Abdi v. Wray ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 12, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
YUSSUF AWADIR ABDI,
Plaintiff - Appellant,
v. No. 18-4078
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
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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
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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,
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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.
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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
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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 No Fly List. Therefore, he waived
that argument, and the district court did not err in dismissing the complaint by
ignoring any supposed No Fly List claims.
The allegations in the complaint related to defendants’ wrongdoing can be
categorized into two groups. First, the complaint includes allegations recounting the
inconveniences that Abdi has experienced due to his placement on the Selectee List.
See, e.g., Compl. ¶ 3 (“defendants’ rationale for placing Plaintiff Abdi on the
Selectee List is arbitrary”), ¶ 4 (“The consequences of being on the Selectee List . . .
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include the burden of having to go through security with ticketing agents”), ¶ 27
(“Imam Abdi knows that he was on the Selectee List”), ¶ 49 (“Because the
defendants placed him on the Selectee List, [Abdi] could not print his boarding pass
at a kiosk”), ¶ 57 (“because Imam Abdi is included on the federal terror watch list,
and specifically the Selectee List, Defendants disseminated . . . his designation”),
¶ 157 (“Defendants’ actions in nominating Plaintiff and other similarly situated
American citizens to the Selectee List blatantly violate [49 U.S.C. § 114(h)(3)]”).
Second, the complaint includes allegations recounting the inconveniences that
all people in the TSDB experience, regardless of whether their name appears on the
No Fly List or the Selectee List. See, e.g., Compl. ¶¶ 61–65 (alleging that defendants
disseminate the names of everyone in the TSDB to government agencies and foreign
governments), ¶ 68 (“Banks have closed the bank accounts of individuals listed on
the federal terror watch list”), ¶ 78 (“Being on the federal terror watch list can
prevent listed persons . . . from purchasing a gun.”), ¶ 80 (TSDB listees can be
prevented “from obtaining or renewing their Hazmat license”), ¶ 81 (TSDB listees
can be prevented “from working at an airport, or working for an airline”). These
alleged inconveniences apply to both people on the No Fly List and people on the
Selectee List, and Abdi did not allege that he or anyone similarly situated
experienced any of these enumerated inconveniences because of their placement on
the No Fly List in particular. Furthermore, Abdi did not allege that he in fact
experienced any of these inconveniences. Instead, Abdi alleges only that he
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personally has experienced various specific travel impediments because of his
inclusion on the Selectee List.
The complaint does allege that Abdi was placed on the No Fly List for a short
time. In the facts section, the complaint states that Abdi was prevented from
boarding a plane from Nairobi to the United States on one occasion on June 14, 2017,
because he was “upgraded from the Selectee List to the No Fly List.” Id. at ¶ 40.
However, the complaint then states that, two days later, Abdi was allowed to fly back
to the United States and has since been allowed to fly. Id. at ¶ 43–47. Several dozen
paragraphs later, the complaint alleges that defendants’ “have unduly deprived
Plaintiff of constitutionally protected rights” by “including Plaintiff and other
similarly situated American citizens on a watch list that unreasonably burdens or
prevents them from boarding commercial flights.” Id. at ¶ 156 (substantive due
process claim). At most, these allegations place the defendants on notice that Abdi
was challenging his temporary, forty-eight-hour placement on the No Fly List as
having violated his constitutional rights. The district court acknowledged that Abdi
was prevented from flying for forty-eight hours, Dist. Ct. Op. at 3 n.1, as do we in
our analysis below. However, Abdi’s complaint does not allege that he was
prohibited from flying indefinitely due to his placement on the No Fly List or that he
believed he would be prohibited from flying in the future under a voluntary cessation
theory. Therefore, we reject Abdi’s contention that the district court overlooked any
such claims, and we construe Abdi’s claims for relief to relate solely to his placement
on the Selectee List.
