Mohamed v. Holder

• Decision Date: 22 January 2014
• Docket Number: No. 1:11–CV–50 (AJT/TRJ).,1:11–CV–50 (AJT/TRJ).
• Citation: 995 F.Supp.2d 520
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Gulet MOHAMED, Plaintiff, v. Eric H. HOLDER, Jr., et al., Defendants.

995 F.Supp.2d 520

Gulet MOHAMED, Plaintiff,

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

No. 1:11–CV–50 (AJT/TRJ).

United States District Court,

E.D. Virginia,

Alexandria Division.

Jan. 22, 2014.

Gadeir Ibrahim Abbas, Council on American Islamic Relations, Washington, DC, for Plaintiff.

R. Joseph Sher, United States Attorney's Office, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

ANTHONY J. TRENGA, District Judge.

Plaintiff Gulet Mohamed has filed a three-count Third Amended Complaint based on his alleged placement on the No Fly List compiled by Defendant Terrorist Screening Center (the “TSC”). In Count I, Mohamed alleges that his constitutional right of reentry into the United States has been, and continues to be, infringed by his placement on the No Fly List. In Count II, Mohamed appeals, under the Administrative Procedure Act (“APA”), the TSC's decision to place him on the No Fly List, contending that the TSC's decision was arbitrary and capricious and contrary to law. In Count III, Mohamed alleges that he has been denied procedural due process in connection with his placement on the No Fly List. This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's Third Amended Complaint [Doc. No. 58]. For the reasons set forth below, the Court concludes that, as applied to American citizens, the No Fly List raises substantial constitutional issues, and that the plaintiff has alleged facts sufficient to make plausible certain of his constitutional claims. The Motion will therefore be GRANTED in part and DENIED in part.

I. BACKGROUND

A. Procedural History

On January 18, 2011, Mohamed filed this action against Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, Robert S. Mueller, III, in his official capacity as Director of the Federal Bureau of Investigation (“FBI”), and Timothy J. Healy, in his official capacity as Director of the TSC (collectively, the “Official Capacity Defendants”). Mohamed claims the Official Capacity Defendants violated his constitutional rights by placing him on the “No Fly List,” the federal government's list of individuals on its terrorist watchlist who are prohibited from boarding commercial flights originating from or bound for destinations within the United States, and by preventing him from returning from Kuwait to the United States. Accompanying Mohamed's complaint was an application for emergency relief with respect to his alleged inability to return to the United States from Kuwait because of his placement on the No Fly List. After an initial hearing held on January 18, 2011, Mohamed's application for emergency relief became moot when he was permitted to return to the United States on January 21,2011.

On May 20, 2011, Mohamed amended his complaint to add as defendants in their individual capacities “Unknown Agents,” who he alleged tortured him in Kuwait, and “Unknown TSC Agents,” who he alleged placed him on the No Fly List while he was abroad. In response, the defendants filed a motion to dismiss [Doc. No. 22], which the Court granted in part and denied in part on August 26, 2011, 2011 WL 3820711 [Doc. Nos. 31–32]. In that Order, the Court dismissed those of Mohamed's claims against the Official Capacity Defendants that were based solely on his alleged inclusion in the Terrorist Screening Database (“TSDB”) and on the No Fly List and transferred his remaining claims against the Official Capacity Defendants, as well as his claims against the Unknown TSC agents, to the Court of Appeals for the Fourth Circuit pursuant to 49 U.S.C. § 46110, which gives the Courts of Appeals exclusive jurisdiction over challenges to certain orders of the Transportation Security Administration (“TSA”).¹This Court retained jurisdiction over the remaining claims against the Unknown Agent Defendants. However, Mohamed failed to timely identify, join and serve those defendants and, on March 2, 2012, the Court dismissed the case as to those defendants pursuant to Fed.R.Civ.P. 4(m).

On May 28, 2013, the Court of Appeals entered an order vacating that portion of this Court's Order dated August 26, 2011 that transferred certain claims to it and remanding the case to this Court for further proceedings, having concluded that it lacked exclusive jurisdiction over Mohamed's claims pursuant to 49 U.S.C. § 46110. On August 29, 2013, Mohamed filed his Third Amended Complaint, which the defendants moved to dismiss on September 27, 2013. The Court held a hearing on the Motion to Dismiss on November 15, 2013, at which time it took the matter under advisement.

