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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 Relations, ... 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 Sept. 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 to add twelve new plaintiffs (bringing the total to 25) 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, Magistrate Judge John F. Anderson granted the government’s motion with respect to information it considered when making watchlist determinations, but denied with respect to the plaintiffs’ watchlist status and the extent to which the watchlist is disseminated, explaining both were relevant to plaintiff’s claims.

The plaintiffs moved on March 15, 2018 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. 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 Magistrate Judge Anderson largely sided with the plaintiffs, ordering the government to provide them with most of the documents requested in their motion, with classified or privileged information redacted. Judge Anderson also ordered the government to produce the same documents for the court’s in camera ex parte inspection with only the names of countries part of information sharing agreements redacted.

As of July 26, 2018, the case is ongoing.

Alexander Walling - 07/26/2018


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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
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.
Ex parte Young (federal or state officials)
Defendant(s) 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
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]
Judges Anderson, John F. (E.D. Va.) [Magistrate]
NS-VA-0008-9000
Trenga, Anthony John (E.D. Va.)
NS-VA-0008-0003 | NS-VA-0008-9000
Plaintiff's Lawyers Abbas, Gadeir Ibrahim (District of Columbia)
NS-VA-0008-0001 | NS-VA-0008-0002 | NS-VA-0008-9000
Akeel, Shereef H (Michigan)
NS-VA-0008-0002
Masri, Lena F (Michigan)
NS-VA-0008-0002
Defendant's Lawyers Sher, R. Joseph (Virginia)
NS-VA-0008-9000
Wetzler, Lauren A. (Virginia)
NS-VA-0008-9000

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