Long v. Barr

• Citation: 451 F.Supp.3d 507
• Decision Date: 02 April 2020
• Docket Number: Civil No. 1:15-cv-1642
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Saadiq LONG, et al., Plaintiffs, v. William P. BARR, et al., Defendants.

451 F.Supp.3d 507

Saadiq LONG, et al., Plaintiffs,

v.William P. BARR, et al., Defendants.

Civil No. 1:15-cv-1642

United States District Court, E.D. Virginia, Alexandria Division.

Signed April 2, 2020

Gadeir Ibrahim Abbas, Lena F. Masri, CAIR National Legal Defense Fund, Justin Mark Sadowsky, Council on American Islamic Relations, Washington, DC, for Plaintiffs.

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

MEMORANDUM OPINION & ORDER

Liam O'Grady, United States District Judge This matter is before the Court on Defendants' Motions to Dismiss. Dkts. 44, 45. There are three Plaintiffs and six Defendants named in the August 13, 2019, Amended Complaint. Dkt. 35 ("Am. Compl."). The Plaintiffs are immediate family members: (1) Plaintiff Long ("Long"), a.k.a. Paul Anderson; (2) his wife, Juangan; and (3) his daughter, Leshauana. Juangan and Leshuana share the last name Daves ("Daves Plaintiffs").¹ Defendants include, in their official capacities at the time of filing: William P. Barr, Attorney General of the United States; Christopher A. Wray, Director of the Federal Bureau of Investigation; Charles H. Kable, IV, Director of the Terrorism Screening Center; Joseph McGuire,² Director of the National Counterterrorism Center, Office of the Director of National Intelligence; Kirstjen Nielson,³ Secretary of Homeland Security, United States Department of Homeland Security; and David P. Pekoske, Administrator, Transportation Security Administration, United States Department of Homeland Security.

The Amended Complaint asserted nine counts; six counts remain before the Court: (I) The Fifth Amendment-Substantive Due Process; (II) The Fifth Amendment-Procedural Due Process; (III) The Administrative Procedure Act, 5 U.S.C. § 706 –DHS TRIP; (IV) The Administrative Procedure Act, 5 U.S.C. § 706 –NCIC; (V) The Fifth Amendment–Equal Protection; (VIII) The Non-Delegation Doctrine.⁴ Further, Plaintiffs submit, this Court has jurisdiction and is the proper venue because the Terrorism Screening Database at the center of this case is compiled and maintained in the Eastern District of Virginia.

Plaintiffs filed the initial Complaint in December 2015. The Court subsequently granted a joint motion to stay the proceedings while Plaintiffs completed the Department of Homeland Security Traveler Redress Inquiry Program. After the program was complete, the stay was lifted in June 2019, and Plaintiffs filed the Amended Complaint on August 13, 2019. The Government moves to dismiss the Amended Complaint in its entirety for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim under Rule 12(b)(6).

I. BACKGROUND

A. The Terrorist Screening Database

At the time of the terrorist attacks on the United States on September 11, 2001, "nine U.S. Government agencies maintained twelve different watchlists intended to accomplish a variety of purposes." Latif v. Holder , No. 3:10-cv-00750-BR, ECF No. 253, May 28, 2015, at ¶ 6 [hereinafter "Grigg Decl."] (citing Government Accountability Office, Terrorist Watch Lists Should be Consolidated to Promote Better Integration and Sharing , GAO-03-322, April 2003). Thereafter, Homeland Security Presidential Directive–6 ("HSPD-6") directed the Attorney General to consolidate the existing terrorist watchlists, "to consolidate the U.S. Government's approach to TERRORISM SCREENING and provide for the appropriate and lawful use of TERRORIST INFORMATION in screening processes." See Dkt. 35-1 ("2013 Watchlisting Guidance") at 6 (emphases original).

The creation of the Terrorist Screening Center ("TSC") in 2003 was one response to HSPD-6, and it is responsible for maintaining the Terrorist Screening Database ("TSDB" or, colloquially, "the Watchlist"). "TSC is a multi-agency center" that is: (1) administered by the Federal Bureau of Investigation ("FBI"); (2) supported by several entities such as the Department of Homeland Security ("DHS"), the Department of Justice ("DOJ"), and the Department of State ("DOS"); (3) and staffed by officials from multiple agencies, including but not limited to the FBI, DHS, DOS, TSA, and U.S. Customs and Border Patrol ("CBP"). Several federal agencies draw on the Watchlist in their respective national security and law enforcement efforts. Grigg Decl. ¶ 2.

