United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO
DISMISS PLAINTIFFS' AMENDED COMPLAINT (ECF NO.
V. PARKER U.S. DISTRICT JUDGE.
Dr. Naji Abduljaber, Mr. Abdus Samad Tootla, Mr. Alaa Saade,
and Mr. Ahmed Saleh Abusaleh filed this action based on their
alleged inclusion in the Terrorist Screening Database.
Defendants are Loretta E. Lynch, in her capacity as Attorney
General of the United States; James B. Comey, in his official
capacity as the Director of the Federal Bureau of
Investigation (“FBI”); Christopher M. Piehota, in
his official capacity as Director of the Terrorist Screening
Center (“TSC”); Jeh Johnson, in his official
capacity as the Secretary of the Department of Homeland
Security; R. Gil Kerlikowske, in his official capacity as
Commissioner of the United States Customs and Border
Protection (“CBP”); John S. Pistole, in his
official capacity as Administrator of the United States
Transportation Security Administration (“TSA”);
and John T. Morton, in his official capacity as Director of
the United States Immigration and Customs Enforcement
(“ICE”) (collectively, “Defendants”).
Presently before the Court is Defendants' motion to
dismiss Plaintiffs' amended complaint. (ECF No. 42.) The
parties have fully briefed the motion. Finding the facts and
legal arguments sufficiently presented in the parties'
briefs, the Court is dispensing with oral argument pursuant
to Eastern District of Michigan Local Rule 7.1(f). For the
reasons that follow, the Court is granting Defendants'
motion to dismiss.
Standard for Motion to Dismiss for Lack of Subject-Matter
Rule of Civil Procedure 12(b)(1) allows for motions asserting
lack of jurisdiction of the subject matter. Fed.R.Civ.P.
12(b)(1). Where a Rule 12(b)(1) motion contains a factual
attack, the court need not construe the allegations in the
non-moving party's favor because the burden of proving
jurisdiction is on the party asserting it. Moreover, it is
recognized that a party faced with a Rule 12(b)(1) motion to
dismiss may not rest on the truth of the facts asserted in
its pleadings. See Ohio Nat'l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir.1990) (“[W]hen
a court reviews a complaint under a factual attack [on
jurisdiction], ... no presumptive truthfulness applies to the
factual allegations.”); Exchange Nat'l Bank of
Chicago v. Touch Ross & Co., 544 F.2d 1126, 1131 (2d
Cir.1976) (“[A] party opposing a Rule 12(b)(1) motion
cannot rest on the mere assertion that factual issues may
a defendant moves for a motion to dismiss under both Rule
12(b)(1) and (b)(6), the court should consider the 12(b)(1)
motion first because the 12(b)(6) motion is moot if subject
matter jurisdiction does not exist.” Taylor v.
Dep't of Human Servs. of Michigan, No. 09-CV-14639,
2010 WL 1257347, at *1-2 (E.D.Mich. Mar. 30, 2010) (quoting
Moir v. Greater Cleveland Reg'l Transit Auth.,
895 F.2d 266, 269 (6th Cir.1990)).
Standard for Motion to Dismiss for Failure to State a
motion to dismiss pursuant to Rule 12(b)(6) tests the legal
sufficiency of the complaint. RMI Titanium Co. v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.
1996). Under Federal Rule of Civil Procedure 8(a)(2), a
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” To survive a motion to dismiss, a complaint
need not contain “detailed factual allegations, ”
but it must contain more than “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action . . ..” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint
does not “suffice if it tenders ‘naked
assertions' devoid of ‘further factual
enhancement.' ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
Supreme Court provided in Iqbal and
Twombly, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.' ” Id. (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). The
plausibility standard “does not impose a probability
requirement at the pleading stage; it simply calls for enough
facts to raise a reasonable expectation that discovery will
reveal evidence of illegal [conduct].”
Twombly, 550 U.S. at 556.
deciding whether the plaintiff has set forth a
“plausible” claim, the court must accept the
factual allegations in the complaint as true. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). This presumption is not
applicable to legal conclusions, however. Iqbal, 556
U.S. at 668. Therefore, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555).
the court may not consider matters outside the pleadings when
deciding a Rule 12(b)(6) motion to dismiss. Weiner v.
