Mohamed v. Holder
| Decision Date | 16 July 2015 |
| Docket Number | Civil Action No. 1:11-cv-50 (AJT/MSN) |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | GULET MOHAMED, Plaintiff, v. ERIC H. HOLDER, JR., et al., Defendants. |
Plaintiff Gulet Mohamed (Plaintiff or "Mohamed") has challenged his alleged placement on the No Fly List. The No Fly List is a list of persons who are precluded from flying on commercial aircraft because they are suspected terrorists. Compiled by the Terrorism Screening Center (TSC) and enforced against travelers by the Transportation Security Administration (TSA) through commercial airlines, the No Fly List is intended to ensure aircraft safety as well as to restrict the ability of suspected terrorists to move freely in furtherance of terrorist activities, within the United States and internationally. Mohamed is an American citizen who was denied boarding on an international flight by an American carrier. He has not been convicted of, charged with or alleged to have committed a criminal offense related to terrorism or otherwise; and when applied to such an American citizen, the No Fly List represents, as the United States concedes, an unprecedented application of Executive branch authority in the name of national security through secret administrative proceedings based on undisclosed information according to undisclosed criteria.
This litigation centrally concerns what information must be made available to an American citizen in order to provide a constitutionally adequate opportunity to challenge aplacement on the No Fly List. That constitutional inquiry presents unsettled issues that are complicated in their resolution by the criteria used to compile the No Fly List and the classified information that, of necessity, is used to determine whether a person satisfies that criteria.
Presently pending are the parties' cross-motions for summary judgment with respect to Mohamed's claim in Count 3 of his Fourth Amended Complaint that he was denied a meaningful opportunity to challenge his inability to fly on commercial aircraft, in violation of his Fifth Amendment procedural due process rights.1 Specifically, Mohamed claims that he has not been provided notice of his placement on the No Fly List, either before or after he was denied boarding, or a meaningful opportunity to refute any derogatory information that was used to place him on the No Fly List. He claims, in effect, that he has been denied the opportunity to establish that he poses no threat to commercial aviation. He further claims that as result of these constitutional violations, he has been denied his liberty interests in (1) traveling by air, (2) being able to return to the United States after travelling abroad; and (3) being free from false governmental stigmatization as a terrorist. See Fourth Amended Complaint, Doc. No. 85, ¶ 64.
In their summary judgment motion, defendants claim that the Department of Homeland Security's Traveler Redress Inquiry Program (DHS TRIP), the review process by which a person denied boarding may request a review of his status, was constitutionally adequate, any constitutional infirmities with that process have been cured through revised review procedures,and Mohamed's procedural due process claims are therefore moot. They also contend in the alternative that should the Court not grant summary judgment in their favor, Mohamed's procedural due process claims should nevertheless be dismissed on the basis of the state secrets privilege. Doc. No. 159.
For the reasons stated herein, the defendants' Motion for Partial Summary Judgment is DENIED and Plaintiff's Motion for Partial Summary Judgment as to Count 3 is GRANTED in part and DENIED in part. Briefly summarized, the Court first concludes that DHS TRIP, as that process existed at the time that Mohamed was denied boarding, did not provide a constitutionally adequate opportunity to challenge his denial of boarding. Second, after a review of documents and information submitted by the defendants in camera and ex parte, the Court concludes that there is no information protected from disclosure under the state secrets privilege that is necessary either for Mohamed to establish liability under his procedural due process claims or for the defendants to establish an available defense to that claim. Third, based on the current record, the Court cannot conclude as a matter of law whether the revised DHS TRIP process now available to Mohamed is constitutionally adequate.
