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Abdi v. Wray

United States Court of Appeals, Tenth Circuit

November 12, 2019

YUSSUF AWADIR ABDI, Plaintiff - Appellant,
v.
CHRISTOPHER A. WRAY, Director of the Federal Bureau of Investigation, in his official capacity; CHRISTOPHER M. PIEHOTA, Director of the Terrorism Screening Center, in his official capacity; HUBAN A. GOWADIA, Acting Administrator, Transportation Security Administration (TSA), United States Department of Homeland Security (DHS), in his official capacity; KEVIN K. MCALEENAN, Acting Commissioner United States Customs and Border Protection; NICHOLAS J. RASMUSSEN, Director of the Terrorism Screening Center, in his official capacity, Defendants - Appellees.

          Appeal from the United States District Court for the District of Utah (D.C. No. 2:17-CV-00622-DB)

          Gadeir Abbas, CAIR Legal Defense Fund, Washington, D.C. (Lena F. Masri, CAIR Legal Defense Fund, Washington, D.C., James W. McConkie and Bradley H. Parker, Parker & McConkie, Salt Lake City, Utah, on the brief), for Plaintiff-Appellant.

          Joshua Waldman, (Joseph H. Hunt, Assistant Attorney General, John W. Huber, U.S. Attorney, Sharon Swingle, with him on the brief), U.S. Department of Justice, Washington, D.C., for Defendants-Appellees.

          Before TYMKOVICH, Chief Judge, EBEL and PHILLIPS, Circuit Judges.

          EBEL, Circuit Judge.

         Yusuf Awadir Abdi sued the directors of several federal agencies challenging his placement on the "Selectee List," a subset of the federal government's terrorist watchlist, which he alleges subjects him to enhanced screening at the airport and requires the government to label him as a "known or suspected terrorist" and to disseminate that information to government and private entities. Abdi's complaint asserts that, as a result of these alleged consequences, his placement on the Selectee List violates his Fifth Amendment rights to substantive and procedural due process and consequently the Administrative Procedure Act, 5 U.S.C. §§ 702, 706. Abdi seeks declarative and injunctive relief. The district court dismissed Abdi's complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, we AFFIRM.

         I. BACKGROUND

         A. Factual Background

         The relevant facts, as set out in Abdi's First Amended Complaint, are as follows. Abdi is a United States citizen and resident of Salt Lake City, Utah. Since 2014, Abdi has experienced several delays and extended security screenings at airports, which has led him to believe that he is on the federal government's "Selectee List," a subset of the government's Terrorist Screening Database ("TSDB"). The TSDB is a master repository for suspected international and domestic terrorist records. The Terrorist Screening Center ("TSC"), which is administered by the FBI, develops and maintains the TSDB. The TSDB has two primary components: the Selectee List and the No Fly List. Persons on the No Fly List are prevented from boarding flights that intend to fly into, out of, or even through United States airspace. By contrast, persons on the Selectee List are not barred from flying but are systematically subject to extra screening at airports and land border crossings. Abdi challenges his placement on the Selectee List.

         Abdi alleges that, since 2014, he has been subject to extended security screenings each time he travels by air due to his placement on the Selectee List. For example, he is unable to check in for flights online or at the self-service kiosks at the airport. Instead, he is directed to check in personally with an airline representative who is required to obtain clearance from the Department of Homeland Security before he or she can give Abdi his boarding pass. Abdi alleges that it takes about a half hour to obtain his boarding pass. Once he does, the boarding pass is stamped with an "SSSS" designation, which indicates that he is a "known or suspected terrorist." Compl. ¶ 30. Then, at the airport security checkpoint, Abdi is routinely subjected to secondary inspections, questioning, and prolonged searches of his person and luggage. Sometimes, TSA agents shut down an entire screening line and require Abdi to proceed through the line by himself. Finally, at the gate, Abdi is publicly searched again by TSA agents before he is allowed to board his plane.

         In addition to regularly experiencing these extra security screenings as a result of his placement on the Selectee List, Abdi alleges that, on one occasion, he was prevented from flying for several days because he was "upgraded" to the No Fly List. Compl. ¶ 40. On June 14, 2017, Abdi appeared at an international airport in Nairobi, Kenya, with his family, prepared to board a commercial flight back to the United States. Abdi was told by the ticketing agent that the United States would not allow him to board his flight, although his wife and children were permitted to fly home. Two days later, on June 16, 2017, Abdi was allowed to fly back to the United States. However, upon arriving at the Los Angeles International Airport's port of entry, Abdi was subjected to another lengthy screening that caused him to miss his connecting flight to Salt Lake City. Abdi successfully flew home to Salt Lake City two days later, on June 18.