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B. Abdi’s complaint failed to allege a plausible substantive due process claim
Abdi argues that the district court erred in dismissing his substantive due
process claim predicated upon his placement on the Selectee List. Applying the
fundamental-rights analysis from Washington v. Glucksberg, 521 U.S. 702, 721–722
(1997), we affirm the district court’s dismissal of that claim because, although Abdi’s
fundamental right to interstate travel and his right to international travel, whether
fundamental or not, could potentially be implicated by placement on the Selectee
List, the government conduct alleged in Abdi’s complaint has not violated those
rights. To reach that conclusion, we (1) identify the applicable law, (2) define the
fundamental rights at issue, to the extent we need to do so, and (3) conclude that
those rights have not been infringed by the conduct alleged in the complaint.
1. Applicable substantive due process analysis
“Substantive due process bars ‘certain government actions regardless of the
fairness of the procedures used to implement them.’” Brown v. Montoya, 662 F.3d
1152, 1172 (10th Cir. 2011) (quotation omitted). It limits what the government may
do in both its legislative and executive capacities. The Supreme Court has found
substantive due process violations where government action has infringed a
“fundamental” right without a “compelling” government purpose, Glucksberg, 521
U.S. at 721–722, as well as where government action deprives a person of life,
liberty, or property in a manner so arbitrary it “shocks the conscience,” Cty. of
Sacramento v. Lewis, 523 U.S. 833, 846 (1998). This court held in Halley v.
Huckaby that “we apply the fundamental-rights approach when the plaintiff
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challenges legislative action, and the shocks-the-conscience approach when the
plaintiff seeks relief for tortious executive action,” 902 F.3d 1136, 1153 (10th Cir.
2018). Both Abdi and the government frame their substantive due process arguments
in fundamental-rights terms, even though Abdi’s alleged harm stems from executive
agency action rather than an Act of Congress. For the following reasons, we agree
that the Glucksberg analysis governs the unique circumstances presented in this case.
Abdi filed this lawsuit against the directors of the FBI, TSC, TSA, U.S.
Customs and Border Protection, and NCTC, alleging that, “[b]y placing Plaintiff and
other similarly situated American citizens on the federal terror watch list, Defendants
have placed an undue burden on their fundamental right of movement,” Compl.
¶ 158, and seeking, in part, “[a] declaratory judgment that Defendants’ policies,
practices, and customs violate the Fifth Amendment to the United States Constitution,”
id. at 37. Accordingly, Abdi does not challenge the tortious conduct of an individual
agency officer, like the TSA agents that screen him, nor does he challenge legislative
action, because the TSC, which develops and maintains the TSDB, was not created
by Congress. It was established by the Attorney General at the direction of the
President through the issuance of Homeland Security Presidential Directive-6
(“HSPD-6”) on September 16, 2003, and it functions through the concerted efforts of
several agency heads. See Staff of H. Comm. on Homeland Sec., 110th Cong.,
Compilation of Homeland Security Presidential Directives (HSPD) (Updated
Through December 31, 2007) at 31 (Comm. Print 2008).
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In HSPD-6, the President mandated that the Attorney General “establish an
organization to consolidate the Government’s approach to terrorism screening and
provide for the appropriate and lawful use of Terrorist Information in screening
processes” and “implement appropriate procedures and safeguards with respect to all
such information about United States persons” in “coordination with the Secretary of
State, the Secretary of Homeland Security, and the Director of Central Intelligence,”
all in an effort to “[t]o protect against terrorism.” Id. Thus, Abdi’s complaint, which
challenges his placement on the Selectee List, does not object to an independent,
“specific act of a governmental officer,” Lewis, 523 U.S. at 846–49, which the
Supreme Court has held should be analyzed under the shocks-the-conscience test, but
to the concerted action of several agency employees, undertaken pursuant to broad
governmental policies, that resulted in his name being included in the TSDB. This
challenge is akin to a challenge to legislative action because, as with an act of a
lawmaking body, the federal government here is attempting, through policy, to
achieve a stated government purpose: to “protect against terrorism.” Thus, it is most
appropriate to analyze under the Glucksberg framework whether the defendants’
implementation of the policies that govern their actions violates Abdi’s fundamental
rights, and, if so, whether the policies are narrowly tailored to achieve a compelling
government purpose.1
1
At least one other panel of this court has applied the fundamental-rights approach in
a case where, as here, a government entity’s implementation of its official policy is
alleged to have caused a substantive due process violation. Dawson v. Bd. of Cty.
