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Tarhuni v. Holder

United States District Court, D. Oregon

March 26, 2014

JAMAL TARHUNI, Plaintiff,
v.
ERIC HOLDER, in his official capacity as Attorney General of the United States; FEDERAL BUREAU OF INVESTIGATION; JAMES B. COMEY, in his official capacity as Director of the Federal Bureau of Investigation; UNITED STATES DEPARTMENT OF STATE; JOHN KERRY, in his official capacity as Secretary of State; FBI TERRORISM SCREENING CENTER; TIMOTHY HEALY, in his official capacity as Director of the FBI Terrorism Screening Center; BRIAN ZINN, an employee of the Federal Bureau of Investigation, in his individual capacity; HORACE THOMAS, an employee of the Federal Bureau of Investigation, in his individual capacity, Defendants

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For Plaintiff: STEVEN GOLDBERG, Portland, OR; THOMAS H. NELSON, Thomas H. Nelson & Associates, Welches, OR.

For Eric Holder, Federal Bureau of Investigation, James B. Comey, United States Department of State, John Kerry, FBI Terrorism Screening Center, and Timothy Healy, Defendants: BRIGHAM J. BOWEN, Trial Attorney, United States Department of Justice, Civil Division, Federal Programs Branch, Washington, DC.

For Brian Zinn and Horace Thomas, Defendant: REGINALD M. SKINNER, Trial Attorney, United States Department of Justice, Civil Division, Washington, DC.

OPINION

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OPINION AND ORDER

ANNA J. BROWN, United States District Judge.

This matter comes before the Court on the following Motions:

1. Motion (#20) to Dismiss for Failure to State a Claim and for Lack of Jurisdiction filed by Defendants FBI Terrorism Screening Center, Federal Bureau of Investigation, Timothy Healy, Eric Holder, John Kerry, James B. Comey, and United States Department of State (collectively referred to as Official Capacity Defendants), and

2. Motion (#23) to Dismiss Plaintiff's First Amended Complaint filed by Defendants Horace Thomas and Brian Zinn (collectively referred to as Individual Capacity Defendants).

For the reasons that follow, the Court GRANTS in part and DENIES in part the Official Capacity Defendants' Motion (#20) to Dismiss and GRANTS the Individual Capacity Defendants' Motion (#23) to Dismiss.

PROCEDURAL BACKGROUND

The Official Capacity Defendants moved to dismiss Plaintiff's First Amended Complaint (#13) under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that Plaintiff failed to allege a justiciable case and controversy with respect to Claims One and Five and failed to state a claim on which relief may be granted on all claims.

The Individual Capacity Defendants moved to dismiss Plaintiff's First Amended Complaint under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) on the grounds that this Court does not have personal jurisdiction over Defendant Thomas and the Individual Capacity Defendants are entitled to qualified immunity as a matter of law.

The Court heard oral argument on November 8, 2013. At oral argument Plaintiff acknowledged the First Amended Complaint contained several pleading deficiencies, including many that made consideration of the pending Motions difficult. Accordingly, the Court ordered Plaintiff to file a proposed Second Amended Complaint to cure the pleading deficiencies as proposed at oral argument. The Court also allowed Defendants the opportunity to file supplemental memoranda in further support of their Motions to Dismiss in response to Plaintiff's Proposed Second Amended Complaint and allowed Plaintiff to file a supplemental reply memorandum if desired.

On December 12, 2013, Plaintiff filed a Proposed Second Amended Complaint (#40), and the parties timely filed their supplemental memoranda.

For purposes of resolving the pending Motions, the Court deems the Proposed Second Amended Complaint (PSAC) as the operative Complaint.[1] Accordingly, the Official and Individual Capacity Defendants' Motions to Dismiss are construed as applying to Plaintiff's PSAC.

FACTUAL BACKGROUND

Plaintiff alleges the following pertinent facts:

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I. The No-Fly List

Defendant Federal Bureau of Investigation (FBI), through Defendant Terrorism Screening Center (TSC), is responsible for development and maintenance of the No-Fly List (List), which consists of the names of individuals whom airlines serving or flying within the United States may not transport. Most individuals on the List, including Plaintiff, are prohibited from flying into, out of, or over Canadian airspace as well as American airspace.

TSC places individuals on the List because " there is a reasonable suspicion that the individuals are known or suspected terrorists." PSAC ¶ 17. Such " reasonable suspicion" requires " articulable facts which, taken together with rational inferences, reasonably warrant the determination that an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of or related to terrorism or terrorist activities." PSAC ¶ 17. Individuals placed on the List, including Plaintiff, are not given notice that they are on the List, are not advised of the factual basis for placement on the List, and do not have the right to a hearing before a neutral decision-maker to challenge their placement on the List.

Individuals who wish to challenge their placement on the List may submit an inquiry to the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP). DHS TRIP then transmits the inquiry to the TSC, which determines whether any action should be taken. TSC is the final arbiter of whether an individual is removed from the List.

