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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
This case marks the first time the Trump Administration has asserted the state secrets privilege in a legal challenge to the Terrorism Screening Database (“TSDB” or “the watch list”). The plaintiffs, a group of Muslim-American U.S. citizens represented by the Council on American-Islamic ... read more >
This case marks the first time the Trump Administration has asserted the state secrets privilege in a legal challenge to the Terrorism Screening Database (“TSDB” or “the watch list”). The plaintiffs, a group of Muslim-American U.S. citizens represented by the Council on American-Islamic Relations, filed their lawsuit on April 5, 2016 in the U.S. District Court for the Eastern District of Virginia and named the Federal Bureau of Investigation (“FBI”), the Transportation Security Administration (“TSA”), and the National Counterterrorism Center (“NCC”) as defendants. Seeking declaratory and injunctive relief, they alleged that they were placed on the watchlist without warning and without a constitutionally adequate mechanism for having their names removed, subjecting them to invasive and cumbersome travel screening, as well as reputational harm resulting in diminished employment prospects. They further alleged that this amounted to a violation of their Fifth Amendment due process and equal protection rights, the Administrative Procedure Act (“APA”), and the nondelegation doctrine prohibiting Congress from delegating lawmaking authority to executive agencies.

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 Customs and Border Protection (“CBP”) as a defendant.

On September 5, 2017, after a period of inactivity, Judge Anthony J. Trenga 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 that the allegations of additional screening and detention endured by plaintiffs as they attempted to travel by air or re-enter the U.S. amounted to an infringement of their rights of travel; he also held that the allegations that the government had disseminated information to private third parties implicated their right to be free of reputational harm.

On October 20, 2017, the government filed a motion for a protective order that would prevent disclosing any of the plaintiffs’ actual watchlist status and any information underlying it, citing the prevention of disclosing sensitive national security and law enforcement information. At the end of a hearing on October 27, 2017 Magistrate Judge John F. Anderson granted the government’s motion to protect information it considered when making watchlist determinations from discovery, but denied it with respect to the plaintiffs’ watchlist status and the extent to which the watchlist is disseminated, explaining both were relevant to plaintiff’s claims.
On November 10, 2017, the plaintiffs moved to compel discovery or the production of a privilege log. Judge Anderson granted the order as to the production of a complete privilege log but denied part of the order as well. The transcript was not available to provide the rationale for this ruling or what specifically was denied.

On January 12, 2018, the defendants moved to compel document production, interrogatories, and deposition testimony. Judge Anderson granted the order in part, and denied it in part, stating that the plaintiffs would only be allowed to rely on travel disruptions identified in interrogatories or depositions before January 19, 2018, because plaintiffs were required to indicate specific information to defendant about the claims in the complaint. Further, difficulties in identifying the flights where the plaintiffs are alleging mistreatment should have been addressed before the case was brought, rather than toward the end of discovery. One of the plaintiffs was not required to produce a spreadsheet but required to identify the spreadsheet in a privilege log given to the defendants. The plaintiffs were also barred from instructing witnesses not to answer questions about their own bank accounts under fear of defendants using the information against them.

On February 9, 2018, the defendants moved to compel document production and to strike testimony. Judge Anderson granted the order in part, and denied it in part. Privilege was not waived for a plaintiff’s document because a secretary assisted the plaintiff in typing it, when the plaintiff spoke English as a second language. Improper references to travel disruptions were stricken from plaintiff’s deposition because of the previous motion on January 12, 2018. Finally, a 30(b)(6) deposition of an organization was stricken, and the plaintiff was given leave to file an additional interrogatory to obtain information about a legal basis for government action.

