ANTHONY J. TRENGA, District Judge.
Plaintiff Gulet Mohamed has filed a three-count Third Amended Complaint based on his alleged placement on the No Fly List compiled by Defendant Terrorist Screening Center (the "TSC"). In Count I, Mohamed alleges that his constitutional right of reentry into the United States has been, and continues to be, infringed by his placement on the No Fly List. In Count II, Mohamed appeals, under the Administrative Procedure Act ("APA"), the TSC's decision to place him on the No Fly List, contending that the TSC's decision was arbitrary and capricious and contrary to law. In Count III, Mohamed alleges that he has been denied procedural due process in connection with his placement on the No Fly List. This matter is before the Court on Defendants' Motion to Dismiss Plaintiffs Third Amended Complaint [Doc. No. 58]. For the reasons set forth below, the Court concludes that, as applied to American citizens, the No Fly List raises substantial constitutional issues, and that the plaintiff has alleged facts sufficient to make plausible certain of his constitutional claims. The Motion will therefore be GRANTED in part and DENIED in part.
On January 18, 2011, Mohamed filed this action against Eric H. Holder, Jr., in his official capacity as Attorney General of the United States, Robert S. Mueller, III, in his official capacity as Director of the Federal Bureau of Investigation ("FBI"), and Timothy J. Healy, in his official capacity as Director of the TSC (collectively, the "Official Capacity Defendants"). Mohamed claims the Official Capacity Defendants violated his constitutional rights by placing him on the "No Fly List," the federal government's list of individuals on its terrorist watchlist who are prohibited from boarding commercial flights originating from or bound for destinations within the United States, and by preventing him from returning from Kuwait to the United States. Accompanying Mohamed's complaint was an application for emergency relief with respect to his alleged inability to return to the United States from Kuwait because of his placement on the No Fly List. After an initial hearing held on January 18, 2011, Mohamed's application for emergency relief became moot when he was permitted to return to the United States on January 21, 2011.
On May 20, 2011, Mohamed amended his complaint to add as defendants in their individual capacities "Unknown Agents," who he alleged tortured him in Kuwait, and "Unknown TSC Agents," who he alleged placed him on the No Fly List while he was abroad. In response, the defendants filed a motion to dismiss [Doc. No. 22], which the Court granted in part and denied in part on August 26, 2011, 2011 WL 3820711 [Doc. Nos. 31-32]. In that Order, the Court dismissed those of Mohamed's claims against the Official Capacity Defendants that were based solely on his alleged inclusion in the Terrorist Screening Database ("TSDB") and on the No Fly List and transferred his remaining claims against the Official Capacity Defendants, as well as his claims against the Unknown TSC agents, to the Court of Appeals for the Fourth Circuit pursuant to 49 U.S.C. § 46110, which gives the Courts of Appeals exclusive jurisdiction over challenges to certain orders of the Transportation Security Administration ("TSA").
On May 28, 2013, the Court of Appeals entered an order vacating that portion of this Court's Order dated August 26, 2011 that transferred certain claims to it and remanding the case to this Court for further proceedings, having concluded that it lacked exclusive jurisdiction over Mohamed's claims pursuant to 49 U.S.C. § 46110. On August 29, 2013, Mohamed filed his Third Amended Complaint, which the defendants moved to dismiss on September 27, 2013. The Court held a hearing on the Motion to Dismiss on November 15, 2013, at which time it took the matter under advisement.
Briefly summarized, Mohamed alleges the following facts:
Mohamed, age 21, is a United States citizen and a resident of Alexandria, Virginia. Third Amend. Compl. ¶ 7. In March 2009, he "temporarily left the United States to learn Arabic and connect with members of his family living abroad." Id. ¶ 37. Mohamed first studied Arabic for a few weeks in Yemen, but left "out of concern for his safety given the instability of the country" and traveled to Somalia, where he stayed with relatives for several months. Id. Around August 2009, Mohamed moved to Kuwait to continue his Arabic studies and stayed with an uncle. Id. Mohamed entered each country lawfully and maintained his lawful status during his travels abroad. Id.
