Abdelfattah v. United States Department of Homeland Security
415 U.S. App. D.C. 275
D.C. Cir.2015Background
- Plaintiff Osama Abdelfattah, a Jordanian national and lawful permanent resident, alleged DHS created and maintained TECS records linking him to a former roommate of interest in 9/11 investigations; he experienced extensive immigration delays, questioning by FBI/DHS, and alleged harassment.
- Abdelfattah obtained FOIA disclosures showing TECS entries, investigative memoranda, address history, driver’s license numbers, and a full credit card number; he requested expungement and received no response.
- He filed a pro se First Amended Complaint raising 21 causes of action under the Privacy Act, FCRA, RFPA, Fifth and Fourth Amendments, and other statutes; district court dismissed most claims.
- District court held TECS exempt from relevant Privacy Act provisions and dismissed constitutional and statutory claims for failure to state a claim or for lack of jurisdiction; it also dismissed FCRA and RFPA claims.
- On appeal the D.C. Circuit affirmed all dismissals except reversed the dismissal of FCRA claims as to the allegation that DHS possesses a full credit card number, finding such information can bear on a consumer’s “mode of living.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TECS records are subject to Privacy Act remedies | Abdelfattah: TECS contains impermissible records and must be expunged/amended | DHS: TECS is exempt from key Privacy Act provisions | Not challenged on appeal; TECS exemption stands and Privacy Act claims against DHS dismissed |
| Whether constitutional claims (expungement/equitable relief) are barred by availability of Privacy Act remedies/Bivens | Abdelfattah: may seek equitable relief (expungement) for constitutional violations | DHS: comprehensive Privacy Act remedial scheme and Bivens bar preclude constitutional remedies | Court: Bivens damages barred but equitable expungement remains a possible remedy; constitutional claims not categorically barred |
| Whether Abdelfattah alleged cognizable due process (procedural/substantive) injuries (liberty/property) | Abdelfattah: TECS caused deprivation of right to work, travel, and proper LPR documentation; seeks expungement | DHS: plaintiff still employed and LPR; allegations speculative and not showing formal debarment or travel denial | Dismissed: plaintiff failed to plead deprivation of protected liberty or property interests; due process claims not adequately pled |
| Whether information disclosed to DHS (addresses, SSN, DLs, credit card number) triggers RFPA or FCRA protections | Abdelfattah: DHS obtained credit-header info from credit reports and thus violated RFPA and FCRA | DHS: alleged data are not "consumer reports" under FCRA and RFPA claims not pleaded with required specificity | RFPA claim dismissed for failure to plead a covered financial-institution disclosure; FCRA dismissal reversed as to full credit card number (may be a consumer report) and remanded for further proceedings |
Key Cases Cited
- Chung v. U.S. Dep’t of Justice, 333 F.3d 273 (D.C. Cir. 2003) (Privacy Act remedial scheme precludes Bivens damages claim)
- Chastain v. Kelley, 510 F.2d 1232 (D.C. Cir. 1975) (expungement is an equitable remedy potentially available where records are prejudicial and unnecessary)
- Doe v. U.S. Air Force, 812 F.2d 738 (D.C. Cir. 1987) (expungement of seized copies may be remedy for unconstitutional searches)
- Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984) (expungement appropriate in proper circumstances for constitutional violations)
- FDIC v. Meyer, 510 U.S. 471 (U.S. 1994) (Bivens claims unavailable against federal agencies)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility standard for pleadings)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (complaints must state plausible claims)
- County of Sacramento v. Lewis, 523 U.S. 833 (U.S. 1998) (substantive due process requires conduct that shocks the conscience)