Elhady v. Piehota

Decision Date05 September 2017
Docket NumberCivil Action No. 1:16–cv–375 (AJT/JFA)
CourtU.S. District Court — Eastern District of Virginia
Parties Anas ELHADY, et al., Plaintiffs, v. Christopher M. PIEHOTA, et al., Defendants.

Gadeir Ibrahim Abbas, CAIR National Legal Defense Fund, Washington, DC, for Plaintiff.

R. Joseph Sher, Lauren A. Wetzler, United States Attorney's Office, Alexandria, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

Anthony J. Trenga, United States District Judge

Plaintiffs are twenty-five United States citizens who claim they are included in the Government's Terrorism Screening Database, referred to colloquially as the Government's terrorist watch list (the "TSDB" or "Watch List"). They allege this status subjects them to additional screening when traveling by air or entering the country at a land border or port, and can impact other rights, such as the ability to buy a gun, to work in certain parts of an airport, or to obtain the necessary license to transport hazardous materials. In this action, Plaintiffs challenge their alleged inclusion in the TSDB on the grounds that it violates (1) procedural due process (Count I), (2) substantive due process (Count II), (3) the Administrative Procedure Act (Count III), (4) the Equal Protection Clause (Count IV), and (5) the non-delegation doctrine (Count V). Pending before the Court is Defendants' Motion to Dismiss the Amended Complaint [Doc. No. 28] (the "Motion"). Defendants contend that Plaintiffs' claims are not justiciable, and to the extent they are, Plaintiffs have failed to plead facts that make any of their claims plausible. For the reasons below, the Motion will be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Briefly summarized, Plaintiffs allege the following facts in their Amended Complaint, which, together with all reasonable inferences, are taken as true for the purposes of the Motion:1

In September 2003, the Attorney General, pursuant to a presidential directive, established the Terrorism Screening Center (the "TSC") as a multi-agency center for coordinating information pertaining to terrorist activity. Am. Compl. (ECF No. 22), ¶ 51. The TSC, which is administered by the Federal Bureau of Investigations (the "FBI"), manages the Goverment's consolidated Terrorism Screening Database, sometimes referred to as the Government's terrorist watch list (the "TSDB" or "Watch List"). Id. The TSC determines whether to place individuals in the TSDB based on "nominations" received from the National Counterterrorism Center (the "NCTC") and the FBI. Two subsets of the TSDB are known as the Selectee List and the No Fly List. Id. ¶ 52. Individuals on the No Fly List are prohibited from boarding commercial flights, whereas individuals on the Selectee List are required to undergo enhanced screening before doing so. Id.

Plaintiffs are twenty-five United States citizens who are included in the TSDB.2 Plaintiffs are all Muslim (or, in the case of Baby Doe 2, born to a Muslim family). Id. ¶¶ 13–37. An indeterminate number of Plaintiffs are also on the Selectee List.3 Id. ¶ 52. Defendants are the Principal Deputy Director of the TSC, the Deputy Director of Operations of the TSC, the Administrator of the Department of Homeland Security's ("DHS") Transportation Security Administration (the "TSA"), the Director of TSA's Office of Redress, the Director of the NCTC, the Director of the FBI, and the Director of the U.S. Customs and Border Protection ("CPB").Id. ¶¶ 38–45.

