Tarhuni v. Holder, No. 3:13–cv–00001–BR.

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
Writing for the CourtBROWN, District Judge.
Citation8 F.Supp.3d 1253
PartiesJamal TARHUNI, Plaintiff, v. Eric HOLDER, in his official capacity as Attorney General of the United States; Federal Bureau of Investigation; James B. Comey, in his official capacity as Director of the Federal Bureau of Investigation; United States Department of State ; John Kerry, in his official capacity as Secretary of State; FBI Terrorism Screening Center; Timothy Healy, in his official capacity as Director of the FBI Terrorism Screening Center; Brian Zinn, an employee of the Federal Bureau of Investigation, in his individual capacity; Horace Thomas, an employee of the Federal Bureau of Investigation, in his individual capacity, Defendants.
Docket NumberNo. 3:13–cv–00001–BR.
Decision Date26 March 2014

8 F.Supp.3d 1253

Jamal TARHUNI, Plaintiff
v.
Eric HOLDER, in his official capacity as Attorney General of the United States; Federal Bureau of Investigation; James B. Comey, in his official capacity as Director of the Federal Bureau of Investigation; United States Department of State ; John Kerry, in his official capacity as Secretary of State; FBI Terrorism Screening Center; Timothy Healy, in his official capacity as Director of the FBI Terrorism Screening Center; Brian Zinn, an employee of the Federal Bureau of Investigation, in his individual capacity; Horace Thomas, an employee of the Federal Bureau of Investigation, in his individual capacity, Defendants.

No. 3:13–cv–00001–BR.

United States District Court, D. Oregon.

Signed March 26, 2014.


8 F.Supp.3d 1260

Steven Goldberg, Portland, OR, Thomas H. Nelson, Thomas H. Nelson & Associates, Welches, OR, for Plaintiff.

Brigham J. Bowen, Trial Attorney, United States Department of Justice, Washington, DC, for Defendants Eric Holder, Federal Bureau of Investigation, James B. Comey, United States Department of State, John Kerry, FBI Terrorism Screening Center, and Timothy Healy.

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Reginald M. Skinner, Trial Attorney, United States Department of Justice, Washington, DC, for Defendants Brian Zinn and Horace Thomas.

OPINION AND ORDER

BROWN, District Judge.

This matter comes before the Court on the following Motions:

1. Motion (# 20) to Dismiss for Failure to State a Claim and for Lack of Jurisdiction filed by Defendants FBI Terrorism Screening Center, Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, James B. Comey, and United States Department of State (collectively referred to as Official Capacity Defendants), and

Motion (# 23) to Dismiss Plaintiff's First Amended Complaint filed by Defendants Horace Thomas and Brian Zinn (collectively referred to as Individual Capacity Defendants).

For the reasons that follow, the Court GRANTS in part and DENIES in part the Official Capacity Defendants' Motion (# 20) to Dismiss and GRANTS the Individual Capacity Defendants' Motion (# 23) to Dismiss.

PROCEDURAL BACKGROUND

The Official Capacity Defendants moved to dismiss Plaintiff's First Amended Complaint (# 13) under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that Plaintiff failed to allege a justiciable case and controversy with respect to Claims One and Five and failed to state a claim on which relief may be granted on all claims.

The Individual Capacity Defendants moved to dismiss Plaintiff's First Amended Complaint under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) on the grounds that this Court does not have personal jurisdiction over Defendant Thomas and the Individual Capacity Defendants are entitled to qualified immunity as a matter of law.

The Court heard oral argument on November 8, 2013. At oral argument Plaintiff acknowledged the First Amended Complaint contained several pleading deficiencies, including many that made consideration of the pending Motions difficult. Accordingly, the Court ordered Plaintiff to file a proposed Second Amended Complaint to cure the pleading deficiencies as proposed at oral argument. The Court also allowed Defendants the opportunity to file supplemental memoranda in further support of their Motions to Dismiss in response to Plaintiff's Proposed Second Amended Complaint and allowed Plaintiff to file a supplemental reply memorandum if desired.

On December 12, 2013, Plaintiff filed a Proposed Second Amended Complaint (# 40), and the parties timely filed their supplemental memoranda.

For purposes of resolving the pending Motions, the Court deems the Proposed Second Amended Complaint (PSAC) as the operative Complaint.1 Accordingly, the Official and Individual Capacity Defendants' Motions to Dismiss are construed as applying to Plaintiff's PSAC.

