United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
ANTHONY J. TENGA UNITED STATES DISTRICT JUDGE
are twenty-three United States citizens who claim that
because of their inclusion in the federal government's
Terrorist Screening Database ("TSDB"), referred to
colloquially as "the Watchlist," they have suffered
a range of adverse consequences without a constitutionally
Mohamed v. Holder, 2015 WL 4394958 (E.D. Va. July
16, 2015), the Court concluded that the Department of
Homeland Security Traveler Redress Inquiry Program ("DHS
TRIP"), as that process existed at the time, did not
provide a constitutionally adequate remedy for a United
States citizen who had been listed on the No. Fly List, which
is a subset of persons included in the TSDB who are
prohibited from boarding a commercial aircraft that traverses
U.S. airspace, and outlined what it considered to be the
relevant considerations in assessing whether the subsequently
revised DHS TRIP, which the Court concluded was not
constitutionally deficient on its face, provided that
constitutionally adequate remedy in its application to any
particular case. See Id. at *8-9, 12-13.
individual's listing in the TSDB, without more, does not
prevent them from boarding flights, but that listing is
disseminated to and used by federal, state, and foreign
government agencies and officials to support various
diplomatic and security functions and does trigger a variety
of other consequences, including restrictions on an
individual's ability to travel. In this action, the Court
now considers whether DHS TRIP, as it currently applies to a
listing in the TSDB, provides to these United States citizen
Plaintiffs a constitutionally adequate opportunity to
challenge their presumed inclusion in the TSDB. As the Court
acknowledged in Mohamed, this constitutional inquiry
presents unsettled issues whose resolution is complicated by
the criteria used to compile the TSDB, and "the
classified information that, of necessity, is used to
determine whether a person satisfies that criteria."
Id. at * 1.
pending are the parties' cross-motions for summary
judgment [Doc. Nos. 298 and 303] as to Plaintiffs'
remaining claims: Count I of the Amended Complaint [Doc. No.
22], a Fifth Amendment procedural due process claim; and
Count III, an Administrative Procedure Act ("APA")
claim. Underlying both of these claims is
Plaintiffs' contention that they were denied a meaningful
opportunity to challenge their presumed placement on the
TSDB. Specifically, Plaintiffs claim that they were not
provided notice of their placement on the Watchlist, or a
meaningful opportunity to refute any derogatory information
that was used to place them on the Watchlist, and that as a
result of these constitutional violations, they have been
denied their liberty interests in (1) international travel,
(2) interstate travel; and (3) being free from false
governmental stigmatization as a terrorist. See
generally, [Doc. No. 304]. Defendants contend that
Plaintiffs cannot establish with sufficient certainty an
impending future injury sufficient to support standing. They
further contend that even if Plaintiffs can establish
standing, their claimed injuries resulting from placement on
the TSDB do not constitute a deprivation of a liberty
interest protected by the Due Process Clause, and that in any
event, DHS TRIP, the review process by which an individual
may request a review of their presumed placement on the TSDB,
is constitutionally adequate to protect any limited liberty
interests Plaintiffs may have, particularly given the
Government's interest in combatting terrorism. See
generally, [Doc. No. 299].
reasons stated herein, Plaintiffs Motion for Summary Judgment
is GRANTED and Defendants' Motion for Summary Judgment is
DENIED. Briefly summarized, the Court concludes that (1)
Plaintiffs have established that they have standing to raise
their constitutional challenges; (2) Plaintiffs have
constitutionally protected liberty interests that are
implicated by their inclusion in the TSDB; and (3) the DHS
TRIP process through which Plaintiffs may challenge their
inclusion in the TSDB is not constitutionally adequate to
protect those liberty interests.
otherwise noted, the following facts are undisputed:
Terrorism Screening Center ("TSC") is an
interagency operation within the Federal Bureau of
Investigation ("FBI") that also involves the
Department of Homeland Security ("DHS"), the
National Counterterrorism Center ("NCTC"), the
Transportation Security Administration ("TSA"), and
United States Customs and Border Protection
("CBP"). See Pls.' Statement of
Material Facts ¶¶ 1-2, 4; see also
Defs.' Statement of Material Facts ¶¶ 3-7. The
TSDB is a centralized collection of information about listed
individuals, including biographic and biometric data, that is
compiled and maintained by the TSC. The information contained
in the TSDB, which is unclassified, is "updated
continuously and disseminated around the country and world in
real-time." Pls.' Statement of Material Facts
¶¶ 5, 7; Defs.' Statement of Material Facts
¶ 12. As of June 2017, approximately 1.2 million
individuals, including approximately 4, 600 United States
citizens or lawful permanent residents, were included in the
TSDB. Pls.' Statement of Material Facts ¶ 9;
Pls.' MSJ Ex. 74 at ¶ 4.
individual may be "nominated" to the TSDB by a
federal government agency or foreign government. Pls.'
