Demir v. Mayorkas

1

HALIL DEMIR, Plaintiff, v. ALEJANDRO MAYORKAS et al., Defendants.

No. 22-cv-07209

United States District Court, N.D. Illinois, Eastern Division

July 17, 2024

MEMORANDUM OPINION AND ORDER

JOHN F. KNESS, UNITED STATES DISTRICT JUDGE

In this lawsuit concerning Plaintiff Halil Demir's inclusion on a terror watchlist, Plaintiff contends that he has been wrongfully retained on the watchlist and that the redress process available for such situations is legally deficient. Plaintiff alleges that, when he flies, he is often subjected to additional security screenings, significant delays, and embarrassment. Plaintiff has sued numerous heads of relevant governmental Departments in their official capacities challenging the constitutionality of the redress mechanism-DHS TRIP-established for such conundrums.

As explained below, because Plaintiff's Complaint seeks to “amend [or] modify” orders by the TSA Administrator, a federal statute, 49 U.S.C. § 46110 requires that Plaintiff's challenge be heard, if at all by the Court of Appeals. Defendants' motion (Dkt. 22) to dismiss for lack of subject matter jurisdiction is therefore granted, and the case is dismissed without prejudice.

I. BACKGROUND

A. Terrorist Screening Database and DHS TRIP

The Department of Homeland Security (DHS) is responsible for protecting the United States from terrorist attacks at home. See 6 U.S.C. § 111. The Transportation Security Administration (TSA) sits within DHS and is responsible for “security in all modes of transportation.” See 49 U.S.C § 114(d). To that end, Congress charged the TSA Administrator with “assess[ing] threats to transportation [and] develop[ing] policies, strategies, and plans for dealing with threats to transportation security.” See id. §§ 114f)(2-3).

The Terrorist Screening Center (the “Screening Center”), organized under the National Security Branch of the Federal Bureau of Investigation (FBI), maintains a terrorism watchlist called the Terrorist Screening Database or Terrorist Screening Dataset (the “Database”). (See Dkt. 22-2). TSA uses the Database to “identify individuals on passenger lists who may be a threat to civil aviation or national security.” 49 U.S.C. § 114(h)(3); (see also Dkt. 22-2 at 5.)

Congress directed the TSA Administrator to “establish a procedure to enable airline passengers, who are delayed or prohibited from boarding a flight because the advanced passenger prescreening system determined that they might pose a security threat, to appeal such determination and correct information contained in the system.” 49 U.S.C. § 44903(j)(2)(C)(iii)(I). The TSA Administrator did so; that process is called the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP), codified at 49 C.F.R. §§ 1560.201-1560.207. If an individual “believes he or she has been improperly or unfairly delayed or prohibited from boarding an aircraft,” that individual may initiate an inquiry via DHS TRIP. Id. at 1560.205. TSA will coordinate with the Screening Center to “review all the documentation and information requested from the individual, correct any erroneous information, and provide the individual with a timely written response.” Id.

B. Plaintiff's allegations

Plaintiff alleges that he has, on numerous occasions, experienced significant delays and additional security scrutiny when traveling by plane. (Dkt. 19 ¶¶ 27-47.) Some of these delays and additional searches and screenings occur in full public view, which, Plaintiff says, harms his reputation. (See, e.g., id. ¶¶ 43-45.)

Plaintiff alleges that he has filed no fewer than five DHS TRIP complaints. (Id. ¶¶ 52-55.) TSA's response to his most recent complaint, filed in January 2022, neither confirmed nor denied Plaintiff's placement on any traveler screening list. (Id. ¶ 55.) After unsuccessfully seeking information through a Freedom of Information Act request, Plaintiff brought this suit. (Id. ¶ 16.)

Plaintiff alleges that these impediments to his travel, and the ineffective administrative redress process, amount to violations of the Administrative Procedure Act (APA) and Plaintiff's substantive and procedural due process rights. (Id. at 1316.) For relief, Plaintiff seeks: (1) declarations noting those violations of his rights; (2) an order instructing Defendants to revise the DHS TRIP policies and procedures; (3) an order instructing Defendants either to remove Plaintiff from any federal watchlists or to provide a sufficient explanation of the reasons for his inclusion on those lists; (4) an injunction preventing further similar violations; and (5) damages and costs. (Id. at 18.) Defendants now move to dismiss the case under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (See generally Dkt. 22-1.)

