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Beydoun v. Holder

United States District Court, Eastern District of Michigan, Southern Division

February 13, 2015

Nasser Beydoun, Plaintiff,
v.
Eric Holder, Jr., et al., Defendants.

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO STAY [6]

JUDITH E. LEVY, United States District Judge

Plaintiff Nasser Beydoun brought this class action complaint against defendants Eric Holder, Jr., James B. Comey, and Christopher M. Piehota (collectively “defendants”) alleging unlawful agency action and violations of the Fifth Amendment due process clause for failure to provide post-deprivation notice and hearing. These allegations stem from (1) the plaintiff’s placement on the Selectee List, which results in additional screening by the Transportation Security Administration (“TSA”) prior to boarding an airplane, and (2) the defendants’ alleged failure to provide a constitutionally adequate remedy to challenge plaintiff’s inclusion on the Selectee List. (Dkt. 1).

Before the Court is defendants’ motion to stay the case pending the Sixth Circuit’s decision in Mokdad v. Holder, Case No. 14-1094, a case defendants argue will provide controlling precedent regarding the Court’s subject matter jurisdiction to consider claims like those in this case. Defendants further move the Court to permit their answer or response to this complaint to be filed thirty days after the Sixth Circuit issues its decision in Mokdad. Plaintiff opposes the motion arguing that the matter before the Sixth Circuit is distinguishable from this case.

For the reasons set forth below, the Court grants defendants’ motion to stay and orders that defendants’ answer or response to the complaint be filed within thirty days of the Sixth Circuit’s ruling in Mokdad.

I. Background

The TSA has established Security Directives with respect to two groups of people it has determined to pose a potential risk to aviation safety. The first group is made up of individuals who are placed on a No Fly List and are entirely prohibited from flying. The second group includes those placed on the Selectee List who must undergo additional screening before they are allowed to fly. Both of these lists are subsets of the Terrorist Screening Database (“TSDB”). (Dkt. 6-4).

For those individuals who believe they have been wrongly placed on either of these lists, Congress developed the Department of Homeland Security Traveler Inquiry Program (“DHS TRIP”), which it describes as “a timely and fair redress process for individuals who believe they were delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat.” 49 U.S.C. §44926. Once an inquiry is made by an individual regarding his or her placement on either of the lists, the “TSA, in coordination with the TSC and other appropriate federal law enforcement or intelligence agencies, if necessary, will review all the documentation and information requested from the individual, correct any erroneous information, and provide the individual with a timely written response.” 49 C.F.R. § 1560.205(d). Upon completion of the review, DHS TRIP sends a final determination letter describing the agency’s findings to the complainant.

In Mokdad, the plaintiff challenged his alleged placement on the No Fly List as well as the constitutionality of DHS TRIP. Defendants moved to dismiss, arguing that the Sixth Circuit had original jurisdiction over the plaintiff’s claims.

The relevant portion of 49 U.S.C. § 46110 states:

[A] person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security with respect to security duties and powers designated to be carried out by the Under Secretary or the Administrator of the Federal Aviation Administration with respect to aviation duties and powers designated to be carried out by the Administrator) in whole or in part under this part, part B, or subsection (l) or (s) of section 114 may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business.
When the petition is sent to the Secretary, Under Secretary, or Administrator, the court [of appeals] has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order and may order the Secretary, Under Secretary, or Administrator to conduct further proceedings…the court may grant interim relief by staying the order or taking other appropriate action when good cause for its action exists.

49 U.S.C. § 46110 (emphasis added).

The District Court dismissed the case on jurisdictional grounds, finding that, since any claim related to the No Fly list required review of statutory mandates imposed upon the TSA, the law granted exclusive jurisdiction of the claim with the courts of appeals. See Dkt. 6-4; 49 U.S.C. § 46110.

The question before the Sixth Circuit in Mokdad is whether 49 U.S.C. ยง 46110, a statute vesting the courts of appeals with exclusive jurisdiction to consider challenges of final orders of the TSA, governs challenges to an alleged denial of boarding an airplane as well as challenges to the administrative redress process afforded by DHS TRIP. ...


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