Comm’rs, 732 F. App’x 624, 630 (10th Cir. 2018) (unpublished) (applying fundamental-
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Substantive due-process analysis under Glucksberg proceeds in three steps.
First, the reviewing court must determine whether a fundamental right is at stake
either because the Supreme Court or the Tenth Circuit has already determined that it
exists or because the right claimed to have been infringed by the government is one
that is objectively among those “deeply rooted in this Nation’s history and tradition”
and “implicit in the concept of ordered liberty” such that it is “fundamental.”
Glucksberg, 521 U.S. at 720–21. Second, the court must determine whether the
claimed right—fundamental or not—has been infringed through either total
prohibition or “direct[] and substantial[]” interference. Zablocki v. Redhail, 434 U.S.
374, 387 (1978). Third, if the right infringed is a fundamental right, the court must
determine whether the government has met its burden to show that the law or
government action interfering with the right is narrowly tailored to achieve a
compelling government purpose. Id. at 388. If the right is not fundamental, we
apply rational basis review. Reno v. Flores, 507 U.S. 292, 305 (1993) (“[N]arrow
tailoring is required only when fundamental rights are involved.”). We agree with
Abdi that both his fundamental right to interstate travel and his right to travel abroad,
whether fundamental or not, are at stake here (although we reject the novel “right of
movement” that Abdi asserts), but the government action he alleged in the complaint
has not substantially interfered with either right. Thus, we need not and do not
analyze whether the government’s conduct passes the applicable level of scrutiny.
rights approach to assess the due process implications of a county jail’s pretrial detention
policies), cert. denied, Dawson v. Bd. of Cty. Comm’rs, 139 S. Ct. 862 (2019).
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2. Scope of the rights to travel interstate and internationally
Abdi asserts that we are required by Glucksberg to examine this country’s
historical foundational documents and international treaties anew to formulate the
interest at stake in this case and that, if we did, we would discover, rooted in our
historical traditions, a “basic and far-reaching,” Aplt. Br. at 16., right of movement
that permits “movement between the states, as well as between this country and others,”
Aplt. Br. at 13. However, the Supreme Court has already recognized the fundamental
right to travel “throughout the United States,” Dunn v. Blumstein, 405 U.S. 330, 338
(1972), and has recognized a different right to travel “outside the United States,”
Haig v. Agee, 453 U.S. 280, 306 (1981) (“[T]he freedom to travel outside the United
States must be distinguished from the right to travel within the United States.”).
Through several cases, the Court has defined the scope of these rights. We are bound
by the definitions established by those precedents, and, as a result, we cannot and do
not create a new, more expansive right to “movement” as Abdi suggests. The
Supreme Court has cautioned many times against creating new substantive due
process rights. See Glucksberg, 521 U.S. at 720 (“[G]uideposts for responsible
decision[-]making in this unchartered area are scarce and open-ended.”); see also Moore
v. City of E. Cleveland, 431 U.S. 494, 544 (1977) (White, J., dissenting) (“That the Court
has ample precedent for the creation of new constitutional rights should not lead it to
repeat the process at will.”). Therefore, we rely on Supreme Court precedent to articulate
the rights to travel interstate and internationally that are at stake.
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As for the right to travel interstate, the Supreme Court has held that the
“[f]reedom to travel throughout the United States has long been recognized as a basic
right under the Constitution,” Dunn, 405 U.S. at 338 (internal quotation omitted).
