Kovac v. Wray

• Citation: 363 F.Supp.3d 721
• Decision Date: 05 March 2019
• Docket Number: Civil Action No. 3:18-CV-0110-L
• Parties: Adis KOVAC, et al., Plaintiffs, v. Christopher WRAY, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

363 F.Supp.3d 721

Adis KOVAC, et al., Plaintiffs,

v.Christopher WRAY, et al., Defendants.

Civil Action No. 3:18-CV-0110-L

United States District Court, N.D. Texas, Dallas Division.

Signed March 5, 2019

Nikiya Natale, Addison, TX, Ahmed Mohamed, Lena Fatina Masri, CAIR Legal Defense Fund, Washington, DC, for Plaintiffs.

Samuel Singer, U.S. Department of Justice Civil Division OIL-DCS, Antonia Konkoly, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

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.

Plaintiffs assert federal subject matter jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. §§ 702 and 706. Id. ¶ 25. Plaintiffs allege the following facts in their Complaint, which, together with all reasonable inferences, are taken as true for the purposes of analyzing Defendants' Motion to Dismiss.³

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. 49 U.S.C. § 114(d). The TSA is responsible for "day-to-day Federal security screening operations for passenger air transportation," id. § 114(e)(1), and for developing "policies, strategies, and plans for dealing with threats to transportation security," id. § 114(f)(3). Congress directed the TSA to establish procedures for notifying appropriate officials "of the identity of individuals known to pose, or suspected of posing, a risk of air piracy or terrorism or a threat to airline or passenger safety." Id. § 114(h)(2). This mandate requires the TSA, "in consultation with other appropriate Federal agencies and air carriers," id. § 114(h)(3), "to use information from government agencies to identify [travelers] who may be a threat to civil aviation or national security," id. § 114(h)(3)(A), and to "prevent [those individuals] from boarding an aircraft, or take other appropriate action with respect to that individual," id. § 114(h)(3)(B). The TSA may "issue...such regulations as are necessary to carry out [its] functions," id. § 114(l)(1), as well as "prescribe regulations to protect passengers and property on an aircraft," id. § 44903(b).

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." Id. The TSDB is a consolidated database containing identifying information of persons known or reasonably suspected to be terrorists. See Safeguarding Privacy and Civil Liberties While Keeping Our Skies Safe: Hearing Before the H. Comm. on Homeland Security, 113th Cong. 1-2 (2015) (statement of Christopher M. Piehota, Director, TSC/FBI) ("Piehota Statement"). The TSDB has two subsets: the "No Fly List" and the "Selectee List." Compl. ¶ 30. Individuals on the No Fly List are prohibited from boarding commercial flights that traverse United States airspace. Individuals on the Selectee List are systematically subject to enhanced screening at airports and land border crossings. Id. While the DHS TRIP discloses to United States citizens if they are on the No Fly List, it does not disclose if they are on the Selectee List. Id. ¶ 115.

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. Id. at 12. The NCTC reviews TIDE entries and recommends specific entries to the TSC for inclusion in the TSDB. Id. The FBI also nominates to the TSDB individuals with what it characterizes as suspected ties to domestic terrorism. Id.

"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." Id. First, the facts and circumstances pertaining to the nomination must meet the "reasonable suspicion standard of review." Id. Second, "the biographic information associated with a nomination must contain sufficient identifying data so that a person being screened can be matched to or disassociated from another watchlisted individual." Id. "Reasonable suspicion" requires "articulable facts which, taken together with rational inferences, reasonably warrant the determination" that an individual "is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of or related to terrorism and terrorist activities." Id. "The ‘reasonable suspicion’ standard is based on the totality of the circumstances in order to account for the sometimes fragmentary nature of terrorist information." Id. ; see generally Compl. ¶¶ 57-60.

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." Id. ¶ 62. As a result, hundreds of thousands of individuals are ensnared in the TSDB via a process that disproportionately targets American Muslims. Id. ¶¶ 71, 77, 80. Plaintiffs allege that Defendants use the watchlist, not as a tool to enhance aviation and border security, but for nefarious, unlawful purposes, including coercing innocent Americans into becoming informants, and disseminating defamatory, false, and stigmatizing information to millions of Americans. Id. ¶ 78. Plaintiffs further allege that because the TSC disseminates the TSDB status to local authorities, foreign governments, and private contractors, placement in the TSDB restricts innocent Americans' ability to exercise their rights of movement and travel while the consequences also affect their ability to buy a gun, obtain or renew a hazmat license, or work in an airport. Id. ¶¶ 49-52.

3. The DHS TRIP

Congress has specifically directed the DHS to establish a redress procedure for individuals wrongly identified as a threat. 49 U.S.C. § 44926(a). Section 44926(a) provides:

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 were 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." Id. § 44903(j)(2)(G)(i).

Pursuant to this authority, the TSA established and administers the DHS TRIP, through which travelers may...