Court: District Court, E.D. Virginia; July 20, 2017; Federal District Court
Gulet Mohamed, a U.S. citizen, contests his presumed inclusion on the No Fly List, which is maintained by the Terrorism Screening Center (TSC) to prohibit individuals from boarding commercial flights. He argues that the No Fly List is unconstitutional and unlawful for U.S. citizens who have not been charged or convicted of any crimes, and for whom the government lacks probable cause to believe they are involved in criminal activity. The court has previously addressed procedural due process concerns and is currently considering cross-motions for summary judgment regarding his remaining claims: substantive due process (Count I), unlawful agency action (Count II), and violation of the non-delegation principle (Count IV). The court finds that the No Fly List does not violate substantive due process, is lawful under the non-delegation doctrine, and does not exceed agency authority. Consequently, the court grants the Defendants’ motion and denies Mohamed’s motion for Counts I, II, and IV.
Background details reveal that Mohamed left the U.S. in 2009, was detained and allegedly tortured in Kuwait in 2010, and was later denied boarding while attempting to return to the U.S. Following a lawsuit against various government officials, he was allowed to return to the U.S. on January 21, 2011, and claims he remains on the No Fly List despite no criminal charges or detainment occurring since his return. The No Fly List is part of a broader Terrorist Screening Database (TSDB), which requires "reasonable suspicion" to include individuals suspected of terrorism-related activities, supported by specific derogatory information.
The No Fly List aims to enhance national security by preventing individuals suspected of terrorism from traveling to execute or further their terrorist activities. It serves two primary purposes: safeguarding commercial aircraft from terrorist threats and limiting the travel of suspected terrorists. The list is designed to keep radicalized individuals from traveling abroad and to prevent foreign fighters from entering the U.S. via commercial transport. Inclusion on the No Fly List requires a determination of "reasonable suspicion" that an individual poses a threat related to terrorism, which includes committing acts against aircraft, the homeland, U.S. government facilities abroad, or engaging in violent acts of terrorism. This suspicion must be substantiated by "articulable" intelligence and assessed based on the totality of circumstances.
Under Federal Rule of Civil Procedure 56, summary judgment is warranted when there are no genuine material facts in dispute, and the moving party is entitled to judgment as a matter of law. The burden is on the party seeking summary judgment to demonstrate the absence of genuine issues, while the opposing party must present specific facts to show a genuine dispute exists. A mere factual disagreement will not suffice; the dispute must be material, affecting the case's outcome under the governing law. Facts are evaluated favorably toward the nonmoving party, with reasonable inferences drawn in their favor.
Defendants argue that Plaintiff lacks standing to claim his rights regarding international travel to and from the United States, asserting that a "case" or "controversy" must exist under Article III of the Constitution for the federal courts to hear the case. To establish standing, the plaintiff must demonstrate: (1) an "injury in fact" that is concrete, particularized, and actual or imminent; (2) a causal link between the injury and the alleged conduct; and (3) that the injury is likely to be redressed by a favorable ruling. Plaintiff alleges two injuries: (1) being prevented from boarding a flight to the U.S. in January 2011, and (2) a substantial burden on his right to return to the U.S. Defendants claim he lacks standing since he reentered the U.S. in January 2011, arguing that concerns about future travel are speculative. The Court previously dismissed claims related to the January 2011 events but allowed claims concerning future harm to proceed. Plaintiff asserts he would travel internationally if not on the No Fly List, but refrains due to fears about reentry challenges. The Court finds this reasonable fear sufficient for standing, emphasizing that requiring a plaintiff to risk further injury to establish standing imposes an unfair burden. Past injuries suggest potential future harm, leading the Court to conclude that Plaintiff has standing for all claims related to the No Fly List.
Plaintiff asserts both a "facial challenge" and an "as applied" challenge to the No Fly List on substantive due process grounds. Upon review, these challenges are essentially identical, as the "as applied" challenge does not contest the factual basis for Plaintiff's placement on the No Fly List. Instead, Plaintiff argues that the criteria for inclusion violate substantive due process by allowing the government to place individuals, specifically U.S. citizens who have never been charged or convicted of a crime, on the No Fly List based solely on predictive judgments of future terrorist threats. Mohamed contends that this criterion fails to narrowly tailor the government’s compelling interest in public safety and does not constitute a necessary regulation.
