Salloum v. Kable, Case No. 19-cv-13505

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Writing for the CourtHon. Matthew F. Leitman
PartiesSAMUEL SALLOUM, Plaintiff, v. CHARLES H. KABLE IV, et al., Defendants.
Docket NumberCase No. 19-cv-13505
Decision Date18 December 2020

SAMUEL SALLOUM, Plaintiff,
v.
CHARLES H. KABLE IV, et al., Defendants.

Case No. 19-cv-13505

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

December 18, 2020


Hon. Matthew F. Leitman

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (ECF No. 12)

Plaintiff Samuel Salloum is a United States citizen who resides in Lebanon. In this action, Salloum contends that the federal government has wrongfully placed him in its Terrorist Screening Database (the "TSDB") and has deprived him of a meaningful opportunity to challenge that erroneous placement. He alleges that his wrongful inclusion in the TSDB burdens his fundamental right to travel and has resulted in violations of his First, Fourth, and Fifth Amendment rights. Salloum seeks, among other things, an order that requires Defendants to remove him from the TSDB. (See id.)

Defendants have now moved to dismiss Salloum's claims. (See Mot. to Dismiss, ECF No. 12.) For the reasons explained below, Defendants' motion is GRANTED IN PART AND DENIED IN PART.

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I
A

The TSDB is "the U.S. government's consolidated terrorist watchlist." Mokdad v. Lynch, 804 F.3d 807, 810 (6th Cir. 2015). It 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." Beydoun v. Sessions, 871 F.3d 459, 463 (6th Cir. 2017) (quoting Mokdad, 804 F.3d at 809). The information stored in the TSDB includes, among other things, "biographic and biometric data" regarding the individuals who have been listed in the database. Elhady v. Kable, 391 F.Supp.3d 562, 568 (E.D. Va. 2019).

Nominations for inclusion into the TSDB are made by the FBI and/or the National Counterterrorism Center. See Beydoun, 871 F.3d at 463. The decision whether to accept or reject a nomination is then made by the TSC. See id. The TSC adds a nominated individual to the TSDB if it finds that "the United States Government has a reasonable suspicion that the individual is a known or suspected terrorist." Elhady, 391 F.Supp.3d at 568 (internal quotation marks omitted). "A 'suspected terrorist' is an individual who is reasonably suspected to be engaging in, has engaged in, or intends to engage in conduct constituting, in preparation for, in

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aid of, or related to terrorism and/or terrorist activities." Id. at 569 (internal quotation marks omitted).

There are a number of "subset[s]" within the TSDB, including the "No Fly List," the "Selectee List," and the "Expanded Selectee List." El Ali v. Barr, --- F.Supp.3d ---, 2020 WL 4051866, at *3 (D. Md. July 20, 2020). Individuals on the No Fly List "are prevented altogether from boarding an aircraft that flies through United States airspace." Id. Individuals on the Selectee List and the Expanded Selectee List are designated "for enhanced security screening due to the threat they may pose to civil aviation or national security." Beydoun, 871 F.3d at 462 (internal quotation marks omitted). See also El Ali, 2020 WL 4051866, at *3 (explaining that the individuals on the Selectee List and the Expanded Selectee List are "are routinely subjected to extra screening at airports").

The TSA has created a procedure through which individuals may challenge their inclusion in the TSDB. This challenge process - known as the Department of Homeland Security Traveler Redress Inquiry Program ("DHS TRIP") - was established by a final TSA administrative order. See 49 C.F.R. §§ 1560.201 - 1560.207. As another Judge on this Court has explained, the DHS TRIP process works as follows:

After a redress inquiry form is submitted, the TSA, in coordination with the TSC and other appropriate Federal law enforcement or intelligence agencies, if necessary, will review all the documentation and information

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requested from the individual, correct any erroneous information, and provide the individual with a timely written response. These written responses vary in content, but generally state whether corrections have been made as a result of the redress inquiry and DHS TRIP's review.

Beydoun v. Lynch, 2016 WL 3753561, at *1 (E.D. Mich. July 14, 2016) (internal punctuation and citations omitted). See also 49 C.F.R. § 1560.205 (describing the DHS TRIP procedure).

B

Salloum alleges that the TSC utilizes unreliable and discriminatory factors to determine whether to place individuals into the TSDB. For example, Salloum says that the TSC considers the following matters which, he contends, are not fair and accurate predictors of terrorist affiliations: an individual's "race, ethnicity, religious affiliation, engagement in activities protected by the First Amendment, travel history, associates, business associations, international associations, and even whether the individual has engaged in the 'study of Arabic.'" (First Am. Compl. at ¶34, ECF No. 10, PageID.432.) Salloum further claims that "travel to majority Muslim countries ... is also a basis for" inclusion in the TSDB, and he says that "[t]he federal government uses guilt-by-association presumptions to place family members and friends of listed persons" in the database. (Id. at ¶¶ 36-37, PageID.433.)