Statement of Material Facts ¶ 8; Defs.' Statement of
Material Facts ¶ 16. Nominated individuals are added to
the TSDB if their nomination is based "upon articulable
intelligence or information which, based on the totality of
the circumstances and, taken together with rational
inferences from those facts, creates a reasonable suspicion
that the individual is engaged, has been engaged, or intends
to engage, in conduct constituting, in preparation for, in
aid or in furtherance of, or related to, terrorism and/or
terrorist activities." Pls.' Statement of Material
Facts ¶ 15; Defs.' Statement of Material Facts
¶ 13; Pls.' MSJ Ex. 62 at 4.
nominations to the TSDB are reviewed by the TSC, which, in
assessing whether an individual should be placed on the TSDB,
must determine whether the United States Government has a
"reasonable suspicion that the individual is a known or
suspected terrorist." Pls.' Statement of Material
Facts ¶ 12; Defs.' Statement of Material Facts
¶ 18; see also Pls.' MSJ Ex. 66 at 46-47. A
"known terrorist" is defined as "an individual
who has been (1) arrested, charged by information, or
indicted for, or convicted of, a crime related to terrorism
and/or terrorist activities by the United States Government
or foreign government authorities; or (2) identified as a
terrorist or member of a terrorist organization pursuant to
statute, Executive Order or international legal obligations
pursuant to a United Nations Security Council
Resolution." Pls.' Statement of Material Facts
¶ 13. A "suspected terrorist" is "an
individual who is reasonably suspected to be engaging in, has
engaged in, or intends to engage in conduct constituting, in
preparation for, in aid of, or related to terrorism and/or
terrorist activities." Id. ¶ 14.
determining whether to accept, reject, or modify a
nomination, the TSC may consider, but may not solely base its
decision on, an individual's race, ethnicity, religious
affiliation, or "beliefs and activities protected by the
First Amendment, such as freedom of speech, free exercise of
religion, freedom of the press, freedom of peaceful assembly,
and the freedom to petition the government for redress of
stress of grievances." Pls.' Statement of Material
Facts ¶¶ 17-18; Defs.' Statement of Material
Facts ¶ 13; see also Pls.' MSJ Ex. 62 at 4.
The TSC may also consider an individual's travel history,
associates, business associations, international
associations, financial transactions, and study of Arabic as
information supporting a nomination to the TSDB. Pls.'
Statement of Material Facts ¶ 19; see also
Pls.' MSJ Ex. 40 at ¶ 20; Pls.' MSJ Ex. 50 at
¶ 9; Pls.' MSJ Ex. 25 at 340:17-341:13,
343:21-344:14. An individual's placement into the TSDB
does not require any evidence that the person engaged in
criminal activity, committed a crime, or will commit a crime
in the future; and individuals who have been acquitted of a
terrorism-related crime may still be listed in the TSDB.
Pls.' Statement of Material Facts ¶ 20; see
also Pls.' MSJ Ex. 25 at 323:6-9; Pls.' MSJ Ex.
28 at 254:5-255:8, 261:9-21, 276:13-18. The underlying
information that supports an individual's inclusion in
the TSDB is not included in the database. Pls.' Statement
of Material Facts ¶ 7.
shares the TSDB with various "partners," including
federal, state, and foreign government agencies and
officials, who then use that information to support their
screening, vetting, credentialing, diplomatic, military,
intelligence, law enforcement, visa, immigration, and other
security functions. Pls.' Statement of Material Facts
¶ 21; Pls.' MS J Ex. 62 at 1-2, 5-6. These partners
include CBP, which screens all individual travelers against
the TSDB when they seek to enter the United States,
id. ¶ 25; the Coast Guard, which, along with
CBP, uses the TSDB to screen passenger and crew manifests for
ships traveling through U.S. waters and seaports,
id. ¶ 26; TSA, which screens air travelers
against the TSDB and designates anyone on the list as
"high-risk status," subjecting them to additional
pre-boarding security screening,  id. ¶¶
54, 59-63; the State Department, which uses the TSDB to
screen individuals for visa waiver, visa, and passport
eligibility, id. ¶ 90; United States
Citizenship and Immigration Services ("USCIS"),
which checks the TSDB status of individuals who apply for or
may benefit from immigration, asylum, and naturalization
benefits, id. ¶ 94; DHS, which, in conjunction
with other agencies, uses the TSDB to screen TSC, TSA, and
CBP employees and contractors,  private sector employees with
transportation and infrastructure functions,  individuals with
any form of airport identification, and those applying for or
maintaining Transportation Worker Identification Credentials,
Federal Aviation Administration airman certificates, and
hazardous material transportation licenses, id.
