303 F. Supp. 3d 453
E.D. Va.2017Background
- Twenty-five U.S. citizen plaintiffs (predominantly Muslim) allege they are listed in the federal Terrorism Screening Database (TSDB) and, for some, the Selectee List, causing repeated secondary screening, detentions at borders/airports, missed travel, and other tangible harms (employment, licensing, banking, retail transactions).
- Plaintiffs allege dissemination of TSDB status to government and non-government actors (law enforcement, courts, employers, banks, dealerships), producing reputational and legal consequences.
- Plaintiffs used DHS TRIP redress; DHS TRIP responses often do not confirm or deny TSDB status (except for some No Fly List disclosures); many plaintiffs received only acknowledgments or no response.
- Defendants are senior officials at the TSC, TSA, NCTC, FBI, and CBP; they moved to dismiss, arguing lack of justiciability, lack of standing, and failure to state viable claims under the Constitution and APA.
- The court (Trenga, J.) denied dismissal in part: it held claims were justiciable and that plaintiffs plausibly alleged procedural due process (Count I) and an APA arbitrary-and-capricious claim (Count III), but dismissed substantive due process (Count II), Equal Protection (Count IV), and non-delegation (Count V).
Issues
| Issue | Plaintiffs' Argument | Defendants' Argument | Held |
|---|---|---|---|
| Justiciability / 49 U.S.C. § 46110 (challenge to DHS TRIP/TSA) | Plaintiffs challenge TSC/TSA interagency actions and seek court review of constitutional and APA claims. | Defendants contend DHS TRIP/TSA actions are reviewable only in courts of appeals under § 46110, depriving district court jurisdiction. | Denied: Fourth Circuit precedent (Mohamed) means district court may hear claims implicating both TSC and TSA; claims are justiciable. |
| Standing | Plaintiffs allege concrete, ongoing injuries (repeated detentions, missed flights, job/license denials). | Defendants argue plaintiffs failed to plead current TSDB status and imminent injury. | Granted to plaintiffs: allegations suffice at pleading stage to show injury-in-fact, causation, and redressability. |
| Procedural Due Process (Count I) | Inclusion in TSDB/Selectee List deprives liberty interests (travel without detention; stigma-plus) and plaintiffs are denied notice/hearing because government refuses to confirm status. | Gov't says internal review processes (DHS TRIP and agency review) are adequate; individuals need not be told their status. | Denied dismissal: plaintiffs plausibly allege protected liberty/stigma-plus interests and inadequate process; Mathews balancing requires factual record — claim survives pleading. |
| Substantive Due Process (Count II) | Enhanced screening and preset treatment infringe a fundamental right to travel/board without predetermined screening. | Government contends conduct is permissible and not a violation of substantive due process. | Dismissed: plaintiffs fail to allege deprivation of a fundamental right warranting strict scrutiny; claim not stated. |
| APA - Arbitrary & Capricious (Count III) | Placement in TSDB lacks constitutionally adequate mechanism and is arbitrary/contrary to law. | Defendants argue statutory/regulatory scheme and internal procedures suffice; nonjusticiability/various defenses. | Denied dismissal: factual allegations make plausible APA arbitrary-and-capricious claim (overlaps with procedural due process concerns). |
| Equal Protection (Count IV) | TSDB disproportionately targets Muslims; disparate impact supports claim of intentional discrimination. | Defendants note facial neutrality of criteria and deny discriminatory intent. | Dismissed: plaintiffs plead limited demographic facts (e.g., Dearborn) but fail to plausibly allege intentional, invidious discrimination. |
| Non-Delegation (Count V) | Congress unlawfully delegated legislative power enabling creation/operation of the Watch List. | Statutes (e.g., 49 U.S.C. § 114) provide intelligible principles for TSA and interagency implementation. | Dismissed: statutes supply intelligible principles; non-delegation claim fails. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements for federal litigation)
- Mathews v. Eldridge, 424 U.S. 319 (balancing test for what process is due)
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard for pleadings)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (plausibility and Rule 8 pleading standard)
- Paul v. Davis, 424 U.S. 693 (stigma-plus test for reputational liberty claims)
- Washington v. Glucksberg, 521 U.S. 702 (test for identifying fundamental rights in substantive due process)
- Shirvinski v. U.S. Coast Guard, 673 F.3d 308 (Fourth Circuit discussion of stigma-plus)
- Mohamed v. Holder, 266 F. Supp. 3d 868 (E.D. Va. 2017) (district court decision addressing No Fly/Watch List issues relied on by this court)