B. Factual Allegations²

Briefly summarized, Mohamed alleges the following facts:

Mohamed, age 21, is a United States citizen and a resident of Alexandria, Virginia. Third Amend. Compl. ¶ 7. In March 2009, he “temporarily left the United States to learn Arabic and connect with members of his family living abroad.” Id. ¶ 37. Mohamed first studied Arabic for a few weeks in Yemen, but left “out of concern for his safety given the instability of the country” and traveled to Somalia, where he stayed with relatives for several months. Id. Around August 2009, Mohamed moved to Kuwait to continue his Arabic studies and stayed with an uncle. Id. Mohamed entered each country lawfully and maintained his lawful status during his travels abroad. Id.

On December 20, 2010, after having twice renewed his Kuwaiti visitor's visa without incident, Mohamed went to again renew his visa at an airport in Kuwait. Id. ¶ 39. While he was at the airport, “two men in civilian clothes approached Mr. Mohamed, handcuffed him, blindfolded him, escorted him to a waiting SUV, and drove him to an undisclosed location approximately fifteen minutes from the airport.” Id. ¶ 40. Mohamed was held at that location for more than a week and “was repeatedly beaten and tortured by his interrogators,” one of whom spoke “perfect American English.” Id. ¶¶ 40–42.³

On December 28, 2010, Mohamed's interrogators transferred him to a deportation facility, from which he was able to make contact with his family in the United States and retain a lawyer in the United States. Id. ¶¶ 44–45. Kuwaiti officials told Mohamed's family that he was being held at the behest of the United States government. Id. ¶ 46. Further, the Kuwaiti officials attempted to deport Mohamed but were unable to do so because the United States had placed him on the No Fly List. Id. While at the deportation facility, Mohamed received two visits from FBI agents, on December 28, 2010 and January 12,2011. Id. ¶¶ 47–48. During those visits, the FBI agents told him that “they could expeditiously procure his release from detention if Mr. Mohamed spoke to them,” and that “he would remain in detention indefinitely if he did not speak to them.” Id. ¶ 47. The agents questioned Mohamed for hours, even after he repeatedly asked them to stop, and they threatened future interrogations and criminal charges. Id. ¶ 48. 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.⁴Id. ¶ 49.

On January 18, 2011, Mohamed, through his American lawyer, filed this action, together with a request for emergency relief to obtain Mohamed's return to the United States. The Court held a hearing on the emergency request that same day but continued the hearing to January 20, 2011 at the defendants' request and based on their representations concerning their efforts to place Mohamed on a flight back to the United States. On January 20, 2011, the defendants advised the Court that arrangements had been made for Mohamed to return to the United States that day, and on January 21, 2011, Mohamed arrived in the United States by commercial airliner without escort or restraints and without incident. See id. ¶ 50. Since his arrival in the United States, Mohamed has not been criminally charged or otherwise detained.

Mohamed alleges that the FBI “does not limit its nominations [for inclusion on its terrorist watchlist] to persons it believes pose a threat to commercial aircraft ... [but] also nominates individuals it considers as a broader threat to domestic or international security.” Id. ¶ 22. Further, Mohamed alleges that “Defendants placed Mr. Mohamed on its No Fly List while he was abroad in order to pressure him to forgo his right to counsel, submit to invasive questioning, and become an informant for the FBI upon returning to the United States.” Id. ¶ 2. Finally, Mohamed alleges that this improper use of the No Fly List extends beyond his own experience and that the FBI has repeatedly used the No Fly List “not just to protect commercial aircraft, but rather to coerce a specific subset of Americans—Muslim citizens—to forgo their rights, obstruct their ability to move freely, and otherwise give Defendants' agents leverage over listed persons.” Id. ¶ 3.

Mohamed claims that his placement on the No Fly List constitutes: (1) a violation of his right as a U.S. citizen to reside in the United States and reenter it from abroad (Count I); (2) unlawful agency action that violates his Fourteenth Amendment right to return to the United States and his Fifth Amendment liberty interests “in traveling by air and being free from false governmental stigmatization as a terrorist” (Count II); and (3) a violation of his right to procedural due process, including his right to pre- or post-deprivation notice and a hearing (Count III).

C. The Terrorist Screening Center and Terrorist Screening Database

Following the attacks of September 11, 2001, Congress and the President mandated that federal executive departments and agencies share terrorism information with those in the counterterrorism community responsible for national security. Piehota Decl., ¶ 4.⁵ Specifically, Congress directed that the TSA, “in consultation with other appropriate Federal agencies and air carriers,...