Plaintiff was a naturalized U.S. Citizen denied boarding to a flight from Kuwait to the United States because of his alleged inclusion on the No Fly List. On January 18, 2011, he filed a lawsuit in the U.S. District Court for the Eastern District of Virginia against the Department of Homeland Security ("DHS"), the Federal Bureau of Investigation ("FBI"), the Transportation and Security Administration ("TSA"), and the Terrorist Screening Center ("TSC"), which created and maintained the No Fly List. The plaintiff, represented by the Council on American Islamic Relations, alleged that his placement on the No Fly List constituted: (1) a violation of his right as a United States citizen to reside in the United States and reenter it from abroad; (2) unlawful agency action in violation of the Administrative Procedure Act; and (3) a denial of procedural due process under the Fifth Amendment. The plaintiff sought injunctive relief requiring defendants to remove him from the No-Fly List; inform him of the grounds for his inclusion on the No-Fly List; and provide him with an opportunity to rebut his inclusion. The plaintiff also sought monetary damages, attorneys' fees and costs, and a declaration that the defendants violated his rights.
Contemporaneously with the complaint, the plaintiff also filed an emergency motion with respect to his alleged inability to return to the U.S. from Kuwait. The relief requested in the motion became moot, however, when the plaintiff was permitted to return to the U.S. on January 21, 2011.
On June 3, 2011, the defendants filed a motion to dismiss based upon lack of subject matter jurisdiction, claiming that jurisdiction to hear the plaintiff''s claims lies exclusively in the U.S. Court of Appeals under 49 U.S.C. § 46110, which gives the U.S. Court of Appeals exclusive jurisdiction over challenges to certain orders of the TSA. The District Court (Judge Anthony J. Trenga) agreed and held that it lacked jurisdiction to consider the plaintiff's challenge to past or future restrictions on his ability to travel because such claims are "inescapably intertwined" with the review of TSA orders. Mohamed v. Holder, 2011 WL 3820711 (E.D. Va. Aug. 26, 2011). Instead of dismissing the plaintiff's claims, however, the District Court transferred the plaintiff's claims to the U.S. Court of Appeals for the Fourth Circuit.
Before the U.S. Court of Appeals for the Fourth Circuit, the plaintiff contended that the District Court did have jurisdiction, and thus, requested that his claims be remanded. On May 28, 2013, the U.S. Court of Appeals for the Fourth Circuit agreed. In an order signed by the Court's clerk, the Fourth Circuit explained that 49 U.S.C. § 46110 does not evidence Congress' intent to exclude the plaintiff's challenge to past and future restricts on his ability to travel from consideration in the District Court.
On remand, the defendants again filed a motion to dismiss, contending that the plaintiff's claims must be dismissed because he failed to exhaust administrative remedies, he lacked standing, his claims were not ripe for adjudication, and he failed to state a claim for which relief may be granted.
On January 22, 2014, the District Court (Judge Anthony J. Trenga) granted in part and denied in part the defendants' motion. 2014 WL 243115. The Court held that the plaintiff was not required to exhaust administrative remedies, had standing, and that his claims were ripe. The Court then dismissed a portion of the plaintiff's first claim for relief, concluding that four to five day delay that the the plaintiff experienced in his ability to renter the U.S. did not unduly burden his right of reentry to constitute a constitutional deprivation. The Court, however, found that the plaintiff's broader allegations in his first claim for relief of present and future harms from his inability to fly were sufficient to withstand the motion to dismiss.
The Court next turned to the plaintiff's procedural due process claim. The plaintiff claimed that the defendants failed to provide him with a meaningful opportunity to challenge his inclusion on the No Fly List, either before or after his inclusion, depriving him of various liberty interests. The defendants contended that the redress process established through the DHS Traveler Redress Inquiry Program ("TRIP") is constitutionally sufficient. The Court framed the issue as "whether the No Fly List and the redress procedures provided through DHS TRIP constitute appropriate means to prevent terrorism directed against air travel while protecting the liberty interests at stake." The Court held that plaintiff's procedural due process claim was sufficient to withstand the motion to dismiss. The Court noted that an individual placed on the No Fly List does not receive any notice of his inclusion or reasons for his inclusion. The Court also noted that inclusion on the no fly list is accomplished without judicial involvement and according to a relatively low standard of proof. Furthermore, the Court found that the defendants had not made a sufficient showing to demonstrate that they could use less restrictive means to prevent terrorism directed against air travel.
Finally, for the same reasons discussed above, the Court held that the plaintiff's claim for unlawful agency action was also sufficient to withstand a motion to dismiss. The parties engaged in discovery for the next year.
On April 13, 2015, the defendants filed a notice stating the government's new redress procedures for claims submitted through DHS regarding denial of boarding on a covered aircraft, and that these new procedures would be available to the plaintiff should he wish to use them.
On July 16, 2015, the Court issued an order partially granting the plaintiff's motion for summary judgment. Specifically, the Court concluded that the plaintiff was denied his Fifth Amendment right to an adequate opportunity to challenge his aircraft boarding denial.
The plaintiff filed a Fifth Amended Complaint on December 28, 2015. The court held a hearing regarding the Fifth Amendment counts on April 5, 2016.
The case is ongoing.Michael Mirdamadi - 05/11/2014
Virginia Weeks - 10/19/2016