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C

Salloum was born in 1965 in Lebanon. (See id. at ¶53, PageID.436.) He moved to the United States in 1994 and became a United States citizen in 2004. (See id. at ¶55, PageID.436.) He is now the chairman of several companies that do business in the United States and around the world. (See id. at ¶¶ 56-58, PageID.436.) Salloum frequently travels to and from the United States in order to run his various businesses. (See, e.g., id. at ¶97, PageID.443-44.)

Salloum claims that he has worked with the United States to combat terror. In 2004, Salloum was featured in a USA Today article profiling Muslim-American businessmen who helped the United States fight terrorism. (See id. at ¶60, PageID.436.) The article explained how Salloum developed a tracking system that uses satellites to monitor cargo shipped to the United States. (See ECF No. 10-6, PageID.639.) It then explained how the system allows law "enforcement agents worldwide [to] use intelligence more efficiently to flag questionable shipments" for inspection by border agents. (Id.) In addition, Salloum has testified before the United States Congress "as an expert on the best practices for securing the United States ports from terrorism." (First Am. Compl. at ¶62, ECF No. 10, PageID.437.)

Salloum is also a published author. He has co-written "prestigious articles in official G20 and B20 publications with notable officials including H.E. Joko Widodo, President of Indonesia, H.E. Yves Leterme, former Prime Minister of

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Belgium, H.E. Dirk Niebel, former German Minister of Economic Development, Mr. Donald Johnston, former OECD Secretary General and Dr. Merza Hasan, Dean of the World Bank Executive Board." (Id. at ¶61, PageID.437.)

D

Salloum alleges that despite his work to detect and prevent terrorism, the TSC has wrongly placed him in the TSDB.1 Salloum says that as a result of that placement, "every single time" he travels through airports in the United States, both for domestic and international travel, "he is detained and interrogated ... for up to three to four hours [before he is allowed to fly]. His computer and phone are [also] taken and the data [is] downloaded off of them and made available" to government agencies and others. (Id. at ¶¶ 66, 68, PageID.438.)

Salloum alleges that he "is asked virtually identical questions every time he is detained .... a. Why he travels to countries such as Lebanon, Indonesia, Malaysia, Turkey, and China; b. Who his family members are and where they live; and c. Why he has multiple companies and bank accounts located outside the United States." (Id. at ¶70, PageID.438.) "These three questions are always asked to [Salloum] countless times during his detentions." (Id. at ¶72, PageID.439.) In addition, Salloum is "also

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asked very specific, personal, and unique questions regarding his friends and family, his personal dispositions, his relations, his friends and family's relations and dispositions, all relating tangentially to his Muslim faith or (unrelatedly) Islamic Extremism." (Id. at ¶75, PageID.439.) These interrogations have taken place "both in a separate room and, humiliatingly, beside the airport security line." (Id. at ¶78, PageID.440.) Salloum insists that his business partner, who was born in the United States, who frequently travels with Salloum, and who "has virtually all of the same business ties and associations as [Salloum], including bank accounts and businesses in the same foreign countries, ... does not suffer the extreme burden of being interrogated for hours each time he flies." (Id. at ¶81, PageID.440.)

Salloum asserts that his placement in the TSDB has harmed him in numerous ways. First, he says that it "has caused great economic harm to him and his business." (Id. at ¶82, PageID.440; see also id. at ¶¶ 84-85, PageID.441.) For example, he contends that due to the "extreme burdens" that enhanced screening placed upon his ability to travel, he was forced to move from the United States to Lebanon and to sell his home at a $300,000 loss. (Id. at ¶¶ 83, 86, PageID.441-442.) In addition, "[t]he extreme burden placed on [Salloum] while traveling ... has caused him to not pursue appointments to secure $300,000,000 in capital to expand his business, which resulted in approximately $50,000,000 of additional operating costs to [Salloum's] businesses." (Id. at ¶84, PageID.441.) He also "can no longer travel

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with his phone or computer, and so does not, as the delay in downloading his data often caused greater [travel] delay[s]." (Id. at ¶69, PageID.438.) Salloum further insists that the interrogations have caused him "humiliation and stigma of being a 'known of suspected terrorist.'" (Id. at ¶88, PageID.442.)

Finally, Salloum...

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