Shearson v. Holder

865 F.Supp.2d 850

Julia Anne SHEARSON, Plaintiff

v.Eric C. HOLDER, Jr., et al., Defendants.

Case No. 1:10 CV 1492.

United States District Court,

N.D. Ohio,

Eastern Division.

Sept. 9, 2011.

Gadeir I. Abbas, Council on American–Islamic Relations, Washington, DC, for Plaintiff.

Kathleen Lucille Midian, Office of the U.S. Attorney, Cleveland, OH, Varudhini Chilakamarri, Washington, DC, for Defendants.

ORDER

SOLOMON OLIVER, JR., Chief Judge.

Currently pending before the court in the above-captioned case is Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (ECF No. 20.) Plaintiff Julia Anne Shearson (“Shearson” or “Plaintiff”) brought this action against Eric C. Holder, Robert S. Mueller, III, Timothy J. Healy, and Michael E. Leiter (“Defendants”) in their official capacities as the Attorney General of the United States, Director of the Federal Bureau of Investigation, Director of the Terrorist Screening Center, and Director of the National Counterterrorism Center, respectively. (ECF No. 15.) ¹ For the reasons that follow, Defendants' Motion to Dismiss is granted.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff Julia Anne Shearson is a United States citizen who serves as the Executive Director of the Cleveland Chapter of a prominent non-profit Muslim, civil rights, public relations and educational organization. Both Plaintiff and her minor child are United States citizens. (Am. Compl., ECF No. 15, ¶¶ 1, 12.) On January 8, 2006, Plaintiff and her minor child were detained for two and one-half hours by Customs and Border Protection (“CBP”) agents near Buffalo, New York, upon re-entry into the United States after vacationing in Canada. ( Id. at ¶ 1.) Plaintiff alleges that when her passport was scanned, an “armed and dangerous” alert appeared on the CBP computer screen. ( Id.) During the detention, Plaintiff's vehicle and property were searched. ( Id.) Thereafter, Plaintiff and her child were released without explanation and allowed to enter the United States.

Plaintiff wrote to her Congressional Representatives and subsequently filed a Freedom of Information Act (“FOIA”)/Privacy Act request with the Department of Homeland Security (“DHS”) and the CBP, seeking the reason for her detention at the U.S.-Canadian border. ( Id. at ¶ 2.) Thereafter, Plaintiff filed a complaint against the DHS and CBP, alleging wrongful withholding of documents related to the border stop and seeking disclosure and release of the same. Shearson v. U.S. Dep't of Homeland Sec., No. 1:06 CV 1478, 2007 WL 764026, at *1 (N.D.Ohio Mar.9, 2007) (“ Shearson I ”) (Gaughan, J.). In Shearson I, the court ordered the defendants to produce certain non-exempt documents relating to Plaintiff's border stop, denied DHS's motion for summary judgment in its entirety, granted summary judgment to CBP on Plaintiff's Privacy Act claim, and denied CBP's motion for summary judgment on Plaintiff's FOIA claim. Id. at *13. The court held that defendants were entitled to summary judgment on Plaintiff's Privacy Act claim because the plain language of the Privacy Act allows an agency head to exempt itself from subsection (g), which is the civil enforcement provision. Id. at *12.

On November 12, 2008, Plaintiff appealed the court's grant of summary judgment on her Privacy Act claim. Shearson v. U.S. Dep't of Homeland Sec., 638 F.3d 498, 499 (6th Cir.2011). The Sixth Circuit partially vacated the district court's ruling, holding that § 552a(j) of the Privacy Act does not allow federal agencies to exempt themselves from certain civil actions under § 552a(g) and remanded Shearson I for consideration of Plaintiff's § 552a(b) and § 552a(e)(7) claims. Id. at 506. Remand proceedings are currently pending in that case. In the case before this court, Defendants maintain that Plaintiff's complaint should be dismissed in its entirety for grounds independent from the Sixth Circuit decision in Shearson I.

Plaintiff asserts that her FOIA request revealed documents indicating that at the time of her border stop she was on several government watchlists, including the Terrorist Identities Datamart Environment (“TIDE”), Treasury Enforcement Communications System (“TECS”), and Violent Gang and Terrorist Organization File (“VGTOF”) databases. (Am. Compl., ¶ 2, n.3.) On October 14 and October 28, 2008, Plaintiff sent emails to Frank Figliuzzi, Special Agent in Charge of the Cleveland FBI, in which she claimed that her name was on the VGTOF list and inquired whether FBI agency counsel would be willing to meet with her and administratively amend her status on the VGTOF list. (Figliuzzi Letter, ECF No. 15–1, at 2.) Mr. Figliuzzi informed Plaintiff that in accordance with the United States government's policy, he was unable to confirm or deny Plaintiff's status on any watchlist, and thus, a meeting with FBI agency counsel would be “fruitless.” ( Id.) Mr. Figliuzzi then directed Plaintiff to seek redress through DHS TRIP for her alleged status on the VGTOF list. ( Id.) Plaintiff did not seek redress through DHS TRIP. (Am. Compl., ¶ 6.) Plaintiff believes that DHS TRIP does not provide a meaningful remedy for travelers who experience screening difficulties. ( Id. at ¶¶ 6, 28–32.)

