Maniar v. Mayorkas

• Decision Date: 30 March 2023
• Docket Number: Civil Action 19-3826 (EGS)
• Parties: ASHRAF MANIAR and UMAIMA SHAIKH, Plaintiffs, v. ALEJANDRO MAYORKAS, in his official capacity as Secretary of the United States Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of Columbia

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ASHRAF MANIAR and UMAIMA SHAIKH, Plaintiffs, v. ALEJANDRO MAYORKAS, in his official capacity as Secretary of the United States Department of Homeland Security, et al., Defendants.

Civil Action No. 19-3826 (EGS)

United States District Court, District of Columbia

March 30, 2023

MEMORANDUM OPINION

Emmet G. Sullivan United States District Judge.

I. Introduction

Plaintiffs Ashraf Maniar (“Mr. Maniar”) and Umaima Shaikh (“Ms. Shaikh”) (collectively “Plaintiffs”) bring this action asserting constitutional and procedural claims related to their alleged inclusion in the Terrorist Screening Dataset (“TSDS”), a governmental, interagency tool that compiles the nation's watchlists, including the No Fly List and the Selectee List. See Second Am. Compl (“Compl.”), ECF No. 22 at 4 ¶ 8.^[1]Plaintiffs have sued various federal government officials in their official capacities (collectively, “Defendants” or “the government”), including Alejandro Mayorkas, Secretary of the U.S. Department of Homeland Security (“DHS”); David Pekoske, Administrator of the Transportation Security Administration (“TSA”); Troy Miller, Acting Commissioner of the U.S. Customs and Border Protection (“CBP”); Merrick Garland, the U.S. Attorney General; Christopher Wray, Director of the Federal Bureau of Investigation (“FBI”); and Charles Kable, IV, Director of the Terrorist Screening Center (“TSC”).^[2]Id. at 3-4 ¶¶ 3-8. Plaintiffs, two U.S. citizens married to each other who identify as practicing Muslims, id. at 3 ¶¶ 1-2; have alleged violations of the First and Fifth Amendments of the U.S. Constitution and of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq., and are seeking declaratory and injunctive relief, see id. at 17-26.

Pending before the Court is Defendants' Renewed Motion to Dismiss. See Defs.' Mot., ECF No. 23. Upon consideration of Plaintiffs' complaint, the pending motion, the opposition, the reply thereto, and the applicable law and regulations, the Court GRANTS Defendants' Renewed Motion to Dismiss, ECF No. 23; and DISMISSES WITHOUT PREJUDICE Plaintiffs' Second Amended Complaint, ECF No. 22; for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

II. Background

A. Statutory and Regulatory Background

The TSC is a multi-agency executive organization created by Presidential Directive in 2003, Defs.' Mot., ECF No. 23-1 at 17; that is administered by the FBI in coordination with DHS, the Department of State, and the Department of Justice, Defs.' Ex. A, Overview of the U.S. Government's Watchlisting Process and Procedures, ECF No. 23-2 at 3 [hereinafter “Watchlisting Overview”].^[3]The TSC consolidates the U.S. government's terrorist watchlists into a single database known as the TSDS,^[4]which “contains both biographic and biometric identifying information . . . of known and suspected terrorists”-which is “accessible only to persons who have a ‘need to know' such as federal law enforcement officials for their screening and vetting activities.” Id. Inclusion in the TSDS results from a multi-step nomination process, in which U.S. government agencies and foreign partners “nominate” individuals to add to the database where there is enough credible investigative information “to satisfy a reasonable suspicion that the individual is a [known or suspected terrorist].” Id. at 4; Defs.' Mot., ECF No. 23-1 at 18. These nominations are then reviewed by the FBI and the National Counterterrorism Center before the TSC makes the final determination on whether to add the nominated persons to the TSDS. See Watchlisting Overview, ECF No. 23-2 at 4-5.

Once individuals are added to the database, the TSC sorts them into subset lists, known as the No Fly List and the Selectee List, which are used by TSA “to secure commercial air travel against the threat of terrorism.” Id. at 3; see 49 U.S.C. § 114(f) (providing TSA's mandate to “assess” and “deal[] with threats to transportation security” “at airports and other transportation facilities”); 49 U.S.C. § 44903(j)(2)(C)(ii) (directing TSA to perform “the passenger prescreening function of comparing passenger information to the automatic selectee and no fly lists” to identify threats to civil aviation or national security). Nominees to the No Fly and Selectee Lists “must satisfy criteria distinct from that used for mere inclusion in the TSD[S,]” Watchlisting Overview, ECF No. 23-2 at 5; with inclusion on the No Fly List being the most restrictive of the subsets, reserved for individuals presenting “a terrorist threat with respect to an aircraft, the homeland, U.S. facilities or interests abroad, or a threat of engaging in or conducting a violent act of terrorism and is operationally capable of doing so[,]” id.; Defs.' Mot., ECF No. 23-1 at 18. TSA prohibits individuals on the No Fly List from boarding flights on U.S. carriers, as well as flights into, out of, over, or within U.S. airspace, Watchlisting Overview, ECF No. 23-2 at 3; while it subjects individuals on the Selectee List to enhanced security screenings at airports and border crossings,^[5]id.; Compl., ECF No. 22 at 15 ¶ 104. The U.S. government does not publicly disclose who is on either TSDS list or the criteria for placement on the Selectee List.^[6]Watchlisting Overview, ECF No. 23-2 at 3, 5; Defs.' Mot., ECF No. 23-1 at 18.

