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Mohamed v. Holder

United States District Court, E.D. Virginia, Alexandria Division

July 20, 2017

ERIC H. HOLDER, JR., et al., Defendants.


          Anthony J. Trenga United States District Judge

         In this action, Plaintiff Gulet Mohamed (“Mohamed”) has challenged his presumed placement on the No Fly List (the “List”), a register of persons compiled by the Terrorism Screening Center who are prohibited from flying on commercial airlines. In support of his claims, Mohamed contends that the No Fly List is unconstitutional and is otherwise unlawful when applied to (1) a United States citizen; (2) who has not been convicted, arrested or charged with any crime; and (3) as to whom the government has not demonstrated that there is probable cause to believe that he has committed any crime or is about to commit any crime. The Court has already addressed Plaintiff's constitutional challenge based on procedural due process.[1] Now pending before the Court are the parties' cross-motions for summary judgment (ECF Nos. 217 & 221) on Plaintiff's remaining challenges to the No Fly List on the grounds that the No Fly List (1) violates the constitutional guarantee of substantive due process (Count I); (2) constitutes an unlawful agency action (Count II); and (3) violates the non-delegation principle (Count IV).[2]Fifth Amended Complaint (ECF No. 205) (the “FAC”).

         For the reasons stated below, the Court concludes that the No Fly List is not unconstitutional on substantive due process grounds, it is not unlawful under the non-delegation doctrine, and it does not exceed agency authority. Accordingly, the Court grants Defendants' motion, and denies Plaintiff's motion, as to Counts I, II, and IV.

         I. BACKGROUND[3]

         Mohamed, a U.S. citizen originally from Somalia, left the United States in 2009 at age sixteen to travel to Yemen, Somalia, and Kuwait for the purposes of visiting family, learning Arabic, and studying. On December 20, 2010, Mohamed went to an airport in Kuwait to renew his visa, but Kuwaiti authorities detained him. He alleges that over the next week, they interrogated, beat, and otherwise tortured him.[4] FBI agents visited him twice during this time. On January 16, 2011, Mohamed's family purchased an airplane ticket for him to return to the United States. Kuwaiti officials brought him to the airport, but he was denied boarding. On January 18, 2011, Mohamed filed this action against the heads of the Department of Justice (“DOJ”), Federal Bureau of Investigation (“FBI”), Terrorist Screen Center (“TSC”), Department of Homeland Security (“DHS”), and Transportation Security Administration (“TSA”) (collectively, the “Defendants”) seeking, inter alia, emergency relief to return to the United States. The Court held a hearing the same day but continued the hearing when Defendants advised the Court that they would allow Mohamed to re-enter the United States. Mohamed returned on a commercial flight three days later on January 21, 2011 and has not been criminally charged or detained since he returned. He alleges that he remains on the No Fly List, however.

         The No Fly List is a subset of the Terrorist Screening Database (“TSDB”), sometimes referred to as the “watchlist, ” an archive of information which is assembled and maintained by the TSC based on nominations from government agencies and supported by identifying information as well as “derogatory information, ” which must meet certain substantive criteria. In order to be placed in the TSDB, there must be “reasonable suspicion to establish that the individual is a known or suspected terrorist[, ]” Declaration of G. Clayton Grigg, Deputy Director for Operations of TSC (ECF No. 158-1) (“Grigg Decl.”) ¶ 15; and the person must be “known or appropriately suspected to be or to have engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, ” Declaration of Michael Steinbach, Assistant Director of the FBI Counterterrorism Division (ECF No. 158-2) (“Steinbach Decl.”) ¶ 12. See also Directive on Integration and Use of Screening Information to Protect Against Terrorism, HSPD-6 (Sept. 16, 2013).

         As articulated by the Government, the overarching purpose of the No Fly List is twofold: (1) to protect commercial aircraft from terrorism and (2) to restrict the ability of persons suspected of terrorism to travel for the purposes of advancing their terrorist objectives. See Defendants' Memorandum of Law in Support of Defendants' Motion for Summary Judgment (ECF No. 225) (“Defs.' Mem. Supp. Defs.' Mot.”) 25-26 (“The No Fly List . . . protects the national security by both preventing [radicalized] individuals from traveling abroad to engage in violence or become further radicalized . . . and by preventing foreign fighters who have traveled to conflict zones abroad from using the transportation system to harm or gain entry into the United States . . . .”); see also Id. at 23 (“[A] preventative screening system necessarily needs to cover not only . . . those who . . . are likely to commit terrorist attacks, but also those who are reasonably suspected of posing a threat, regardless of whether they are known to have concrete plans to engage in the acts the No Fly List is designed to thwart.”). In addition to the substantive criteria that must be satisfied for placement in the TSDB, placement on the No Fly List requires the additional determination that there is “reasonable suspicion” that:

The individual poses a threat of (1) committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1)) or an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5)) with respect to an aircraft; (2) committing an act of domestic terrorism (as defined in 18 U.S.C. § 2331(5)) with respect to the homeland; (3) committing an act of international terrorism (as defined in 18 U.S.C. § 2331(1)) against any U.S. Government facility abroad and associated or supporting personnel, including U.S. embassies, consulates and missions, military installations, U.S. ships, U.S aircraft, or other auxiliary craft owned or leased by the U.S. Government; or (4) engaging in or conducting a violent act of terrorism and who is operationally capable of doing so.