The right protects, among other things, “the right of a citizen of one State to enter
and to leave another State.” Saenz v. Roe, 526 U.S. 489, 500 (1999). Although the
textual source of the right has been the subject of some debate, the Supreme Court
has recognized that this right of “free ingress and regress to and from” neighboring
States was expressly mentioned in the Articles of Confederation and “may simply
have been ‘conceived from the beginning to be a necessary concomitant of the strong
Union the Constitution created.’” Id. at 501 (citation omitted).
The Supreme Court has distinguished between the right to travel interstate and
the right to travel internationally. Whereas the “right of interstate travel is virtually
unqualified,” the Court has stated that the right to travel abroad is an “aspect of the
‘liberty’ protected by the Due Process Clause.” Califano v. Torres, 435 U.S. 1, 4 n.6
(1978). But the Supreme Court has also recognized that “[t]ravel abroad, like travel
within the country, may be necessary for a livelihood . . . [and] may be as close to the
heart of the individual as the choice of what he eats, or wears, or reads.” Kent v.
Dulles, 357 U.S. 116, 126 (1958). Because we conclude that Abdi’s placement on
the Selectee List does not infringe his interstate or international travel rights, we do
not need to determine here the scope of an individual’s right to international travel or
the applicable standard of review.
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The Supreme Court has made clear that the rights to interstate and
international travel are not unlimited. Although citizens have a right to travel
throughout the United States “uninhibited by statutes, rules, or regulations which
unreasonably burden or restrict movement,” Saenz, 526 U.S. at 499 (emphasis
added), reasonable restrictions on the right to interstate travel are permissible. For
example, when a “person has been convicted of a crime within a State[,] [h]e may be
detained within that State, and returned to it if he is found in another State.” Jones v.
Helms, 452 U.S 412, 419 (1981). Other circuits have found impositions like gasoline
taxes and toll roads to be acceptable burdens on the right to travel interstate. Kansas
v. United States, 16 F.3d 436, 442 (D.C. Cir. 1994). The Second Circuit has held that
airport security that delays a traveler who checks a gun for “a little over one day” is
“a minor restriction that d[oes] not result in a denial of the right to travel.” Torraco
v. Port Auth. of New York & New Jersey, 615 F.3d 129, 141 (2d Cir. 2010). The
Ninth Circuit has also held that “burdens on a single mode of transportation do not
implicate the right to interstate travel.” Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir.
1999). In sum, government conduct that does not directly and substantially “impair
the exercise of the right to free interstate movement” does not amount to a
constitutional violation. Saenz, 526 U.S. at 501.
Like the freedom to travel interstate, the freedom to travel abroad is “subject
to reasonable government regulation.” Haig v. Agee, 453 U.S. 280, 306 (1981); see
also Kashem v. Barr, —F.3d—, 2019 WL 5303288, at *14 (9th Cir. Oct. 21, 2019).
For example, in Haig, the Court held that the President could revoke the passport of a
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United States citizen if the passport-holder was engaging in activities abroad that
were likely to cause serious damage to the national security or the foreign policy of
the United States, such as divulging CIA secrets. Haig, 453 U.S. at 282.
Only a few federal courts have considered whether placement on the Selectee
List infringes a citizen’s rights to travel interstate or internationally. In Beydoun v.
Sessions, 871 F.3d 459, 467 (6th Cir. 2017), the Sixth Circuit held that the plaintiff’s
placement on the Selectee List did not substantially interfere with his exercise of the
right to travel interstate or internationally because the burdens that resulted from the
placement were “negligible or incidental.” There, one plaintiff alleged that he had
missed “countless flights” after being subjected to lengthy secondary security
screenings and the delays deterred him from flying altogether. Id. A second plaintiff
alleged that he had suffered delays of ten minutes and one hour and been deterred
from flying once. Id. The Sixth Circuit held that “[w]hile Plaintiffs may have been
inconvenienced by the extra security hurdles they endured in order to board an
airplane, these burdens do not amount to a constitutional violation.” Id. at 468. The
Sixth Circuit also found that it was important that the plaintiffs had not been
prevented from “flying altogether or from traveling by means other than an airplane”
which distinguished its case from “those in which plaintiffs claimed they could not
fly at all because they were on the No Fly List.” Id. In Mohamed v. Holder, a
federal district court held that the plaintiff’s allegation that he was prevented from
boarding a plane from Kuwait to the United States due to his placement on the No
Fly List failed to state a claim that his constitutional right of reentry was violated
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because he was allowed to board a flight four days later. 995 F. Supp. 2d 520, 537
(E.D. Va. 2014). The district court held that “the four to five-day delay that
Mohamed experienced . . . did not constitute a constitutional deprivation.” Id. Thus,
United States citizens have a fundamental right to travel interstate and a right to
travel abroad, but neither is unlimited.
