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Tarhuni v. Sessions

United States District Court, D. Oregon

July 27, 2018

JAMAL TARHUNI, Plaintiff,
v.
JEFFERSON B. SESSIONS, III, in his official capacity as Attorney General of the United States; CHRISTOPHER A. WRAY, in his official capacity as Director of the Federal Bureau of Investigation; and CHRISTOPHER M. PIEHOTA, in his official capacity as Director of the Terrorist Screening Center, Defendants.

          CELIA RUTH CHOY, Munger, Tolles & Olson LLP, DAVID HALLECK FRY NICHOLAS DANIEL FRAM, Munger, Tolles & Olson LLP, ROSE LEDA EHLER, Munger, Tolles & Olson LLP, AMY EDWARDS, Stoel Rives LLP, Attorneys for Plaintiff.

          BRIGHAM J. BOWEN, SAMUEL M. SINGER, United States Department of Justice Civil Division, Federal Programs Branch, ADAM D. KIRSCHNER, United States Department of Justice Civil Division, Federal Programs, Attorneys for Defendants Jefferson B. Sessions, III; Federal Bureau of Investigation; Christopher A. Wray; and Christopher M. Piehota.

          OPINION AND ORDER

          ANNA J. BROWN, United States Senior District Judge.

         This matter comes before the Court on Defendants' Motion (#149) to Dismiss Fourth Amended Complaint. On May 30, 2018, the Court provided its tentative rulings to the parties and gave them an opportunity to request supplemental briefing to address the Court's analysis in those rulings. On June 13, 2018, the Court granted in part Defendants' request for supplemental briefing and permitted Defendants to file a supplemental memorandum regarding Plaintiff's procedural due-process claim. See Order (#153). Defendants filed their Supplemental Memorandum (#154) on June 27, 2018. Plaintiff filed his Response (#155) to Defendants' Supplemental Memorandum on July 11, 2018. The Court has reviewed the entire record on this Motion and concludes it is sufficiently developed to resolve without oral argument.

         For the reasons- that follow, the Court GRANTS in part and DENIES in part Defendants' Motion and DISMISSES Plaintiff's Claim Two insofar as it is premised on Plaintiff s alleged liberty interest in freedom from false government stigmatization. The Court, however, declines to dismiss Plaintiff's Fourth Amended Complaint in any other respect.

         BACKGROUND

         Unless otherwise noted, the following facts are taken from Plaintiff's Fourth Amended Complaint (#141) and assumed to be true at this stage of the proceedings.

         In his Fourth Amended Complaint Plaintiff brings four claims based on his January 2012 placement on the No-Fly List and in the Terrorist Screening Database (TSDB). As explained below, Plaintiff was removed from the No-FLy List on February 23, 2015. Plaintiff alleges, and this Court assumes for purposes of this Motion, that he, nonetheless, remains in the TSDB.

         I. The TSDB and the No-Fly List

         Plaintiff's Fourth Amended Complaint contains allegations regarding the No-Fly List, TSDB, and Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) procedures that are generally consistent with the undisputed facts as they have been represented on the record in this case and other cases concerning the TSDB and No-Fly List in this district and in districts across the country. Where necessary to provide context and to assist with the Court's analysis, herein, the Court takes judicial notice of facts that may not be-included in Plaintiff's Fourth Amended Complaint but are consistent with Plaintiff's allegations and that are not subject to reasonable dispute in light of the history of this and related litigation.

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

         The No-Fly List is a subset of the TSDB, which is a consolidated terrorist watchlist maintained by the TSC that contains unclassified personally identifying information about those in the database. To nominate an individual to the TSDB the government must have "substantive derogatory criteria to establish a reasonable suspicion that the individual is a known or suspected terrorist." Fourth Am. Compl. (#141) at ¶ 13. That standard 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 and terrorist activities." Id. Through the TSDB the TSC provides terrorist identity information to various law-enforcement and screening agencies and entities, including the Transportation Security Administration (TSA) and U.S. Customs and Border Protection. Information in the TSDB is also shared with "certain foreign governments." Id.

         Plaintiff alleges placement in the TSDB results in (1) the individual being subjected to "enhanced screening" at the airport; (2) the government collecting an "encounter package" during each encounter with law enforcement or the TSA, including personal information, information about items in the individual's possession, financial information, and copies of electronic devices and data; and (3) the potential that the individual may be subject to a "temporary, threat-based expedited upgrade" to being placed on the No-Fly List based on "the identification of a category of individuals who may be used to conduct an act of domestic or international terrorism, irrespective of individualized suspicion." Id. at ¶ 15.

