SEAN F. COX, District Judge.
In this action, an individual who is apparently on the Selectee List maintained by the Terrorist Screening Center, which subjects him to additional screenings at U.S. airports, filed a complaint asserting claims against Defendants. This matter is before the Court on Defendants' Motion to Dismiss. The motion has been fully briefed by the parties and the Court heard oral argument on August 18, 2016. As explained below, the Court shall grant the motion because: 1) Plaintiff's challenge to the adequacy of the DHS TRIP redress process must be dismissed for lack of jurisdiction; 2) to the extent that Plaintiff has alleged a due process challenge to his placement on the Selectee List, or would seek leave to include such a claim, Plaintiff does not state such a claim because he cannot show that his placement violates a protected interest; and 3) Plaintiff's APA claim, which is co-extensive with a due process claim, fails for the same reason.
Acting through counsel, on January 1, 2016, Plaintiff Maan Bazzi ("Bazzi") filed this action against: 1) Loretta Lynch ("Lynch"), in her official capacity as Attorney General of the United States of America; 2) James B. Comey ("Comey"), in his official capacity as Director the Federal Bureau of Investigation; 3) Christopher M. Piehota ("Piehota'), in his official capacity as Director of the Terrorist Screening Center; and 4) Peter Neffenger ("Neffenger"), his official capacity as Administrator of the Transportation Security Administration.
Bazzi's "Complaint For Injunctive And Declaratory Relief With Demand For Jury" (Docket Entry No. 1) contains two claims: 1) "First Claim For Relief: Failure To Provide Post-Deprivation Notice And Hearing, Violation of the Fifth Amendment Due Process Clause of the United States Constitution;" 2) "Second Claim For Relief: Unlawful Agency Action, U.S.C. § 706."
On June 30, 2016, Defendants filed a Motion to Dismiss (D.E. No. 5), pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6).
On July 14, 2016, the Honorable Judith Levy issued a decision in another case filed by Plaintiff's Counsel. See Beydoun v. Lynch, 2016 WL 3753561 (E.D. Mich. July 14, 2016, J. Levy). Although that case was filed by a different individual, the complaint in that case, and the briefs regarding the motion to dismiss filed in that case, were nearly the identical to those filed in this action.
The facts regarding the Selectee List and redress procedures are not in dispute. Judge Levy's opinion in Beydoun provided the following overview:
Beydoun v. Lynch, supra.
Plaintiff is a 46-year old United States citizen who resides in Dearborn, Michigan. Plaintiff "frequently needs to travel throughout the United States for work and business." (Compl. at ¶ 8).
Plaintiff alleges that during his travels, he has been selected for secondary and additional screening at different domestic airports in the U.S. and subjected to "unwarranted and excessive delays at airports." (Id. at ¶ 3). The alleged restrictions placed on Plaintiff's travel include "excess delays, secondary screening, being singled out at check points, and being singled out for additional screening at the gate," all of which are alleged to have "impeded Plaintiff's business matters," and "humiliated Plaintiff." (Id. at ¶ 41).
The alleged screenings are "apparently due" to the TSA's "representation that [Plaintiff] is on the Selectee List." (Id. at ¶ 4). That is, Plaintiff does not allege that he is on the No Fly List, but believes that he is on the Selectee List.
Plaintiff's Complaint includes two counts: 1) "First Claim For Relief: Failure To Provide Post-Deprivation Notice And Hearing, Violation of the Fifth Amendment Due Process Clause of the United States Constitution;" 2) "Second Claim For Relief: Unlawful Agency Action, U.S.C. § 706."
Plaintiff first claims that his inclusion on the Selectee List violates the Due Process Clause of the Fifth Amendment of the United States Constitution. (Compl. at 11-13). Plaintiff alleges that he has been deprived of his due process interests "in traveling free from unreasonable burdens within, to, or from the United States of America," "to be free from the false allegation that he is a terrorist or that he is associated with terrorist activities," and in "not being singled out for punishment," all without adequate post-deprivation process. (Id.). Plaintiff alleges that the "DHS TRIP process presently provides no meaningful opportunity for Plaintiff to provide exculpatory evidence in an effort to be taken off the No-Fly or Terrorist Watch Lists prior to being put on such lists and suffering from the effects that follow from inclusion." (Compl. at ¶ 57).