On December 20, 2010, after having twice renewed his Kuwaiti visitor's visa without incident, Mohamed went to again renew his visa at an airport in Kuwait. Id. ¶ 39. While he was at the airport, "two men in civilian clothes approached Mr. Mohamed, handcuffed him, blindfolded him, escorted him to a waiting SUV, and drove him to an undisclosed location approximately fifteen minutes from the airport." Id. ¶ 40. Mohamed was held at that location for more than a week and "was repeatedly beaten and tortured by his interrogators," one of whom spoke "perfect American English." Id. ¶¶ 40-42.
On January 18, 2011, Mohamed, through his American lawyer, filed this action, together with a request for emergency relief to obtain Mohamed's return to the United States. The Court held a hearing on the emergency request that same day but continued the hearing to January 20, 2011 at the defendants' request and based on their representations concerning their efforts to place Mohamed on a flight back to the United States. On January 20, 2011, the defendants advised the Court that arrangements had been made for Mohamed to return to the United States that day, and on January 21, 2011, Mohamed arrived in the United States by commercial airliner without escort or restraints and without incident. See id. ¶ 50. Since his arrival in the United States, Mohamed has not been criminally charged or otherwise detained.
Mohamed alleges that the FBI "does not limit its nominations [for inclusion on its terrorist watchlist] to persons it believes pose a threat to commercial aircraft ... [but] also nominates individuals it considers as a broader threat to domestic or international security." Id. ¶ 22. Further, Mohamed alleges that "Defendants placed Mr. Mohamed on its No Fly List while he was abroad in order to pressure him to forgo his right to counsel, submit to invasive questioning, and become an informant for the FBI upon returning to the United States." Id. ¶ 2. Finally, Mohamed alleges that this improper use of the No Fly List extends beyond his own experience and that the FBI has repeatedly used the No Fly List "not just to protect commercial aircraft, but rather to coerce a specific subset of Americans — Muslim citizens — to forgo their rights, obstruct their ability to move freely, and otherwise give Defendants' agents leverage over listed persons." Id. ¶ 3.
Mohamed claims that his placement on the No Fly List constitutes: (1) a violation of his right as a U.S. citizen to reside in the United States and reenter it from abroad (Count I); (2) unlawful agency action that violates his Fourteenth Amendment right to return to the United States
Following the attacks of September 11, 2001, Congress and the President mandated that federal executive departments and agencies share terrorism information with those in the counterterrorism community responsible for national security. Piehota Decl., ¶ 4.
On September 16, 2003, through Homeland Security Presidential Directive ("HSPD")-6, President Bush sought to consolidate the government's approach to terrorist prevention activities. Toward that end, the Attorney General, pursuant to HSPD-6, established the TSC as a multi-agency center for coordinating information pertaining to terrorist activity.
The TSC determines whether to place individuals in the TSDB based on "nominations" received from the National Counterterrorism Center ("NCTC") and the FBI. Id. ¶¶ 8-10. The TSC places a nominated individual in the TSDB if the nomination is supported by "minimum substantive derogatory criteria." Id. ¶ 10. Whether an individual satisfies the substantive derogatory criteria necessary to be placed in the TSDB is "generally based on whether there is reasonable suspicion to believe that a person is a known or suspected terrorist." Id. ¶ 12. In order to meet this
The No Fly List is a subset of individuals included in the TSDB and is defined by the Department of Homeland Security ("DHS") as "a list of individuals who are prohibited from boarding an aircraft." Id. ¶ 16. The Selectee List, another subset of the TSDB, is "a list of individuals who must undergo additional security screening before being permitted to board an aircraft." Id. In order for the TSC to place an individual on the No Fly or Selectee List, his nomination must meet unspecified "additional derogatory requirements" in addition to the "minimum substantive derogatory criteria" required for placement in the TSDB. Id. ¶ 10.
Through its Secure Flight Program, the TSA receives information on passengers from airlines and compares it to information contained in government watchlists, including the No Fly and Selectee Lists. Lynch Decl., n. 1. An airline cannot issue a boarding pass until it receives permission from the TSA. In addition, "[t]he TSC, through the TSDB, makes terrorist identity information accessible to various screening agencies and law enforcement entities by the regular export of updated subsets of TSBD data. For example, the No Fly and Selectee Lists are available for passenger and employee screening." Piehota Decl., ¶ 15.
