Magassa v. Wolf

• Decision Date: 16 September 2020
• Docket Number: CASE NO. C19-2036RSM
• Citation: 487 F.Supp.3d 994
• Parties: Lassana MAGASSA, Plaintiff, v. Chad WOLF, in his Official Capacity as Acting Secretary of the Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

487 F.Supp.3d 994

Lassana MAGASSA, Plaintiff,

v.Chad WOLF, in his Official Capacity as Acting Secretary of the Department of Homeland Security, et al., Defendants.

CASE NO. C19-2036RSM

United States District Court, W.D. Washington, at Seattle.

Signed September 16, 2020

Charles Davidson Swift, Swift & McDonald, Alisa R. Brodkowitz, Schroeter Goldmark & Bender, Seattle, WA, Christina A. Jump, Pro Hac Vice, Constitutional Law Center for Muslims in America, Richardson, TX, for Plaintiff.

Antonia Konkoly, U.S. Department of Justice, Washington, DC, for Defendants Chad Wolf, David Pekoske, Mark Morgan, William Barr, Christopher Wray, Charles Kable.

Kristen R. Vogel, Sarah K. Morehead, Sarah Y. Vogel, US Attorney's Office, Seattle, WA, for Defendant Minh Truong.

ORDER RE: DEFENDANTS’ MOTIONS TO DISMISS

RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter comes before the Court on two Motions to Dismiss: one filed by Defendant Minh Truong, sued in his individual capacity, Dkt. #17, and Defendants Chad Wolf, David Pekoske, Mark Morgan, William Barr, Christopher Wray, and Charles Kable, sued in their official capacities (the "Official Capacity Defendants"), Dkt. #18. Plaintiff Lassana Magassa opposes both motions. Dkts. #22, #26. The Court finds oral argument unnecessary to resolve the underlying issues. Having reviewed the relevant briefing and the remainder of the record, the Court GRANTS Defendant Truong's Motion to Dismiss and GRANTS IN PART and DENIES IN PART Official Capacity Defendants’ Motion to Dismiss as set forth below.

II. BACKGROUND

A. TSA Security Threat Assessments and Redress Procedures

Civil aviation security regulations require certain employees of U.S. airport operators to undergo a Security Threat Assessment conducted by the U.S. Transportation Security Administration ("TSA") or a "comparable" security threat assessment conducted by another governmental agency. 49 C.F.R. §§ 1540.201(a), 1540.203(a), (f).¹ TSA determines that an individual is a security threat if the individual is known to pose or is suspected of posing a threat to national security, to transportation security, or of terrorism. Id. at § 1540.203(c). To prevent and detect entry of unauthorized individuals into secure areas of the airport, airport operators issue badges for access into Security Identification Display Areas ("SIDA"). Id. at §§ 1540.5, 1542.203.

Individuals identified as security threats who wish to appeal TSA's determination may do so through a redress process set forth under 49 C.F.R. § 1515 (the "STA Redress Process"). An individual who has been issued an Initial Determination of Threat for reasons other than criminal conviction, immigration status, or mental capacity may appeal the TSA's determination in accordance with 49 C.F.R. § 1515.9. If TSA concludes that the applicant does not pose a security threat, TSA serves a Withdrawal of the Initial Determination on the applicant and the applicant's employer. Id. at § 1515.9(d). However, if TSA concludes that the applicant poses a security threat following an appeal, TSA serves a Final Determination of Threat Assessment on the applicant. Id. at § 1515.9(c). The applicant may then appeal the TSA's Final Determination to an Administrative Law Judge ("ALJ") by filing a request for review. Id. at § 1515.11(b). Pursuant to 49 C.F.R. § 1515.11(e)(3), the ALJ reviews any classified information on an ex parte, in camera basis. Finally, either party may request that the TSA Final Decision Maker review the ALJ's decision. Id. at § 1515.11(g). The final order of the TSA Final Decision Maker is a final order subject to judicial review under 49 U.S.C. § 46110. 49 C.F.R. § 1515.11(h).

B. Revocation of Plaintiff's Airport Privileges

Plaintiff Magassa is an African American, Muslim U.S. citizen and Seattle resident. Dkt. #1 at ¶ 1. In June 2015, Plaintiff underwent extensive background checks, including an interview by a U.S. Customs and Border Protection ("CBP") agent, in order to be hired for a position at Delta Air Lines, Inc. ("Delta") as a Cargo Customer Service Agent. Id. at ¶¶ 18-19. During the interview, Plaintiff discussed his religious beliefs and desire to work for law enforcement, including for the Federal Bureau of Investigation ("FBI"). The CBP agent asked if he may pass along Plaintiff's resume to law enforcement colleagues, and Plaintiff agreed. Id. at ¶ 21. Plaintiff subsequently received clearance confirming that he posed no threat to national security or transportation security and was not a terrorism threat. He began working for Delta on June 22, 2015. Id. at ¶¶ 22-23.

