391 F. Supp. 3d 562
E.D. Va.2019Background
- Plaintiffs: 23 U.S. citizens who allege adverse travel, border, reputational, and screening consequences from presumed inclusion in the Terrorist Screening Database (TSDB) and challenge adequacy of DHS TRIP as a remedy.
- TSDB: an interagency, centralized (unclassified) watchlist maintained by the Terrorism Screening Center; includes known and suspected terrorists based on a "reasonable suspicion" standard; as of 2017 ~1.2 million entries including ~4,600 U.S. persons.
- Consequences: TSDB data is widely shared with federal, state, local, private, and foreign partners and used for border, aviation, credentialing, employment, law enforcement, and licensing screening; listing can trigger enhanced screening, detentions, device searches, travel denial, employment/credential impacts, and reputational effects.
- DHS TRIP: the post-hoc redress process; for TSDB challenges it does not disclose whether an individual is listed nor the facts supporting listing; for the No Fly List DHS TRIP was later expanded under Latif to provide more disclosure and an administrative review process.
- Procedural posture: Cross-motions for summary judgment on procedural due process (Fifth Amendment) and APA claims. Court previously dismissed other claims; now grants plaintiffs summary judgment on Counts I and III, finding DHS TRIP as applied to TSDB challenges unconstitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / ripeness for injunctive relief | Plaintiffs have concrete, imminent injury from repeated enhanced screening, detention, and self-censorship of travel; therefore they have standing and claims are ripe, even if some did not exhaust DHS TRIP | Defendants say plaintiffs lack sufficiently certain future injury for prospective relief and some plaintiffs failed to exhaust DHS TRIP so their claims are unripe | Court: Plaintiffs established standing; claims ripe despite some plaintiffs not completing DHS TRIP because claims attack constitutionality of the system and exhaustion would not add material facts |
| Whether inclusion in TSDB implicates protected liberty interests | Inclusion substantially burdens international and interstate travel and causes reputational harms (stigma-plus), so due process protections attach | Defendants contend TSDB causes only delays/inconveniences and does not bar travel or deprive protected liberty; government interest in security justifies limits | Court: TSDB implicates constitutionally protected liberty interests in international and domestic travel and reputational interests warranting procedural protections |
| Risk of erroneous deprivation and adequacy of DHS TRIP | The TSDB standard and procedures create a high risk of erroneous inclusion (subjective inferences; broad factors) and DHS TRIP provides no meaningful notice or ability to rebut for TSDB-listed persons | Defendants point to interagency review and DHS TRIP as adequate post-deprivation remedy; argue national security limits disclosure | Court: High risk of erroneous deprivation; current DHS TRIP as applied to TSDB is a "black box" and does not provide constitutionally adequate notice or opportunity to contest inclusion |
| Government interest vs. additional process (Mathews balancing) | Plaintiffs seek post-deprivation notice of listing and factual basis and a meaningful opportunity to rebut (similar to Latif protections for No Fly List) | Defendants stress compelling national-security interests and that pre-deprivation notice would jeopardize investigations; process must be balanced against security burdens | Court: Government interest is compelling and pre-deprivation notice is not required; but Mathews balancing shows adequate post-deprivation procedural protections are required and DHS TRIP (as applied) is insufficient |
Key Cases Cited
- Mathews v. Eldridge, 424 U.S. 319 (1976) (sets three-factor due process balancing test)
- Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (importance of notice and opportunity to rebut even in national security contexts)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requirements)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) (requirement of certainly impending injury for prospective relief)
- Kent v. Dulles, 357 U.S. 116 (1958) (right to travel as protected liberty)
- Paul v. Davis, 424 U.S. 693 (1976) (stigma-plus doctrine for reputational harms)
- Latif v. Holder, 28 F. Supp. 3d 1134 (D. Or. 2014) (mandated expanded DHS TRIP procedures for No Fly List challenged as unconstitutional)
- Mohamed v. Holder, 303 F. Supp. 3d 453 (E.D. Va.) (prior related rulings by this court addressing No Fly List and DHS TRIP adequacy)
- Gilbert v. Homar, 520 U.S. 924 (1997) (post-deprivation process can satisfy due process when pre-deprivation process impractical)