Malik v. U.S. Dep't of Homeland Sec.
| Docket Number | 4:21-cv-0088-P |
| Decision Date | 04 August 2022 |
| Citation | 619 F.Supp.3d 652 |
| Parties | Adam A. MALIK et al., Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY et al., Defendants. |
| Court | U.S. District Court — Northern District of Texas |
Roy Petty, Richard C. Harrist, Roy Petty & Associates PLLC, Dallas, TX, for Plaintiffs.
Brian Walters Stoltz, U.S. Attorney's Office, Dallas, TX, for Defendants.
This case arises from a border search at DFW Airport. At issue is whether the Government violated the First and Fourth Amendments when it seized, and then searched, a cell phone. Plaintiffs argue that the Government violated the Constitution; the Government argues no such violation occurred. As explained, the Court agrees with the Government.
Plaintiff Adam Malik is a naturalized United States citizen, originally from Pakistan, who lives in the Dallas area and practices law at his own law firm, Malik & Associates, PLLC (the other Plaintiff).2 On January 3, 2021, Mr. Malik boarded a flight in Costa Rica destined for the Dallas-Fort Worth Airport ("DFW Airport"). During that flight, a U.S. Customs and Border Protection ("CBP") officer flagged Mr. Malik in CBP's passenger screening system. Being flagged meant that Mr. Malik would be referred for a "secondary" inspection once he arrived at DFW Airport's customs inspection area.
Upon arrival at the DFW Airport, and after deplaning, Mr. Malik attempted to check-in at the Global Entry kiosk. But because he had been flagged, Mr. Malik was directed to the secondary inspection area, where he was separately interviewed by two CBP officers. Relevant here is the second interview. During that interview, Mr. Malik invoked the attorney-client privilege pursuant to his ethical duties as an attorney. Following that invocation, Mr. Malik (understandably) refused to consent to a "basic" search of his phone. Despite invoking the attorney-client privilege and refusing to allow a basic search of his phone, a CBP officer (with his supervisor's approval) detained Mr. Malik's cell phone for purposes of conducting a border search. Mr. Malik then received a "Detention Notice and Custody Receipt for Detained Property."
From DFW Airport, Mr. Malik's password-protected phone was sent to a lab in El Paso, Texas. The El Paso lab, however, could not bypass the phone's passcode; the phone was thus transferred to a computer lab in Houston, Texas. The Houston lab successfully bypassed the phone's passcode and accessed the phone's data. The Houston lab generated a Cellebrite report containing the phone's extracted data, which was then sent, along with the phone, to the CBP.
Because Mr. Malik asserted the attorney-client privilege, the CBP assembled a filter team to review the phone's data and redact any privileged material. Once screened, the filter team sent a limited set of data from the phone to the CBP officers at DFW Airport. From this limited set of data, a CBP officer then conducted a border search. After conducting the border search, the CBP returned the cell phone to Mr. Malik on May 21, 2021.
After his cell phone was detained, but prior to its return, Mr. Malik filed this lawsuit seeking declaratory and injunctive relief. Now before the Court are the Parties' cross-motions for summary judgment.
Summary judgment is appropriate where the movant demonstrates "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). When parties file cross motions for summary judgment, the court "review[s] each party's motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party." Six Dimensions, Inc. v. Perficient, Inc., 969 F.3d 219, 224 (5th Cir. 2020).
The Court's analysis proceeds in two parts. First, the Court considers its jurisdiction. The Court concludes that it has jurisdiction over only one claim: Mr. Malik's expungement claim. Second, because this claim is premised on a constitutional violation, the Court then analyzes the merits. The Court concludes that no constitutional violation occurred and grants the Government's motion for summary judgment.
The Court starts with jurisdiction. The judicial power vested by Article III of the Constitution extends to "Cases" and "Controversies." U.S. CONST. art. III, § 2, cl. 1. Federal-court jurisdiction, and the judiciary's proper role, is thus limited to actual case or controversies. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (internal quotation marks omitted). This case-or-controversy requirement mandates that plaintiffs "establish they have standing to sue." Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)); see also Umphress v. Hall, 500 F. Supp. 3d 553 (N.D. Tex. 2020) (Pittman, J.).
