Mohamed v. Holder, Civil Action No. 1:11cv0050 (AJT/MSN)

• Decision Date: 20 July 2017
• Docket Number: Civil Action No. 1:11cv0050 (AJT/MSN)
• Citation: 266 F.Supp.3d 868
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Gulet MOHAMED, Plaintiff, v. Eric H. HOLDER, Jr., et al., Defendants.

266 F.Supp.3d 868

Gulet MOHAMED, Plaintiff,

v.Eric H. HOLDER, Jr., et al., Defendants.

Civil Action No. 1:11cv0050 (AJT/MSN)

United States District Court, E.D. Virginia, Alexandria Division.

Signed July 20, 2017

Gadeir Ibrahim Abbas, The Law Office of Gadeir Abbas, Washington, DC, for Plaintiff.

Lauren A. Wetzler, R. Joseph Sher, United States Attorney Office, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

Anthony J. Trenga, United States District JudgeIn this action, Plaintiff Gulet Mohamed ("Mohamed") has challenged his presumed placement on the No Fly List (the "List"), a register of persons compiled by the Terrorism Screening Center who are prohibited from flying on commercial airlines. In support of his claims, Mohamed contends that the No Fly List is unconstitutional and is otherwise unlawful when applied to (1) a United States citizen; (2) who has not been convicted, arrested or charged with any crime; and (3) as to whom the government has not demonstrated that there is probable cause to believe that he has committed any crime or is about to commit any crime. The Court has already addressed Plaintiff's constitutional challenge based on procedural due process.¹ Now pending before the Court are the parties' cross-motions for summary judgment (ECF Nos. 217 & 221) on Plaintiff's remaining challenges to the No Fly List on the grounds that the No Fly List (1) violates the constitutional guarantee of substantive due process (Count I); (2) constitutes an unlawful agency action (Count II); and (3) violates the non-delegation principle (Count IV).² Fifth Amended Complaint (ECF No. 205) (the "FAC").

For the reasons stated below, the Court concludes that the No Fly List is not unconstitutional on substantive due process grounds, it is not unlawful under the non-delegation doctrine, and it does not exceed agency authority. Accordingly, the Court grants Defendants' motion, and denies Plaintiff's motion, as to Counts I, II, and IV.

I. BACKGROUND³

Mohamed, a U.S. citizen originally from Somalia, left the United States in 2009 at age sixteen to travel to Yemen, Somalia, and Kuwait for the purposes of visiting family, learning Arabic, and studying. On December 20, 2010, Mohamed went to an airport in Kuwait to renew his visa, but Kuwaiti authorities detained him. He alleges that over the next week, they interrogated, beat, and otherwise tortured him.⁴ FBI agents visited him twice during this time. On January 16, 2011, Mohamed's family purchased an airplane ticket for him to return to the United States. Kuwaiti officials brought him to the airport, but he was denied boarding. On January 18, 2011, Mohamed filed this action against the heads of the Department of Justice ("DOJ"), Federal Bureau of Investigation ("FBI"), Terrorist Screen Center ("TSC"), Department of Homeland Security ("DHS"), and Transportation Security Administration ("TSA") (collectively, the "Defendants") seeking, inter alia , emergency relief to return to the United States. The Court held a hearing the same day but continued the hearing when Defendants advised the Court that they would allow Mohamed to re-enter the United States. Mohamed returned on a commercial flight three days later on January 21, 2011 and has not been criminally charged or detained since he returned. He alleges that he remains on the No Fly List, however.