On March 15, 2018, the plaintiffs moved to compel the production of documents relating to the standards and procedures for inclusion in the watchlist, screening policies that utilize watchlist information, policies for watchlist members to get themselves de-listed, and statistics on the watchlist’s overall effectiveness. This is referred to as the “first” motion to compel. It was in response to this motion that 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 it 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 took the motion under advisement. The court did not allow additional depositions about agencies involved in the Watchlisting Advisory Council. It did not state this explicitly, but it seemed to adopt the defendant’s argument that plaintiff did not show good cause as to why deposition requests were made after discovery was over. The court left the ruling subject to change as new evidence emerged. The court required defendants to produce the statistics the plaintiffs requested or identify documents on privilege logs. The documents must be produced in camera.

On March 23, 2018, the defendants moved to compel the appearances of plaintiffs for deposition. On March 29, 2018, Judge Anderson granted in part and denied in part. The defendant was allowed to depose one plaintiff but two other plaintiffs were excused as they intended to dismiss their claims.

On April 13, 2018, plaintiffs moved to compel responsive answers to questions posed in an institutional deposition. This is referred to as the “second” motion to compel. On May 18, 2018, Judge Anderson granted in part and denied in part. The defendant was forced to produce documents on inclusion standards, dissemination of the watchlist database to foreign nations (though defendants were allowed to withhold nation names) consequences of being listed, redress policy, and the effectiveness of the watchlist program in camera ex parte. The court chose to review these documents in camera ex parte because Judge Anderson was concerned about the risk of classified information being disclosed to the public.

On July 13, 2018, plaintiffs moved to compel the disclosure of parts of the fifty-two Watchlisting Advisory Council documents listed on the privilege log disclosed in the second motion to compel. This is referred to as the “third” motion to compel. On August 1, 2018, plaintiffs moved to compel production of documents. This is referred to as the “fourth” motion to compel. On August 24, 2018, Judge Anderson granted in part and denied in part the fourth motion to compel. The plaintiffs were permitted to take a two-hour deposition of the TSA to ask any follow-up questions based on the disclosures contained in the Declaration of the Executive Director for Vetting, Office of Intelligence and Analysis for the TSA. Then on September 10, 2018, Judge Anderson denied the third motion to compel. He found that the defendants’ assertion of the deliberative due process privilege and law enforcement privilege was appropriate and that plaintiffs did not demonstrate that the information was necessary to pursue their procedural due process claim

On September 28, 2018, the court held a hearing on the propriety of the defendant’s redactions relating to the plaintiff’s first motion to compel, taken under advisement. As of November 9, 2018, the case is ongoing and the order is forthcoming.

Alexander Walling - 07/26/2018
Caitlin Hatakeyama - 11/09/2018


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Issues and Causes of Action
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Issues
Constitutional Clause
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
Language/ethnic/minority needs
Racial profiling
Record-keeping
Records Disclosure
Terrorism/Post 9-11 issues
Watchlist
National Origin/Ethnicity
Arab/Afgani/Middle Eastern
Plaintiff Type
Private Plaintiff
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Defendant(s) Department of Justice
Department of Justice
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 granted Moot
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filing Year 2016
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Docket(s)
1:16-cv-375 (E.D. Va.)
NS-VA-0008-9000.pdf | Detail
Date: 08/08/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
NS-VA-0008-0001.pdf | Detail
Date: 04/05/2016
Source: PACER [Public Access to Court Electronic Records]
First Amended Complaint [ECF# 22]
NS-VA-0008-0002.pdf | Detail
Date: 09/23/2016
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion and Order [ECF# 47] (303 F.Supp.3d 453) (E.D. Va.)
NS-VA-0008-0003.pdf | WESTLAW| LEXIS | Detail
Date: 09/05/2017
Source: PACER [Public Access to Court Electronic Records]
Declaration of Jefferson B. Sessions III, Attorney General [ECF# 178-19]
NS-VA-0008-0004.pdf | Detail
Date: 04/23/2018
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Anderson, John F. (E.D. Va.) [Magistrate] show/hide docs
NS-VA-0008-9000
Trenga, Anthony John (E.D. Va.) show/hide docs
NS-VA-0008-0003 | NS-VA-0008-9000
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
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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