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Abdi v. Wray

United States District Court, D. Utah

April 20, 2018

CHRISTOPHER WRAY, Director of the Federal Bureau of Investigation, in his official capacity, et al., Defendants.


          Dee Benson United States District Judge

         Before the court is Defendants' Motion to Dismiss First Amended Complaint. (Dkt. No. 18.) The court held a hearing on the Motion on April 5, 2018. At the conclusion of the hearing, the court took the Motion under advisement. Now being fully informed, the court issues this Memorandum Decision and Order.


         In June of 2017, Plaintiff-a United States citizen-flew to Kenya to bring his wife and children, who had recently received visa approval, with him to the United States. (First Amended Complaint at ¶¶ 34-35.) On June 14, 2017, Plaintiff appeared at Jomo Kenyatta International Airport in Nairobi, Kenya to board a commercial flight back to his home in the United States. (Id. at ¶ 34.) Plaintiff tried to check in at a kiosk stationed at the airport, but was directed to an airline representative to manually check him in for his flight. (Id. at ¶ 36.) Plaintiff's wife and children printed their boarding passes without difficulty, but the Qatar Airlines representative told Plaintiff that the United States would not allow him to board his flight. (Id. at ¶ 39.)

         The following day, Plaintiff went to the United States Embassy in Kenya to obtain information as to why he was denied boarding. (Id. at ¶ 41.) The representatives at the embassy did not provide Plaintiff with any information. (Id. at ¶ 42.) Plaintiff rescheduled his flight for the following day, June 16, 2017, on which he was allowed to board. (Id. at ¶¶ 43-44.) When Plaintiff arrived at the Los Angeles International Airport, he was subjected to a lengthy screening process, which caused him to miss his connecting flight to Salt Lake City. (Id. at ¶ 44.) Plaintiff rescheduled his flight to Salt Lake City for June 18, 2017, which he was allowed to board after another lengthy screening process. (Id. at ¶ 45.)

         Since then, Plaintiff has flown on three separate occasions: to San Jose, California in July 2017; to and from Mecca Saudi Arabia in August 2017; and to and from Virginia in October 2017. (Id. at ¶ 47.) On each trip, Plaintiff was required to obtain his boarding pass from a ticketing agent rather than a kiosk. (Id. at ¶ 49.) Each time, it took about a half hour for Plaintiff to obtain his boarding pass, after the ticketing agent called the Terrorist Screening Center and stamped Plaintiff's boarding pass with “SSSS”. (Id. at ¶¶ 49-50.) Each time, Plaintiff was subjected to a lengthy screening process. ( ¶ 51.)

         In September of 2003, the Terrorist Screening Center (“TSC”) was established to consolidate the government's approach to terrorism screening. (Id. at ¶ 58.) The TSC, which is administered by the FBI, develops and maintains the federal government's consolidated Terrorism Screening Database (the “watchlist”). (Id.) The watchlist has two primary components: the Selectee List and the No Fly List. (Id. at ¶ 59.) Those placed on the Selectee List are subject to extra screening at airports and land border crossings, and their boarding passes are often stamped with “SSSS”. (Id.) Those on the No Fly List are prevented from boarding flights that fly into, out of, or through United States airspace. (Id.)

         Plaintiff believes that he has been on the Selectee List component of the watchlist since 2014, because that is when he began to be subjected to extra security procedures when traveling by airplane.[1] (Id. at ¶ 26.) Sometime in 2016, Plaintiff filed a redress request through the Department of Homeland Security Traveler Redress Inquiry Program (“DHS TRIP”). (Id. at ¶ 32.) On May 22, 2017, Plaintiff received a standard form letter that neither confirmed nor denied the existence of any watchlist records relating to him. (Id. at ¶¶ 33, 137.) The letter did not set forth any basis for inclusion on the watchlist, nor did it state whether the government had resolved the complaint at issue. (Id.)


         Plaintiff challenges his placement on the watch list on several grounds: 1) procedural due process, 2) substantive due process, 3) agency action in violation of the Administrative Procedure Act (“APA”), 4) equal protection, and 5) non-delegation. (Id. at ¶¶ 143-190.) To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In deciding a motion to dismiss, “courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The court must accept all well-pleaded allegations in the complaint as true and “construe them in the light most favorable to the plaintiff.” Williams v. Meese, 926 F.2d 994, 997 (10th Cir.1991).


         As a threshold matter, Defendant argues that this court lacks jurisdiction to the extent Plaintiff challenges the adequacy of the DHS TRIP procedures. Counsel for Plaintiff stated at oral argument that he is not challenging the DHS TRIP process, but rather the TSC determination to place him on the watchlist in the first instance. Based on Plaintiff's assertion that he does not challenge the DHS TRIP process (arguably an order of TSA), and Defendant's acknowledgment that the TSC is not an agency covered by 49 U.S.C. § 46110, the court denies Defendant's request for dismissal on those grounds.

         Procedural Due Process

         Plaintiff's first claim alleges that Defendants violated his procedural due process rights by placing him on the watchlist without notice or a hearing. The Due Process Clause states that “No person shall be * * * deprived of life, liberty, or property, without due process of law[.]” U.S. Const. amend. V. “The requirements of procedural due process apply only to the deprivation of interests encompassed by the [Constitution's] protection of liberty and property.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). To determine whether procedural due process has been violated, courts consider three factors: (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 ...

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