II. Plaintiff's Inclusion on the No-Fly List

Plaintiff, an American citizen of Libyan descent, has lived in the United States for 38 years and is a resident of Oregon. Since the 1980s Plaintiff has considered himself an opponent of Muammar Gaddafi's regime in Libya. In the wake of the revolution in Libya overthrowing the Gaddafi regime, Plaintiff traveled to Libya three times in 2011 and early 2012 as a volunteer with Medical Teams International (MTI), a nongovernmental organization based in Oregon. While in Libya Plaintiff provided cultural, language, and logistical assistance to MTI by helping deliver medicine, medical equipment, and supplies to Libya, and Plaintiff often worked with Libyan and Tunisian government and humanitarian organizations.

Near the end of his last assignment with MTI, Plaintiff arranged to return to Portland on January 17, 2012, leaving Tunis, Tunisia, on an Air France flight to Paris, France. When Plaintiff checked in at the Air France ticket counter in Tunis, however, the ticket agent told him in the presence of other travelers that he would not be allowed to board his flight and that he should speak to United States Embassy officials. Plaintiff asked to speak to the person in charge of the Air France office and was taken to the office of Mahmoud Keshlef. In Mr. Keshlef's office Plaintiff was shown three emails from the Air France office in Paris. The first email dated January 12, 2012, contained instructions to prevent Plaintiff from boarding his flight. The second email delivered approximately two hours later instructed Air France officials in Tunis to permit Plaintiff to board his flight. A third email dated January 13, 2012, however, again instructed Air France to prevent Plaintiff from boarding.

On January 17, 2012, Plaintiff called the American Embassy in Tunis and was connected with United States Consular Officer Michael Sweeney. Sweeney informed Plaintiff that he did not have any information, but he stated he would contact somebody in Washington, D.C., and call Plaintiff when he had more information. On

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January 18, 2012, Plaintiff went to the American Embassy in Tunis and met with Sweeney. Sweeney stated he did not have any additional information. Plaintiff informed Sweeney that he had purchased an airline ticket that was valid for three months and that it was about to expire.

Two hours later Consular Officer Sweeney called Plaintiff and advised him that " personnel from some undisclosed U.S. agency" wanted to interview him. PSAC ¶ 27. Plaintiff suggested they start the interview immediately, but Sweeney indicated that would not be possible because the agency personnel had to travel to Tunis. Because his airplane ticket was about to expire, Plaintiff asked if the Embassy would cover the additional cost of purchasing a new airplane ticket. Sweeney responded it would not. PSAC ¶ 27.

On January 22, 2012, after Plaintiff returned to Libya, he received a call from Consular Officer Sweeney. Sweeney put Plaintiff on the line with FBI Agent Zinn. Agent Zinn identified himself as an FBI agent and proposed an interview for January 24, 2012. Plaintiff requested the interview take place in Libya or at a neutral location such as a hotel in Tunis, but Agent Zinn stated the interview had to take place at the United States Embassy in Tunis. Agent Zinn advised Plaintiff that he would return to the United States if Plaintiff failed to appear for the interview and nothing would change with respect to Plaintiff's ability to fly home. PSAC ¶ ¶ 28-29.

On January 24, 2012, Plaintiff arrived at the American Embassy in Tunis with a Tunisian attorney and was met by Agent Zinn and the head of Embassy Security. Agent Zinn escorted Plaintiff to an interview room in which Horace Thomas, Legal Attache for the U.S. Embassies in Algiers, Algeria, and Tunis, Tunisia, was also present. Agent Zinn advised Plaintiff that he and Thomas were there to assess " derogatory contacts" that Plaintiff had made while in Libya and which led to Plaintiff being prevented from boarding his flight back to the United States. PSAC ¶ 30.

In the presence of Plaintiff's Tunisian attorney, Agent Zinn interviewed Plaintiff for 31/2 hours as to his activities in Libya; the names of people he worked with; his views on terrorist organizations; whether he had contacts with any terrorist, mujahideen, or Islamist groups; whether he had knowledge of any planned attack on the United States or its allies; and his religious views and practices.

During a break in the interview, Agent Zinn told Plaintiff that he would be permitted to return to the United States if he passed a polygraph test. Plaintiff agreed to take the test. When another FBI agent asked Plaintiff to waive his constitutional rights before taking the test, however, Plaintiff refused and thereby ended the interview. Although Plaintiff was free to leave the Embassy throughout the interview, he was not free to return to the United States in light of the fact that he was prohibited from boarding an airplane. In addition, because the interview was scheduled on such short notice, Plaintiff's American attorney was unable to travel to Tunisia to represent Plaintiff during the interrogation.

Following the interview, Plaintiff and his American attorney contacted Consular Officer Sweeney about what Plaintiff could do to return to the United States, but Sweeney was unable to provide any guidance. Due in part to Plaintiff's family and attorney contacting United States Senator Ron Wyden's office, Sweeney informed Plaintiff in " early February [2012]" that he could return home notwithstanding his inclusion on the No-Fly List. Accompanied by his American attorney, Plaintiff flew from Tunis to Paris on February 13, 2012; from Paris to Amsterdam on February 14,

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2012; and then from Amsterdam to Portland.