Central to Mohamed's argument is the right to movement, as established in Supreme Court cases like Kent v. Dulles and Shapiro v. Thompson, which he claims encompasses a fundamental right to travel domestically and internationally. He asserts that the No Fly List infringes upon this right. The Due Process Clause of the Fifth Amendment mandates that no individual be deprived of life, liberty, or property without due process. Unlike procedural due process, substantive due process protects individual liberties against certain government actions, requiring strict scrutiny for laws that infringe upon fundamental rights. Therefore, if the right to travel is deemed fundamental, the government must demonstrate that the No Fly List is necessary to further a compelling interest and is narrowly tailored. Conversely, if the right is not considered fundamental, the law would be subject to rational basis review, allowing it to stand unless shown to lack a reasonable relation to a legitimate government interest.
Plaintiff asserts that the challenge to travel restrictions should undergo strict scrutiny, rooted in the fundamental right to interstate travel, which is well-established and virtually unqualified, as affirmed by various Supreme Court cases. In contrast, the right to international travel lacks the same constitutional grounding. The determination of whether a right is fundamental follows the Glucksberg analysis, which requires that rights be deeply rooted in the nation’s history and tradition. This analysis has been informed by the Supreme Court's ruling in Obergefell v. Hodges, which emphasizes evaluating historical animus behind legislative restrictions.
The Plaintiff argues that the fundamental right of travel should extend internationally, citing historical protections of freedom of movement, including references to the Articles of Confederation and international agreements like the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The Plaintiff also invokes Congress’s authority to regulate foreign commerce, suggesting it anticipates an international "zone of movement." Furthermore, the Plaintiff contends that certain First Amendment rights, particularly the free exercise of religion, necessitate the ability to travel internationally, such as for religious pilgrimages. Finally, the Plaintiff argues that the Citizenship Clause implies a fundamental right to international travel, as it obstructs a citizen's ability to return to the U.S. from abroad. The Plaintiff requests the Court to recognize "zones of movement" similar to the established "zones of privacy" identified in Griswold, asserting that freedom of movement is a core constitutional value.
Extending the fundamental right to travel to include international travel is supported by international agreements and the interconnectedness of interstate and international travel in modern society. Restrictions on international travel can significantly impede other liberty interests, similar to restrictions on interstate travel. Historically, the U.S. has imposed judicially sanctioned limitations on international travel for reasons related to foreign affairs and national security, including passport controls and travel bans, which are not applied to interstate travel. The Supreme Court has implied that there is no explicit fundamental right to international travel, distinguishing it from the virtually unqualified right to interstate travel. The Court recognizes international travel as a liberty interest protected by the Due Process Clause, allowing for regulation within due process limits. A government policy must significantly interfere with this right to implicate fundamental rights. The No Fly List significantly restricts an individual’s ability to travel, thereby requiring strict scrutiny. While it does not outright prohibit domestic travel, it substantially limits practical travel options. The impact of the No Fly List on interstate travel is comparable to significant interferences with other fundamental rights, as established in cases like Zablocki v. Redhail, which recognized that state laws discouraging marriage constituted significant interference. Placement on the No Fly List can effectively bar individuals from traveling and engaging in constitutionally protected activities.
The No Fly List survives strict scrutiny as it is necessary to further a compelling governmental interest in preventing terrorist attacks against commercial aviation, which is deemed a paramount concern for national security. Under strict scrutiny, a law must be necessary and narrowly tailored to serve its purpose. The No Fly List is considered sufficiently necessary and, with appropriate procedural protections, narrowly tailored to combat terrorism.
To meet strict scrutiny, regulations must be specifically framed to accomplish their goals, and while they should not be overly inclusive or exclusive, the government is not required to exhaust every possible alternative. The revised DHS TRIP II review process provides necessary procedural protections.