The U.S. government also has a policy against informing individuals of their placement on or removal from the Selectee List, Compl., ECF No. 22 at 16 ¶ 113; although it may inform U.S. citizens and lawful permanent residents (“U.S. persons”) of their presence on the No Fly List after they are denied boarding of a commercial aircraft, Watchlisting Overview, ECF No. 23-2 at 10. U.S. persons who “believe they have been unfairly or incorrectly delayed, denied boarding, or identified for additional screening or inspection at airports or U.S. ports of entry” may submit an inquiry through DHS's Traveler Redress Inquiry Program (“DHS TRIP”). Id. at 8; 49 C.F.R. § 1560.205(a)-(b); see also 49 U.S.C. §§ 44903(j)(2)(C)(iii)(I), (j)(2)(G)(i), 44926(a)-(b); 49 C.F.R. §§ 1560.201-207. As part of the inquiry, individuals must send DHS TRIP “personal information and copies of the specified identification documents.”^[7]49 C.F.R. § 1560.205(c). Then, the TSC's Redress Office, “a separate component within the TSC that processes inquires related to the use of TSD[S] data by screening agencies[,]” works with DHS TRIP to review travelers' information and documentation to determine whether they “should remain in the TSD[S], be modified, or be removed[.]” Watchlisting Overview, ECF No. 23-2 at 9. If changes to a record's status are warranted, the TSC's Redress Office ensures corrections are made, and then DHS TRIP “sends a determination letter advising the traveler of the results of the adjudication of the redress inquiry.” Id. at 10.

Historically, the U.S. government did not confirm or deny for DHS TRIP complainants whether they were on the No Fly List, Compl., ECF No. 22 at 16 ¶ 114; but in 2015, in response to litigation, TSA adopted revised DHS TRIP procedures to allow disclosure of No-Fly status to U.S. persons denied boarding who thereafter file a redress inquiry, id. ¶ 116; Defs.' Mot., ECF No. 23-1 at 21. Complainants can “request and receive additional information” regarding the reason(s) for their status, which includes, “where possible when national security and law enforcement interests at stake are taken into account, an unclassified summary of information supporting the individual's No Fly List status[,]” and they may also submit information in rebuttal to their No-Fly designation. See Compl., ECF No. 22 at 17 ¶¶ 118-121 (stating that upon election by the traveler to receive more information, “DHS TRIP commits to [ ] provide a second, or ‘stage-two' letter, including the specific criteria under which the individual has been placed on the No Fly List”); Watchlisting Overview, ECF No. 23-2 at 10 (noting that “[t]he amount and type of information provided will vary on a case-by-case basis,” and in some instances, an unclassified summary may not be provided due to national security concerns). The TSC will then review the complainant's file and either: (1) remove the person from the No Fly List if it determines that such status is unwarranted; or (2) conclude that the person should stay on the No Fly List and provide a recommendation as such to the TSA Administrator. Watchlisting Overview, ECF No. 23-2 at 9-10; Compl., ECF No. 22 at 17 ¶ 122. The TSA Administrator “makes final determinations concerning listing on the No Fly List[,]” Watchlisting Overview, ECF No. 23-2 at 10 n.5; and will issue a final order either maintaining or removing the person's No-Fly status, or alternatively remanding the matter back to the TSC for more information or clarification, id. at 10. If TSA issues a final order maintaining the person's No Fly List designation, DHS TRIP will send the complainant a determination letter, which states the basis for the decision “to the extent feasible in light of national security and law enforcement interests at stake,” and notifies the person of the ability to seek judicial review in the appropriate Court of Appeals. Id.; Compl., ECF No. 22 at 17 ¶ 123; see also 49 U.S.C. § 46110(a) (“[A] person disclosing a substantial interest in an order issued by . . . the Administrator of the [TSA] . . . may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business.”).^[8]

Selectee List persons are also sent “a determination letter advising [them] of the results of the...