Magassa v. Mayorkas
|09 November 2022
|52 F.4th 1156
|Lassana MAGASSA, Plaintiff-Appellant, v. Alejandro N. MAYORKAS, in his official capacity as Acting Secretary of the Department of Homeland Security ; Merrick B. Garland, Attorney General; David Pekoske, in his official capacity as Administrator of the Transportation Security Administration; Christopher Wray, in his official capacity as Director of the Federal Bureau of Investigation ; Charles H. Kable IV, Director, in his official capacity as Director of the Terrorist Screening Center ; Mark Morgan, in his official capacity as acting Commissioner of US Customs and Border Protection; Minh Truong, in his individual capacity, Defendants-Appellees.
|U.S. Court of Appeals — Ninth Circuit
Christina A. Jump (argued), Allie J. Hallmark, Alyssa F. Morrison, and Charles D. Swift, Constitutional Law Center for Muslims in America, Richardson, Texas, for Plaintiff-Appellant.
Joshua Dos Santos (argued) and Sharon Swingle, Appellate Staff Attorneys; Nicholas W. Brown, United States Attorney; and Brian M. Boyton, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.
Before: Ryan D. Nelson and Kenneth K. Lee, Circuit Judges, and Jed S. Rakoff,* District Judge.
Opinion by Judge R. Nelson ;
The Transportation Security Agency revoked the security badge of Lassana Magassa, a Delta Airlines agent, without explanation. Magassa, claiming that the revocation resulted from his refusal to be an FBI informant, sued for violations of the Administrative Procedure Act, 42 U.S.C. § 1981, and due process. We hold that § 1981 prohibits discrimination by state—but not federal—officials, and by nongovernmental actors. We also hold that the district court did not have jurisdiction to consider Magassa's challenge to the TSA's Redress Process because it falls within our exclusive jurisdiction under 49 U.S.C. § 46110, and that Magassa failed to establish a liberty interest to support his due process claims.
Lassana Magassa, a U.S. citizen and African-American Muslim, worked as a cargo customer service agent for Delta Airlines in Seattle.1 Before starting with Delta, he completed background checks and interviewed with Customs and Border Protection (CBP) to obtain a security badge (called a Security Identification Display Area or "SIDA" badge). The badge signified that Magassa presented no threat to national security or transportation. During his background check, Magassa mentioned an interest in law enforcement and two CBP interviewers offered to send his resume to their colleagues.
After Magassa started with Delta, FBI Special Agent Minh Truong contacted him. They met over coffee for what Magassa believed would be a job interview. Instead, Truong invited Magassa to be a paid informant. Magassa declined but reaffirmed his interest in working as an agent or intern with the FBI.
Magassa was later approved for the Global Entry program (a CBP program that allows expedited clearance for pre-approved, low-risk international travelers). A few months after Magassa's Global Entry approval, Truong again tried to contact Magassa. They did not connect.
Magassa's airport troubles started during a trip to Paris and Berlin. First, he received an error message when he tried to check in for his return flight. Delta eventually rebooked him on another flight. But an alarm sounded when Magassa went to board. Security agents searched Magassa and his belongings, confiscated a pair of "small crochet scissors," and allowed him to board. Upon return to the United States, Magassa learned that his Global Entry privileges had been revoked. Over the next several hours, his boarding passes triggered more alarms, he endured additional searches, and he missed two flights. His boarding passes for both flights were marked "SSSS." Magassa believed that he was designated a security threat and listed in the Terrorist Screening Database (colloquially called the "Terrorist Watch List").
When Magassa reached Seattle, his Delta supervisor, the head of Delta security, and an airport police officer met him at the gate. They said that Magassa's credentials had been revoked because his TSA status had changed and he could not return to work. Magassa was escorted from the airport. A few days later, he received a letter informing him that the Port of Seattle Aviation Security had revoked his security badge.