Plaintiffs, in general, are routinely subjected to additional screening when they fly on a commercial airplane and when they enter the country at a land border or port, although the frequency and invasiveness of that secondary screening varies. For example, Plaintiff Anas Elhady ("Elhady") is subject to secondary inspection "every time" he flies. Id. ¶ 142. Elhady also "is routinely referred to secondary inspection, handcuffed and detained by CBP at land border crossings when he attempts to re-enter the United States from Canada," which can last "approximately four to twelve hours." Id. ¶ 159. Plaintiff Ahmad Al Halabi ("Halabi") is subject to secondary screening "every time" he flies; "is frequently unable to board his flights until he is ‘cleared’ by DHS," which "oftentimes takes hours"; and has missed flights due to "prolonged searches and interrogations." Id. ¶¶ 219–221. Halabi was also handcuffed by CBP officers when reentering the United States in 2014 through a land border following vacation in Canada and detained in a holding cell for approximately two to three hours, and in a waiting area for another three to four hours, during which time the officers confiscated cell phone. Id. ¶¶ 222–23. Because of this treatment, "Halabi no longer travels by air nor does he travel to Canada by land unless absolutely necessary for business purposes." Id. ¶ 225. In April 2014, Plaintiff Wael Hakmeh ("Hakmeh") "was referred to secondary screening and subjected to a prolonged interrogation" after his flight home from a business trip to Turkey. Id. ¶¶ 250–51. Since then, Hakmeh sometimes, but not always, has been subjected to secondary screening when he flies. Id. ¶¶ 254–59. In August 2016, a TSA agent removed Plaintiff Hassan Fares ("Fares") from the plane after boarding for his flight and required him to go through security again, even though he had already gone through security, during which time he was "subjected to extensive searches and pat downs." Id. ¶¶ 454–56. These actions caused Fares to miss his flight. Id. ¶ 457. Plaintiff Zuhair El–Shwehdi ("El–Shwehdi") has been subjected to secondary screening every time he flies since 2011 and "is frequently unable to board his flights until he is ‘cleared’ by DHS," which "can take hours." Id. ¶¶ 464–65. "Frequently, upon returning from a flight," El–Shwehdi "is escorted from the gate or, on at least two occasions off of the plane from his seat, by FBI and/or TSA agents, before he is detained and subjected to prolonged questioning and searches of his person and belongings," which has caused him to miss connecting flights. Id. ¶¶ 466–69.

Based on their experiences, most of the Plaintiffs have submitted an inquiry with the Department of Homeland Security's Traveler Redress Inquiry Program ("DHS TRIP"), which is administered by the TSA. See, e.g., id. ¶¶ 226, 239, 305. Under DHS TRIP, travelers who have been referred for additional screening or delayed or denied airline boarding for any reason, including because he or she believes she was erroneously placed on the Watch List, can inform TSA and request that it review the situation. See 49 C.F.R. §§ 1560.201 – 207. If the traveler's name is a match or near match with a name on the Watch List, "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). This process includes research and review of information on the Watch List and on related United States government information systems. At the conclusion of this review, DHS TRIP informs the traveler that the process has concluded. While the redress process can result in the correction of erroneous information, the concluding letter neither confirms nor denies whether the individual is on the Watch List or the Selectee List. However, pursuant to court orders requiring the Government to provide enhanced procedural protections for United States Citizens on the No Fly List, individuals can learn if they are on the No Fly List through the DHS TRIP process. Plaintiffs who have submitted DHS TRIP inquiries, other than those who have received letters informing them that there is no reason they should not be able to fly, have either received no response as of the filing of the Amended Complaint or have received acknowledgement letters neither confirming nor denying their status on the Watch List. See, e.g., id. ¶¶ 187, 390.

In addition to enhanced screening, Plaintiffs have also experienced a number of other consequences, which they have reason to believe are attributable to their inclusion on the Watch List. For example, Western Union does not allow Plaintiff Yaseen Kadura to conduct wire transfers, which, on information and belief, is because the TSC informed Western Union that he was on the Watch List. Id. ¶ 195. Plaintiff Doe 1's accounts at JPMorgan Chase Bank, TCF Bank, and PNC Bank were closed without explanation or notice soon after he was first subjected to secondary screening while flying, which he believes was based on the banks' being informed of his inclusion in the TSDB. Id. ¶¶ 491–93. On June 30, 2016, when Plaintiff Ibrahim Awad ("Awad") attempted to test drive a vehicle at a Chevrolet car dealership in Sterling Heights, Michigan, a sales associate informed him that, "although he was ‘not supposed to tell’ " Awad, Awad's "name showed up as being designated on the federal terror watch list" when the associate input his information in the dealership's system. Id. ¶¶ 346–47. According to the sales associate, "Awad was not permitted to test drive or purchase any vehicles until the dealership obtain clearance from the FBI allowing him to do so." Id. ¶ 348. Around thirty minutes later, the sales associate told Awad that the FBI sent an email clearing Awad to test drive the vehicle. Id. ¶ 350. Plaintiff Osama Hussein Ahmed was "unable to apply for employment at the airport where his brother was employed," as a result of being added to the No Fly List. Id. ¶ 211. The local police treated Plaintiff John Doe 4 ("Doe 4") as threatening, which he believes was based on the TSC disseminating his Watch List status to local police. In particular, Doe 4 saw a denotation, "Possible Terrorist," beside his name on a local police officer's screen when he was giving the officer a witness statement following a minor...

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