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Baz v. U.S. Department of Homeland Security

United States District Court, District of Columbia

October 11, 2019




         Dr. 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 Defendants' Motion.

         I. Background

         Baz is 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. ¶¶ 70-71.

         Believing that he was on the No-Fly List, [1] 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[2] 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.

         Baz 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. ¶ 78.

         In 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.

         In June 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.

         Before 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.[3] 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.[4]

         While 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 . . . .”).

         In 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.

         II. Legal Standard

         It is 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).

         At this 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, ‚Äúpast injuries alone are insufficient to establish ...

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