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Osama Abdelfattah v. U.S. Department of Homeland Security

September 27, 2012


The opinion of the court was delivered by: Royce C. Lamberth Chief Judge United States District Court


In his pro se complaint, Osama Abdelfattah alleges that the Department of Homeland Security and several of its component agencies*fn1 have violated the Privacy Act of 1974, 5 U.S.C. § 552a, by compiling, maintaining, and failing to correct records about Mr. Abdelfattah that are stored in the Treasury Enforcement Communications System (TECS). But the TECS is exempt from the Privacy Act requirements that Mr. Abdelfattah would enforce through this suit. For that reason-and because the alternative grounds on which Mr. Abdelfattah would base his claims are no more availing-the Court will grant the Department's motion to dismiss the complaint.


A Jordanian national, Osama Abdelfattah came to the United States as a student in 1996. Am. Compl. ¶¶ 117--18. During his studies, Mr. Abdelfattah lived in a shared apartment with several roommates. For a period of time, one of those roommates was a man in whom federal authorities who would later take an interest. Decl. of Osama Abdelfattah (Mar. 18, 2012), ¶¶ 9--13.*fn2 Having shared an address with this man has been a cause of considerable trouble to Mr. Abdelfattah.

The trouble began in December of 2001, when Mr. Abdelfattah submitted an I-485 application to adjust his status to that of a permanent resident-that is, a green card holder-and an I-765 application for employment authorization. Am. Compl. ¶ 121. In early 2003, Mr. Abdelfattah called to inquire about the status of his I-765 application, and was told that he was undergoing a background check for security purposes. Id. ¶ 123. Over the course of 2003, Mr. Abdelfattah repeatedly visited immigration offices, waiting for lengthy periods each time, but did not secure an interim employment authorization document until late September of that year. Id. ¶¶ 124--29. He received another interim employment authorization in May 2004. Id. ¶ 134. Mr. Abdelfattah's I-485 application was approved in June 2004, and he was instructed to appear at a United States Customs and Immigration Services office to receive his physical green card. Id. ¶¶ 139--41.

While Mr. Abdelfattah was waiting at that office he was approached by five immigration officers and two dogs; one of the officers asked to speak with him. Id. ¶ 142. In a back room, the officer searched Mr. Abdelfattah, inspected his wallet, and began to question him. Id. ¶ 143. Two FBI agents arrived about half an hour later and joined in the questioning. Id. ¶ 144. One of the agents asked what Mr. Abdelfattah knew about one of his former roommates. Mr. Abdelfattah replied that they had lived in the same house in 1998 or 1999, after which time the roommate had moved to New Jersey and, Mr. Abdelfattah heard, ran into trouble with the law. Id. ¶ 145. He added that two friends had told him that they had been questioned by immigration authorities about their connections to the roommate. Id. Mr. Abdelfattah argued with an immigration officer, saying that his tenuous connection to this man did not justify the disruption in his life. Id. ¶ 146. The officer replied that the authorities' actions were justified. Id. The FBI agents asked Mr. Abdelfattah whether he would be willing to work as an informant for the Bureau. Id. ¶ 147. At the end of this interview, an immigration officer instructed Mr. Abdelfattah to proceed to the Alien Documentation, Identification, and Telecommunications System (ADIT) unit. Id. ¶ 149. The officer at the ADIT unit refused to stamp Mr. Abdelfattah's passport or return his employment authorization document, which Mr. Abdelfattah had surrendered earlier in the day. Id. ¶ 150. Since that time, Mr. Abdelfattah has continued to have difficulty obtaining routine immigration approvals, id. ¶¶ 152, 159, 163, 165--67, and has been contacted by FBI agents, id. ¶ 188, and immigration officials, who have visited his home and his workplace, id. ¶¶ 185--86.

In August 2004, Mr. Abdelfattah filed a Freedom of Information Act request for his I-485 application. Id. ¶ 150. He filed another FOIA request in August of 2006, this time requesting "all records about [himself] that were held in any record system under the jurisdiction of [U.S. Immigration and Customs Enforcement], including Treasury Enforcement Communications System (TECS) records and investigation records." Abdelfattah v. U.S. Immigration & Customs Enforcement, 851 F. Supp. 2d 141, 143 (D.D.C. 2012). Mr. Abdelfattah found that the TECS included records about him that contained past addresses, including the address that he briefly shared with his former roommate, Am. Compl. ¶ 11, information about driver's licenses that he had held, id. ¶¶ 74--79, "credit header" information, id. ¶¶ 63--71, and credit card numbers, id.

¶¶ 80--85. Mr. Abdelfattah attributes the difficulty that he has faced in his interactions with immigration officials to the existence of these records. Id. ¶¶ 192--96. In this suit, Mr. Abdelfattah therefore seeks an order requiring the deletion of these TECS records, as well as damages under the Privacy Act for alleged statutory violations in compiling the records. The Department has moved to dismiss the complaint for failure to include "a short and plain statement of the claim showing that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2), for

lack of subject matter jurisdiction under Rule 12(b)(1), and for failure to state a claim on which relief can be granted under Rule 12(b)(6).


A. Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint, or a claim therein, for lack of subject-matter jurisdiction. FED. R. CIV. P. 12(b)(1); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) ("Federal courts are courts of limited jurisdiction. . . . It is to be presumed that a cause lies outside this limited jurisdiction . . . ."). In response to such a motion, the plaintiff must show that her claims lie within "the judicial Power of the United States," U.S. CONST. art. III, § 1, and that a federal statute grants the Court jurisdiction to hear those claims. Micei Int'l v. Dep't of Commerce, 613 F.3d 1147, 1151 (D.C. Cir. 2010) (citing Mayor v. Cooper, 73 U.S. 247, 252 (1868)); see also Shuler v. United States, 531 F.3d 930, 932 (D.C. Cir. 2008). If the plaintiff cannot establish both elements, the Court must dismiss the action. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (citing Ex parte McCardle, 7 U.S. 506, 514 (1868)). The Court will, however, "assume the truth of all material factual allegations in the complaint and 'construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). When resolving a motion made under Rule 12(b)(1), a court may consider material beyond the allegations in the plaintiff's complaint. Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253--54 (D.C. Cir. 2005).

B. Short and Plain Statement

Rule 8(a)(2) provides that any pleading asserting a claim for relief must include "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. ...

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