         Under procedures in place at the time Plaintiff initiated this action, individuals placed on the No-Fly List (including Plaintiff) were not given notice that they were on the List, were not advised of the factual basis for placement on the List, and did not have the right to a hearing before a neutral decision-maker to challenge their placement on the List.

         Individuals who wished to challenge their placement on the List could submit an inquiry to DHS TRIP together with any information that the individual believed could be relevant to his placement on the List. DHS TRIP then transmitted the inquiry to the TSC, which determined whether any action should be taken. Subject to judicial review, TSC was the final arbiter of whether an individual was removed from the List. After DHS TRIP and TSC completed their respective assessments, DHS TRIP sent a letter to the individual that advised any necessary changes had been made, but DHS TRIP did not inform the individual whether they were (or ever had been) in the TSDB, on the No-Fly List, or on any of the other sublists and did not state whether the individual had been removed from any of the lists or the TSDB.

         Although the DHS TRIP procedures have changed as they relate to United States citizens and lawful permanent residents (collectively referred to as U.S. Persons) who are on the No-Fly List and have been denied boarding an aircraft, Plaintiff alleges the DHS TRIP procedures remain unchanged for those who are in the jj TSDB but not on the No-Fly List.

         On June 24, 2014, during the pendency of this matter, this f Court held in Latif v. Holder that Defendants'[1] prior DHS TRIP procedures were constitutionally insufficient. 28 F.Supp.3d I 1134 (2014). As a result of the Court's Opinion and Order in Latif, Defendants revised DHS TRIP procedures as follows:

         If a U.S. Person is not allowed to board a commercial flight, that individual may submit an inquiry to DHS TRIP. If j DHS TRIP verifies the individual is on the No-Fly List, then DHS TRIP will send a letter notifying the individual of her or his status on the No-Fly List and providing the individual with the \ option to receive and/or to submit additional information. If the traveler elects to receive additional information, DHS TRIP will provide a second letter with additional information that includes the specific criteria under which the individual has I been placed on the List and an unclassified summary of the [ information that supports the individual's placement on the No-Fly List to the extent feasible in light of national-security and law-enforcement interests. The amount of information provided to the individual varies on a case-by-case basis. DHS TRIP will provide the unclassified summary of the reasons for placement on the No-Fly List if the national-security and law-enforcement \ interests at stake make doing so feasible.

         The second letter sent by DHS TRIP will include an I invitation for the individual to submit written responses that t may include exhibits or other materials that the individual deems relevant. The Administrator of the Transportation Security Administration (TSA) or his designee will review the individual's submission together with all information that the government relies on to maintain the individual's placement on the No-Fly j List. TSA will then provide the individual with a final written [ determination, including the basis for the decision (to the extent feasible in light of the national-security and law- [ enforcement interests at stake), and will notify the individual of his ability to seek further judicial review.

         II. Plaintiff s Inclusion on the No-Fly List and in the TSDB

         Plaintiff, an American citizen of Libyan descent, has lived in the United States for 42 years, became a United States citizen in 2006, is a resident of Oregon, and is married with four children. Plaintiff alleges he is "not a terrorist, and has never been engaged in conduct constituting, in preparation for, in aid of or otherwise related to terrorism or terrorist activities." Fourth Am. Compl. (#141) at ¶ 18.

         Since the 1980s Plaintiff has considered himself an opponent of Muammar Gaddafi's now-deposed 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 Tigard, Oregon. While in Libya Plaintiff provided cultural, language, and logistical assistance to MTI by helping to deliver medicine, medical equipment, and supplies to Libya. During these trips Plaintiff often worked with Libyan and Tunisian government and humanitarian organizations, including Tunisia Red Crescent. Plaintiff visited and worked at refugee camps in Tunisia for Libyans fleeing violence and helped bring American nurses into Libya through Egypt.

         Near the end of his third and final trip to Libya with MTI, Plaintiff arranged to return to Portland on January 17, 2012. When Plaintiff checked in for his flights from Tunis, Tunisia, to Portland on January 17, 2012, he was denied boarding. Plaintiff met with the manager of the Air France office in Tunis who showed Plaintiff three emails from the Air France office in Paris that indicated American authorities instructed Air France to deny Plaintiff boarding. The Air France officials referred Plaintiff to the United States Embassy for further information.