The TSC and the other agencies involved operate under a directive to maintain "thorough, accurate, and current information within the TSDB." Id. ¶ 19. To meet that directive, "several quality control measures are continuously applied by nominating agencies, the TSC, and NCTC," including "periodic reviews and audits to guarantee the integrity of the information relied upon for the maintenance of TSDB records, and an ongoing responsibility upon the nominating agencies to notify NCTC and TSC of any changes that could affect the validity or reliability of that information." Id. That review process does not include any disclosure to the individual involved or any judicial oversight or review before a person is included in the TSDB or placed on the No Fly List.
Congress has mandated that DHS "shall establish a timely and fair process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat under the regimes utilized by the Transportation Security Administration, United States Customs and Border Protection, or any other office or component of the Department of Homeland Security." 49 U.S. § 44926(a).
In response to these congressional mandates, the TSA has established a procedure called DHS Traveler Redress Inquiry Program ("DHS TRIP"), through which the government provides redress to travelers who have been referred for additional screening or delayed or denied airline boarding for any reason, including because of their alleged placement on the No Fly List. Piehota Decl., ¶ 26. To initiate the review process, the traveler must first submit a traveler inquiry form to DHS. Lynch Decl., ¶ 5. When a traveler's inquiry seems related to the TSDB, it is referred to the TSC, which determines whether the traveler is an exact match to an individual listed in the TSDB. Piehota Decl., ¶ 29. If there is a match, the TSC works in collaboration with the agency that nominated the individual to determine whether the individual's current status is appropriate. Id. ¶¶ 29-31. After its review, the TSC notifies the TSA, which sends a determination letter to the traveler. Lynch Decl., ¶ 10. The determination letter does not reveal whether the individual is, or ever was, on the No Fly List, or the reasons for his status. Piehota Decl., ¶ 32. The DHS TRIP letter advises, however, that the inquiring traveler can seek judicial review of the TSA's actions in the United States Court of Appeals pursuant to 49 U.S.C. § 46110 and may also indicate that the traveler can pursue an administrative appeal with the TSA. Lynch Decl., ¶ 11.
It is among the most compelling of governmental duties to protect our country from its enemies, foreign and domestic. Today, we are at war with those who would, if possible, use a commercial aircraft as an instrument of mass murder. There can be no doubt that the government has the right and obligation to identify, investigate and stop those who present such a threat; and for that purpose, the government must collect and act on intelligence information concerning possible terrorists, while protecting its sources and methods. It is a task of the highest national priority, performed by dedicated Americans whose mission is to protect this country and its citizens. It is because the stakes are so high and the consequences of a lapse in security so potentially catastrophic that the central issue presented in this case — how to adequately protect our population from terrorist threats while remaining faithful to the basic liberties that define the society we seek to preserve — is so difficult. For this reason, the constitutional issues pertaining to the No Fly List cannot be responsibly addressed without an informed, fact-based record that allows an assessment of the unavoidable trade-off between security and personal liberties and whether the No Fly List, and its associated procedures and uses, strikes the appropriate balance between the two.
At first blush, it may seem a small intrusion upon the fabric of our freedoms to eliminate the ability of a relatively small number of American citizens to fly on commercial airlines in order to avert a possible catastrophic air disaster, such as occurred over Lockerby, Scotland in 1988, or nearly occurred through the efforts of the "Shoe Bomber" in 2001
The impact on a citizen who cannot use a commercial aircraft is profound. He is restricted in his practical ability to travel substantial distances within a short period of time, and the inability to fly to a significant extent defines the geographical area in which he may live his life. As a practical matter, an affected person is restricted in his ability to visit family and friends located in relatively distant areas of the country or abroad, which through flight can be reached within a matter of hours but would otherwise take days, if not weeks, to access. See Latif v. Holder, No. 3:10-cv-750, 969 F.Supp.2d 1293, 1303, 2013 WL 4592515, at *8 (D.Or. Aug. 28, 2013) (noting that flight is often the only feasible form of international travel); Ibrahim v. Dep't of Homeland Sec., No. C 06-00545 WHA, 2012 WL 6652362, at *7 (N.D.Cal. Dec. 20, 2012) (same). An inability to travel by air also restricts one's ability to associate more generally, and effectively limits educational, employment and professional opportunities. It is difficult to think of many job categories of any substance where an inability to fly would not affect the prospects for employment or advancement; one need only reflect on how an employer would view the desirability of an employee who could not travel by air. An inability to fly likewise affects the possibility of recreational and religious travel, given the time periods usually available to people, particularly those who are employed.
