Mahmud v. Oberman

Decision Date19 June 2007
Docket NumberNo. 1:06-cv-1720-WSD.,1:06-cv-1720-WSD.
PartiesBilal MAHMUD, Plaintiff, v. Justin P. OBERMAN, et al., Defendants.
CourtU.S. District Court — Northern District of Georgia

Stephen M. Katz, Law Offices of Stephen M. Katz, Marietta, GA, for Plaintiff.

Andrew D. Silverman, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants.


WILLIAM S. DUFFEY, District Judge.

This matter is before the Court on Defendant Justin P. Oberman's ("Defendant") Motion to Dismiss [23].


This is a Bivens action filed by Plaintiff Bilal Mahmud ("Plaintiff"), a Muslim, against Defendant Justin P. Oberman, the former Director of the Credentialing Program Office for the Transportation Security Administration ("TSA") and numerous John Doe defendants.1 Plaintiff asserts his claims against Defendant solely in his individual capacity.

From December 1984 through August 2004, Plaintiff was employed as a commercial truck driver with Old Dominion Freight Line ("Old Dominion"). He had a commercial driver's license with a Hazardous Material Endorsement ("HME"), an authorization by the federal government to transport hazardous materials.2 On July 30, 2004, Defendant, acting through the United States Department of Homeland Security, revoked the HME on Plaintiff's commercial driver's license. Defendant revoked the HME under the Hazardous Materials Threat Assessment Program ("the Program"), which prohibits any individual from possessing a license to transport hazardous materials in commerce unless the Transportation Secretary has first found that the individual does not pose a security risk. See 49 U.S.C. §§ 5101, 5103(b)(1). The Program sets forth procedures for revoking an individual's HME as well as for appealing both the initial and final agency decisions.

Plaintiff claims that when Defendant revoked his HME, Defendant knew that Plaintiff had not engaged in any terrorism-related activity and had no reasonable suspicion of such activity. Plaintiff further alleges that Defendant falsely stated in writing that he had personally reviewed material indicating that Plaintiff was a threat to national security and transportation security, and had engaged in or encouraged terrorism. Plaintiff alleges the suspension of his endorsement caused him to lose his position as a truck driver with Old Dominion.

On July 24, 2006, Plaintiff filed this action, asserting five claims against numerous defendants, including Oberman, Old Dominion, the United States Department of Homeland Security, the TSA, the Georgia Department of Motor Vehicle Safety, and numerous individuals. On November 3, 2006, Plaintiff dismissed all the defendants, except Oberman, and filed an Amended Complaint asserting a single Bivens claim against Oberman. Plaintiff claims Defendant deprived him of his due process rights under the Fifth Amendment by revoking his HME.

On January 29, 2007, Defendant filed this Motion to Dismiss the Amended Complaint. He argues that: 1) Plaintiff cannot establish personal jurisdiction over him; 2) Plaintiff has no right of action for due process violations where administrative and judicial review was available and prompt action was necessary to protect homeland security; and 3) Defendant is entitled to qualified immunity.

A. Standard on Motion to Dismiss

The law in this Circuit governing motions to dismiss pursuant to Rule 12(b)(6) for failure to state a claim is well-settled. Dismissal of a complaint is appropriate only "when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action." Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993). "Although a plaintiff is not held to a very high standard in a motion to dismiss for failure to state a claim, some minimal pleading standard does exist." Wagner v. Daewoo Heavy Indus. Am. Corp., 289 F.3d 1268, 1270 (11th Cir.), rev'd on other grounds, 314 F.3d 541 (11th Cir.2002) (en banc). "To survive a motion to dismiss, plaintiffs must do more than merely state legal conclusions; they are required to allege some specific factual bases for those conclusions or face dismissal of their claims." Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1263 (11th Cir.2004) ("[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.") (citations omitted).