Plaintiff next claims that defendants' actions violate Sections 706(2)(A) and (2)(B) of the Administrative Procedure Act ("APA"). (Compl. at 13-15). Plaintiff alleges that because defendants failed to provide him, "at a minimum, notice and opportunity to contest his placement on the [S]electee [L]ist after being targeted and harassed at the airport," defendants' actions were "arbitrary, capricious, an abuse of discretion, otherwise not in accordance with the law, and contrary to constitutional rights, power, privilege, or immunity, and should set aside as unlawful." (Id.)
Defendants bring the instant Motion to Dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
Subject matter jurisdiction is always a threshold determination. American Telecom Co., LLC v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007). A motion to dismiss brought under Fed. R. Civ. P. 12(b)(1) may involve a facial attack or a factual attack. Id.; see also Global Tech., Inc. v. Yubei (XixXiang) Power Steering Sys. Co., Ltd., 807 F.3d 806,810 (6th Cir. 2015). Here, Defendants' motion makes a facial attack and, therefore, this Court takes the allegations in the complaint as true. Id. Plaintiff, as the party invoking federal jurisdiction, has the burden to prove it. Id.
When deciding a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must construe the complaint in the light most favorable to the plaintiff and accept all allegations as true. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plausible claim need not contain "detailed factual allegations," but it must contain more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
In Count One of Plaintiff's Complaint, titled "Failure To Provide Post-Deprivation Notice And Hearing" in violation of the Fifth Amendment Due Process Clause of the United States Constitution, Plaintiff alleges that the "DHS TRIP process presently provides no meaningful opportunity for Plaintiff to provide exculpatory evidence in an effort to be taken off the No-Fly or Terrorist Watch Lists prior to being put on such lists and suffering from the effects that follow from inclusion." (Compl., D.E. No. 1, at 13).
Similarly, in Count Two, his APA claim, Plaintiff alleges that the "DHA TRIP process does not provide a meaningful mechanism for travelers who have been denied boarding or subjected to unwarranted additional screenings to correct erroneous information in the government's terrorism databases as the travelers are not given adequate redress procedures" and "fails to consider an important aspect of Congress's instructions and violates § 706(2)(A) of the APA." (D.E. No. 1 at 14).
In their Motion to Dismiss, Defendants contend that to the extent Plaintiff's Complaint challenges the adequacy of the DHS TRIP Redress Process, this Court lacks jurisdiction over that claim because 49 U.S.C. § 46110 deprives this Court of subject matter jurisdiction to consider that challenge to the redress procedures because such a claim contests a TSA order that can only be reviewed in the United States Court of Appeals. In addition to the statute, Defendants discuss Mokdad, a recent Sixth Circuit decision. Mokdad v. Lynch., 804 F.3d 807 (6th Cir. 2015).
In response to Defendants' Motion to Dismiss, as the plaintiff did in Beydoun, supra, Plaintiff asserts that he is not challenging the adequacy of the DHS TRIP redress process. (See Pl.'s Br. at 5-8, stating "Defendant have erroneously characterized Plaintiff's complaint as a challenge to the DHS Travel Redress Program" while Plaintiff is actually challenging "his apparent placement on the Selectee List itself," and asserting that "this Court retains jurisdiction over Plaintiff's claim regarding placement of his name on the Selectee List."). Thus, Plaintiff is making arguments that are contrary to what Plaintiff has actually alleged in his complaint, as Judge Levy noted in Beydoun, supra, at * 3:
Beydoun v. Lynch, 2016 WL 3753561 at * 3.
Regardless of whether Plaintiff's Complaint was intended to challenge the adequacy of the DHS TRIP Redress Process, by its allegations it does so. This Court lacks jurisdiction over that challenge. This is because, to the extent Plaintiff "challenges the adequacy of the redress process, his claims amount to a challenge to a TSA order." Mokdad, 804 F.3d at 811. The TSA is therefore a required party to litigation about the adequacy of the redress process (Mokdad, supra, at 811).
More importantly for our purposes, although the Sixth Circuit ultimately avoided
Mokdad, 804 F.3d at 809.
