449 F.Supp.3d 649
N.D. Tex.2020Background
- Plaintiffs challenge placement in the Terrorist Screening Database (TSDB) / No‑Fly and Selectee Lists and allege enhanced airport screening and travel restrictions. Key plaintiffs include Adis Kovac and screening‑list plaintiffs (including Fadumo Warsame).
- The Court previously dismissed claims against U.S. Customs and Border Protection and narrowed the plaintiffs’ due‑process theories (retaining claims based on nonattainder and No‑Fly related travel harms for Kovac).
- Defendants moved to dismiss Warsame for lack of standing/mootness, arguing her alleged enhanced screening ceased in 2018; they moved to dismiss Kovac’s claims because DHS removed him from the No‑Fly List on July 18, 2019 and stated he will not be returned based on current information.
- The Court analyzed mootness under Article III and the voluntary cessation doctrine, applying the Fifth Circuit’s relaxed standard for government defendants (government must still show its change is genuine and not reasonably expected to recur).
- Ruling: the Court denied without prejudice the motion to dismiss Warsame (giving defendants 28 days to renew with evidence); granted in part Kovac’s motion — dismissing without prejudice his procedural and substantive due‑process claims to the extent they were premised on a right to travel tied to the No‑Fly List; retained all plaintiffs’ due‑process claims predicated on nonattainder and all APA claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of Warsame's claims | Warsame contends she still faces risk from inclusion in TSDB/Selectee List and has ongoing injury | Defendants say enhanced screening stopped and proposed amendment shows no ongoing injury; thus lack of standing/moot | Denied without prejudice; defendants given 28 days to renew with evidence that she was removed and recurrence is not reasonably expected |
| Mootness of Kovac's No‑Fly claims | Kovac argues removal is voluntary cessation that could recur and his Database injuries remain | Defendants produced DHS letter removing Kovac from No‑Fly List and stating he will not be returned based on current information | Granted in part: travel‑based procedural and substantive due‑process claims tied to No‑Fly List dismissed without prejudice; other claims (TSDB/nonattainder, APA) survive |
| Applicable voluntary‑cessation standard for government defendants | Plaintiffs urge careful scrutiny to prevent sham reversals | Defendants rely on Fifth Circuit presumption that government policy changes are made in good faith (lighter burden) | Court applies Fifth Circuit’s modified (lighter) standard per Sossamon: government still must show formal change and that recurrence is not reasonably expected |
| Scope of surviving claims | Plaintiffs seek to preserve due‑process (nonattainder) and APA claims | Defendants seek broader dismissal as moot | Court preserves procedural and substantive due‑process claims predicated on nonattainder for all plaintiffs and preserves APA claims for all plaintiffs; travel‑based claims dismissed for Kovac |
Key Cases Cited
- Sossamon v. Lone Star State of Tex., 560 F.3d 316 (5th Cir. 2009) (articulates Fifth Circuit’s relaxed government voluntary‑cessation standard and burden to show no reasonable expectation of recurrence)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (U.S. 2000) (explains voluntary cessation doctrine and mootness when defendant ceases challenged conduct)
- United States v. Concentrated Phosphate Export Assn., 393 U.S. 199 (U.S. 1968) (discusses when voluntary cessation will not moot a case)
- Brinsdon v. McAllen Indep. Sch. Dist., 863 F.3d 338 (5th Cir. 2017) (confirms mootness is jurisdictional)
- Attorney Gen. of N.Y. v. Soto‑Lopez, 476 U.S. 898 (U.S. 1986) (describes when government action implicates right to travel)
- Zablocki v. Redhail, 434 U.S. 374 (U.S. 1978) (describes standard for significant interference with fundamental rights)
- Fikre v. Federal Bureau of Investigation, 904 F.3d 1033 (9th Cir. 2018) (discusses No‑Fly removal and mootness; considered persuasive though not binding)