In considering a defendant's motion to dismiss, the court accepts the plaintiffs allegations as true, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), and construes the complaint in the plaintiffs favor: Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir.1993). To survive a motion to dismiss, a complaint need not contain "detailed factual allegations," but must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007). Ultimately, the complaint is required to contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 1974.

B. Private Right of Action through Bivens

Defendant argues that Plaintiff has no private right of action because administrative and judicial review of any adverse decisions were available to Plaintiff, and the revocation action was necessary to protect homeland security. Plaintiff argues he is entitled to damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which permits a cause of action against a federal agent who, while acting under the color of federal law, violates the constitutional rights of an individual. Bivens, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1970). Bivens actions are brought directly under the Constitution and are necessarily limited because they are brought without a statute providing a right of action.

The Eleventh Circuit has made clear that a Bivens action for damages is available only where: "(1) the plaintiff has no alternative means of obtaining redress and (2) no `special factors counseling hesitation' are present." Hardison v. Cohen, 375 F.3d 1262, 1264 (11th Cir.2004) (citing Stephens v. Dep't of Health & Hum. Servs., 901 F.2d 1571, 1575-76 (11th Cir. 1990)). "Those special factors `include an appropriate judicial deference' toward the will of Congress," and when "the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration," the court will not fashion additional Bivens remedies. Id. (citing Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988)). The Supreme Court has "responded cautiously to suggestions that Bivens remedies be extended into new contexts. The absence of statutory relief for a constitutional violation, for example, does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation." Chilicky, 487 U.S. at 421, 108 S.Ct. 2460.

A court will not fashion a Bivens remedy even if the statutory remedy does not provide complete relief. For example, in Bush v. Lucas, the Supreme Court prohibited a federal employee from asserting, under the First Amendment, a Bivens action against his former government agency employer. Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). The Court reasoned that, although the existing remedies would not allow complete relief, the statutory remedial scheme was "clearly constitutionally adequate." Id. at 378 n. 14, 103 S.Ct. 2404. The Bush court noted that Congress is in a better position to decide whether or not the public interest would be served by a damages remedy, and courts should not modify or supplement "an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, ... [with] a new judicial remedy for the constitutional violation at issue." Id. at 388, 103 S.Ct. 2404; see also Chilicky, 487 U.S. at 428-29, 108 S.Ct. 2460 (declining to allow plaintiffs, who asserted a Fifth Amendment due process violation because their Social Security disability benefits were wrongfully terminated, to maintain a Bivens action and stating that although they could not be "fully remedied by the belated restoration of back benefits," "Congress is the body charged with making the inevitable compromises" in fashioning remedies for injuries relating to "massive and complex" government programs).

An important consideration in deciding whether a regulatory scheme is sufficiently comprehensive to constitute a "special factor" is whether it provides "meaningful safeguards or remedies" for the plaintiff. Chilicky, 487 U.S. at 425, 108 S.Ct. 2460; Spagnola v. Mathis, 859 F.2d 223, 228 (D.C.Cir.1988) ("[C]ourts must withhold their power to fashion damages remedies when Congress has put in place a comprehensive system to administer public rights, has `not inadvertently' omitted damages remedies for certain claimants, and has not plainly expressed an intention that the courts preserve Bivens remedies.").

The Hazardous Materials Threat Assessment Program enacted by Congress is a comprehensive effort to regulate the safety of, and avoid risks associated with, hazardous material transportation. The Program provides remedial mechanisms for individuals adversely affected by regulatory action under the Act, sets forth reasonable procedures for revoking an individual's HME, and provides an appeal of both the initial and final agency decisions.

Agency regulations state that an individual cannot possess an HME unless he or she meets several criteria. 49 U.S.C. §§ 5101, 5103(b)(1); 49 C.F.R. § 1572.5(b)(1)(i), amended by 69 Fed.Reg. 68,742 (Nov. 24, 2004).3 An individual cannot possess an HME if the TSA has notified the...

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