FACTUAL BACKGROUND

Plaintiff alleges the following pertinent facts:

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I. The No–Fly List

Defendant Federal Bureau of Investigation (FBI), through Defendant Terrorism Screening Center (TSC), is responsible for development and maintenance of the No–Fly List (List), which consists of the names of individuals whom airlines serving or flying within the United States may not transport. Most individuals on the List, including Plaintiff, are prohibited from flying into, out of, or over Canadian airspace as well as American airspace.

TSC places individuals on the List because “there is a reasonable suspicion that the individuals are known or suspected terrorists.” PSAC ¶ 17. Such “reasonable suspicion” requires “articulable facts which, taken together with rational inferences, reasonably warrant the determination that an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of or related to terrorism or terrorist activities.” PSAC ¶ 17. Individuals placed on the List, including Plaintiff, are not given notice that they are on the List, are not advised of the factual basis for placement on the List, and do not have the right to a hearing before a neutral decision-maker to challenge their placement on the List.

Individuals who wish to challenge their placement on the List may submit an inquiry to the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP). DHS TRIP then transmits the inquiry to the TSC, which determines whether any action should be taken. TSC is the final arbiter of whether an individual is removed from the List.

II. Plaintiff's Inclusion on the No–Fly List

Plaintiff, an American citizen of Libyan descent, has lived in the United States for 38 years and is a resident of Oregon. Since the 1980s Plaintiff has considered himself an opponent of Muammar Gaddafi's regime in Libya. In the wake of the revolution in Libya overthrowing the Gaddafi regime, Plaintiff traveled to Libya three times in 2011 and early 2012 as a volunteer with Medical Teams International (MTI), a nongovernmental organization based in Oregon. While in Libya Plaintiff provided cultural, language, and logistical assistance to MTI by helping deliver medicine, medical equipment, and supplies to Libya, and Plaintiff often worked with Libyan and Tunisian government and humanitarian organizations.

Near the end of his last assignment with MTI, Plaintiff arranged to return to Portland on January 17, 2012, leaving Tunis, Tunisia, on an Air France flight to Paris, France. When Plaintiff checked in at the Air France ticket counter in Tunis, however, the ticket agent told him in the presence of other travelers that he would not be allowed to board his flight and that he should speak to United States Embassy officials. Plaintiff asked to speak to the person in charge of the Air France office and was taken to the office of Mahmoud Keshlef. In Mr. Keshlef's office Plaintiff was shown three emails from the Air France office in Paris. The first email dated January 12, 2012, contained instructions to prevent Plaintiff from boarding his flight. The second email delivered approximately two hours later instructed Air France officials in Tunis to permit Plaintiff to board his flight. A third email dated January 13, 2012, however, again instructed Air France to prevent Plaintiff from boarding.

On January 17, 2012, Plaintiff called the American Embassy in Tunis and was connected with United States Consular Officer Michael Sweeney. Sweeney informed Plaintiff that he did not have any information, but he stated he would contact somebody in Washington, D.C., and call Plaintiff when he had more information. On

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January 18, 2012, Plaintiff went to the American Embassy in Tunis and met with Sweeney. Sweeney stated he did not have any additional information. Plaintiff informed Sweeney that he had purchased an airline ticket that was valid for three months and that it was about to expire.

Two hours later Consular Officer Sweeney called Plaintiff and advised him that “personnel from some undisclosed U.S. agency” wanted to interview him. PSAC ¶ 27. Plaintiff suggested they start the interview immediately, but Sweeney indicated that would not be possible because the agency personnel had to travel to Tunis. Because his airplane ticket was about to expire, Plaintiff asked if the Embassy would cover the additional cost of purchasing a new airplane ticket. Sweeney responded it would not. PSAC ¶ 27.

On January 22, 2012, after Plaintiff returned to Libya, he received a call from Consular Officer Sweeney. Sweeney put Plaintiff on the line with FBI Agent Zinn. Agent Zinn identified himself as an FBI agent and proposed an interview for January 24, 2012. Plaintiff requested the interview take place in Libya or at a neutral location such as a hotel in Tunis, but Agent Zinn stated the interview had to take place at the United States Embassy in Tunis. Agent Zinn advised Plaintiff that he would return to the United States if Plaintiff failed to appear for the interview...

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