to asserting these claims on his own behalf, Beydoun indicated that he was filing his complaint as a class action. Beydoun's case was held in abeyance while this Court decided another appeal, Mokdad v. Lynch , inasmuch as the holdings in that case directly implicated Beydoun's claims. After the opinion in Mokdad was issued and Beydoun's case was returned to active status, Defendants filed a motion to dismiss the complaint. The district court held a hearing on the motion and, on July 14, 2016, issued an opinion dismissing Beydoun's complaint and denying him leave to amend.

Bazzi filed his complaint asserting the same two causes of action as Beydoun on January 14, 2016. In addition to naming the same Defendants as in Beydoun's case, Bazzi also named the Administrator of the TSA as a Defendant. Just as in Beydoun's case, Defendants filed a motion to dismiss Bazzi's complaint. After conducting a hearing on the motion, the district court ruled in Defendants' favor. In so doing, the district court relied heavily on the reasoning already provided in Beydoun's case. These timely appeals followed.¹

DISCUSSION

Plaintiffs present two issues on appeal. First, they assert that the district court erred in construing their complaints as challenging the redress procedures available to have their names removed from the Selectee List. Plaintiffs insist that they were not, in fact, claiming that the redress procedures violate the Fifth Amendment. Instead, they were challenging the inclusion of their names on the Selectee List in the first place. Second, Plaintiffs contend that the district court erred in determining that their alleged inclusion on the Selectee List does not implicate a liberty interest protected by the Fifth Amendment. We address each issue in turn.

A. Jurisdiction

The district court had jurisdiction over these declaratory judgment actions pursuant to 28 U.S.C. § 2201 and 28 U.S.C. § 1331 inasmuch as Plaintiffs asserted claims under the Fifth Amendment challenging their placement on the Selectee List. See Mokdad , 804 F.3d at 815 (holding that the district court has "subject-matter jurisdiction to hear [plaintiff's] claim directly challenging his placement by TSC on the No Fly List ... under 28 U.S.C. § 1331 [, which] has not been displaced by 49 U.S.C. § 46110"). This Court has jurisdiction to hear these appeals pursuant to 28 U.S.C. § 1291.

B. Standard of Review

"We review de novo a district court's dismissal of a plaintiff's complaint for failure to state a claim." Kottmyer v. Maas , 436 F.3d 684, 688 (6th Cir. 2006) (citing Marks v. Newcourt Credit Grp., Inc. , 342 F.3d 444, 451 (6th Cir. 2003) ). In addition, this Court "review[s] the denial of a motion to amend under the abuse-of-discretion standard, ‘unless the motion was denied because the amended pleading would not withstand a motion to dismiss, in which case the standard of review is de novo.’ " Colvin v. Caruso , 605 F.3d 282, 294 (6th Cir. 2010) (quoting Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield , 552 F.3d 430, 437 (6th Cir. 2008) ).

C. Failure to State a Claim

Plaintiffs first contend the district court incorrectly determined that their complaints fail to challenge their placement on the Selectee List, and instead only assert a claim based on the allegedly inadequate redress procedures of DHS TRIP. The district court, in Beydoun's case, held that, "[o]n the face of the complaint, [Beydoun] does not directly challenge his placement on the Selectee List." The district court explained:

[Beydoun] alleges in his due process claim that he is "entitled to a legal system that affords him post-deprivation notice and an opportunity to contest the deprivations of his rights," and "[t]he DHS TRIP process presently presents no meaningful opportunity for [Beydoun] to provide exculpatory evidence in an effort to be taken off the [Selectee] or Terrorist Watch Lists." [Beydoun]'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 [Beydoun] 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

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