This Court concludes that it lacks subject matter jurisdiction over any challenges in Plaintiff's Complaint to the adequacy of the DHS TRIP redress process, under the express terms of 49 U.S.C. § 46110(a).
In their Motion to Dismiss, Defendants do not ask this Court to dismiss any due process challenge to Plaintiff's placement on the Selectee List for lack of subject matter jurisdiction based on the exclusive-review statute, 49 U.S.C. § 46110. That is because in Mokdad, the Sixth Circuit ruled, as a matter of first impression that a district court had subject matter jurisdiction to hear a plaintiff's challenge to his alleged placement on the No Fly List. Mokdad, 804 F.3d at 812-15.
Rather, Defendants' Motion contends that Plaintiff fails to state a due process challenge to his alleged placement on the Selectee List because he fails to identify cognizable liberty interest, in that: 1) delay and inconvenience in travel does not amount to a deprivation of right protected by the due process clause; and 2) Plaintiff has not pled the deprivation of a constitutionally protected interest in his reputation. That very same argument was made in Beydoun.
Again, in this case, Plaintiff filed a complaint that is virtually identical to the complaint filed in Beydoun. In her opinion in that case, Judge Levy concluded that, "[o]n the face of the complaint," the plaintiff had "not directly challenged his placement on the Selectee List." Beydoun v. Lynch, supra, at * 3. Rather, the complaint challenged the DHS TRIP redress process.
This Court also finds that Plaintiff's Complaint did not directly challenges his placement on the Selectee List in the Complaint. That is because although Plaintiff's requested relief includes an injunction requiring Defendants to remove Plaintiff from the Selectee List, the two actual counts included in the Complaint are based only on challenges to the DHS TRIP redress process.
The plaintiff in Beydoun sought leave to amend his complaint to directly challenge his placement on the Selectee List but Judge Levy denied that request as futile because "Plaintiff's requested amendment would fail to establish that his placement on the list violates a life, liberty, or property interest protected by the Due Process Clause, and thus would not state a claim." Beydoun, supra, at * 4.
Here, Defendants make the very same argument that they made in Beydoun, and that was found meritorious by Judge Levy — that to the extent Plaintiff's Complaint challenges his placement on the Selectee List as a due process violation, that claim would fail because Plaintiff cannot establish that Defendants infringed upon a cognizable liberty interest. This Court finds Judge Levy's analysis as to futility very persuasive and adopts it here.
Judge Levy began by noting the well-established principle that to establish a due process violation, a plaintiff must show: 1) that he had a protected life, liberty, or property interest; 2) that the federal government deprived him of that protected interest; and 3) and that the government did not afford him adequate procedural rights before depriving him of his protected interest. The opinion then analyzed the claimed protected interests and concluded that Plaintiff cannot establish a protected interest based on the facts alleged in the complaint, which again, are the same as alleged here.
This Court agrees with Judge Levy's analysis and conclusion that delay and inconvenience in travel does not amount to a deprivation of right protected by the due process clause:
Beydoun, supra, at * 4-5.
Like the plaintiff in Beydoun, Bazzi fails to sufficiently allege that his placement on the Selectee List has caused him reputational harm that would rise to the level of a constitutional violation. As Judge Levy explained:
Id. at * 5-6.
Accordingly, leave to amend the complaint to directly challenge Bazzi's placement on the Selectee List would be futile because he failed to plead the deprivation of a constitutionally protected life, liberty, or property interest.
The district court in Beydoun also concluded that the plaintiff's "APA claim would similarly fails, because Plaintiff's counsel stated at the hearing that the APA claim is based solely on the alleged constitutional violation" and, therefore leave to amend that claim would also be futile. Beydoun, supra, at * 6.
The same is true here, as Plaintiff's Counsel confirmed in Plaintiff's Response Brief that Plaintiff's APA claim is co-extensive with his procedural due process claim. (See Pl.'s Resp. Br. at 30, arguing that because Defendant "denied Plaintiff due process, Plaintiff is entitled to APA relief.").
For the reasons set forth above, IT IS ORDERED that Defendants' Motion to Dismiss is GRANTED and this action is DISMISSED.
IT IS SO ORDERED.
