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Case Name Elhady v. Piehota NS-VA-0008
Docket / Court 1:16-cv-00375-AJT-JFA ( E.D. Va. )
State/Territory Virginia
Case Type(s) National Security
Attorney Organization Council on American-Islamic Relations (CAIR)
Case Summary
On April 5, 2016, a group of Muslim-American U.S. citizens represented by the Council on American-Islamic Relations, filed this lawsuit in the U.S. District Court for the Eastern District of Virginia (in Alexandria). Judge Anthony J. Trenga was assigned to the case. Defendants included the FBI, the ... read more >
On April 5, 2016, a group of Muslim-American U.S. citizens represented by the Council on American-Islamic Relations, filed this lawsuit in the U.S. District Court for the Eastern District of Virginia (in Alexandria). Judge Anthony J. Trenga was assigned to the case. Defendants included the FBI, the Transportation Security Administration (TSA), and the National Counterterrorism Center (NCC). Seeking declaratory and injunctive relief, plaintiffs alleged that they were placed on the Terrorist Screening Database (TSDB or “the watchlist”) without warning and without a constitutionally adequate mechanism for having their names removed. Plaintiffs alleged that their placement on the watchlist subjected them to burdensome travel screening and reputational harm that diminished their employment prospects. They argued that the burdens and reputational harm they suffered violated their Fifth Amendment due process and equal protection rights, the Administrative Procedure Act (“APA”), and the Constitution’s nondelegation doctrine.

On September 2, 2016, the government moved to dismiss the complaint for failure to state a claim. The plaintiffs then filed an amended complaint on September 23, 2016, to add twelve new plaintiffs (bringing the total to 25 plaintiffs) and add Customs and Border Protection (CBP) as a defendant.

On September 5, 2017, after a period of inactivity, the Court dismissed the plaintiffs’ substantive due process, equal protection, and non-delegation claims, but allowed their procedural due process and APA claims to proceed to discovery. 303 F. Supp. 3d 453. Rejecting the government’s arguments, Judge Trenga held the following. First, the alleged enhanced screening and detention endured by plaintiffs infringed their rights of travel. Second, the government’s alleged dissemination of the plaintiff’s information with private third parties violated their right to be free of reputational harm.

From November 2017 to March 2019, the parties disputed various steps of the discovery process. One of the disputes that may be of particular interest to legal scholars is that which followed the “first” motion to compel filed by plaintiffs on March 15, 2018. This motion requested access to documents relating to the standards and procedures for watchlist additions, screening policies that utilize watchlist information, the government’s procedures for handling requests from individuals who wish to be removed from the watchlist, and statistics on the watchlist’s overall effectiveness. In response to this motion, the government, via an affidavit from Attorney General Jeff Sessions filed on April 23, 2018, formally invoked the state secrets privilege. Attorney General Sessions asserted the privilege over documents that touched on information shared by foreign governments and other sensitive national security information. After hearing oral arguments on the motion, on May 18, 2018, Judge Trenga ordered the defendants to produce the requested documents to plaintiffs “redacted of any information they believe is privileged or classified” with redactions removed for in camera inspection. However, for the documents requested in the March 15 motion to compel, Judge Trenga did not require the government to include the names of foreign countries that provided information in “sharing agreements” used to populate the TSDB in discovery materials provided to the plaintiffs or the Court. On March 11, 2019, parties filed cross-motions for summary judgment. Both parties then filed memorandums in opposition and continued discovery.

On September 4, 2019, Judge Trenga issued an opinion and order granting in part and denying in part the plaintiffs’ motion for summary judgment. 391 F. Supp. 3d 562. Judge Trenga held that plaintiffs were entitled to a favorable judgment as a matter of law on their procedural due process and Administrative Procedure act claims. Additionally, the government’s motion for summary judgment was denied. Judge Trenga based this decision on his finding that the travel difficulties faced by the plaintiffs, such as being handcuffed at border crossings and being subjected to invasive secondary searches at airports, were significant and that the plaintiffs had a right to procedural due process when their Constitutional rights were infringed. The District Court also held that the Department of Homeland Security Traveler's Redress Inquiry Program ("TRIP"), which has a process through which plaintiffs may challenge their inclusion on the watchlist, was not adequate to protect their liberty interest. Judge Trenga ordered the parties to submit additional briefing related to the outstanding issue of remedies within fourteen days.

District Judge Trenga entered an order on December 18, 2019, making his September 4 order a final judgment. The defendants filed a motion to vacate this order on December 20, presumably so that they would have time to apply for an appeal following the holidays. Judge Trenga granted the motion to vacate his December 18 order on December 26 and reentered final judgment on the same day.

On January 31, 2020, the defendants appealed to the Fourth Circuit Court of Appeals. On appeal was the plaintiff's motion for summary judgment granted on September 4, 2019, regarding both the procedural due process and ACA claims.

