266 F. Supp. 3d 868
E.D. Va.2017Background
- Plaintiff Gulet' Mohamed, a U.S. citizen, was denied boarding abroad in January 2011, returned to the U.S., and alleges he remains on the government’s No Fly List (a subset of the Terrorist Screening Database maintained by the Terrorism Screening Center).
- Mohamed sued DOJ, FBI, TSC, DHS, and TSA challenging the List as violating substantive due process, as unlawful agency action, and under the non-delegation doctrine; procedural-due-process aspects were addressed in earlier rulings.
- The government explains the TSDB/No Fly List standards: nominations from agencies, a "reasonable suspicion" threshold for TSDB, and additional reasonable-suspicion criteria for No Fly placement tied to threats to aviation or national security.
- Mohamed argues the List is unconstitutional because it permits placement of U.S. citizens not charged with crimes based on predictive judgments, burdening rights to interstate and international travel and religious practice (e.g., pilgrimage).
- The court found Mohamed has standing to challenge the List based on his present avoidance of international travel, but concluded the List does not violate substantive due process, does not exceed delegated authority, and does not offend the non-delegation doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Substantive due process (right to travel) | No Fly List unlawfully burdens fundamental travel rights of U.S. citizens not charged with crimes; criteria are not narrowly tailored | List protects aviation/national security; predictive judgments and multi-level review are necessary and reasonable | Court: Interstate-travel right is fundamental; List significantly interferes but survives strict scrutiny as narrowly tailored to compelling interest |
| International travel (fundamental right?) | International travel is a fundamental liberty closely tied to other rights | International travel historically subject to greater regulation; rational-basis review appropriate | Court: No sound basis to treat international travel as fundamental; List survives rational-basis review |
| Non-delegation | Congress failed to provide an intelligible principle for the watchlist and TSA actions | Statutes direct TSA to prevent threats to aviation and share/notify about risky individuals; intelligible principles exist | Court: Congress provided intelligible principles; non-delegation claim rejected |
| Unlawful agency action / scope of TSA authority | No Fly List exceeds TSA/TSC authority and is arbitrary/capricious | Statutory scheme authorizes prevention of boarding and cooperation among agencies; procedures and review exist | Court: Agency action within statutory authority and not unlawful; Count II denied |
Key Cases Cited
- Kent v. Dulles, 357 U.S. 116 (right to travel and passport regulation precedent)
- Shapiro v. Thompson, 394 U.S. 618 (interstate travel as fundamental right)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements)
- Zablocki v. Redhail, 434 U.S. 374 (significant interference test for fundamental rights)
- Grutter v. Bollinger, 539 U.S. 306 (strict scrutiny and narrow tailoring principles)
- Haig v. Agee, 453 U.S. 280 (distinct treatment of international-travel restrictions for national security)
- Kleindienst v. Mandel, 408 U.S. 753 (deference to executive in national-security/foreign-affairs decisions)
- Humanitarian Law Project v. Holder, 561 U.S. 1 (deference in national-security factfinding)
- Mistretta v. United States, 488 U.S. 361 (intelligible principle doctrine)
- Touby v. United States, 500 U.S. 160 (non-delegation discussion)
- Whitman v. American Trucking Ass'ns, 531 U.S. 457 (limits on non-delegation challenges)
- Panama Refining Co. v. Ryan, 293 U.S. 388 (historical non-delegation success)
- A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (non-delegation precedent)