Anticipating termination, Magassa resigned. He received a formal notification of the TSA's "Initial Determination of Eligibility and Immediate Suspension," which stated that he "may no longer be eligible to hold airport-approved and/or airport-issued personnel identification media." After Magassa requested the documents that TSA relied on in its determination, he received heavily redacted documents that included a report from October 2016 (dated ten days after Magassa's return from Paris and one month after Truong's attempt to reconnect). None of the documents revealed substantive information on the TSA's assessment. The and "basis of investigation" sections of the report were completely redacted.
Magassa timely challenged the TSA's initial assessment. The agency's Final Determination of Eligibility affirmed the initial assessment, and Magassa filed an administrative appeal. His counsel (who held a Secret-level clearance) requested access to the classified information submitted by the TSA. After in camera review of the record, the administrative law judge (ALJ) denied the request and concluded that the TSA could not provide an unclassified summary of the information. But the ALJ also ordered the TSA to provide Magassa a redacted version of a report from June 2017. Magassa alleges that the 2017 report is only slightly less redacted than the 2016 report and provides no reason for revoking his airport privileges. Like the 2016 report, the 2017 report's "case summary" section was completely redacted.
The ALJ hearing was bifurcated into an unclassified portion (which Magassa attended) and a classified portion (which he did not). The ALJ found that the TSA's determination was supported by substantial evidence. Magassa requested review of the ALJ decision by the TSA Final Decision Maker. The Final Decision Maker concluded that the ALJ had applied the appropriate standard of review and properly limited Magassa's access to unclassified portions of the record.
About three weeks later, the agency withdrew its eligibility determination and concluded that Magassa was "eligible to maintain airport-issued identification media." It did not explain its earlier finding that Magassa was a security threat.
Magassa now works for a different airline in a similar position to the one he held at Delta. His employment depends on maintaining eligibility for a security badge and airport privileges. He alleges that he continues to experience traveling delays and harassment by TSA personnel and remains on a government watch list.
Magassa sued Special Agent Truong in his individual capacity and the heads of the Department of Homeland Security (DHS), TSA, CBP, Department of Justice, FBI, and Terrorist Screening Center (TSC) in their official capacities. He alleges violations of his contractual rights under § 1981 by Truong and violations of the Administrative Procedure Act (APA) and Fifth Amendment by the other defendants in their individual capacities.
The district court dismissed Magassa's claim against Truong for lack of subject matter jurisdiction, reasoning that § 1981 applies to conduct by private or state—not federal—actors. It held that while its review was not barred by the jurisdictional statute in 49 U.S.C. § 46110, it lacked jurisdiction over the APA claim due to the lack of a final order. And it dismissed the Due Process claims for failure to state a claim, because Magassa had not established a protected liberty or property interest. This appeal followed.
We review de novo a district court's decision to dismiss for lack of jurisdiction or failure to state a claim, viewing factual allegations in the complaint as true and construing the pleadings in the light most favorable to the nonmoving party. Navajo Nation v. U.S. Dep't of the Interior , 26 F.4th 794, 805 (9th Cir. 2022) (en banc); Benavidez v. County of San Diego , 993 F.3d 1134, 1141, 1144 (9th Cir. 2021).
We start with Magassa's claim against Special Agent Truong. Section 1981 of the Civil Rights Act prohibits intentional discrimination and promises "[a]ll persons" the right to "make and enforce contracts." 42 U.S.C. § 1981(a). The right "includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Id. § 1981(b). The statute provides that "[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." Id. § 1981(c).
The district court concluded that Magassa's § 1981 claim challenged "actions taken in the course of [Truong's] official duties." According to the district court, Magassa essentially alleged that Truong, in his capacity as a federal agent acting under federal authority, interfered with Magassa's employment under color of federal—rather than state—law. It dismissed the claim for lack of subject matter jurisdiction because § 1981 provides no cause of action against federal agents acting under color of federal law.
On appeal, Magassa argues that § 1981 applies to "federal actors" (i.e., federal officials acting under color of federal law). In the alternative, he contends that Truong is a "nongovernmental" actor because he was sued in his individual capacity.
"The United States, as sovereign, is immune from suit save as it consents to be sued ..., and the terms of its consent to be sued in...
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