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Elhady v. Kable

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

September 4, 2019

ANAS ELHADY, et al., Plaintiffs,
CHARLES H. KABLE, et al. Director of the Terrorist Screening Center, in his official capacity Defendants.



         Plaintiffs are twenty-three United States citizens[1] 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 adequate remedy.[2]

         In 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.

         An 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.

         Presently 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.[3] 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].

         For the 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.

         I. Background

         Unless otherwise noted, the following facts are undisputed:

         A. The TSDB

         The 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.

         An 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.

         All 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.

         In 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.

         The TSC 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, [4] 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, [5] private sector employees with transportation and infrastructure functions, [6] 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.

         The 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[7] 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.

         Individuals 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.[8] 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.[9] Defs.' Statement of Material Facts ¶ 27.

         B. The Individual Plaintiffs

         The Plaintiffs are twenty-three U.S. citizens, none of whom have been formally notified by the Government that they are included in the TSDB.[10] 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:

         (1) 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.

         (2) 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).

         (3) In 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.

         (4) 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.

         Based on their experiences, most of the Plaintiffs have submitted an inquiry with DHS TRIP as to their Watchlist status.[11] 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.

         C. Procedural History

         Plaintiffs 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].

         Defendants 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.

         Following 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.

         II. ...

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