The War on Terrorism in which the United States is currently engaged is not the first time the judicial branch has had occasion to consider these national security issues. During the Cold War, with its threat of unbridled nuclear war, the courts considered the constitutionality of laws limiting the issuance of passports in order to restrict the travel of American citizens suspected of subversive, Communist activities that, as reflected in congressional findings,
Id. at 125-26, 78 S.Ct. 1113 (some citations omitted). Observing that the government has been allowed in times of war to exclude citizens from their homes and restrict their freedom of movement only upon a showing of "the gravest imminent danger to the public safety," the Kent Court reaffirmed that:
Id. at 128-29, 78 S.Ct. 1113 (internal citations omitted). In summary, the Court emphasized that in dealing with restrictions on travel, such as those imposed in that case, "[w]e deal with beliefs, with associations, with ideological matters. We must remember that we are dealing with citizens who have neither been accused of crimes nor found guilty." Id. at 130, 78 S.Ct. 1113.
The Court revisited the constitutionality of statutory restrictions on the right to travel in Aptheker v. Secretary State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). There, the Court reviewed the constitutionality of Section 6 of the Subversive Activities Control Act of 1950, which made it unlawful for any member of a registered Communist organization with knowledge or notice of the registration to apply for or use a U.S. passport. The Court recognized that "freedom of travel is a constitutional liberty closely related to rights of speech and association," and in declaring Section 6 unconstitutional, reaffirmed that "a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." Id. at 508, 517, 84 S.Ct. 1659 (quoting NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964)). The Court recognized that the application of these principles required it to consider the congressional purpose underlying the restrictions on the right to travel:
Id. at 509, 84 S.Ct. 1659 (some internal citations and quotation marks omitted).
The Court in Aptheker concluded:
Id. at 514, 84 S.Ct. 1659 (internal quotation marks and citations omitted).
These passport cases did not deal with the limits on governmental authority within the specific context of airline safety, but rather assessed the extent of that authority based on broader national security justifications more directly associated with rights of association and freedom of speech. Nevertheless, when the basic principles discussed in Kent and Aptheker are applied to the No Fly List, substantial constitutional issues are immediately apparent.
First, the No Fly List, once distributed, clearly infringes upon a citizen's right to travel; and the Court cannot conclude based on the present record that there are no means less restrictive than an unqualified flight ban to adequately assure flight security, such as comprehensive preflight screening and searches. Second, the current record is inadequate to explain why judicial involvement before a person is placed on the No Fly List is either unnecessary or impractical, other than perhaps within the context of an emergency based on a specific, imminent threat that requires immediate action. Nor does the record conclusively establish that there cannot be any opportunity, either before or after an American citizen is placed on the No Fly List, to know of or challenge any of the information used to list him, even where such information could be summarized in a way that does not compromise sources or methods.
Third, substantial issues exist concerning the standards used, or required to be used, to determine whether an American citizen can be banned from flying. The process of nomination to the No Fly List is based on a suspected level of future dangerousness that is not necessarily related to any unlawful conduct. In that connection, the TSC's currently applied standard for inclusion is "satisfaction of a certain substantive derogatory criteria establishing that the individual may be a known or suspected terrorist." Piehota Decl., ¶ 12. And "[w]hether the individual satisfies the substantive derogatory criteria is generally based on whether there is reasonable suspicion to believe that a person is a known or suspected terrorist." Id. While determining whether a person is a "known terrorist" appears to be straightforward and based on certain formal actions taken within the criminal justice system,
What constitutes conduct sufficiently "related to" or "in aid of terrorism is not explained, but it is not difficult to imagine completely innocent conduct serving as the starting point for a string of subjective, speculative inferences that result in a person's inclusion on the No Fly List. For example, is the academic study of terrorism or the investigative reporting of terrorist activities "related to terrorism and terrorist activities"? Is providing financial support to a charitable organization enough, even without knowledge that some of the organization's activities are "in aid of ... terrorist activities"? Is it enough to be a member of a lawfully operating social or religious organization whose membership may include other persons suspected of terrorism? Is studying Arabic abroad, as Mohamed concedes he did, conduct "in preparation for ... terrorist activities"? A showing of past or ongoing unlawful conduct does not seem to be required, and the level of proof required for inclusion on the No Fly List appears to be far less than that required to obtain such law enforcement tools as a search or arrest warrant or a thirty-day wiretap. See U.S. Const, amend. IV; 50 U.S.C. § 1805(a)(2). But the Court has little, if any, ability to articulate what information is viewed by the TSC as sufficiently "derogatory" beyond the labels it has provided the Court.