To establish Article III standing, a plaintiff must demonstrate that (1) he or she suffered an injury in fact that is concrete, particularized, and actual or imminent, (2) the injury was caused by the defendant, and (3) the injury would likely be redressed by the requested judicial relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing, however, is not "dispensed in gross." Lewis v. Casey, 518 U.S. 343, 358 n.6, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Instead, a plaintiff must establish standing for each claim asserted and for each form of relief that is sought. Davis v. Fed. Election Comm'n, 554 U.S. 724, 733-34, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008).
Claims for injunctive and declaratory relief implicate the intersection of the redressability and injury-in-fact requirements. As such, "plaintiffs seeking injunctive and declaratory relief can satisfy the redressability requirement only by demonstrating a continuing injury or threatened future injury." Stringer v. Whitley, 942 F.3d 715, 720 (5th Cir. 2019). The threatened future injury must be an injury in fact that is not too speculative for Article III purposes. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014); Clapper, 568 U.S. at 409, 133 S.Ct. 1138. That means, in the declaratory-relief context, the alleged injury must be "imminent." In other words, there must be at least a substantial risk that the threatened future injury will occur.
In his Complaint, Mr. Malik seeks multiple declarations that Defendants' conduct violated the First and Fourth Amendments. On this record, however, Mr. Malik lacks standing to pursue declaratory relief.
For declaratory relief, a plaintiff must demonstrate they are "likely to suffer future injury." City of L.A. v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (emphasis added). Mr. Malik must therefore establish that there is a "substantial risk" that he will suffer either a continuing injury or an injury in the future. See Susan B. Anthony List, 573 U.S. at 158, 134 S.Ct. 2334.
Here, Mr. Malik seeks declaratory relief related only to past events. For example, he asks this Court to declare that "Defendants violated the First Amendment," see ECF No. 1 ¶¶ 102-04, 106-08 (emphasis added), and that "Defendants violated the Fourth Amendment," see Id. ¶¶ 110-12, 115-17, 120-22, 125 (emphasis added). These allegations—and the facts supporting them—are retrospective; they are premised on only past events. And while "past wrongs are evidence" of the likelihood of a future injury, they "do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy." City of L.A., 461 U.S. at 102-03, 103 S.Ct. 1660. Thus, to establish standing, Mr. Malik must assert factual allegations, and produce evidence, demonstrating that there is a "substantial risk" that an injury will occur in the future. The Complaint and record are void of any such allegations or evidence.3
Because "[p]ast exposure to illegal conduct does not in itself show a present case or controversy," Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003), Mr. Malik attempts to identify various "concrete" and "particularized" injuries-in-fact. Instead of "concrete" injuries, however, Mr. Malik articulates speculative injuries that depend on independent actors not subject to this litigation. For example, Mr. Malik argues he is likely subject to discipline by the State Bar of Texas and tort claims brought by his clients. But these are speculative injuries, not concrete ones. See Umphress v. Hall, 500 F. Supp. 3d 553 (N.D. Tex. 2020) (Pittman, J.). There is no evidence to suggest that the State Bar of Texas or Mr. Malik's clients are planning to act because of the border search. The Court maintains its "usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors." Clapper, 568 U.S. at 414, 133 S.Ct. 1138.
The Court therefore concludes that Plaintiffs failed to allege an injury in fact sufficient to make out a for purposes of Mr. Malik's claims for declaratory relief. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (internal quotations omitted). And without a sufficient injury in fact, the claims for declaratory relief must be dismissed.
The Court further concludes that Mr. Malik failed to establish that his alleged injuries would "likely" to be "redressed by a favorable decision." Lujan, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To satisfy redressability, a plaintiff must show that "it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct....
To continue reading
Request your trial