The plaintiff, Mohamed, argues that the No Fly List is both under inclusive—since it only restricts air travel, can be evaded through disguise, and requires disclosure of investigative interests—and over inclusive—banning mostly legal conduct and relying on inaccurate judgments. Mohamed suggests alternatives to the No Fly List, such as enhanced screening, thorough investigations, additional security measures, arresting actual threats, and tracking individuals’ movements, which he claims could adequately protect aviation safety without the current restrictions imposed by the List.
The Government asserts that the Executive Branch has established precise standards and criteria to identify individuals likely to commit terrorist acts, supported by procedures aimed at minimizing errors. While acknowledging a risk that the List could inform suspected terrorists of government scrutiny, the Government argues that the List provides unique protections that outweigh potential drawbacks. It claims the authority to make strategic travel-related decisions, emphasizing that no single counterterrorism measure can eliminate all threats and that alternative measures exist for other risks.
Addressing concerns about the List's over-inclusiveness, the Government maintains that it does not hinder legal activities beyond air travel and that U.S. security analysts have effectively made predictive judgments as directed by Congress. The watchlist system is described as graduated, with nominations to the List undergoing five levels of independent review to ensure only the most threatening individuals are included. The Government dismisses the Plaintiff's proposed alternatives, citing expert testimony that such alternatives would be inadequate. For example, it argues that certain threats cannot be mitigated without preventing specific individuals from accessing secure areas.
The document raises complex issues regarding the constitutional adequacy of the List, noting that while government decisions in national security are generally afforded deference, they are not immune to judicial review. Courts typically respect government conclusions in this domain due to their lack of competence to assess evidence and factual inferences, as established in relevant case law.
The assessment of the No Fly List's narrow tailoring to serve a compelling government interest focuses specifically on commercial aviation, rather than all public transportation forms. The Government has provided valid reasons demonstrating that the alternatives suggested by the Plaintiff are inadequate. The evaluation of the List's narrow tailoring is also linked to the review procedures for individuals’ inclusion on the List. According to the Court's Memorandum Opinion from July 16, 2015, the DHS TRIP review process is expected to offer individuals a meaningful opportunity to understand and contest the reasons for their inclusion. An administrative record will be created to assist courts in determining if the criteria for inclusion are met, if individuals have had a chance to challenge derogatory information, and if the underlying predictive judgments are factually justified. Consequently, the Court concludes that the No Fly List is necessary and appropriately tailored to serve a compelling government interest, thus not infringing on the Plaintiff's substantive due process rights.
Under rational basis review, the burden is on the plaintiff to show that the Government’s measures are not reasonably related to a legitimate state interest. Here, the Government's compelling interest and narrowly tailored measures also satisfy rational basis scrutiny in the context of international travel.
In Count IV, the Plaintiff alleges violations of the non-delegation doctrine, asserting that Congress improperly delegated its legislative authority, and that the TSC and TSA have overstepped their authority. The non-delegation doctrine prevents Congress from transferring its legislative powers to another government branch and is based on the principle of separation of powers. However, as long as Congress provides an intelligible principle for the delegated authority, it does not constitute an unconstitutional delegation. The Supreme Court has upheld non-delegation challenges only twice, with the statutes in question lacking guidance for discretion.
Congress assigned the Transportation Security Administration (TSA) the responsibility for transportation security following the September 11 attacks, specifically mandating collaboration with the FBI to assess threats to aviation security and implement effective monitoring methods (49 U.S.C. § 114(d), § 44904(a)). TSA is required to share data on potential security risks and inform security personnel about individuals who may pose a threat (49 U.S.C. § 114(h)(1), (2)). Additionally, TSA must establish protocols for air carriers to identify and manage individuals deemed threats, including notifying law enforcement and preventing boarding (49 U.S.C. § 114(h)(3)). The Department of Homeland Security (DHS) must create a fair process for individuals wrongfully identified as threats to appeal and correct their information (49 U.S.C. § 44926(a), § 44903(j)(2)(C)(iii)).