In her five-count Amended Complaint, Plaintiff alleges: (1) that her First Amendment rights have been violated because her alleged inclusion on government watchlists was proximately caused by her advocacy work and exercise of her First Amendment rights; (2) that her Fifth Amendment rights have been violated because she was not given notice and opportunity to contest her alleged inclusion on government watchlists in violation of the Due Process Clause; (3) that her alleged placement on government watchlists represents arbitrary discrimination without a rational basis in violation of the Fourteenth Amendment's Equal Protection Clause; (4) that she is entitled to judicial review of wrongful agency action under the Administrative Procedure Act (“APA”); and (5) that she is entitled to damages under the Privacy Act for wrongful maintenance and dissemination of her records. ( Id. at p. 13–24.)

In response to Plaintiff's Amended Complaint, Defendants filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (Defs.' Mot. to Dismiss, ECF No. 20, p. 1.) Defendants' asserted grounds for dismissal include that Plaintiff lacks standing, Plaintiff's claims are not ripe for adjudication, Plaintiff has failed to exhaust her administrative remedies, and Plaintiff has failed to state a cognizable claim under the First, Fifth, and Fourteenth Amendments, the Administrative Procedure Act and the Privacy Act. (Defs.' Memo., Mot. to Dismiss, ECF. No. 20–1, p. 1–2.)

II. STATUTORY AND REGULATORY FRAMEWORK GOVERNMENT WATCHLISTS AND PROCEDURAL REDRESS

In 2003, President George W. Bush directed the Attorney General to establish the Terrorist Screening Center (“TSC”), an organization that would “consolidate the Government's approach to terrorism screening and provide for the appropriate and lawful use of Terrorist Information in screening processes.” Scherfen v. U.S. Dep't of Homeland Sec., No. 3:CV–08–1554, 2010 WL 456784, at *5 (M.D.Pa. Feb. 02, 2010) (quoting Homeland Sec. Presidential Directive 6, http:// www/ dhs/ gov/ xabout/ laws/ gc_ 1214594853475. shtm# 1 (last visited July 8, 2010)) (internal quotation marks omitted). The TSC is a division of the Federal Bureau of Investigation (“FBI”), with the support of the Department of Homeland Security (“DHS”), the Department of Justice and other agencies, whose purpose is to maintain a consolidated terrorist watchlist, also known as the Terrorist Screening Database (“TSDB”). (Am. Compl., ¶¶ 13, 15; Defs.' Memo., p. 3.); see also Scherfen, 2010 WL 456784, at *5. The TSDB is a single database of identifying information about those known individuals or reasonably suspected of being involved in terrorist activity. (Am. Compl., ¶ 14; Defs.' Memo., p. 13.) The data provided through the TSDB enables front-line screening agencies to identify known or suspected terrorists attempting to obtain visas, enter the United States, or board planes. ( Id. at pp. 3–4)

Congress recognized that the TSDB-nomination procedure carries with it the potential for wrongful identification of persons as security threats. In doing so, Congress instructed the DHS to create a “timely and fair” appeal and redress process for individuals who believe they were “wrongly identified as a threat.” See49 U.S.C. § 44926 (2007). Subsequently, the DHS established the Traveler Redress Inquiry Program (“DHS TRIP”), the primary administrative process for individuals who have inquiries about their status or those who seek redress of difficulties experienced during travel screening at transportation hubs or crossing national borders. These difficulties include: watchlist issues, screening problems at ports of entry, and occasions where travelers believe they have been unfairly or incorrectly delayed, denied boarding, or identified for additional screening. Scherfen, 2010 WL 456784, at *6 (citing DHS Travel Redress Inquiry Program, http:// www. dhs. gov/ files/ programs/ gc_ 1169676919316. shtm (last visited July 8, 2011)).

James Kennedy, Director of the DHS's Office of Transportation and Security Redress, explains that because multiple federal departments and agencies play a role in the screening process used by Customs and Border Patrol (“CBP”), the Transportation Security Administration (“TSA”), and others, DHS TRIP serves the importantfunction of providing a single, formal administrative redress process for the wide variety of travel issues listed above. (Kennedy Decl., ECF No. 12–2, ...