Grigg Decl. ¶ 18. Moreover, this reasonable suspicion standard must be supported by “articulable” intelligence and must be based on the “totality of circumstances” and intelligence reviewed.[5] Id. ¶ 16.


         Under Federal Rule of Civil Procedure 56, summary judgment is appropriate only if the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 958-59 (4th Cir. 1996). The party seeking summary judgment has the initial burden to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To defeat a properly supported motion for summary judgment, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 247-48 (“[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”). Whether a fact is considered “material” is determined by the substantive law, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. The facts must be viewed, and all reasonable inferences drawn, in the light most favorable to the nonmoving party. Id. at 255; see also Lettieri v. Equant Inc., 478 F.3d 640, 642 (4th Cir. 2007).


         Defendants first argue that Plaintiff lacks standing to assert his claims to the extent that they relate to his right to exit and reenter the United States by traveling internationally. Article III of the Constitution prohibits federal courts from hearing certain types of cases. In order to be justiciable, a “case[]” or “controvers[y]” must exist. U.S. Const. art. III, § 2, cl. 1. Courts have developed multiple doctrines to determine whether a “case or controversy” exists, one of which is the doctrine of standing. At the summary judgment stage, in order to establish standing, the plaintiff must set forth specific facts to demonstrate that (1) he has “suffered an ‘injury in fact' . . . which is (a) concrete and particularized . . . and (b) ‘actual or imminent, not conjectural or hypothetical'”; (2) there exists “a causal connection between the injury and the conduct complaint of”; and (3) “it must be ‘likely, ' as opposed to merely ‘speculative, ' that the injury will be ‘redressed by a favorable decision.'” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted).

         Plaintiff alleges two forms of injury: (1) that the United States “prevented [him] from boarding an aircraft to return to the United States in January 2011, ” FAC ¶ 63, and (2) that the United States “ha[s] substantially burdened his fundamental right to return to the United States in the immediate future, ” id. ¶ 64. Defendants contend that Plaintiff lacks standing to assert claims because he successfully reentered the United States in January 2011, and his future inability to reenter the United States is too speculative. See Defs.' Mem. Supp. Defs.' Mot. 33-34. The Court has already considered and dismissed Plaintiff's constitutional claim based on the events surrounding his return to the United Stated in January 2011.[6] However, in its prior ruling, the Court declined to dismiss claims related to Mohamed's allegations of future harm.

         Mohamed claims that were he not on the No Fly List, as he assumes he is, he would travel outside of the United States to visit relatives and to discharge obligations of his faith, but has not done so out of fear that he will not be able to reenter the United States. Plaintiff's decision not to engage in international travel because of the difficulties he reasonably expects to encounter upon return to the United States is sufficient to demonstrate standing. See Suhre v. Haywood Cty., 131 F.3d 1083, 1088 (4th Cir. 1997) (“Forcing an Establishment Clause plaintiff to avoid the [Government action] of which he complains in order to gain standing to challenge it only imposes an extra penalty on individuals already alleged to be suffering a violation of their constitutional rights.”); Hernandez v. Cremer, 913 F.2d 230, 234-35 (5th Cir. 1990) (finding plaintiff who testified that he “would like to return to Mexico, but did not ‘want to run the risk of something like this happening again'” had standing to challenge government procedural requirements for investigating claims of border entry applicants (citation omitted)); see also Suhre, 131 F.3d at 1091 (“[P]ast injury [i]s probative of likely future injury.”). Accordingly, the Court concludes that Mohamed has standing to assert all of his claims related to the No Fly List.


