942 F.3d 1019
10th Cir.2019Background
- Plaintiff Yusuf Awadir Abdi, a U.S. citizen, alleges since 2014 he has been placed on the federal Terrorist Screening Database’s Selectee List, causing repeated enhanced airport screenings (SSSS stamp), delayed/secondary searches, and one 48‑hour upgrade to the No Fly List.
- Abdi alleges the government disseminated his "known or suspected terrorist" status to government and private actors, causing potential harms (banking, employment, gun purchases, visa processing, etc.).
- He sued the directors of FBI, TSC, TSA, CBP, and NCTC under the Administrative Procedure Act claiming violations of Fifth Amendment substantive and procedural due process and sought declaratory and injunctive relief (removal, notice, and opportunity to contest).
- The district court dismissed the complaint with prejudice under Fed. R. Civ. P. 12(b)(6); the Tenth Circuit affirmed.
- The Tenth Circuit treated Abdi’s case as a Selectee List challenge (not a No Fly List challenge) and held: (1) the alleged burdens do not substantially interfere with interstate or international travel (no substantive due process violation), and (2) Abdi failed to plausibly allege deprivation of a liberty interest in travel or reputation required for procedural due process (including failure to satisfy stigma‑plus).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint sufficiently challenged placement on the No Fly List | Abdi contends he alleged a No Fly claim (48‑hour denial) and mootness inapplicable because gov’t could re‑place him | Defendants note complaint alleges Selectee harms and only a transient No Fly episode; No Fly claim not reasonably pleaded | Waived/unchallenged: complaint construed as challenging the Selectee List only |
| Whether placement on the Selectee List violated substantive due process (right to travel/interstate or international) | Abdi argues listee status imposes a substantial burden on a fundamental right of movement/travel (costly delays, deterrence) | Defendants argue burdens are incidental, affect only one travel mode, and do not substantially interfere with travel | Dismissed: alleged delays and enhanced screening are not a direct and substantial interference with travel rights; no substantive‑due‑process violation |
| Whether Abdi was deprived of a liberty interest in travel for procedural due process purposes | Abdi claims lack of notice deprived him of liberty interest in travel because Selectee status imposes unreasonable burdens | Defendants argue restrictions are reasonable regulatory burdens, not deprivations of constitutional liberty | Dismissed: government did not deprive Abdi of a cognizable liberty interest in travel |
| Whether dissemination of "known or suspected terrorist" label satisfies stigma‑plus (reputation) for procedural due process | Abdi alleges stigmatizing label was disseminated broadly, causing legal and economic consequences (banking, employment, visas, gun purchases) | Defendants argue allegations are speculative and government did not mandate deprivation by third parties | Dismissed: plaintiff failed to plead actual change in legal status or concrete loss (stigma‑plus not satisfied); allegations speculative |
Key Cases Cited
- Washington v. Glucksberg, 521 U.S. 702 (1997) (framework for identifying fundamental rights and applicable substantive‑due‑process scrutiny)
- Zablocki v. Redhail, 434 U.S. 374 (1978) (standard for determining substantial interference with travel rights)
- Saenz v. Roe, 526 U.S. 489 (1999) (recognition and scope of the right to travel interstate)
- Haig v. Agee, 453 U.S. 280 (1981) (travel abroad is liberty interest subject to reasonable regulation)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: plausibility requirement)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard guidance referenced)
- Beydoun v. Sessions, 871 F.3d 459 (6th Cir. 2017) (Selectee List inconveniences held insufficient for constitutional violation)
- Paul v. Davis, 424 U.S. 693 (1976) (stigma‑plus framework for reputation‑based procedural due process claims)
- Wisconsin v. Constantineau, 400 U.S. 433 (1971) (example of reputation plus deprivation of protected legal status)
- Mohamed v. Holder, 995 F. Supp. 2d 520 (E.D. Va. 2014) (short flight delays from No Fly placement did not state a constitutional deprivation)