         Plaintiff contacted the United States Embassy in Tunis. Embassy personnel asked Plaintiff to come to the Embassy in Tunis on January 24, 2012, to meet with undisclosed United States agency personnel.

         On January 24, 2012, Plaintiff arrived at the American Embassy in Tunis with a Tunisian attorney and was met by Brian Zinn, an FBI Agent from Portland, Oregon, and another individual who was identified as the head of Embassy Security. Agent Zinn escorted Plaintiff to an interview room in which another FBI agent, Horace Thomas, was also present. Agent Zinn advised Plaintiff that he and Thomas were there to discuss "derogatory contacts" that Plaintiff made during his work in Libya.

         Agent Zinn interviewed Plaintiff in the presence of Plaintiff's Tunisian attorney for "several" 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 after consulting by telephone with his American attorney, and the interview was ended.

         On February 13, 2012, Plaintiff returned to the United States by air after making arrangements to do so with United States personnel at the Embassy in Tunis and Plaintiff's American counsel. Plaintiff, however, remained on the No-Fly List and remained unable to board a commercial aircraft after his return to the United States.

         Although Plaintiff was never asked to become an informant for the FBI, Plaintiff alleges he believes he was put on the No-Fly List as part of an effort by Agent Zinn to coerce Plaintiff into becoming an informant related to activities at the Masjid As-Saber Mosque where Plaintiff worships in Portland. Plaintiff bases this belief on Agent Zinn's participation in his interview in Tunis and follow-up contacts in Portland as well as allegations by two other members of the Masjid As-Saber Mosque that they were asked to become informants in exchange for their removal from the No-Fly List.

         In 2013 Plaintiff submitted a DHS TRIP inquiry seeking review of his placement on the No-Fly List. Consistent with procedures in place at that time 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.'"

         Following the Court's ruling in Latif the Court entered its Case-Management Order (#79) issued October 3, 2014, and directed Defendants in this case to reconsider Plaintiff s DHS TRIP inquiry under the newly-promulgated procedures.

         By letter dated November 24, 2014, Defendants notified Plaintiff that he remained on the No-Fly List because Defendants identified Plaintiff as an "individual who 'may be a threat to civil aviation or national security'" and specifically noted Plaintiff is "an individual who represents a threat of engaging in or conducting a violent act of terrorism and who is operationally capable of doing so." As to the unclassified summary of reasons for Plaintiff's placement on the No-Fly List, Defendants informed Plaintiff that "[t]he Government has concerns about the nature and purpose of Jamal Tarhuni's travel to Libya in 2011 and 2012." The letter invited Plaintiff to provide any responsive information no later than December 15, 2014.

         After obtaining an extension of the deadline to submit responsive materials, Plaintiff provided a written response to Defendants by letter dated January 23, 2015, regarding their asserted reasons for placing Plaintiff on the No-Fly List. On February 23, 2015, Defendants advised Plaintiff that he had been removed from the No-Fly List "based on the totality of available information, including your submissions to DHS TRIP."

         III. Ongoing Effects of Plaintiff's Placement on the No-Fly List and/or in the TSDB

         Although Plaintiff has been removed from the No-Fly List, he alleges his placement in the TSDB continues to burden his ability to travel. Plaintiff alleges he experiences "delays and enhanced security measures every time he goes to the airport." Fourth Am. Compl. (#141) at ¶ 58. For example, when Plaintiff dropped his 14-year-old son off at the airport on April 14, 2016, Plaintiff was not permitted to accompany his son to the gate. Id. On January 9 and 13, 2017, when Plaintiff flew between Portland and Seattle for work, he was delayed "for an extended period" at the airline check-in counter, was issued a boarding pass marked "SSSS," and was subjected to additional screening and questioning both at the TSA screening checkpoint and at the gate before he was permitted to board. Id. at ¶ 59. Similarly, when Plaintiff and his family traveled to San Jose, California, the following month, Plaintiff was again subjected to enhanced screening and questioning at the TSA checkpoint and at the gate. On his return flight he was also "followed in an intimidating manner from the checkpoint to his gate by five TSA agents." Id. at ¶ 60. Plaintiff alleges he no longer travels with his wife and son because TSA agents discussed subjecting them to additional screening during that San Jose trip. Id. at ¶ 61.

         IV. Procedural Background and Plaintiff's Current Claims for Relief

         After Plaintiff was removed from the No-Fly List, Defendants moved to dismiss this action as moot. Because at that time Plaintiff only sought injunctive relief related to his removal from the No-Fly list, the Court ...


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