Having sufficiently defined the scope of the rights that are at stake, the final
question before us is whether Abdi’s placement on the Selectee List substantially
interfered with those rights. Zablocki, 434 U.S. at 388.
3. Abdi’s placement on the Selectee List has not infringed his travel rights
Here, Abdi asserts that his status as a listee “deprives his liberty interest in
travel—not because it absolutely prevents his ability to travel—but because it enacts
a substantial cost anytime he does choose to exercise that right.” Aplt. Br. at 23.
However, as the district court found, the burdens and delays alleged by Abdi do not
substantially interfere with his travel rights. First, Abdi’s placement on the Selectee
List affects only one mode of transportation throughout the country. It places no
restrictions on Abdi’s ability to drive, bus, or otherwise commute interstate. Second,
when the government prevented Abdi from boarding his plane on June 14, 2017, he
was delayed for just two days before he was permitted to fly back to the United
States. That delay is commensurate with the four-day delay in Mohamed and the
one-day delay in Torraco, both of which were upheld. Third, the excessive security
Abdi experiences is not unlike that of many air travelers. Abdi has missed one flight
due to the length of his security screenings, but the Sixth Circuit upheld the use of
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security screenings that caused the plaintiff in Beydoun to miss “countless flights.”
871 F.3d at 467. Additionally, Abdi alleges that obtaining his boarding pass takes
about a half hour, but he does not indicate how long his screenings take in total.
Average air travelers often spend more than one hour in TSA lines and sometimes
miss flights as a result of those delays. Delays of a few hours are not uncommon for
many air travelers and do not amount to a substantial interference with the rights to
travel interstate or internationally. Abdi has not alleged that his delays substantially
exceed those experienced by many air travelers nor preclude his ability to travel.
Therefore, we conclude that neither Abdi’s allegation that the government
prevented him from boarding his plane in Nairobi nor his allegation that his
placement on the Selectee List subjects him to extra airport security states a
substantive due process claim, because those impediments do not substantially
interfere with his ability to travel. We affirm the district court’s dismissal of Abdi’s
substantive due process claim.
C. Abdi’s complaint failed to allege a plausible procedural due process claim
Abdi also argues that the district court erred by dismissing his procedural due
process claim. The Fifth Amendment’s Due Process Clause forbids the federal
government from depriving any person “of life, liberty, or property, without due
process of law.” U.S. Const. amend. V. “The requirements of procedural due process
apply only to the deprivations of interests encompassed by the [constitutional] protection
of liberty and property.” Al-Turki v. Tomsic, 926 F.3d 610, 614 (10th Cir. 2019).
Therefore, to state a procedural due process claim, a plaintiff must establish (1) the
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deprivation of (2) a constitutionally cognizable liberty or property interest, (3) without
adequate due process procedures. Abdi asserts that he was deprived of two liberty
interests without due process. First, Abdi contends that defendants prevented him
from traveling free from unreasonable burdens when they placed him on the Selectee
List. Second, Abdi asserts under the stigma-plus doctrine that defendants deprived
him of his liberty interest in his reputation when they labeled him a “known or
suspected terrorist” on the Selectee List and when they disseminated that list to
public and private entities. Abdi argues that both deprivations occurred in the
absence of any process, because the defendants did not notify him of either
occurrence.2 The allegations in the complaint are insufficient to plausibly state a
procedural due process claim under either theory.
