363 F. Supp. 3d 721
N.D. Tex.2019Background
- Five U.S. citizen plaintiffs (all Muslim) allege they were placed in the Terrorism Screening Database (TSDB) — No Fly List (Kovac) or Selectee/Screening List (others) — causing flight denials, enhanced screening, interrogations, and other harms. Plaintiffs allege discriminatory targeting and inadequate redress.
- Plaintiffs sued TSA, TSC, NCTC, FBI, TSA Administrator, and CBP officials in their official capacities, asserting due process (procedural and substantive), equal protection, APA, and non-delegation claims; they seek declaratory and injunctive relief removing them from lists and creating meaningful notice and contestation procedures.
- Defendants moved to dismiss for lack of jurisdiction under 49 U.S.C. § 46110 (exclusive court of appeals review), for failure to exhaust/ ripeness, and for failure to state claims. The court considered precedent from multiple circuits and district courts addressing watchlist/jurisdiction issues.
- Court held § 46110 does not bar district-court review of Plaintiffs’ challenges to the adequacy of DHS TRIP (redress) here, and declined to apply the inescapable-intertwinement doctrine to pull TSC claims into § 46110 review.
- Court found Mr. Kovac’s claims ripe (he submitted DHS TRIP and was confirmed on No Fly List); rejected exhaustion requirement; dismissed all claims against CBP as abandoned by plaintiffs; dismissed some claims on the merits and allowed others to proceed:
- Remaining for Mr. Kovac: procedural and substantive due process claims based on right to travel and nonattainder, and APA claim.
- Remaining for the other plaintiffs: procedural and substantive due process claims as to nonattainder, and APA claims. Many stigma-based, equal-protection, and non-delegation claims were dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 46110 strips district court jurisdiction over challenges to DHS TRIP redress and TSDB inclusion | Plaintiffs: §46110 covers only TSA orders; TSC actions and redress adequacy fall outside exclusive appellate channeling, so district court has jurisdiction | Defendants: §46110 grants exclusive appellate jurisdiction; challenges to redress and TSDB are intertwined with TSA orders and belong in courts of appeals | Court: Denied dismissal under §46110 for redress-challenges; followed D.C., 9th, 4th precedents — district court may hear adequacy challenges here; inescapable-intertwinement not applied to pull TSC claims into §46110 review |
| Ripeness / Administrative exhaustion for Kovac | Kovac: DHS TRIP exhaustion not statutorily mandated; he already filed DHS TRIP and learned he is on No Fly List; claims are ripe | Defendants: Must exhaust DHS TRIP; ripeness requires administrative completion before court review | Court: Denied exhaustion requirement and held Kovac’s claims ripe (no statutory exhaustion; DHS TRIP would not remedy constitutional claims; he filed DHS TRIP and was confirmed on the No Fly List) |
| Whether inclusion on No Fly/Selectee lists states substantive and procedural due process claims (travel, stigma, nonattainder) | Plaintiffs: Listing burdens right to travel, stigmatizes, and functions as attainder; DHS TRIP is constitutionally inadequate | Defendants: Listings do not rise to deprivation of fundamental rights; screenings are minor inconveniences; DHS TRIP provides adequate process; statutes provide lawful authority | Court: For Kovac (No Fly) substantive and procedural due process claims based on right to travel and nonattainder survive; stigma-based claims fail for insufficient public dissemination and "stigma-plus" elements. For Selectee plaintiffs, travel-based claims fail (only delays), stigma claims fail; nonattainder claims survive. Court held DHS TRIP adequacy cannot be resolved at pleading stage — procedural due process and APA challenges to redress survive |
| Equal protection and non-delegation claims | Plaintiffs: Watchlist targets Muslims; disparate impact supports equal protection; statutes give agencies unchecked discretion violating non-delegation | Defendants: Criteria are facially neutral; disparate-impact allegations are conclusory; statutes supply an intelligible principle | Held: Equal protection claims dismissed (no plausible intent pleaded; insufficient similarly situated comparison); non-delegation claim dismissed (statutes provide intelligible principle). |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (federal courts are courts of limited jurisdiction)
- City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (exclusive review provisions bar collateral district-court attacks on agency orders)
- Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (claims wholly collateral to statutory review may proceed outside exclusive-review scheme)
- Mathews v. Eldridge, 424 U.S. 319 (three-factor test for procedural due process)
- Paul v. Davis, 424 U.S. 693 (reputation alone is not liberty; articulation of stigma-plus test)
- Ligon v. LaHood, 614 F.3d 150 (5th Cir. treatment of §46110 exclusivity and inescapable intertwinement)
- Latif v. Holder, 686 F.3d 1122 (9th Cir. holding district courts may hear substantive and redress challenges to No Fly List)
- Mokdad v. Lynch, 804 F.3d 807 (6th Cir. on interplay of DHS TRIP and §46110; dismissal where TSA not named)