¶¶ 97-103, 105; and the Department of Defense
("DOD"), which uses the TSDB to screen individuals
accessing military bases, id. ¶ 119.
FBI, which administers the TSC, also uses the TSDB to conduct
and facilitate law enforcement screening and investigations,
and, for that purpose, shares TSDB information with more than
18, 000 state, local, county, city, university and college,
tribal, and federal law enforcement agencies and
approximately 533 private entities through its National Crime
Information Center ("NCIC") system, which these law
enforcement agencies and private entities then use to screen
individuals they encounter in traffic stops, field
interviews, house visits, and municipal permit processes.
Id. ¶¶ 107-110. The FBI also uses the TSDB
to screen its own applicants and employees, and to conduct
background checks on individuals seeking to purchase firearms
or obtain firearm licenses. Id. ¶¶
117-118. TSDB data is also shared with more than sixty
foreign governments with which the TSC has entered into
foreign partner arrangements, which, subject to their
domestic laws and the restrictions in the agreements, use the
information for terrorist screening purposes. Id.
¶ 121; Defs.' Statement of Material Facts ¶ 32.
who are included in the TSDB, or who are misidentified as or
near matches to TSDB listees, may experience "delay,
inconvenience, or other difficulties at a point of screening
where TSDB data is used to screen for terrorists,"
including being denied boarding on international flights,
being subject to secondary inspection, having their
electronic devices and those of their travel companions
subject to an advanced search, and, if they are a foreign
national, being denied admission to the United States.
Pls.' Statement of Material Facts ¶¶ 24, 28-29,
32-33, 138. Individuals who experience travel-related
difficulties that they attribute to their wrongful inclusion
in the TSDB may seek redress by submitting a Traveler Inquiry
Form to DHS TRIP. Defs.' Statement of Material Facts
¶¶ 15, 23. This submission triggers a review by DHS
TRIP of the information submitted by the traveler, which, in
98% of cases, results in a determination that the claimed
travel difficulties had no connection to an individual's
inclusion in the TSDB. Id. ¶ 24; Pls.'
Statement of Material Facts ¶ 129. In cases where the
individual is a match to an identity in the TSDB, DHS TRIP
refers the matter to the TSC Redress Office, which then
conducts a review of the underlying information supporting
the individual's inclusion in the TSDB, including by
consulting with the nominating agency or foreign government,
to determine whether they should be removed. Pls.'
Statement of Material Facts ¶ 131; Defs.' Statement
of Material Facts ¶ 26. After this inquiry is concluded,
DHS TRIP sends the traveler a determination letter with the
results of their redress inquiry, but does not disclose
whether the traveler was, or is, included in the
TSDB. Defs.' Statement of Material Facts
The Individual Plaintiffs
Plaintiffs are twenty-three U.S. citizens, none of whom have
been formally notified by the Government that they are
included in the TSDB. Though some of the Plaintiffs were
previously denied boarding on flights, none of them believe
they are currently on the No. Fly List. Id. ¶
38. Rather, Plaintiffs are routinely subjected to additional
screening when they fly on a commercial airplane and when
they enter the United States at a land border or port, though
the frequency and invasiveness of that secondary screening
varies; and they contend that their inclusion in the TSDB can
be inferred from a range of adverse consequences they have
suffered, including, but not limited to, adverse land border
crossing experiences, see Pls.' Statement of
Material Facts ¶¶ 35-47, adverse experiences with
electronic searches at the border, id. at
¶¶ 48-53, adverse air travel experiences,
id. at ¶¶ 68-86, and adverse immigration
experiences, id. at ¶¶ 95-96. For example:
When attempting to return to the United States by car after a
brief trip to Canada in April 2015, Plaintiff Anas Elhady
("Elhady") was surrounded by CBP officers,
handcuffed, and then escorted to a room where he was held for
more than ten hours and repeatedly interrogated about his
family members and other associates. Id. ¶ 35;
see Pls.' MSJ Ex. 1 at 181-92. During this time,
Elhady required emergency medical attention and was
transported to a hospital, where he was administered Basic
Life Support. Pls.' Statement of Material Facts ¶
36. Elhady was transported to and from the hospital in
handcuffs. Id. On at least two prior occasions,
Elhady was detained for approximately seven to eight hours
when attempting to cross the border into the United States,
and was handcuffed, stripped him of his belongings, kept in a
cell, and prohibited from contacting his attorney.
Id. ¶ 37. Elhady has also had his phone
confiscated multiple times at the U.S. border, been pressured
to reveal its password to border agents, been questioned
about its contents, and been told by an FBI agent that his
cell phone conversations were being monitored. Id.