In sum, the No Fly List assumes that there are some American citizens who are simply too dangerous to be permitted to fly, no matter the level of pre-flight screening or on-flight surveillance and restraint, even though those citizens cannot legally be arrested, detained, or otherwise restricted in their movements or conduct. The No Fly List also assumes that in order to achieve its intended purpose, it must be compiled and distributed without any judicial review or involvement and without any opportunity for the citizen to learn of or contest the accuracy of any information used to justify his inclusion on the list. Specifically at issue in this case is whether, given the substantial liberty interest in freedom of movement possessed by every citizen, the No Fly List, as applied to American citizens, comports with the requirements of substantive and procedural due process.
The defendants seek dismissal of Mohamed's claims on both procedural and substantive grounds. First, they argue that Mohamed's claims must be dismissed because he failed to exhaust the available administrative remedies, he lacks standing, and his claims are not ripe for adjudication. Substantively, the defendants contend that: 1) Mohamed has failed to allege a violation of his right to reside in or reenter the United States, and that such a claim is in any event moot; 2) the available administrative remedies satisfy Mohamed's procedural due process rights; and 3) Mohamed's APA claim fails for the same reasons as his other claims and because he makes no allegations supporting a claim of arbitrary and capricious agency action. The Court will address these arguments in turn.
The defendants seek dismissal of Mohamed's claims on the ground that he has not presented his claims to the TSA through DHS TRIP and has therefore failed to exhaust administrative remedies. The defendants do not contend that the relevant statutes or regulations require exhaustion, but rather that the Court should require Mohamed to utilize DHS TRIP as a matter of prudence because that process could provide him with some of the relief he seeks and because the Court would be in a better position to review Mohamed's claims after the completion of that process. In a related vein, the defendants contend that Mohamed's constitutional claims are too "hypothetical" to satisfy the requirements of standing and ripeness.
"Where Congress specifically mandates, exhaustion is required." McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), superseded by statute on other grounds. Where exhaustion is not congressionally mandated, on the other hand, "sound judicial discretion" generally governs. Id. The Supreme Court has held, however, that a federal court cannot require a plaintiff to exhaust administrative remedies before seeking judicial review of a final agency action under the APA where neither the relevant statute nor an agency rule imposes such a requirement. Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993).
For non-APA claims, "federal courts must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion." McCarthy, 503 U.S. at 146, 112 S.Ct. 1081. In that regard, requiring administrative exhaustion allows the agency to "correct its own mistakes with respect to programs it administers before it is haled into federal court" and helps to avoid piecemeal appeals. Id. at 145-46, 112 S.Ct. 1081. Thus, considerations of efficiency and agency expertise may weigh in favor of requiring exhaustion. See Guerra v. Scruggs, 942 F.2d 270, 277 (4th Cir. 1991).
Balancing these conflicting considerations, the Fourth Circuit has recognized that exhaustion should not be required where: (1) exhaustion would be futile; (2) the available administrative remedies would be insufficient; (3) the dispute is a matter of statutory construction; (4) compelling the use of administrative procedures would cause irreparable injury; or (5) requiring exhaustion would leave an administrative decision unreviewed. See Darby v. Kemp, 957 F.2d 145, 147 (4th Cir.1992), overruled on other grounds, Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993); McDonald v. Centra, Inc., 946 F.2d 1059, 1063 (4th Cir.1991). Because administrative remedies are almost always inadequate to address procedural due process challenges to those remedies, such challenges are particularly immune from administrative exhaustion requirements. See Bangura v. Hansen, 434 F.3d 487, 494 (6th Cir.2006) ("Exhaustion of administrative remedies may not be required in cases of non-frivolous constitutional challenges to an agency's procedures."); see also Gibson v. Berryhill, 411 U.S. 564, 575, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973) (holding that appellee was not required to exhaust state administrative remedies where "the question of the adequacy of the administrative remedy... was for all practical purposes identical with the merits of appellees' lawsuit"); Kreschollek v. S. Stevedoring Co., 78 F.3d 868, 875 (3d Cir.1996) (holding that exhaustion of administrative remedies under the Longshore and Harbor Workers' Compensation Act was not required where the administrative process was inadequate to address the Longshoreman's claim that the Act unconstitutionally deprived him of
The Court concludes that it would be inappropriate to require exhaustion in this case. First, as the defendants acknowledge, Congress has not mandated exhaustion of the DHS TRIP process with respect to Mohamed's claims, and there are no regulations regarding DHS TRIP that mandate exhaustion. See 49 U.S.C. §§ 44903(j)(2) & 44926(a) (directing DHS to create a redress program without requiring that travelers take advantage of it). It would therefore appear that the Court could not, under the holding in Darby v. Cisneros, require Mohamed to exhaust the DHS TRIP process before proceeding with his APA appeal in Count II. To require exhaustion with respect to Mohamed's other claims, then, would essentially bifurcate substantially related, if not common, claims and create, rather than avoid, piecemeal litigation.
