Kovac v. Wray

109 F.4th 331

Adis KOVAC; Bashar Aljame; Abraham Sbyti;Suhaib Allababidi; Fadumo Warsame, Plaintiffs—Appellants, v. Christopher WRAY, Director of the Federal Bureau of Investigation,in his official capacity; Charles H. Kable,Director of the Terrorist Screening Center, in his official capacity;Deborah Moore, Director, Transportation Security Redress (OTSR),in her official capacity; Nicholas Rasmussen,Director of the National Counterterrorism Center, in his official capacity;David P. Pekoske, Administrator Transportation Security Administration (TSA),in his official capacity; Kevin K. McAleenan,Acting Commissioner United States Customs and Border Protection,in his official capacity, Defendants—Appellees.

No. 23-10284

United States Court of Appeals, Fifth Circuit

As revised July 25, 2024

FILED July 22, 2024

Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:18-CV-110, Brantley David Starr, U.S. District Judge Lena F. Masri, Gadeir Ibrahim Abbas, Justin Sadowsky, Council on American-Islamic Relations, Washington, DC, Hannah Mullen (argued), Washington Lawyers' Committee on Civil Rights and Urban Affairs, Washington, DC, for Plaintiffs—Appellants.

Joshua Paul Waldman, Esq., Attorney (argued), U.S. Department of Justice, Civil Rights Division, Washington, DC, Christopher Robert Healy, Esq., U.S. Department of Justice, Civil Division, Washington, DC, Sharon Swingle, U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, for Defendants—Appellees.

Before Barksdale, Southwick, and Graves, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

The Plaintiffs are a group of American citizens who complain they are subject to enhanced screening measures at airport security because they have been placed on a "terrorist watchlist." They sued the heads of various federal agencies connected to the watchlist, asserting numerous constitutional and statutory claims. The sole issue on appeal is whether the relevant agencies have statutory authority to create, maintain, and administer the watchlist. At summary judgment, the district court determined the agencies have statutory authority. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

The Plaintiffs are five Muslims who are United States citizens, four of whom reside in Dallas, Texas, and the fifth resides in New Jersey. They allege they have been put on what is officially called the Terrorist Screening Dataset ("Watchlist"). The Watchlist contains two sub-lists: (1) the No-Fly List, which automatically excludes individuals from flying; and (2) the Selectee List, which contains individuals who are subject to "additional security screening" before they may be permitted to board. Four of the Plaintiffs allege they are on the Selectee List because they have been subject to enhanced screening on multiple occasions, including prolonged interrogations, border searches, and having "SSSS" printed on their boarding passes.¹ Plaintiff Adis Kovac alleges he is on the No-Fly List because he has been prevented from boarding a commercial flight and possibly the Selectee List because he is frequently subject to enhanced screening.

Each Plaintiff utilized the Department of Homeland Security's ("DHS") Traveler Redress Inquiry Program ("TRIP"). This program allows individuals who believe they have been improperly subjected to enhanced screening or prohibited from flying to obtain additional review of their status and to correct any errors or to alter their status based on new information. See 49 C.F.R. §§ 1560.201, .205. Because of security concerns, the Government's policy is to neither confirm nor deny a person's Selectee List status; those on the No-Fly List will be apprised of their status and may obtain judicial review. 49 U.S.C. § 46110. As a result, the Selectee List Plaintiffs received no-confirm-no-deny letters from DHS. DHS confirmed, however, that Plaintiff Kovac was on the No-Fly List.²

In January 2017, the Plaintiffs sued the heads of various federal agencies that maintain or use the Watchlist, in their official capacities (collectively, "Government").³ The Plaintiffs allege violations of their Fifth Amendment procedural and substantive due process and equal protection rights, unlawful agency action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2), and violations of the nondelegation doctrine. On the Government's motion to dismiss, the district court dismissed all claims against CBP for failure to prosecute, the substantive and procedural due process claims in part, the equal protection claims, and the nondelegation claims against all Defendants. See Kovac v. Wray, 363 F. Supp. 3d 721, 747-48, 762-63 (N.D. Tex. 2019) ("Kovac I"). In July 2019, Plaintiff Kovac was notified that he was removed from the No-Fly List, and the district court dismissed his related claims as moot. Kovac v. Wray, 449 F. Supp. 3d 649, 654-56 (N.D. Tex. 2020) ("Kovac II"). In November 2020, the district court dismissed the Plaintiffs' remaining constitutional claims, leaving only the APA claims. Kovac v. Wray, No. 3:18-CV-110, 2020 WL 6545913, at *5 (N.D. Tex. Nov. 6, 2020) ("Kovac III"). None of those decisions are before us.

