Mokdad v. Lynch

• Citation: 804 F.3d 807
• Decision Date: 26 October 2015
• Docket Number: No. 14–1094.,14–1094.
• Parties: Saeb MOKDAD, Plaintiff–Appellant, v. Loretta E. LYNCH, Attorney General, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

804 F.3d 807

Saeb MOKDAD, Plaintiff–Appellant

v.Loretta E. LYNCH, Attorney General, et al., Defendants–Appellees.

No. 14–1094.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 8, 2014.

Decided and Filed: Oct. 26, 2015.

ARGUED:Nabih H. Ayad, Ayad Law, PLLC, Canton, Michigan, for Appellant. Joshua Waldman, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF:Nabih H. Ayad, Ayad Law, PLLC, Canton, Michigan, for Appellant. Joshua Waldman, Sharon Swingle, United States Department of Justice, Washington, D.C., for Appellees.

Before: BATCHELDER, GILMAN, and GIBBONS, Circuit Judges.

GIBBONS, J., delivered the opinion of the court in which GILMAN, J., joined, and BATCHELDER, J., joined in Sections I through III.

BATCHELDER, J. (pg. 815–16), delivered a separate opinion concurring in part and dissenting Section IV.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

This case presents issues of first impression in this circuit: whether a district court has subject-matter jurisdiction to hear (1) a plaintiff's direct challenge to his placement on the No Fly List, a placement that is made by an agency called the Terrorist Screening Center, and (2) his challenge to the adequacy of the procedures to contest his inclusion on the No Fly List, a process that is governed by the Transportation Security Administration (TSA). On the former, we hold that the district court does have subject-matter jurisdiction; we reverse the district court's contrary holding and remand for further proceedings. On the latter, we decline to reach the question and dismiss the plaintiff's claims without prejudice because he failed to join a necessary party (TSA) as a defendant.

I.

Saeb Mokdad is a naturalized United States citizen and resident of Dearborn, Michigan who alleges that on at least three occasions since September 2012, he has been denied boarding on commercial airline flights between the United States and his native country of Lebanon. Mokdad alleges that he has been placed on the federal government's No Fly List.

Mokdad alleges that on three occasions he applied for redress under the Department of Homeland Security (DHS) Traveler Redress Inquiry Program (TRIP). On November 19, 2012, Mokdad received a letter from DHS that did not confirm or deny whether he was on the No Fly List but informed him that “[i]n response to [your] request, we have conducted a review of any applicable records in consultation with other federal agencies, as appropriate.

It has been determined that no changes or corrections are warranted at this time.” Compl. Ex. 2, 3, ECF No. 6–2. The letter notified him of his right to “file a request for administrative appeal with the Transportation Security Administration (TSA)” within 30 days, and further informed him that the DHS TRIP determination would become final if he did not do so. Id. The letter stated that “[f]inal determinations are reviewable by the United States Court of Appeals pursuant to 49 U.S.C. § 46110.” Id.

Mokdad did not file an administrative appeal with the TSA or a petition with the Court of Appeals but instead filed a complaint, dated May 8, 2013, in the United States District Court for the Eastern District of Michigan seeking injunctive and declaratory relief against the Attorney General of the United States, the Director of the Federal Bureau of Investigation, and the Director of the Terrorist Screening Center. Mokdad did not name TSA or any TSA officer as a defendant. Mokdad requested, in part, that the district court order Defendants to remove him from the No Fly List and order Defendants to provide “notice of the factual basis for the placement of individuals on the No Fly List and a meaningful opportunity to contest their inclusion on said list.” Compl., 8–9, ECF No. 1.

The government moved to dismiss Mokdad's complaint on the basis that 49 U.S.C. § 46110 stripped the district court of subject-matter jurisdiction. Section 46110 makes clear that the federal courts of appeals have exclusive jurisdiction to review the orders of certain federal agencies, including the Transportation Security Administration (TSA):

[A] person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security with respect to security duties and powers designated to be carried out by the Under Secretary or the Administrator of the Federal Aviation Administration with respect to aviation duties and powers designated to be carried out by the Administrator) in whole or in part under this part, part B, or subsection (l ) or (s) of section 114 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.

49 U.S.C. § 46110(a). (The Under Secretary of Transportation for Security was the head of TSA when TSA was created in 2001 as part of the Department of Transportation; TSA and its “functions, personnel, assets, and liabilities” were moved to DHS in 2002. See 6 U.S.C. § 203(2).)