Second, it is difficult to see how exhaustion of DHS TRIP would significantly assist the Court in adjudicating or resolving Mohamed's claims. Mohamed would not have access to any information the government used to place him on the No Fly List, and once the government completed the review, he would receive only a letter indicating that the review process was complete. He would not receive any substantive information as to whether he was, or ever had been, on the No Fly List, or the grounds for his potential inclusion on the list. For these reasons, Mohamed would not have any opportunity to respond to the information used by the government to place him on the No Fly List; and it is not even clear whether he would have any meaningful opportunity to submit and have considered information that might negate any "derogatory information" possessed by the government, even without access to the government's reasons for his inclusion on the No Fly List.
Moreover, DHS TRIP would not provide Mohamed with any opportunity to present and have considered his constitutional claims. That process addresses only whether a traveler who has submitted an inquiry is in fact the individual listed in the TSDB, and if so, whether there is sufficient information to support the listing. As a result, at the end of the DHS TRIP process, even were the TSC to voluntarily remove Mohamed from the No Fly List, the alleged underlying constitutional infirmities that allowed his name to be included on the list and distributed to airlines would remain in place, unreviewed and with no assurances that Mohamed would not suffer the same alleged injury in the future.
Finally, the Court has no expectation that the DHS TRIP process would create
As for standing, Mohamed's alleged constitutional injuries constitute an "injury in fact" that is actual, concrete and particularized, and traceable to the defendants, who are alleged to be responsible for placing him on the No Fly List and distributing it to the TSA.
In Count I, styled "Violation of U.S. Citizen's Right to Reside in United States and to Reenter the United States from Abroad," Mohamed alleges that, "[b]y placing [him] on the No Fly List while he was abroad, Defendants Unknown TSC Agents prevented [him] from boarding an aircraft to return to the United States, even though no other means existed by which he may return to the United States, thus violating [his] constitutional rights." Third Amend. Compl. ¶ 56. Further, Mohamed alleges that, by maintaining him on the No Fly List, the defendants have "substantially burdened his fundamental right to return to the United States in the immediate future." Id. ¶ 57. Count I is, in essence, a substantive due process claim.
Substantive due process "provides heightened protection against government interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Those protected rights and interests include those that "are, 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." Id. at 720-21, 117 S.Ct. 2258 (internal quotation marks and citations omitted). In contrast to the procedural component of the Due Process Clause, 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, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (internal quotation marks omitted).
The defendants do not contest that a United States citizen has a right to reenter the United States. They contend, however, that Count I must fail because the right of reentry attaches only once a citizen presents himself at a U.S. port of entry and does not extend to restrictions that may prevent or impede his ability to reach a U.S. port of entry. Based on this position, the defendants contend that, as a matter of law, based on his allegations, Mohamed has never been denied reentry to the United States, and that, even if he is on the No Fly List, Mohamed will not in the future be denied reentry once he presents himself at the border.
The Court concludes that a U.S. citizen's right to reenter the United States entails more than simply the right to step over the border after having arrived there. See, e.g., Newton v. INS, 736 F.2d 336, 343 (6th Cir. 1984) (noting that citizens "have the right to return to this country at any time of their liking" (emphasis added)). At some point, governmental actions taken to prevent or impede a citizen from reaching
Mohamed invokes his right of reentry with respect to both his initial unsuccessful attempt to return to the United States from Kuwait in January 2011 and also with respect to his plans to travel abroad for religious purposes and to visit his family. As to his claim of past constitutional injury, the Court concludes that Mohamed has failed to allege facts that make plausible his claim that his constitutional right of reentry was violated when he was prevented from boarding a plane from Kuwait to the United States on January 16, 2011 because of his placement on the No Fly List. Mohamed's own allegations establish that, although he was denied boarding on that flight, he was able to board a flight on January 20, 2011 and reenter the United States without incident on January 21, 2011. Even accepting as true Mohamed's allegations — including that the government improperly placed him on the No Fly List and prevented him from boarding the January 16th flight — the four to five-day delay that Mohamed experienced in his ability to reenter the United States did not unduly burden his right of reentry and therefore, as a matter of law, did not constitute a constitutional deprivation.