At summary judgment on the APA claims, the Plaintiffs argued both that the major questions doctrine applies in this case and that the Government exceeded its authority because Congress never clearly authorized the Watchlist. The Government's actions against the Plaintiffs, therefore, violated 5 U.S.C. § 706(2)(C). They also asserted their alleged placement on the Selectee List was arbitrary and capricious. § 706(2)(A). Finally, they maintained the TRIP process is arbitrary and capricious because it does not provide a meaningful opportunity to correct erroneous information and distinguishes between the No-Fly and Selectee Lists. Id.

The district court agreed that the major questions doctrine applied because of the Watchlist's "vast political significance." Kovac v. Wray, 660 F. Supp. 3d 555, 563-65 (N.D. Tex. 2023) ("Kovac IV"). Nevertheless, the court concluded that Congress "clearly authorized" the Watchlist by analyzing numerous factors, only some of which pertained to the relevant statutes. Id. at 565-69. The court further determined that, even if the Plaintiffs had been placed on the Watchlist,⁴ the TRIP procedures were not arbitrary and capricious. Id. at 569-72. The Plaintiffs timely appealed.

DISCUSSION

We review the grant of summary judgment de novo, "applying the same standard as the district court." Lamb v. Ashford Place Apartments LLC, 914 F.3d 940, 943 (5th Cir. 2019) (citation omitted). Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "Issues of statutory interpretation are also reviewed de novo." United States v. Arrieta, 862 F.3d 512, 514 (5th Cir. 2017) (italics added). "This [c]ourt may affirm on grounds other than those relied upon by the district court" when supported by the record. Lauren C. ex rel. Tracey K. v. Lewisville Indep. Sch. Dist., 904 F.3d 363, 374 (5th Cir. 2018) (citation omitted).

The sole issue on appeal is whether the Government has statutory authority to create, maintain, and use the Watchlist to screen passengers boarding commercial aircraft. If we answer in the negative, then we must "hold unlawful and set aside" the Government's actions regarding the Watchlist as they relate to the Plaintiffs. 5 U.S.C. § 706(2)(C); see also Loper Bright Enters. v. Raimondo, — U.S. —, 144 S.Ct. 2244, 2261, — L.Ed.2d — (2024) ("In addition to prescribing procedures for agency action, the APA delineates the basic contours of judicial review of such action." (citing 5 U.S.C. § 706)).

I. Statutory interpretation and the major questions doctrine

The district court started its analysis with the major questions doctrine and concluded that the doctrine applies because "the [W]atchlist has vast political significance." Kovac IV, 660 F. Supp. 3d at 565. As support, the district court explained the Watchlist "consists of over a million people," the Government may add "an unlimited number of people" to it, "liberty intrusions . . . flow from the [W]atchlist," and the Watchlist can be distributed between federal and state agencies in numerous ways. Id. After applying its understanding of the elements of the doctrine, the district court determined that the Government acted properly. Id. at 565-69.

We need not analyze whether the major questions doctrine applies to creating, maintaining, and using the Watchlist if the relevant statutes provide "clear congressional authorization." West Virginia v. EPA, 597 U.S. 697, 724, 142 S.Ct. 2587, — L.Ed.2d — (2022) (citation omitted). Consequently, "our inquiry begins with the statutory text, and ends there as well if the text is unambiguous." BedRoc Ltd. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004).

II. Statutory text, structure, and history

Before exploring the dense statutory landscape of this case, we identify what we are looking for. The Plaintiffs' principal statutory discussion pertains to TSA's authority under 49 U.S.C. §§ 114 and 44903. They describe these statutes as "so vague as to barely warrant discussion." The Plaintiffs' primary contention is that TSA's statutory obligation to protect airline passengers is not specific enough to authorize use of the Watchlist. Where the statute is more specific, they argue it is still not enough because it does not mention the word "watchlist." See 49 U.S.C. § 114(h). Even if TSA is authorized to use the Watchlist, the Plaintiffs maintain "TSA does not create, administer, or maintain the [W]atchlist," and the entity that does, TSC, lacks statutory authority to do so. As to the other agencies, the Plaintiffs argue that statutes authorizing their general law-enforcement duties do not confer sufficient authority to create, maintain, and use the...