On March 30, 2021, the Fourth Circuit reversed the District Court’s grant of summary judgment and remanded for entry of a judgment in accordance with its holding. Writing for a three-judge panel, Circuit Judge Harvie Wilkinson III held that the TSDB does not violate the Fifth Amendment Right to procedural due process. This holding had two subparts. First, delays or inconveniences that plaintiffs faced at airports or while entering the U.S. at land borders did not rise to the level of an infringement on the right to travel. Second, the listing of the plaintiffs’ names on the TSDB database did not meet the standard for a Fifth Amendment claim based on reputational injury. Because the APA claim was essentially based on the same theory of a violation of a Constitutional right as the procedural due process claim, it also failed. 993 F.3d 208.

Following their failure to persuade the three-judge panel, the plaintiffs filed a motion on May 14, 2021, requesting an en banc rehearing of the case at the Fourth Circuit. The Fourth Circuit denied the plaintiffs an opportunity to reargue the case. A final mandate to the District Court was issued on June 7, 2021. The plaintiffs have 150 days from that date to apply for certiorari to the Supreme Court.

Alexander Walling - 07/26/2018
Caitlin Hatakeyama - 11/09/2018
Emma Himes - 10/24/2019
Esteban Woo Kee - 06/23/2021


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Due Process: Procedural Due Process
Due Process: Substantive Due Process
Equal Protection
Free Exercise Clause
Right to travel
Defendant-type
Jurisdiction-wide
Discrimination-basis
National origin discrimination
Religion discrimination
General
Inadequate citizen complaint investigations and procedures
Racial profiling
Records Disclosure
Terrorism/Post 9-11 issues
Watchlist
Immigration/Border
Constitutional rights
Status/Classification
National Origin/Ethnicity
Arab/Afgani/Middle Eastern
Plaintiff Type
Private Plaintiff
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Ex parte Young (federal or state officials)
Ex Parte Young (Federal) or Bivens
Defendant(s) Federal Bureau of Investigation
National Counterterrorism Center
U.S. Department of Homeland Security
U.S. Department of Homeland Security
Plaintiff Description U.S. citizens who believe they are on the government's Terrorism Screening Database (the "watch list").
Indexed Lawyer Organizations Council on American-Islamic Relations (CAIR)
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Filed 04/06/2016
Case Closing Year 2021
Case Ongoing Yes
Case Listing NS-UT-0002 : Abdi v. Wray (D. Utah)
NS-VA-0004 : Mohamed v. Holder (E.D. Va.)
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Court Docket(s)
E.D. Va.
06/07/2021
1:16-cv-375
NS-VA-0008-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
E.D. Va.
04/05/2016
Complaint [ECF# 1]
NS-VA-0008-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
E.D. Va.
09/23/2016
First Amended Complaint [ECF# 22]
NS-VA-0008-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
E.D. Va.
09/05/2017
Memorandum Opinion and Order [ECF# 47] (303 F.Supp.3d 453)
NS-VA-0008-0003.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
E.D. Va.
04/23/2018
Declaration of Jefferson B. Sessions III, Attorney General [ECF# 178-19]
NS-VA-0008-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
E.D. Va.
09/04/2019
Memoradum Opinion and Order [ECF# 323] (391 F.Supp.3d 562)
NS-VA-0008-0005.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
03/30/2021
Opinion [Ct. of App. ECF# 1000925434] (993 F.3d 208)
NS-VA-0008-0006.pdf | WESTLAW| LEXIS | Detail
Source: Westlaw
show all people docs
Judges Anderson, John F. (E.D. Va.) [Magistrate] show/hide docs
NS-VA-0008-9000
Quattlebaum, A. Marvin Jr. (D.S.C., Fourth Circuit) show/hide docs
NS-VA-0008-0006
Richardson, Julius Ness (Fourth Circuit) show/hide docs
NS-VA-0008-0006
Trenga, Anthony John (E.D. Va.) show/hide docs
NS-VA-0008-0003 | NS-VA-0008-0005 | NS-VA-0008-9000
Wilkinson, J. Harvie III Court not on record show/hide docs
NS-VA-0008-0006
Plaintiff's Lawyers Abbas, Gadeir Ibrahim (District of Columbia) show/hide docs
NS-VA-0008-0001 | NS-VA-0008-0002 | NS-VA-0008-9000
Akeel, Shereef H (Michigan) show/hide docs
NS-VA-0008-0002
Masri, Lena F (Michigan) show/hide docs
NS-VA-0008-0002 | NS-VA-0008-9000
Sadowsky, Justin Mark (District of Columbia) show/hide docs
NS-VA-0008-9000
Defendant's Lawyers Sher, R. Joseph (Virginia) show/hide docs
NS-VA-0008-9000
Wetzler, Lauren A. (Virginia) show/hide docs
NS-VA-0008-9000

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