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Kadura v. Lynch

United States District Court, E.D. Michigan, Southern Division

March 8, 2017

YASEEN KADURA, et al., Plaintiffs,
v.
LORETTA E. LYNCH, et al., Defendants.

          OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT (ECF NO. 42)

          LINDA V. PARKER U.S. DISTRICT JUDGE.

         Plaintiffs 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.

         II. Standard for Motion to Dismiss for Lack of Subject-Matter Jurisdiction

         Federal 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 exist.”).

         “When 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)).

         III. Standard for Motion to Dismiss for Failure to State a Claim

         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 557).

         As the 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.

         In 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).

         Ordinarily, 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).

         IV. Factual and Procedural Background

         Plaintiffs' 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.[1] (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.)

         The TSC 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.)

         Individuals 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. ¶ 83.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiffs 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, 51.)

         V. Analysis

         A. Standing

         To 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).

         Defendants 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, ...


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