II. STANDARD OF REVIEW

A motion under Rule 12(b)(1) challenges the Court's subject matter jurisdiction over a case. See Ctr. For Dermatology & Skin Cancer Ltd. v. Burwell, 770 F.3d 586, 588 (7th Cir. 2014). When considering a Rule 12(b)(1) motion, the Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the plaintiff. Id. But the plaintiff bears the burden of proving that the jurisdictional requirements have been met. Id.

A motion under Rule 12(b)(6) “challenges the sufficiency of the complaint to state a claim upon which relief may be granted.” Hallinan v. Fraternal Ord. of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Each complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). These allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Put another way, the complaint must present a “short, plain, and plausible factual narrative that conveys a story that holds together.” Kaminski v. Elite Staffing, Inc., 23 F.4th 774, 777 (7th Cir. 2022) (cleaned up). In evaluating a motion to dismiss, the Court must accept as true the complaint's factual allegations and draw reasonable inferences in the plaintiff's favor. Iqbal, 556 U.S. at 678. But even though factual allegations are entitled to the assumption of truth, mere legal conclusions are not. Id. at 678-79.

III. DISCUSSION

Defendants move to dismiss on jurisdictional grounds and for failure to state a claim under either the Constitution or the APA. (See generally Dkt. 22-1.) Because the Court must dismiss for lack of jurisdiction, this opinion does not address the plausibility of Plaintiff's allegations.

A. 49 U.S.C. § 46110

Defendants argue that 49 U.S.C. § 46110 divests this Court of jurisdiction to hear this case. (Dkt. 22-1 at 11.) In relevant part, Section 46110 provides that an individual “may apply for review of an order issued by . . . the Administrator of the Transportation Security Agency . . . by filing a petition for review” in the Courts of Appeals, and the Courts of Appeals have “exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order.” 49 U.S.C. § 46110(a), (c).^[1]

B. The Orders Being Challenged

Whether Section 46110 applies in this case depends on whether Plaintiff challenges an order of the TSA Administrator. In his opposition to Defendants' motion, Plaintiff argues that he challenges both “the constitutionality of DHS TRIP procedures under the Fifth Amendment's Due Process Clause” and “his original placement in the [Database].” (Dkt. 25 at 5.) In reply, the government agrees that Plaintiff challenges the adequacy of DHS TRIP but contends that, in contradiction to Plaintiff's argument in his response brief, the complaint challenges his maintenance in the watchlist post-DHS TRIP grievance, not his initial placement in the Database. (Dkt. 27 at 2.) The parties agree that Plaintiff challenges the adequacy of the DHS TRIP process itself, so the Court first considers whether that challenge amounts to a challenge of a TSA order subject to Section 46110. Following that analysis, the Court determines whether Plaintiff challenges, as he asserts in his responsive brief, his initial placement on the watchlist or rather, as Defendants argue, Plaintiff challenges his maintenance on that list.

i. Adequacy of DHS TRIP Process

Plaintiff's allegations concerning the adequacy of the DHS TRIP process are subject to jurisdiction channeling under Section 46110 if: (1) the establishment of DHS TRIP was a TSA order; and (2) Plaintiff's allegations amount to a challenge of that order. See 49 U.S.C. § 46110(a).

a. DHS TRIP is an Order issued by the TSA Administrator

Although the Seventh Circuit has not yet spoken directly to this issue, it has held that the term “order” in 49 U.S.C. § 1486-the precursor to Section 46110^[2]- should be construed broadly. As the Seventh Circuit has explained, that broad reading is required because “[t]he term ‘order' is broadly defined in both the Federal Aviation Act, 49 U.S.C. § 1354(a) and the Administrative Procedure Act, 5 U.S.C. § 551(6).” Sima Prods. Corp. v. McLucas, 612 F.2d 309, 312-14 (7th Cir. 1980). Moreover, the purposes of so-called “special review statutes,” coherence and economy, are best served if “courts of appeals exercise their exclusive jurisdiction over final agency actions.” Id. at 313. Section 46110 is one such special review statute. See Mokdad v. Lynch 804 F.3d 807, 811 (6th Cir. 2015); Durso v. Napolitano, 795 F.Supp.2d 63 (D.D.C. 2011). Construing broadly the term “order” in Section 46110, and to further the twin goals of coherence and economy in the application of special review statutes, the Court holds that the establishment of DHS TRIP was an “order” under Section 46110.

The...