Mohamed v. Holder 1:11-cv-00050 (E.D. Va.)
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The plaintiff was a naturalized U.S. Citizen denied boarding to a flight from Kuwait to the United States because of his alleged inclusion on the No Fly List. On January 18, 2011, he filed a lawsuit in the U.S. District Court for the Eastern District of Virginia against the Department of Homeland Security ("DHS"), the Federal Bureau of Investigation ("FBI"), the Transportation and Security Administration ("TSA"), and the Terrorist Screening Center ("TSC"), which created and maintained the No Fly List. The plaintiff, represented by the Council on American Islamic Relations, alleged that his placement on the No Fly List constituted: (1) a violation of his right as a United States citizen to reside in the United States and re-enter it from abroad; (2) unlawful agency action in violation of the Administrative Procedure Act; and (3) a denial of procedural due process under the Fifth Amendment. The plaintiff sought injunctive relief requiring defendants to remove him from the No-Fly List; inform him of the grounds for his inclusion on the No-Fly List; and provide him with an opportunity to rebut his inclusion. The plaintiff also sought monetary damages, attorneys' fees and costs, and a declaration that the defendants violated his rights. The case was assigned to Judge Anthony J. Trenga.

Contemporaneously with the complaint, the plaintiff also filed an emergency motion with respect to his alleged inability to return to the U.S. from Kuwait. The relief requested in the motion became moot, however, when the plaintiff was permitted to return to the U.S. on January 21, 2011.

On June 3, 2011, the defendants filed a motion to dismiss based on lack of subject matter jurisdiction, claiming that jurisdiction to hear the plaintiff’s claims lies exclusively in the U.S. Court of Appeals under 49 U.S.C. § 46110, which gave the U.S. Court of Appeals exclusive jurisdiction over challenges to certain orders of the TSA. Judge Trenga agreed and held that it lacked jurisdiction to consider the plaintiff's challenge to past or future restrictions on his ability to travel because such claims are "inescapably intertwined" with the review of TSA orders. 2011 WL 3820711. Instead of dismissing the plaintiff's claims, however, the court transferred the plaintiff's claims to the U.S. Court of Appeals for the Fourth Circuit.

Before the U.S. Court of Appeals for the Fourth Circuit, the plaintiff contended that the district court did have jurisdiction, and thus, requested that his claims be remanded. On May 28, 2013, the Fourth Circuit agreed. In an order signed by the Court's clerk, the Fourth Circuit explained that 49 U.S.C. § 46110 did not evidence Congress' intent to exclude the plaintiff's challenge to past and future restricts on his ability to travel from consideration in the district court.

On remand, the defendants again filed a motion to dismiss, contending that the plaintiff's claims must be dismissed because he failed to exhaust administrative remedies, that he lacked standing, that his claims were not ripe for adjudication, and that he failed to state a claim for which relief may be granted.

On January 22, 2014, Judge Trenga granted in part and denied in part the defendants' motion. 2014 WL 243115. The Court held that the plaintiff was not required to exhaust administrative remedies, had standing, and that his claims were ripe. The Court then dismissed a portion of the plaintiff's first claim for relief, concluding that four to five day delay that the the plaintiff experienced in his ability to reenter the U.S. did not unduly burden his rights such that it constituted a constitutional deprivation. The court, however, found that the plaintiff's broader allegations in his first claim for relief of present and future harms from his inability to fly were sufficient to withstand the motion to dismiss. The court also held that plaintiff's procedural due process claim was sufficient to withstand the motion to dismiss as the plaintiff did not receive any notice of his inclusion or reasons for his inclusion. The parties then engaged in discovery for the next year.

On December 9, 2014, the plaintiff moved for partial summary judgment as to his procedural due process claim. The plaintiff claimed that the defendants failed to provide him with a meaningful opportunity to challenge his inclusion on the No Fly List, either before or after his inclusion, depriving him of various liberty interests. The defendants contended that the redress process established through the DHS Traveler Redress Inquiry Program ("TRIP") was constitutionally sufficient. On July 16, 2015, the court issued an order partially granting the plaintiff's motion for summary judgment. Specifically, the court concluded that the plaintiff was denied his Fifth Amendment right to an adequate opportunity to challenge his inclusion on the No Fly List.

On April 13, 2015, the defendants filed a notice stating the government's new redress procedures for claims submitted through DHS regarding denial of boarding on a covered aircraft, and that these new procedures would be available to the plaintiff should he wish to use them.

The plaintiff filed a fifth amended complaint on December 28, 2015. On March 3, 2016, using arguments that are unavailable on the docket, the defendants moved for summary judgment of the plaintiff’s substantive due process and non-delegation claims of the fifth amended complaint. That same day, the plaintiff moved for summary judgment of those same claims, arguing that the No Fly List interfered with his fundamental right of movement and was not narrowly tailored and that the No Fly List was operating in the absence, and in some ways against, the wishes of Congress.

On July 20, 2017, Judge Trenga granted the defendants’ motion for partial summary judgment and denied the plaintiff’s. The court concluded that the No Fly List was not unconstitutional on substantive due process grounds because it was not unlawful under the non-delegation doctrine nor did it exceed agency authority. As such, the court entered judgment in favor of the United States and against the plaintiff.

The plaintiff appealed this decision to the United States Court of Appeals for the Fourth Circuit. Not long after, however, the plaintiff voluntarily dismissed this appeal and the Fourth Circuit obliged on December 21, 2017. There are no pending motions or appeals so the case is presumably closed.