The Court further concludes that the constitutional adequacy of the revised DHS TRIP cannot be made until after Mohamed requests a review of his status under that revised process, the TSC and TSA respond, and an administrative record is compiled that allows a reviewing court to assess, to the extent it deems appropriate: (1) whether Mohamed has received notice that he is, in fact, on the No Fly List; (2) if on the No Fly List, the level of factual detail provided to Mohamed concerning the reasons for his inclusion on the No Fly List, including whether he has been provided the specific criteria relied on and the specific factual findings used to satisfy that specific criteria; (3) whether the factual information provided allow a reasonable opportunityto rebut any derogatory information used for his placement on the No Fly List; (4) what factual information was withheld from Mohamed concerning the reasons for his inclusion, the reasons for withholding that information and whether additional material information could have been provided, either directly or through alternative means, such as summaries or redacted documents; (5) what information Mohamed provided or had an opportunity to provide, and in what form, including whether he appropriately responded to any specific requests for information; and (6) whether Mohamed's status is at the appropriate level of security restrictions for the level of threat sufficiently established by that administrative record.
The factual and procedural history of this case are set forth in detail in this Court's January 22, 2014 Memorandum Opinion. See Mohamed v. Holder, 995 F. Supp. 2d 520, 522-27 (E.D.Va. 2014).
Briefly summarized, Mohamed is a U.S. citizen of Somali descent, who alleges that in 2009, at the age of 16, he temporarily left the United States to travel to Yemen, Somalia and Kuwait in order to meet family, study Arabic and attend school. Beginning on December 20, 2010, Kuwait authorities detained him at a deportation facility, during which time he alleges he was interrogated, beaten and tortured. FBI agents visited him twice at the deportation facility, once on December 28, 2010 and again on January 12, 2011. On January 16, 2011, Mohamed's family purchased a ticket for him to return to the United States at the suggestion of Kuwaiti officials, who delivered the ticket to Mohamed and transported him to the airport, where he was denied boarding. On January 18, 2011, Mohamed filed this action against the defendants, which include the heads of the Department of Justice (DOJ), Federal Bureau of Investigation (FBI), Terrorist Screening Center (TSC), Department of Homeland Security (DHS), and theTransportation Security Administration (TSA) (hereafter "the defendants"), seeking, inter alia, emergency relief to return to the United States. Doc. No. 1. On January 20, 2011, the defendants advised the Court that arrangements had been made for Mohamed to return to the United States. Mohamed returned to the United States via commercial airliner on January 21, 2011.
The process for inclusion on the No Fly List has also been discussed in previous opinions.2 See Mohamed v. Holder, No. 1:11-CV-50 AJT/TRJ, 2011 WL 3820711, at *10 (E.D. Va. Aug. 26, 2011); Mohamed v. Holder, 995 F. Supp. 2d 520, 525-27 (E.D.Va. 2014). Briefly summarized, the Terrorist Screening Center ("TSC") is responsible for maintaining the Terrorist Screening Database (TSDB), of which the No Fly List is a subset. The standard for inclusion in the TSDB is "reasonable suspicion to establish that the individual is a known or suspected terrorist." Doc. No. 158-1, Grigg Decl. at ¶ 15. The defendants have alternatively phrased this standard as "known or appropriately suspected to be or to have engaged in conduct constituting, in preparation for, in aid of, or related to terrorism." Doc. No. 158-2, Declaration of Michael Steinbach, Assistant Director of FBI Counterterrorism Division, at ¶ 12. See HSPD-6. Certain government agencies may nominate individuals to be included on the TSDB. Nominations mustbe supported by sufficient identifying information as well as substantive criteria, also known as "derogatory information."
To be included on the No Fly List subset, there must be a reasonable suspicion that the individual meets additional, heightened derogatory criteria beyond that required for inclusion in the TSDB, namely, reasonable suspicion that the individual is a known or suspected terrorist based on meeting one of the following criteria:
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.
Doc. No. 158-1, Declaration of G. Clayton Grigg, Deputy Director for Operations of TSC, at ¶ 18. The reasonable suspicion must be supported by "articulable" intelligence and must be based on the "totality of...
To continue reading
Request your trial