The No Fly List is a subset of the Terrorist Screening Database ("TSDB"), sometimes referred to as the "watchlist," an archive of information which is assembled and maintained by the TSC based on nominations from government agencies and supported by identifying information as well as "derogatory information," which must meet certain substantive criteria. In order to be placed in the TSDB, there must be "reasonable suspicion to establish that the individual is a known or suspected terrorist[,]" Declaration of G. Clayton Grigg, Deputy Director for Operations of TSC (ECF No. 158–1) ("Grigg Decl.") ¶ 15; and the person must be "known or appropriately suspected to be or to have engaged in conduct constituting, in preparation for, in aid of, or related to terrorism," Declaration of Michael Steinbach, Assistant Director of the FBI Counterterrorism Division (ECF No. 158–2) ("Steinbach Decl.") ¶ 12. See also Directive on Integration and Use of Screening Information to Protect Against Terrorism, HSPD–6 (Sept. 16, 2013).

As articulated by the Government, the overarching purpose of the No Fly List is twofold: (1) to protect commercial aircraft from terrorism and (2) to restrict the ability of persons suspected of terrorism to travel for the purposes of advancing their terrorist objectives. See Defendants' Memorandum of Law in Support of Defendants' Motion for Summary Judgment (ECF No. 225) ("Defs.' Mem. Supp. Defs.' Mot.") 25–26 ("The No Fly List ... protects the national security by both preventing [radicalized] individuals from traveling abroad to engage in violence or become further radicalized ... and by preventing foreign fighters who have traveled to conflict zones abroad from using the transportation system to harm or gain entry into the United States...."); see also id. at 23 ("[A] preventative screening system necessarily needs to cover not only ... those who ... are likely to commit terrorist attacks, but also those who are reasonably suspected of posing a threat, regardless of whether they are known to have concrete plans to engage in the acts the No Fly List is designed to thwart."). In addition to the substantive criteria that must be satisfied for placement in the TSDB, placement on the No Fly List requires the additional determination that there is "reasonable suspicion" that:

The individual poses a threat of (1) committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1) ) or an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5) ) with respect to an aircraft; (2) committing an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5) ) with respect to the homeland; (3) committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1) ) against any U.S. Government facility abroad and associated or supporting personnel, including U.S. embassies, consulates and missions, military installations, U.S. ships, U.S aircraft, or other auxiliary craft owned or leased by the U.S. Government; or (4) engaging in or conducting a violent act of terrorism and who is operationally capable of doing so.

Grigg Decl. ¶ 18. Moreover, this reasonable suspicion standard must be supported by "articulable" intelligence and must be based on the "totality of circumstances" and intelligence reviewed.⁵ Id. ¶ 16.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate only if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Evans v. Techs. Apps. & Serv. Co. , 80 F.3d 954, 958–59 (4th Cir. 1996). The party seeking summary judgment has the initial burden to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To defeat a properly supported motion for summary judgment, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 247–48, 106 S.Ct. 2505 ("[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."). Whether a fact is considered "material" is determined by the substantive law, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. 2505. The facts must be viewed, and all reasonable inferences drawn, in the light most favorable to the nonmoving party. Id. at 255, 106 S.Ct. 2505 ; see also Lettieri v. Equant Inc. , 478 F.3d 640, 642 (4th Cir. 2007).

III. JUSTICIABILITY

Defendants first argue that Plaintiff lacks standing to assert his claims to the extent that they relate to his right to exit and reenter the United States by traveling internationally. Article III of the Constitution prohibits federal courts from hearing certain types of cases. In order to be justiciable, a "case[ ]" or "controvers[y]" must exist. U.S. Const. art. III, § 2, cl. 1. Courts have developed multiple doctrines to determine whether a "case or controversy" exists, one of which is the doctrine of standing. At the summary judgment stage, in order to establish standing, the plaintiff must set forth specific facts to demonstrate that (1) he has "suffered an ‘injury in fact’ ... which is (a) concrete and particularized ... and (b) ‘actual or imminent, not conjectural or hypothetical’ "; (2) there exists "a causal connection between the injury and the conduct complaint of"; and (3) "it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ " Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted).

Plaintiff alleges two forms of injury: (1) that the United States "prevented [him] from boarding an aircraft to return to the United States in January 2011," FAC ¶ 63, and (2) that the United States "ha[s] substantially burdened his...