On or around October 2015, CBP agent Tad Foy contacted Plaintiff for an interview. Id. at ¶¶ 25-26. Plaintiff met with Foy at the Seattle-Tacoma International Airport ("SeaTac") and again expressed interest in working for law enforcement and expanding his network. Foy introduced Plaintiff to FBI Special Agent Minh Truong over email, and Truong contacted Plaintiff in late October 2015 for a meeting. Id. at ¶ 29. Plaintiff and Truong met for coffee, during which Truong questioned Plaintiff on his Muslim faith and views of violence. Id. at ¶ 30. Truong asked Plaintiff to work as an informant for the FBI for compensation. Plaintiff refused on the basis that working as an informant was against his personal and religious reliefs, and that agreeing to such a role would erroneously imply that Plaintiff surrounded himself with bad people. Id. at ¶¶ 31-32. Plaintiff stated that he remained interested in working for the FBI as either an agent or an intern. On June 26, 2016, TSA approved Plaintiff for CBP Global Entry program membership, which allows expedited re-entry into the United States from foreign countries.

In September 2016, Truong attempted to contact Plaintiff again, but "they did not connect." Id. at ¶ 35. In November 2016, Truong visited Plaintiff's residence. Id. at ¶¶ 38-39. Plaintiff was not home, but Truong spoke with Plaintiff's wife and represented that he and Plaintiff were "good friends." Plaintiff's wife called Plaintiff with Truong present, and Truong stated that he wanted to meet Plaintiff in-person that same day. Plaintiff responded that he was unavailable and would call Truong back later. Plaintiff obtained legal representation shortly thereafter, and Truong stopped attempting to contact him. Id. at ¶ 40.

On October 3, 2016, Plaintiff traveled from Seattle to Berlin, Germany, by way of Paris, France, to attend an annual conference of the Association of Internet Researchers. Id. at ¶¶ 43-45. Plaintiff had no problems traveling to Berlin or on his return leg from Berlin to Paris on or around October 7, 2016. However, on his return leg from Paris to Seattle, Plaintiff suffered extensive delays, secondary screenings, and markings on his boarding passes consistent with someone placed on a terrorist watch list. Id. at ¶¶ 46-58. These delays and searches forced Plaintiff to rebook his return leg several times due to his scheduled flights leaving while he underwent screenings. When he finally arrived in the United States through Cincinnati, Ohio, Plaintiff received an error message at the Global Entry kiosk. The error message informed Plaintiff that his privileges were revoked, and that he had lost membership in the Global Entry program. Government agents and airport officials at the Cincinnati airport detained and interviewed Plaintiff for three hours but could not identify any reason he was triggering alerts.

When Plaintiff finally reached Seattle on or around October 10, 2016, he was met at the gate by his supervisor at Delta, the Head of Corporate Security at Delta, and a police officer. Id. at ¶¶ 58-62. They informed Plaintiff that because his TSA status had changed, Delta had no choice but to prevent him from returning to work and to revoke his workers’ identification badge. The airport officials stated they had no further information to provide and escorted Plaintiff from the premises. Shortly thereafter, Plaintiff received a letter dated October 8, 2016 from the Port of Seattle Aviation Security, notifying him that his SIDA identification badge was revoked. Per Delta's request, Plaintiff returned to the airport to clear out his locker and was again informed that nobody knew why his TSA status had changed.

Knowing that his termination from Delta was inevitable and imminent, Plaintiff submitted a letter of resignation on October 12, 2016 in order to remain marketable for future jobs. Id. at ¶¶ 64-68. His discharge from Delta was effective as of October 26, 2016. Plaintiff never experienced disciplinary problems during his time with Delta and had planned to begin a data analyst position upon returning from Berlin. Delta officials have confirmed that they do not know why Plaintiff's status changed but had no choice but to suspend his airport privileges pursuant to TSA's orders. Plaintiff claims that his loss of airport privileges coincided with extreme travel difficulties, including sounding alarms whenever his boarding pass was scanned and missing flights due to extensive screenings. Id. at ¶¶ 71-82. These difficulties caused Plaintiff emotional distress and embarrassment and caused him to be late for and miss several professional academic events.

C. Plaintiff's Administrative Proceedings

On November 4, 2016, Plaintiff received formal notification of TSA's Initial Determination of Eligibility and Immediate Suspension indicating that he was no longer eligible to hold airport-approved and/or airport-issued personnel identification media. Id. at ¶¶ 84-89. On November 13, 2016, Plaintiff requested the release of any and all documentation that the TSA relied upon in reaching its decision. On December 22, 2016, TSA provided Plaintiff with heavily-redacted documents, including a Security Threat Assessment Board report dated October 20, 2016. Plaintiff claims that due to the heavy redactions, the materials contained no substantive information as to why Plaintiff's badge and airport...