         Since June 2017, Abdi has flown three times-twice domestically and once internationally. Each time, Abdi was permitted to fly, but he was subjected to the enhanced screening measures described above. He has not missed any more flights due to the length of his security screenings.

         Finally, Abdi alleges that, in addition to subjecting him to extra security screenings, the defendant government officials have disseminated his status as a "known or suspected terrorist" to state and local authorities, foreign governments, corporations, private contractors, airlines, gun sellers, car dealerships, financial institutions, among other official and private entities and individuals. Compl. ¶ 57.

         B. Procedural History

         Abdi filed this lawsuit under the APA against the directors of the FBI, TSC, TSA, U.S. Customs and Border Protection, and National Counterterrorism Center ("NCTC"), alleging that, by placing Abdi and other similarly situated American citizens on the Selectee List, defendants violated his Fifth Amendment substantive and procedural due process rights. Abdi requested a declaratory judgment that defendants' "policies, practices, and customs violate the Fifth Amendment" and an injunction requiring defendants to remove him "from any watch list or database that burdens or prevents him from flying or entering the United States" and to notify all individuals in the TSDB of "the reasons and bases for their placement" on the government's various watchlists and provide them with an opportunity to contest their continued inclusion. Id. at 37-38. To support his substantive due process claim, Abdi alleged that the defendants' decision to place him on the Selectee List unduly burdens his fundamental right of "movement" without a compelling justification. The district court dismissed that claim by declining to recognize his asserted right of "movement" as a fundamental right. To support his procedural due process claim, Abdi alleged that the defendants' refusal to provide him with any notice that he was placed on the Selectee List-placement that deprived him of his liberty interests in travel and reputation-violates the procedural due process clause. The district court dismissed that claim for failing plausibly to allege the deprivation of a constitutionally protected liberty interest.

         We affirm the district court but on somewhat different grounds. We affirm the district court's dismissal of Abdi's substantive due process claim because, although Abdi's rights to travel interstate and internationally are both potentially implicated by his placement on the Selectee List, the government conduct alleged in the complaint has not substantially interfered with either right. Similarly, the district court's dismissal of Abdi's procedural due process claims was appropriate because Abdi has not been deprived of either his liberty interest in travel or his reputation.

         II. STANDARD OF REVIEW

         We review de novo the district court's dismissal of Abdi's claims under Rule 12(b)(6). "Dismissal under Rule 12(b)(6) is appropriate only if the complaint, viewed in the light most favorable to plaintiff, lacks enough facts to state a claim to relief that is plausible on its face." United States ex rel. Reed v. KeyPoint Gov't Solutions, 923 F.3d 729, 764 (10th Cir. 2019) (citations, internal quotation marks omitted). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Importantly, although "a complaint need not provide 'detailed factual allegations,' it must give just enough factual detail to provide 'fair notice of what the . . . claim is and the grounds upon which it rests.'" Warnick v. Cooley, 895 F.3d 746, 751 (10th Cir. 2018) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In deciding whether the plaintiff has adequately stated a claim for relief, we view "the totality of the circumstances as alleged in the complaint in the light most favorable to [the plaintiff]," Jones v. Hunt, 410 F.3d 1221, 1229 (10th Cir. 2005), accepting the plaintiff's well-pled facts as true and drawing all reasonable inferences in the non-moving party's favor, Sylvia v. Wisler, 875 F.3d 1307, 1313 (10th Cir. 2017).

         III. DISCUSSION

         A. The complaint does not challenge Abdi's placement on the No Fly List

         Abdi first argues that the district court erred by "ignoring" his "No Fly List claims," Aplt. Br. at 10. Essentially, Abdi asserts that he adequately alleged a claim challenging his placement on the No Fly List and that, even though his name has since been removed from the No Fly List, that claim cannot be dismissed as moot pursuant to the voluntary cessation doctrine because the government is free to place him on the No Fly List again at any time. We do not reach the question of mootness because the complaint failed to allege enough facts to place the defendants on notice that Abdi was challenging his placement on the ...


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