¶ 49. When Elhady attempted border-crossings, CBP
officers told him, "Are you serious? Someone like you
should have stopped crossing the border by now."
Id.; Pls.' MSJ Ex. 1 at 152. As a result of
these experiences, Elhady stopped crossing the border
altogether and stopped flying for more than a year.
Id. ¶ 35; Pls.' MSJ Ex. 1 at 186-92, 194.
Elhady submitted a DHS TRIP inquiry on January 27, 2015, and
DHS TRIP issued a final determination letter in response to
that inquiry on May 11, 2015. Defs.' Statement of
Material Facts ¶ 74; Defs.' MSJ Ex. 4 ¶ 36.
Like Elhady, Plaintiffs Kadura, al Halabi, Shibley,
Frljuckic, and John Doe 3, among others, have been forcibly
arrested (often at gunpoint) and detained for long hours in
front of their family. Pls.' Statement of Material Facts
¶¶ 37-47 (also noting similar experiences by
El-Shwehdi, Coleman, Jhan, and Samir and Shair Anwar).
addition to Elhady, Plaintiffs Shaout, El-Shwehdi, John Doe
2, Samir Anwar, AH, and Baby Doe have had their electronics
and those of family members searched, seized, and copied.
Id. ¶¶ 48-53.
Some Plaintiffs, including Shibley, Amri, Hakmeh, Shaout,
El-Schwehdi, Fares, Coleman, Thomas, Khan, Shahir Anwar, Baby
Doe, and Kadura, have regularly and repeatedly had their
travel disrupted by long and invasive secondary inspections,
causing them to, on some occasions, miss connecting flights,
and sometimes to avoid travel altogether. Id.
¶¶ 68-84. And on a few occasions, some Plaintiffs,
including Ahmed, John Doe 4, Elhyuzayel, Thomas, Amri, and
Kadura, have been denied the ability to even board flights.
Id. ¶¶ 85-86.
on their experiences, most of the Plaintiffs have submitted
an inquiry with DHS TRIP as to their Watchlist
status. Some of these Plaintiffs have received
in response letters informing them that there is no reason
they should not be able to fly, but containing no information
concerning whether they remain listed within the TSDB.
See Pls.' MSJ Exs. 3A, 9C. Others have received
acknowledgement letters neither confirming nor denying their
status on the Watch List. See Pls.' MSJ Exs. IB,
5B, 8B, 11 A, 14B, 16A, 17B, 18B.
brought this action on April 5, 2016 [Doc. No. 1] and filed
an Amended Complaint [Doc. No. 22] on September 23, 2016, in
which they allege that their presumed inclusion in the TSDB
violates (1) procedural due process (Count I); (2)
substantive due process (Count II); (3) the APA (Count III);
(4) the Equal Protection Clause (Count IV); and (5) the
nondelegation doctrine (Count V). Plaintiffs seek a
declaratory judgment that Defendants' challenged policies
violate their constitutional rights and an injunction
requiring the Defendants to remedy the alleged constitutional
violations, including by providing "individuals
designated on the [TSDB] with a legal mechanism that affords
them notice of the reasons and bases for their placement on
the [Watchlist] and a meaningful opportunity to contest their
continued inclusion." [Doc. No. 22 at 91-92].
moved to dismiss the Amended Complaint on November 4, 2016 on
the grounds that Plaintiffs' claims were not justiciable,
and to the extent they were, Plaintiffs had failed to plead
sufficient facts to make any of their claims plausible. [Doc.
No. 28] (the "Motion to Dismiss"). By Memorandum
Order dated September 5, 2017 [Doc. No. 47], the Court first
concluded that Plaintiffs' claims were justiciable, as
Plaintiffs had adequately alleged a constitutional injury in
fact sufficient for standing as to all of their claims.
Elhady v. Piehota, 303 F.Supp.3d 453, 462 (E.D. Va.
2017). The Court then concluded that Plaintiffs had not
alleged facts sufficient to make plausible their claims based
on substantive due process (Count II), the Equal Protection
Clause (Count IV), and the non-delegation doctrine (Count V),
but had alleged sufficient facts to allow their procedural
due process (Count I) and APA (Count III) claims to proceed.
Id. at 468.
an extensive period of discovery, during which the Court
considered a variety of issues as to what information
pertaining to the TSDB was protected by the law enforcement
or state secrets privileges and was thus not required to be
disclosed in discovery, see e.g., [Doc. Nos. 258,
294], the parties filed the pending cross-motions for summary
judgment as to the remaining procedural due process and APA
claims on March 11, 2019. [Doc. Nos. 298 and 303]. The Court
held a hearing on the Motions on April 4, 2019, at the
conclusion of which it took the Motions under advisement.