1. Government has not deprived Abdi of his liberty interest in travel
Assuming the rights to travel interstate and internationally are cognizable liberty
interests for purposes of procedural due process, Abdi was not deprived of those rights in
this case. As explained above, the government may impose reasonable restrictions on
both a citizen’s right to travel throughout the United States and a citizen’s right to
travel internationally. Neither the extra security measures that Abdi endured due to
2
Abdi stated at oral argument before the district court that he is not challenging the
Department of Homeland Security Traveler Redress Inquiry Program (“DHS TRIP”),
a process that allows individuals who seek redress after having been included in the
terrorist watch list to submit an inquiry about their listee status to DHS. Dist. Ct. Op.
at 4. Abdi insisted instead that he challenges his placement on the watchlist in the
first instance. Id. His brief to us emphasizes that it is only the government’s failure
to notify him of his placement on the list that violates procedural due process.
20
his placement on the Selectee List nor the forty-eight-hour delay he experienced
trying to fly home from Nairobi deprived him of a constitutional right; those
impediments merely reasonably encumbered his ability to travel interstate and
internationally and by only one mode of transportation. We agree with the district
court that the government’s conduct did not deprive Abdi of a liberty interest in
travel.3
2. Government has not deprived Abdi of his liberty interest in reputation
Abdi also alleges that the government defendants deprived him of his liberty
interest in his reputation without due process. “Where a person’s good name,
reputation, honor, or integrity is at stake because of what the government is doing to
him, a protectable liberty interest may be implicated . . . .” Martin Marietta
Materials, Inc. v. Kansas Dep’t of Transp., 810 F.3d 1161, 1184 (10th Cir. 2016)
(internal quotation marks and citation omitted). For a plaintiff to prevail on a
reputation-based procedural due process claim, the plaintiff must satisfy the “stigma-
plus” standard by demonstrating both “(1) governmental defamation and (2) an
3
A district court recently concluded that inclusion in the TSDB (but not as a listee on
the No Fly list) substantially interfered with the plaintiff’s rights to travel, resulting
in the deprivation of a liberty interest. See Elhady v. Kable, 391 F. Supp. 3d 562,
571, 577-79 (E.D. Va. 2019). In Elhady, the plaintiffs produced evidence of more
significant travel obstacles than are at issue here—for example, being detained at
gunpoint at a border check, handcuffed in public view, and interrogated for seven to
ten hours, on three separate occasions, see id. at 571-72—that actually deterred the
plaintiffs from traveling at all, internationally or domestically, see id. at 577-79.
Without expressing any views on the claims at issue in Elhady, we note that those
circumstances are distinguishable from the case we consider here.
21
alteration in legal status.” Id. (citation omitted). Even if Abdi’s complaint
adequately pled governmental defamation, a conclusion we need not and do not
reach, the complaint failed to allege facts that demonstrate the second element of the
stigma-plus test, that he suffered a change in his legal status.
The “plus factor” of the stigma-plus standard requires a plaintiff to allege that
he or she suffered the loss of a right or interest that has attained “constitutional status
by virtue of the fact that [it was] initially recognized and protected by state law . . .
[and] the State seeks to remove or significantly alter that protected status.” Paul v.
Davis, 424 U.S. 693, 710–11 (1976). For example, in Wisconsin v. Constantineau, 400
U.S. 433, 434 (1971), a Wisconsin statute allowed local police to forbid the sale of liquor
to any person that drinks alcohol excessively and as a result “misspend[s], waste[s] or
lessen[s] his estate” or disturbs the peace. Id. at 445. The chief of police of Hartford,
Wisconsin, without notice or hearing to Norma Grace Constantineau, posted a notice in
all retail liquor outlets that sales or gifts of liquor to Constantineau were forbidden for
one year. The Supreme Court held that the statute violated Constantineau’s procedural
due process rights because—as the Court later explained in Paul v. Davis, 424 U.S. 693,
708–09 (1976)—she was given no process by which to challenge the accusations that
both damaged her reputation and prevented her from engaging in an activity that is
otherwise allowed under state law, namely, purchasing alcohol. Similarly, in Davis, 424
U.S. at 695, a local police chief distributed a list of “active shoplifters” that included
Edward Charles Davis’s name and photo to local merchants without giving Davis notice
or an opportunity to contest the accusations. However, unlike the flyer in Constantineau
22
that prohibited merchants from selling liquor to Norma Grace, the flyer in Davis merely
defamed Davis, without mandating that any merchant refuse him service. Id. at 707–09.