The plaintiff argues that the TSA's authority is overly vague and lacks an “intelligible principle,” which he claims leads to improper denial of boarding. However, the court finds that Congress has established clear objectives for TSA, allowing it to manage the implementation of security measures. The statute explicitly permits TSA to deny boarding to individuals identified as threats (49 U.S.C. § 114(h)(3)(B)), which underpins the No Fly List's creation and use. In Count II, the plaintiff asserts that the No Fly List constitutes unlawful agency action exceeding TSA's authority. The court concludes that TSA's actions are within its statutory mandate, addressing various threat levels appropriately without being arbitrary, capricious, or in violation of constitutional rights.
The Court granted summary judgment in favor of the Defendants on Count IV and denied the Plaintiff's motion for summary judgment on Counts I, II, and IV, resulting in the dismissal of those counts. The Court found the DHS Traveler Redress Inquiry Program (DHS TRIP) constitutionally inadequate at the time Mohamed was denied boarding, but determined that the revised DHS TRIP procedures (DHS TRIP II) were not constitutionally invalid per se. The adequacy of these revised procedures could not be assessed until Mohamed sought a status review under the new system.
The Court instructed Mohamed to inform by January 4, 2016, whether he intended to pursue a review under the revised DHS TRIP, to which he responded he would file a complaint by January 18, 2016. However, he did not request the review as stated. Although motions for summary judgment were filed regarding Counts I and IV, the Court also addressed Count II due to the interconnected issues. The facts are largely undisputed, with the Court referencing earlier cases for background. While the Defendants acknowledged Mohamed's detention by Kuwaiti authorities, the specifics of that detention were deemed irrelevant to the current motions. It was noted that the No Fly List encompasses fewer individuals than the Terrorist Screening Database (TSDB), implying a higher standard for inclusion on the No Fly List, although the record did not clarify the sufficiency of information for each list. The Court ultimately rejected Mohamed's claims, concluding that the delay he faced in returning to the U.S. did not constitute an undue burden on his right of reentry.
Mohamed presents three claims regarding the No Fly List, arguing that (1) his designation, (2) the designation of any U.S. citizen not charged with a crime, and (3) the List itself violate substantive due process. The Court finds no merit in these challenges and does not differentiate among the claims. Mohamed asserts that the No Fly List compromises safety by enabling potential threats to assess the government’s interests and evade regulations. He acknowledges that what the government terms his "right of reentry" is part of his broader right to movement. Previous courts have treated right of reentry as a component of international travel rights rather than a separate right. Legal precedents indicate that laws affecting "quasi-suspect classes" must serve significant governmental interests and be closely related to achieving those objectives. International agreements hold legal power equivalent to congressional acts. The U.S. Constitution affirms that all individuals born or naturalized in the U.S. are citizens. The government contends that there is no constitutional right to travel by a specific means, although existing cases do not address a total ban on travel methods, as imposed by the No Fly List. Various legal cases are cited to illustrate this distinction, highlighting that prior rulings have not dealt with outright travel prohibitions.
The List, which may be shared among U.S. government agencies, foreign governments, and common carriers, could stigmatize individuals on it, impacting their employment and quality of life. Although the Plaintiff does not assert a "stigma-plus" claim due to an inability to demonstrate deprivation of specific liberty or property interests, he contends that the List restricts his rights, including practicing his religion, visiting family, studying Arabic, and traveling. In opposing the Government's motion for summary judgment, the Plaintiff argues for an evidentiary hearing to assess whether the No Fly List is "narrowly tailored" to meet its objectives. The Court, however, believes that due to the deference owed to national security decisions and the reasonableness of the Government's position, the constitutional issues can be resolved without a hearing. This stance, while reasonable, is open to debate, especially considering the No Fly List's unprecedented nature and the significant record needed to address the constitutional concerns raised by the Plaintiff. The Plaintiff further claims that Congress did not grant the Transportation Security Administration (TSA) the authority to create a process for removing individuals from the Terrorist Screening Database (TSDB). He argues that the delegation to TSA for a redress process is flawed, as the Executive Branch has structured watch list authority in a way that hinders this process. Nevertheless, Congress has mandated the TSA to establish a fair and timely appeal process for individuals identified under its screening system, which the Defendant has implemented through the Department of Homeland Security's Traveler Redress Inquiry Program (DHS TRIP), adjusting procedures in response to judicial rulings, including those in this case.