         Plaintiff asserts what he characterizes as a “facial challenge” to the No Fly List and also an “as applied” challenge on substantive due process grounds. However, upon closer examination of those claims, Plaintiff's “facial challenge” and “as applied” challenge are fundamentally the same since Plaintiff's “as applied” challenge is not based on any claim that there is an insufficient factual basis to place the Plaintiff on the No Fly List based on the criteria used for that purpose. Instead, Mohamed argues that the No Fly List necessarily violates substantive due process because the criteria used allows placement on the No Fly List of any person who, like the Plaintiff, is (1) a United States citizen; (2) who has never been convicted, arrested or charged with any crime; and (3) as to whom the government has not demonstrated that there is probable cause to believe that he has committed any crime or is about to commit any crime.[7] In this regard, Mohamed takes the position that because nothing more than a “predictive judgment” is used to determine who among the general population of “innocents” presents a sufficient threat of future terrorist related conduct, the protections of substantive process requires that the criteria for placement on the No Fly List exclude the above described category of American citizens. For these reasons, and while acknowledging that protecting the public against terrorist threats is a compelling government interest, Mohamed contends that the criteria used is not narrowly tailored to pass constitutional muster and does not otherwise constitute a necessary regulation furthering a compelling state interest.[8]

         To support his claim that the No Fly List violates the constitutional guarantee of substantive due process, Mohamed centrally relies on the right of movement, as recognized by the Supreme Court in Kent v. Dulles, 357 U.S. 116 (1958), Shapiro v. Thompson, 394 U.S. 618 (1969), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651 (1974), and subsequent related holdings. Based on this right of movement, Mohamed claims that he also has a constitutionally protected fundamental right to travel both domestically and internationally and that the List violates that right.[9]

         The Due Process Clause of the Fifth Amendment guarantees that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. Unlike procedural due process, substantive due process “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.'” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (citation omitted). It “provides heightened protection against government interference with certain fundamental rights and liberty interests, ” which are held to a more exacting standard of strict scrutiny. Washington v. Glucksburg, 521 U.S. 702, 719 (1997). Mohamed's substantive due process claim therefore depends, in part, on whether Plaintiff's fundamental right of travel has been substantially burdened and is therefore subject to strict scrutiny. If a fundamental right is implicated and strict scrutiny therefore applies, a law will not be upheld unless the government demonstrates that the law is necessary to further a compelling governmental interest and has been narrowly tailored to achieve that interest. Hawkins v. Freeman, 195 F.3d 732, 739 (4th Cir. 1999); see also Reno v. Flores, 507 U.S. 292, 302 (1993). If a right is not fundamental, then the law that allegedly burdens the right is ordinarily subject to rational basis review, and will be deemed constitutional unless the plaintiff can demonstrate that it is not reasonably related to a rational government interest.[10]

         A. Plaintiff's Challenge is Subject to Strict Scrutiny.

         1. There is a fundamental right to interstate, but not international, travel.

         United States citizens enjoy the right to engage in both interstate and international travel. It is also well established that there is a fundamental right to interstate travel. See Califano v. Aznavorian, 439 U.S. 170, 176 (1978) (“[T]he constitutional right to interstate travel [has been] recognized by this Court for over 100 years.”). “The constitutional right of interstate travel is virtually unqualified.” United States v. Guest, 383 U.S 745, 757-58 (1966); see also Shapiro, 394 U.S. at 629 (“all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.”). However, the same cannot be said with respect to the right to international travel.

         Historically, the Glucksburg analysis has applied to the determination of whether a right is fundamental. That analysis requires “a careful description of the asserted fundamental liberty interests, ” which must be “objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksburg, 521 U.S. at 720-21. The Supreme Court's recent decision in Obergefell v. Hodges has expanded the scope of that analysis. See Obergefell, 135 S.Ct. 2584, 2598 (2015) (“History and tradition guide and discipline this inquiry but do not set its outer boundaries.”). Specifically, under Obergefell, in addition to considering the United States' history and traditions, courts must also evaluate “any history and tradition of animus that motivates the legislative restriction on the freedom.” Sturniak v. Lynch, 159 F.Supp.3d 643, 667 (E.D. Va. 2016).

         In support of his claim that the fundamental right of travel extends to international as well as interstate travel, the Plaintiff relies generally on the historic protections afforded to the freedom of movement ever since before the founding of this country, including protections provided under the Articles of Confederation and international agreements to which the United States is party. See, e.g., Universal Declaration of Human Rights, adopted Dec. 10, 1948, art. XIII (All people have “the right to freedom of movement . . . [as well as] the right to leave any country, including his own, and to return to his country.”); International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, art. 12.1-12.4 (Everyone has the “right to liberty of movement . . . [and] shall be free to leave any country, including his own . . . [and] shall not be arbitrarily deprived of the right to enter his own country.”); see also Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment (ECF No. 222) (“Pl.'s Mem. Supp. Pl.'s Mot.”) 9-10.[11] Mohamed also claims that Congress's Article I authority to regulate commerce with foreign states anticipates an international “zone of movement.” Id. at 11. He argues that many First Amendment freedoms, such as the free exercise of religion, cannot be fully enjoyed without recognizing the right to travel internationally, such as by traveling to Mecca to fulfill the Islamic duty of hajj. Id. at 12. According to Mohamed, the Citizenship Clause[12] also implies a fundamental right to international travel because a citizen's right to be in the United States is obstructed if he or she cannot ...

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