The Supreme Court held that the state’s “defamatory publications, however seriously
they may have harmed [Davis’s] reputation, did not deprive him of any ‘liberty’ or
‘property’ interests protected by the Due Process Clause” because the defamation did not
“alter[] or extinguish[]” a “right or status previously recognized by state law.” Id. at 711-
12.
Here, Abdi’s Complaint asserts that the government violated his procedural
due process rights when it placed him on the Selectee list without notice, which
imposed on him the stigmatizing label of “known or suspected terrorist” and then
“disseminated the stigmatizing label . . . to state and local authorities, foreign
governments, private corporations, private contractors, airlines, gun sellers, car
dealerships, financial institutions, the captains of sea-faring vessels, among other
official and private entities and individuals.” Compl. ¶¶ 152–53. The complaint
alleges that, as a result of the wide dissemination of that stigmatizing label, Abdi
could, potentially, be prohibited from:
1. Accessing the financial system,
2. Opening or maintaining bank accounts,
3. Making wire transfers,
4. Sponsoring the permanent residency of immediate relatives,
5. Entering other nations,
6. Purchasing a gun,
7. Obtaining a commercial drivers’ license to transport hazardous
material,
8. Obtaining or renewing a Hazmat license,
9. Working for an airport or an airline, or
10. Obtaining an FAA license.
23
Id. at ¶¶ 67–83. Abdi also alleges that his family’s visas were processed differently
because of his placement on the Selectee List. Id. at ¶ 36.
The allegations in support of Abdi’s stigma-plus argument suffer from two
infirmities. First, Abdi failed to specifically allege that he has actually been
prevented from participating in any of the above activities. His allegations are
entirely speculative. For example, he alleges that placement on the terrorist watchlist
“can prevent listed persons . . . from purchasing a gun,” id. at ¶ 78 (emphasis added),
“can prevent listed persons . . . from obtaining or renewing their Hazmat license,” id.
at ¶ 80 (emphasis added), and “can also prevent listed persons . . . from working at an
airport,” id. at ¶ 81 (emphasis added). Abdi’s brief to us likewise argues, in the
future tense, that local police “may” pull him over without reasonable suspicion due
to his listee status and that, if he attempted to buy a gun in certain states, he “would
be” unable to do so. Aplt. Br. at 25. Furthermore, Abdi’s family’s alleged
experience with the United States visa system is not his own.
Second, Abdi failed to allege that, in addition to distributing the list of “known
of suspected” terrorists on which his name appears, the government mandates that the
private and public entities in receipt of the list refuse to offer service or employment
to the listed individuals, as in Constantineau. Abdi alleges that the government
disseminates the watchlist “with the purpose and hope” that the entities and individuals
24
that receive it “will impose consequences on those individuals.” Compl. ¶ 66. But a
“purpose and hope” is not a mandate.4
For these reasons, Abdi has failed to allege that he was actually deprived of
any right conferred by state or federal law because of his status on the Selectee List.
Accordingly, we affirm the district court’s dismissal of Abdi’s procedural due
process claim.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s dismissal of Abdi’s
complaint with prejudice.
4
The district court in Elhady held that being on the TSDB deprived the plaintiffs of
their reputational interest but, in reaching that conclusion, did not address
Constantineau’s requirement that the challenged government conduct must mandate
others’ action against the plaintiffs. See 391 F. Supp. 3d at 579-80.
25