More recently, TSC released an "Overview of the U.S. Government's Watchlisting Process and Procedures as of January 2018" ("Watchlisting Overview"), explaining the nomination process for an individual to be included in the TDSB as a known or suspected terrorist ("KST"). Dkt. 46-1 at 3 (DEX1).⁵ The nominations generally go through a three-step review process beginning at the nominating agency, then continuing at the FBI or National Counterterrorism Center ("NCTC"),⁶ and finally at the TSC.

"The standard for inclusion in the TDSB is generally one of reasonable suspicion. " Id. (emphasis original). This reasonable suspicion arises from credible information shared by government agencies and foreign partners, gathered from law enforcement, immigration records, intelligence from homeland security and related entities, and other sources. Mere guesses regarding suspicious activity are not enough to support a nomination–rather, reasonable suspicion is explained as follows:

[F]or inclusion in the TSDB as a known or suspected terrorist, the nominator must rely upon 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 of in furtherance of, or related to, terrorism and/or terrorist activities.

Id. at 4.

The Transportation Security Administration ("TSA") is required by statute, inter alia , to "(2) assess threats to transportation; (3) develop policies, strategies, and plans for dealing with threats to transportation security;... [and] (7) enforce security-related regulations and requirements." 49 U.S.C. § 114(f). The TSA is further tasked with consulting with appropriate agencies and air carriers to use government agency information to identify individual passengers who may be a threat to civil aviation or national security–upon identifying such an individual, TSA is to notify appropriate law enforcement agencies, prevent the individual from boarding, or take other appropriate action. See id. at § 114(h)(3)(A-B).

To comply with these statutory obligations, TSA relies—in part—on the Watchlist information. It uses subsets of the TSDB to implement its own policies and procedures to identify and address threats to transportation security. Specifically, TSA's Secure Flight program draws on the TSDB to implement the No Fly List and the Selectee Lists. Grigg Decl. ¶ 35. The nominations to the subsets of the TDSB are held to additional standards, only some of which are disclosed publicly. "No Fly-Selectee (‘NFS’) subject matter experts (‘SMEs’) at the TSC are used to review nominations for possible inclusion on the No Fly or Selectee Lists." Id. ¶ 19. The NFS SMEs require specific training, and generally comprise agents from TSA, FBI, and DHS. Id. Any individual may be included on the No Fly List when the TSC determines the individual meets at least one of four criteria, including, inter alia , posing a threat to commit an act of international terrorism with respect to an aircraft, or of domestic terrorism with respect to the homeland. Watchlisting Overview at 4. "For security reasons, the criteria for inclusion on the Selectee List are not public." Id.

Individuals included in these lists may be identified by TSA while traveling and subject to varying security measures; "TSA implements the Selectee and Expanded Selectee Lists by requiring individuals on the Lists to undergo enhanced security screening before boarding an aircraft flying to, from, or over the United States." Dkt. 46-1, DEX4 ¶ 6 ("Moore Decl."). If an individual is on the No Fly List, TSA prevents that individual from boarding said aircrafts. Id.

An individual seeking to challenge what he perceives to be unlawful treatment related to increased travel security measures may use the DHS redress process: Department of Homeland Security Traveler Redress Inquiry Program ("DHS TRIP"). Submitting an inquiry with DHS TRIP allows the individual to submit information relevant to travel difficulties for the government to review, but the "general policy is neither to confirm nor deny a person's watchlist status." Watchlisting Overview at 9. "In the small fraction of cases in which DHS TRIP determines that a traveler is an exact or possible match to an identity in the TSDB, then DHS TRIP refers the matter to the Redress Unit at the [TSC]."

Moore Decl. ¶ 6. DHS TRIP then issues a determination letter to the traveler based on the TSC review. Regarding select TSDB statuses, when appropriate, the traveler may be removed from the TSDB or one of its subsets. Id. ¶ 8.

The constitutionality of DHS TRIP'S policy was challenged repeatedly in federal courts. Ultimately, the Government revised the procedures in 2015 to satisfy Due Process.⁷ But the revised procedures only apply to the subset of cases where the TSC Redress Office determines the individual is appropriately on the No Fly List. In that scenario, the traveler receives a letter indicating he is on the No Fly List, and is given the option to request additional information. Id. ¶ 9. The complainant receives a second letter if it is timely and properly requested. The second letter identifies specific criteria supporting placement on the No Fly List, and includes an unclassified summary of the justification of the placement to the extent possible considering national security and law enforcement interests. Again, the second letter provides an option for US citizens and lawful permanent residents to seek additional...