Broader, however, are Mohamed's allegations of present and future harms arising from his inability to fly. In that regard, Mohamed alleges that, even though the defendants permitted his return in January 2011, his continued inclusion on the No Fly List presumptively prevents him from departing the United States to travel abroad for a religious pilgrimage and to visit family members, and, were he able to leave the United States, from returning to the country through any practical means. Thus, Mohamed complains of a violation of his right to exit and return based on the burden placed on his right to international travel, which, as discussed above, is "an important aspect of the citizen's `liberty' guaranteed in the Due Process Clause of the Fifth Amendment." Aptheker, 378 U.S. at 505, 84 S.Ct. 1659 (quoting Kent, 357 U.S. at 127, 78 S.Ct. 1113). It is true that the right to international travel is not, like the right to interstate travel, "virtually unqualified," but rather is subject to "reasonable governmental regulation." Haig v. Agee, 453 U.S. 280, 306-307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (citation omitted). Nonetheless, "a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." Aptheker, 378 U.S. at 508, 84 S.Ct. 1659 (quoting NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964)). Whether Mohamed's alleged disabilities as a result of his alleged inclusion on the No Fly List unconstitutionally burden the exercise of his right of exit and reentry cannot be decided at this stage as a matter of law. However, Mohamed's factual allegations, taken as true, suffice to make plausible his substantive due process claim.
In Count III, Mohamed alleges that the defendants have failed to provide him with "a meaningful opportunity to challenge his inclusion on the No Fly List either prior or subsequent to his placement, depriving him of his liberty interest in (1) being able to return to the United States, (2) traveling by air like other American citizens, and (3) being free from false governmental stigmatization as a terrorist." Third Amend. Compl. ¶ 62. The
"The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (internal quotation marks omitted). However, "[t]he procedural protections required by the Due Process Clause must be determined with reference to the rights and interests at stake in the particular case." Washington v. Harper, 494 U.S. 210, 229, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). In evaluating the sufficiency of the process the government has provided in a particular case, the Court must consider: (1) "the private interest that will be affected by the official action"; (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards"; and (3) "the Government's interest." Mathews, 424 U.S. at 335, 96 S.Ct. 893. These factors, when considered within the context of Mohamed's allegations, necessarily require an evidentiary record beyond that presented to the Court in connection with the defendants' motion to dismiss.
As discussed above, Mohamed alleges a range of protectable interests, including his right to travel, that have been affected adversely by his alleged inclusion on the No Fly List.
For these reasons, the Court cannot conclude, as a matter of law, that DHS TRIP provides sufficient process to defeat Mohamed's procedural due process claim, and instead must conclude that Mohamed has alleged facts sufficient to make that claim plausible. In resolving the claim, the Court must engage in a fact-intensive consideration of the personal liberties involved, the government's compelling interest in combating terrorism, the procedures used in connection with the No Fly List, and the use made of the No Fly List.
In Count II of his Third Amended Complaint, in addition to reiterating his constitutional claims, Mohamed alleges that "Defendants' actions described herein were and are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional right and should be set aside as unlawful pursuant to 5 U.S.C. § 706." Third Amend. Compl. ¶ 59. The issues presented in Mohamed's APA claim essentially conflate with his constitutional claims. Thus, for the same reasons discussed above the Court concludes that Mohamed's factual allegations make plausible his claim that the defendants' actions were arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.
For the reasons stated above, the defendants' Motion to Dismiss will be GRANTED in part and DENIED in part. The Motion will be granted as to Plaintiffs claim in Count I of his Third Amended Complaint that he was denied his constitutional right of reentry in January 2011, and will otherwise be DENIED.
An appropriate Order will issue.
Third Amend. Compl. ¶¶ 40-41.