On February 29, 2012, however, Plaintiff was prohibited from boarding a flight from Portland to Seattle. In early March 2012 Plaintiff traveled by rail to Minneapolis, Minnesota, to represent MTI at an event, and Plaintiff continued to Washington, D.C., by automobile to attend meetings. On March 8, 2013, Plaintiff was invited to Washington, D.C., to participate in a meeting the following week with Libyan government officials, but attempts to obtain a waiver through Senator Wyden's office to permit him to fly were unsuccessful. Plaintiff, therefore, was unable to make that trip. Plaintiff also attempted to fly from Portland to Seattle on December 11, 2012, and July 23, 2013, but he was not permitted to board those flights. On July 23, 2013, Plaintiff " was told by Alaska Airlines employees, at the ticket counter in front of other passengers, that he was not allowed to board due to information they received from TSA." PSAC ¶ 47.

As a result of his alleged placement on the List, Plaintiff has been unable to continue volunteering with MTI in Libya and has been unable to explore potential business and employment opportunities in Libya. Plaintiff also has been unable to visit family in Libya and to attend family events. Plaintiff knows if he were able to travel to Libya, he would be unable to return to the United States. PSAC ¶ 49. Because Plaintiff has had to explain to people why he is unable to travel by air to meet various commitments, he contends he has been stigmatized as a terrorist or an associate of terrorists. PSAC ¶ 51.

Although Plaintiff has never officially been told he is on the List, he suspects he is because of his experiences in being denied boarding in Tunisia and subsequently in Portland.

Plaintiff submitted a DHS TRIP inquiry seeking review of his placement on the No-Fly List. Plaintiff received a letter from DHS TRIP on July 25, 2013, advising him that DHS " 'conducted a review of any applicable records in consultation with other federal agencies, as appropriate. It has been determined that no changes or conditions are warranted at this time.'" PSAC ¶ 45. The July 25, 2013, letter advised Plaintiff of his right to request an administrative appeal, but the letter did not provide any information as to the basis for Plaintiff's inclusion on the List.

III. Plaintiff's Claims for Relief

Plaintiff asserts five claims for relief against various combinations of Defendants.

A. Claim One

In Claim One Plaintiff alleges all Defendants violated Plaintiff's right to return to the United States as guaranteed by the Citizenship Clause of the Fourteenth Amendment to the United States Constitution. Plaintiff alleges being placed on the No-Fly List while overseas " effectively rendered Plaintiff stateless, thereby depriving Plaintiff of all of his rights and protections under the U.S. Constitution." PSAC ¶ 52. Plaintiff also alleges his " continued presence on the List . . . will continue to affect his ability to return to the U.S. if Plaintiff travels outside of the U.S. by boat or alternate mode of transport, but seeks to return by plane." PSAC ¶ 53. Plaintiff alleges this violation of his Fourteenth Amendment rights gives rise to a cause of action for damages against the Individual Capacity Defendants pursuant to Bivens v. Six Unnamed Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

Plaintiff seeks injunctive and declaratory relief as to all Defendants and $1 million in damages from the Individual Capacity Defendants.

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B. Claim Two

In two separate counts in Claim Two Plaintiff alleges all Defendants violated his substantive due-process rights.

1. Count One

In Count One of Claim Two Plaintiff alleges Defendants violated Plaintiff's protected liberty interest in international travel. Plaintiff alleges he has a liberty interest in international travel free from unreasonable burdens, and his continuing inclusion on the No-Fly List lacks a rational relationship to any legitimate government interest because Plaintiff does not pose a security threat to commercial aviation. Plaintiff alleges Defendants' violation of Plaintiff's right to international travel gives rise to a Bivens cause of action for damages against the Individual Capacity Defendants.

Accordingly, Plaintiff seeks injunctive and declaratory relief against all Defendants and $1 million in damages from the Individual Capacity Defendants.

2. Count Two

In Count Two of Claim Two Plaintiff alleges all Defendants violated Plaintiff's right to be free from false government stigmatization as an individual who is known or suspected to be involved in terrorist activity. Plaintiff alleges his inclusion on the No-Fly List will continue to result in foreseeable public disclosure of Plaintiff's status on the List, and he alleges this violation of his right to be free from false government stigmatization gives rise to a Bivens cause of action for damages against the Individual Capacity Defendants.

Accordingly, Plaintiff seeks injunctive and declaratory relief against all Defendants and $1 million in damages from the Individual Capacity Defendants.

C. Claim Three

In Claim Three Plaintiff alleges Defendants Holder, FBI, Comey, TSC, and Healy deprived Plaintiff of substantive due process by violating his fundamental right to interstate travel by airplane. Plaintiff again alleges he does not present a security threat to commercial aviation, and his placement on the List, therefore, lacks " any rational relationship to a compelling government interest." PSAC ¶ 61.

Plaintiff seeks injunctive and declaratory relief ...


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