On October 1, 2013, an American Muslim man who was repeatedly denied boarding flights in the United States because of his alleged inclusion on the federal No Fly List, filed this lawsuit in the U.S. District Court for the Southern District of New York against against the Department of Homeland Security ("DHS"), the Federal Bureau of Investigation ("FBI"), the Transportation Security Administration ("TSA"), and the Terrorist Screening Center ("TSC"), which created and maintained the No Fly List. On April 22, 2014, an amended complaint was filed, adding three additional American Muslim men that have been denied boarding on flights originating in or destined for the United States because of their alleged inclusion on the No Fly List.
The plaintiffs, represented by the Center for Constitutional Rights as well as private counsel, alleged that the defendants have used the No Fly List to punish and retaliate against them for declining to act as informants, and to spy on others, for the FBI. The plaintiffs were opposed to doing so for religious, moral, and political reasons. More specifically, some plaintiffs found themselves on the No Fly List shortly after refusing to become informants for the FBI. Later, the FBI told these plaintiffs that they could get off the No-Fly List only if they agreed to work for the FBI. Other plaintiffs were approached by the FBI shortly after being denied boarding on flights and were told they would be removed from the No Fly List if they agreed to work for the FBI.
The plaintiffs alleged that their inclusion on the No Fly List constituted: (1) retaliation in violation of their First Amendment rights to freedom of speech, association, and religion; (2) violation of the Religious Freedom Restoration Act ("RFRA"); (3) denial of procedural due process under the Fifth Amendment because the defendants have failed to give the plaintiffs any meaningful notice or opportunity to see or challenge the asserted reasons for their inclusion; and (4) unlawful agency action in violation of the Administrative Procedure Act ("APA").
The plaintiffs sought declaratory, injunctive, and monetary relief. More specifically, the plaintiffs sought removal of their names from the No-Fly List; declaratory and injunctive relief stating that they were kept on the No-Fly List without cause and in retaliation for their assertion of constitutional rights in refusing to work for the FBI; and declaratory and injunctive relief stating that the No-Fly List lacks due process and permits misuse.
The parties entered into discovery during which, the defendants filed two separate motions to dismiss on July 28, 2014. The first, on behalf of the Government, sought to dismiss all official capacity claims. The second, on behalf of the Agents, sought to dismiss all personal capacity claims.
On June 1, 2015, the Government moved to stay the official capacity claims. The government had revised the redress procedures available through administrative procedures as a result of the decision in Latif v. Holder
, 28 F.Supp.3d 1134 (D.Or. 2014), which held various aspects of the process inadequate under the Fifth Amendment's Due Process Clause and the APA. The plaintiffs had elected to use these revised procedures, so the government argued for a stay of the plaintiffs' official capacity claims while the administrative process occurred. The government argued that the claims were likely to become moot in light of the revised procedures. Initially, the plaintiffs opposed the motion to stay. But, after the government advised the plaintiffs that it knew of “no reason” why they would be unable to fly in the future, the plaintiffs agreed voluntarily stayed their official capacity claims on June 10, 2015. The parties continued to litigate the monetary claims against the defendants in their personal capacities.
On September 3, 2015, the court (Judge Ronnie Abrams) dismissed all of the plaintiffs' personal capacity claims against the federal employees. The court held that the plaintiffs were not permitted to seek damages against the federal employees under either Bivens or the Religious Freedom Restoration Act. 128 F. Supp. 3d 756 (S.D.N.Y. 2015). The order did not address the plaintiffs' official capacity claims regarding the manner in which individuals are added to the No-Fly List or the procedures for challenging such inclusion. The court directed the plaintiffs to advise the court whether they wished to proceed on the official capacity claims. Responding to the court, the plaintiffs moved to voluntarily dismiss those remaining claims. Accordingly, on December 28, 2015, the court dismissed the remaining claims.
Final judgment in favor of the defendants was entered on February 17, 2016. Michael Mirdamadi - 05/11/2014
Jessica Kincaid - 04/22/2016