Klais & Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997)
(citing Hammond v. Baldwin, 866 F.2d 172, 175 (6th
Cir. 1989)). A court that considers such matters must first
convert the motion to dismiss to one for summary judgment.
See Fed. R. Civ. P 12(d). However, “[w]hen a
court is presented with a Rule 12(b)(6) motion, it may
consider the [c]omplaint and any exhibits attached thereto,
public records, items appearing in the record of the case and
exhibits attached to [the] defendant's motion to dismiss,
so long as they are referred to in the [c]omplaint and are
central to the claims contained therein.” Bassett
v. Nat'l Collegiate Athletic Ass'n, 528 F.3d
426, 430 (6th Cir. 2008).
Factual and Procedural Background
lawsuit arises out of the federal government's response
to domestic terrorism. The Terrorist Screening Center
(“TSC”), an agency overseen by the FBI, maintains
a list of individuals who are suspected terrorists. (Amend.
Compl. ¶ 33.) There are two subsets to the TSC's
database: the Selectee List and the No-Fly
List. (Id. at ¶ 28.) Individuals
on the Selectee List are able to fly after extra screening at
airports and border screenings, while individuals on the
No-Fly List are prevented from boarding flights.
(Id.) While the FBI nominates individuals to the
watch list for suspected ties to domestic terrorism, TSC
makes the final determination whether an individual belongs
on the list. (Id. at ¶ 50.) In determining
whether to place an individual on the Selectee List or No-Fly
List, TSC must have “reasonable suspicion requir[ing]
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 and of or
related to terrorism and terrorist activities.”
(Id. at ¶ 51.)
is responsible for disseminating the list of names to other
government agencies for their use. For example, TSC provides
their database of names to the Transportation Security
Administration (“TSA”) to pre-screen passengers.
(Id. at ¶ 29; see also ECF No. 42 at
Pg ID 856.) Plaintiffs allege that the federal government
distributes the names on this database to “state and
local authorities, foreign governments, corporations, private
contractors, gun sellers, [and] the captains of sea-faring
vessels, among others.” (Amend. Compl. ¶ 38.)
who wish to challenge their placement on the Selectee or
No-Fly List may seek redress from TSA's screening program
by filing an inquiry with the Department of Homeland
Security's Traveler Redress Inquiry Program (“DHS
TRIP”). (Id. at ¶ 80.) The DHS TRIP
process is the only opportunity for an individual to
challenge their placement in the TSC database. (Id.
at ¶ 81.) When an individual challenges their placement,
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).
According to Plaintiffs, the Department of Homeland Security
responds “with a standard form letter that neither
confirms nor denies the existence of any terrorist watch list
records relating to the individual.” (Amend. Compl.
Dr. Naji Abduljaber was handcuffed and detained by Customs
and Border Protection (“CBP”) on July 8, 2007
when he attempted to re-enter the United States through the
Ambassador Bridge in Detroit, Michigan. (Id. at
¶ 88.) His detention lasted approximately four hours.
(Id. at ¶ 89.) Plaintiff Abduljaber was again
detained at the Detroit Metropolitan Airport on December 13,
2010. (Id. at ¶ 90.) After his second
detention, Plaintiff Abduljaber filed a redress request with
DHS TRIP. (Id. at ¶ 93.) Plaintiff Abduljaber
received a response from DHS TRIP on January 5, 2012 that
failed to provide any details as to whether he was still on
the list. (Id. at ¶ 94.) As of the filing of
the amended complaint, Plaintiff Abduljaber is still
subjected to “prolonged searches, detention[, ] and
questioning, every time he travels by air.”
(Id. at ¶ 96.)
