United States District Court, District of Columbia
DR. KHUSHNOOD ALI BAZ, Plaintiff,
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
J. NICHOLS, UNITED STATES DISTRICT JUDGE.
Khushnood Ali Baz challenges the government's alleged
placement of him on the No-Fly List. See generally
Am. Compl., Dkt. 21. Defendants move to dismiss, arguing both
that Baz lacks Article III standing and that his Amended
Complaint fails to state a claim. See generally
Defs.' Mem. in Supp. of Their Mot. to Dismiss Pl.'s
Am. Compl., Dkt. 27 (“Mot.”). The Court agrees
that Baz lacks Article III standing and will grant
a Pakistani citizen who resides in Peshawar, Pakistan. Am.
Compl. ¶ 15. He alleges that, for forty years prior to
the events relevant to this lawsuit, he traveled frequently
to the United States, attending conferences, completing
medical internships, and visiting friends and relatives
without incident. See Id. ¶¶ 54-67. But
that ended in February 2016 when Baz was not permitted to
board a flight from Toronto to Detroit (after he had flown to
Toronto from Pakistan via Dubai). See Id.
that he was on the No-Fly List,  Baz completed a Traveler
Inquiry Form and submitted it, together with supporting
documentation, to the Traveler Redress Inquiry Program
(“DHS TRIP”), a redress program administered by
the Department of Homeland Security (DHS) for individuals who
think they have been incorrectly included on the No-Fly List.
See Id. ¶¶ 44-49, 74. DHS responded by
providing Baz with a Redress Control Number for him to use
whenever he made travel reservations with flights into the
United States, but DHS did not tell him whether he in fact
was on the No-Fly List. Id. ¶ 75.
planned another trip to the United States in 2017. See
Id. ¶ 79. Before leaving Pakistan, Baz advised DHS
TRIP of his travel plans and provided it with his Redress
Control Number. Id. ¶ 77. DHS's response
stated that Baz should “provide [his Redress Control
Number] when making reservations” and that
“[w]hen entering the United States from abroad, no
additional action is required, ” but again DHS did not
tell him whether he was on the No-Fly List. Id.
March 2017, Baz traveled from Pakistan to Dubai but was not
permitted to board a connecting flight to Orlando. See
Id. ¶ 80. Baz again contacted DHS TRIP, inquiring
why he had not been informed earlier that he could not fly
into the United States. Id. ¶ 81. DHS's
response did not provide specific information about Baz's
No-Fly List status or answer this question, but instead
stated that “DHS has researched and reviewed [his]
case” and that “DHS TRIP can neither confirm nor
deny any information about [him] which may be within federal
watchlists or reveal any law enforcement sensitive
information.” Id. ¶¶ 82-83.
2017, Baz attempted to challenge his alleged No-Fly List
status by filing a petition for review with the U.S. Court of
Appeals for the D.C. Circuit. Id. ¶ 87. After
the government moved to dismiss his petition on the basis of
Ege v. Department of Homeland Security, 784 F.3d
791, 796-97 (D.C. Cir. 2015) (holding that the Court of
Appeals lacks jurisdiction under 49 U.S.C. § 46110 to
order a name to be removed from the No-Fly List), Baz
withdrew his petition and filed this action in May 2018.
See Am. Compl. ¶ 92.
responding to the Complaint, counsel for Defendants notified
Baz for the first time that his U.S. tourist visa had been
revoked on August 5, 2015-more than sixth months before he
attempted to fly to Detroit in 2016 and more than eighteen
months before he attempted to fly to Orlando in 2017. See
Id. ¶ 93. Baz amended his Complaint on August 20,
2018. His principal claim is that his alleged inclusion on
the No-Fly List violates the Fifth Amendment; the
Administrative Procedure Act, 5 U.S.C. § 706(2)(A)-(C);
and the statutes requiring Defendants to establish a redress
procedure for individuals who believe they have wrongly been
identified as a threat by DHS and its subsidiary offices, 49
U.S.C. §§ 44903(j)(2)(C)(iii)(I),
44903(j)(2)(G)(i), 44926(a). Am. Compl. ¶¶ 98-125.
Baz also alleges that Defendants failed to provide him with
timely notice of his visa revocation, violating 22 C.F.R.
§ 41.122(c) and the Fifth Amendment. Am. Compl.
¶¶ 108, 110-25. With respect to all of his claims,
Baz seeks only declaratory and injunctive relief. See
Id. at 27-28.
this action was pending, Baz applied for new U.S. tourist
visas for himself and his wife and daughter. Id.
¶ 97. On August 28, 2018, the State Department denied
those applications, citing section 214(b) of the Immigration
and Nationality Act (codified at 8 U.S.C. § 1184(b)).
See Mot., Ex. D ¶ 5. Baz does not challenge
this denial (or the revocation of his visa in 2015), see,
e.g., Pl.'s Mem. of Law in Opp'n to Defs.'
Mot. to Dismiss Pl.'s Am. Compl., Dkt. 29
(“Opp'n”) at 4 (“[T]he doctrine of
consular non-reviewability bars judicial review of the State
Department's substantive decision to issue or revoke a
visa . . . .”), except to the extent that Defendants
failed to provide timely notice of that revocation. Am.
Compl. ¶¶ 108, 110-25; see also Opp'n
at 4 (“[T]he doctrine [of consular non-reviewability] .
. . does not render non-justiciable Dr. Baz's claims
concerning Defendants' distinct failure to provide notice
of their revocation decision . . . .”).
September 2018, Defendants filed a Motion to Dismiss, arguing
both that Baz lacks Article III standing and that his
Complaint fails to state any claim upon which the Court could
grant relief. See generally Mot.
well established that the “irreducible constitutional
minimum of standing contains three elements”: (1)
injury in fact; (2) causation; and (3) redressability.
Lujan v. Defs. of Wildlife, 504 U.S. 555,
560 (1992). The injury-in-fact element requires an injury
that is “concrete and particularized and actual or
imminent, not conjectural or hypothetical.” In re
U.S. Office of Pers. Mgmt. Data Sec. Breach Litig., 928
F.3d 42, 54 (D.C. Cir. 2019) (quoting Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1548 (2016) (internal quotation
marks omitted)). Causation requires “that the injury
fairly traceable to the defendant's challenged
conduct.” Am. Soc'y for Prevention of Cruelty
to Animals v. Feld Entm't, Inc., 659 F.3d 13, 19
(citing Lujan, 504 U.S. at 560-61). And
redressability requires that the injury can be remedied
“by a favorable decision.” Arpaio v.
Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (quoting
Lujan, 504 U.S. at 561).
stage in the proceedings, where Defendants challenge
Baz's standing through a motion to dismiss, see
Fed. R. Civ. P. 12(b)(1), the Court must, of course, accept
the facts alleged in the Complaint as true and draw all
reasonable inferences from those facts in Baz's favor.
Humane Soc'y of the U.S. v. Vilsack, 797 F.3d 4,
8 (D.C. Cir. 2015). But the Court “do[es] not assume
the truth of legal conclusions, nor do[es it] accept
inferences that are unsupported by the facts set out in the
complaint.” Arpaio, 797 F.3d at 19 (internal
quotation marks and citations omitted). Further,
“[w]hen considering any chain of allegations for
standing purposes, [the Court] may reject as overly
speculative those links which are predictions of future
events (especially future actions to be taken by third
parties).” Id. at 21 (citation omitted). And
where (as here) Baz seeks only prospective relief,
“past injuries alone are insufficient to establish