[T]he court has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order and may order the Secretary, Under Secretary, or Administrator to conduct further proceedings.... [T]he court may grant interim relief by staying the order or taking other appropriate action when good cause for its action exists. Findings of fact by the Secretary, Under Secretary, or Administrator, if supported by substantial evidence, are conclusive.

49 U.S.C. § 46110(c).

The No Fly List, however, is developed and maintained by the Terrorist Screening Center (TSC), a multi-agency center that was created in 2003 and is administered by the Federal Bureau of Investigation (FBI), which in turn is part of the Department of Justice. TSC is staffed by officials from multiple agencies, including the FBI, DHS, Department of State, Customs and Border Protection, and TSA. The No Fly List is a subset of the Terrorist Screening Database (TSDB), the U.S. government's consolidated terrorist watchlist that is also maintained by TSC. Inclusion on the No Fly List “requires heightened derogatory criteria over and above the general reasonable suspicion standard for inclusion in the TSDB.” Lubman Decl., 7, ECF No. 24–2. TSC personnel decide whether to accept or reject the “nomination” of a person by the FBI or the National Counterterrorism Center (NCTC) to the TSDB or the No Fly List. TSC also decides whether to remove a name from the TSDB after it receives a redress request that has been submitted through DHS TRIP.¹

Mokdad thus argued that § 46110 does not divest the district court of subject-matter jurisdiction over his claims, because he sought to challenge not TSA's redress letter issued to him but rather his underlying placement on the No Fly List—a placement made by TSC, which is not one of the agencies enumerated in § 46110. Mokdad relied on Ibrahim v. Department of Homeland Security, 538 F.3d 1250, 1256 (9th Cir.2008), which held that the district court had subject-matter jurisdiction over the plaintiff's claim regarding placement of her name on the No Fly List because “[t]he No Fly List is maintained by the Terrorist Screening Center, and section 46110 doesn't apply to that agency's actions.” Ibrahim also suggested that the doctrine of “inescapable intertwinement”—under which a special review statute such as § 46110 applies not only to challenges to orders by a covered agency, but to claims inescapably intertwined with an order by a covered agency—does not extend to orders (such as TSC's order placing a person on the No Fly List) that are intertwined with orders of agencies that fall under the special review statute (such as TSA). See id. at 1255–56. Latif v. Holder, 686 F.3d 1122, 1130 (9th Cir.2012), on which Mokdad also relied, extended Ibrahim to plaintiffs' claim “that the government failed to afford them an adequate opportunity to contest their apparent inclusion on the [No Fly] List”—a claim challenging the adequacy of the redress process.

The district court in this case declined to follow Ibrahim and Latif, finding that the Ninth Circuit had “appl[ied] a narrow reading of the statute.” Mokdad v. Holder, No. 13–12038, 2013 WL 8840322, at *4 (E.D.Mich. Dec. 5, 2013). The district court found that TSC's alleged order placing Mokdad on the No Fly List was inescapably intertwined with TSA orders.Id. at *4–5. The district court thus concluded that it lacked subject-matter jurisdiction over Mokdad's claims and dismissed his complaint pursuant to Fed.R.Civ.P. 12(b)(1). Id. at *5.

Mokdad timely appealed. We have jurisdiction to hear this appeal under 28 U.S.C. § 1291, and we review de novo a district court's dismissal of a cause of action for lack of subject-matter jurisdiction. Portsmouth Ambulance, Inc. v. United States, 756 F.3d 494, 498 (6th Cir.2014).

II.

At the outset we must focus closely on what exactly Mokdad has alleged and against whom. Mokdad styled his complaint to raise two claims, each against three defendants: the Attorney General, the Director of the FBI, and the Director of the TSC. First, Mokdad alleged that defendants violated the Fifth Amendment Due Process Clause by harming his reputation and depriving of him of his right to travel while failing to provide post-deprivation notice and a hearing. Second, Mokdad alleged that defendants had engaged in unlawful agency action under the Administrative Procedure Act (APA). Mokdad's APA claim is premised on his contention that “defendants' actions as described herein”—namely, allegedly placing him on the No Fly List, and “fail[ing] to provide a fair and transparent remedial mechanism that would allow affected individuals to challenge their inclusion”—“were arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights,” in violation of 5 U.S.C. § 706....