Abdus Samad Tootla was first subjected to a secondary
inspection by CBP at the Detroit Metropolitan Airport on
March 18, 2008. (Id. at ¶ 98.) Plaintiff Tootla
filed a redress request through DHS TRIP and received a
letter similar to Plaintiff Abduljaber's on January 10,
2013. (Id. at ¶¶ 102-03.) Plaintiff Tootla
attempted to fly subsequent to his DHS TRIP redress request
on November 12, 2013 and was detained by CBP officers who
questioned him in a room. (Id. at ¶¶ 104,
106.) As of the filing of the amended complaint, Plaintiff
Tootla is still subjected to similar treatment every time he
travels by air. (Id. at ¶ 108.)
Alaa Saade was first subjected to secondary screening in the
summer of 2012 at the Detroit Metropolitan Airport.
(Id. at ¶¶ 111-12.) On May 6, 2013,
Plaintiff Saade was on a commercial flight that landed at the
Detroit Metropolitan Airport. (Id. at ¶ 117.)
Upon arrival, Plaintiff Saade was escorted by a CBP officer
for a secondary inspection that included “prolonged
searches, detention and questioning.” (Id.)
Two months later, on July 29, 2013, Plaintiff Saade was
detained at the Ambassador Bridge in Detroit, Michigan for
approximately six hours by CBP after a brief trip to Canada.
(Id. at ¶ 115.) Plaintiff Saade alleges that
CBP officers “confiscate his phone and download the
data from his phone every time he re-enters the United States
at the United States-Canada border and every time he travels
by air.” (Id. at ¶ 121.)
Saade filed a redress request through DHS TRIP and received a
response on October 28, 2013. (Id. at ¶¶
113-14.) The response did not confirm or deny the existence
of any list and Plaintiff Saade's placement on it.
(Id. at ¶ 83.) As of the filing of this amended
complaint, Plaintiff Saade “continues to be subjected
to prolonged searches, detention and questioning when
re-entering the United States at the United States-Canada
border” and every time he travels by air. (Id.
at ¶¶ 119-20.)
Ahmed Saleh Abusaleh was first subject to a secondary
inspection on February 11, 2004 at the Detroit Metropolitan
Airport while attempting to board a flight. (Id. at
¶ 123.) Plaintiff Abusaleh filed a redress request
through DHS TRIP and received a response on December 3, 2012.
(Id. at ¶¶ 128-29.) The response did not
confirm or deny the existence of any list and Plaintiff
Abusaleh's placement on it. (Id. at ¶¶
83, 129.) Plaintiff Abusaleh was subjected to secondary
inspection again on November 23, 2013 at the Atlanta
International Airport. (Id. at ¶ 131.) Not only
was he removed to a room for secondary questioning, but a CBP
officer asked Plaintiff Abusaleh if he would agree to further
questioning at his home. (Id. at ¶ 133.) As of
the filing of this amended complaint, Plaintiff Abusaleh
continues to face similar treatment every time he travels by
air. (Id. at ¶ 134.)
filed a six-count amended complaint on March 10, 2016 against
Defendants. (ECF No. 40.) On May 9, 2016, Defendants filed a
motion to dismiss Plaintiffs' amended complaint. (ECF No.
42.) Plaintiffs filed a response on June 17, 2016 and
Defendants' filed a reply on July 8, 2016. (ECF Nos. 48,
establish standing, a plaintiff must show that: (1) he has
suffered an injury in fact that is “concrete and
particularized” and “actual or imminent”;
(2) the injury is “fairly ... trace[able] to the
challenged action of the defendant”; and (3) it is
“likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992) (internal quotation marks omitted).
first argue that this Court should dismiss Plaintiffs'
claims because Plaintiffs lack constitutional standing.
Defendants contend that Plaintiffs have failed to allege
sufficient facts to demonstrate that there is a “
‘real and immediate threat' that they will be
subjected to the alleged injury of additional security
screening in the future.” (ECF No. 42 at Pg ID 869.) In
particular, Defendants note that the instances of additional
screening that led to this suit occurred between February
2004 through 2013. (Id.) Defendants rely on City
of Los Angeles v. Lyons, 461 U.S. 95 (1983) in asserting
that Plaintiffs' past incidents do not satisfy the
standing requirements, ...