Maniar v. Wolf

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ASHRAF MANIAR and UMAIMA

SHAIKH,

Plaintiffs,

v. Civil Action No. 19-3826 (EGS)

KRISTI NOEM, in her

official capacity as

Secretary of the United

States Department of

Homeland Security, 1 et

al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs Ashraf Maniar (“Mr. Maniar”) and Umaima Shaikh

(“Ms. Shaikh) (collectively, “Plaintiffs”), two U.S. citizens

married to each other, bring this action asserting

constitutional and procedural claims related to their alleged

placement in the Terrorist Screening Dataset (“TSDS”). See Pls.’

Third Amend. Compl. (“TAC”), ECF No. 36. 2 Plaintiffs have sued

various federal government officials in their official

capacities (collectively, “Defendants” or “the government”),

1 Pursuant to Federal Rule of Civil Procedure 25(d), the current

government officials holding these positions are “automatically

substituted as” Defendants for their predecessors.

2 When citing electronic filings throughout this opinion, the

Court cites to the ECF header page number, not the original page

number of the filed document.

1

including Kristi Noem, Secretary of the Department of Homeland

Security (“DHS”); Melanie Harvey, Administrator of the

Transportation Security Administration (“TSA”); Pete R. Flores,

Acting Commissioner of U.S. Customs and Border Protection

(“Customs”); Pam Bondi, Attorney General of the United States;

Brian Driscoll, Director of the Federal Bureau of Investigation

(“FBI”); and Michael Glasheen, Director of the Terrorist

Screening Center (“TSC”). Id. Additionally, Plaintiffs have sued

Unknown TSC and FBI employees in their official and individual

capacities. Id.

Pending before the Court is the Official Capacity

Defendants’ Motion to Dismiss Plaintiffs’ Third Amended

Complaint, ECF No. 43; and Memorandum in Support, ECF No. 43-1

(collectively, “Defs.’ Mot.”). Upon careful consideration of the

parties’ briefing materials, the relevant legal authority, and

the entire record herein, the Court GRANTS the government’s

Motion to Dismiss.

I. Background

The following facts reflect the allegations in the Third

Amended Complaint and the documents incorporated by reference

therein, which the Court assumes are true and construes in

Plaintiffs’ favor for the purposes of deciding this motion. See

Baird v. Gotbaum, 792 F.3d 166, 169 n.2 (D.C. Cir. 2015).

2

A. Statutory and Regulatory Background

The TSC, a multi-agency executive organization, is

administered by the FBI in coordination with DHS, the Department

of State, the DOJ, and the Office of the Director of National

Intelligence. See FBI, Overview of the U.S. Government’s

Terrorist Watchlisting Process and Procedures, 1 (Apr. 2024),

https://www.fbi.gov/file-repository/counterterrorism/terrorist-

watchlisting-transparency-document-april-2024-050224.pdf/view

[hereinafter “Watchlisting Overview”]. 3 The TSC consolidates the

U.S. government’s terrorist watchlists into a single database

known as the TSDS, which “contains biographic and biometric

identifying information . . . of known and suspected

terrorists.” Id. at 2. This information is not publicly

available and only accessible “to persons who have a need to

know, such as federal law enforcement officials, for their

3 Plaintiffs’ Third Amended Complaint incorporates by reference

the Overview of the U.S. Government’s Watchlisting Process and

Procedures as of September 2020. See, e.g., TAC, ECF No. 36 at

15 n.5. Accordingly, the Court takes judicial notice of the

currently available Watchlisting Overview. Patrick v. Dist. of

Columbia, 126 F. Supp. 3d 132, 135–36 (D.D.C. 2015) (“Although a

court generally cannot consider matters beyond the pleadings at

the motion-to-dismiss stage, it may consider ‘documents attached

as exhibits or incorporated by reference in the complaint, or

documents upon which the plaintiff’s complaint necessarily

relies . . . .’” (citation omitted)); Ashbourne v. Hansberry,

245 F. Supp. 3d 99, 103 (D.D.C. 2017) (noting that courts may

take judicial notice of “official, public documents”); Detroit

Int’l Bridge Co. v. Gov’t of Canada, 133 F. Supp. 3d 70, 85

(D.D.C. 2015) (same conclusion for “public records and

government documents available from reliable sources”).

3

authorized screening and vetting functions.” Id. Inclusion in

the TSDS results from a multi-step nomination process in which

U.S. government agencies and foreign partners “nominate”

individuals where there is enough credible investigative

information to establish “reasonable suspicion that the person

is engaged, has been engaged, or intends to engage in conduct

constituting, in preparation for, or in aid or in furtherance of

terrorism and/or terrorist activities.” Id. at 3. After an

individual is nominated, the TSC reviews the nomination and

accepts or rejects the person for inclusion in the TSDS. Id. at

4.

Once individuals are added to the database, the TSC sorts

them into subset lists, known as the No Fly List and the

Selectee List, which are used by TSA “to secure commercial air

travel against the threat of terrorism.” Id. at 2. “Nominations

to the No Fly List or Selectee List . . . must satisfy

additional criteria beyond that required for inclusion in the

TSDS as a known or suspected terrorist.” Id. at 5. Individuals

are placed on the No Fly List, prohibiting them from boarding an

aircraft, if they present a threat of (1) “committing an act of

international . . . or domestic terrorism . . . with respect to

an aircraft”; (2) “committing an act of domestic terrorism . . .

with respect to the Homeland”; (3) “committing an act of

international terrorism . . . against any [U.S. government]

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facility abroad”; or (4) “engaging in or conducting a violent

act of terrorism and [ ] is operationally capable of doing so.”

Id. at 4. In addition to the inability to travel via aircraft,

Plaintiffs allege that “[p]lacement on the No Fly List also

results in family separation, the inability to travel to

complete religious pilgrimage, the inability to engage in chosen

business ventures or employment, reputational harms and more.”

TAC, ECF No. 36 ¶¶ 110–11.

Placement on the Selectee List subjects individuals to

enhanced screening before boarding a flight. Watchlisting

Overview at 4. The U.S. government does not publicly disclose

who is on either TSDS list or the criteria for placement on the

Selectee List. Id.; see TAC, ECF No. 36 ¶ 112. Plaintiffs allege

that the enhanced screening that individuals on the Selectee

List are subject to while traveling “result[s] in extensive

delays and public shame.” TAC, ECF No. 36 ¶ 113. Additionally,

Plaintiffs allege that “Selectee Listed persons often encounter

extreme difficulty traveling abroad, including being detained or

prohibited from entering the country, based on disseminating the

TSDS data to other governments.” Id. ¶ 114.

B. Factual Background

Mr. Maniar and Ms. Shaikh are U.S. citizens of Pakistani

national origin. TAC, ECF No. 36 ¶¶ 1–2. Plaintiffs identify as

practicing Muslims, id. ¶¶ 15, 67; and neither has a history of

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mental health concerns or criminal activity. Id. ¶¶ 14, 16, 65-

66. As practicing Muslims, Plaintiffs hope to participate in

religiously mandated pilgrimages, which require carefully

thought-out travel arrangements. Id. ¶¶ 18, 68.

1. Mr. Maniar’s Travel Difficulties

Mr. Maniar’s travel difficulties began in May 2016, but

after being prohibited from traveling in May 2017, he initiated

a redress inquiry with the DHS Traveler Redress Inquiry Program

(“DHS TRIP”). Id. ¶¶ 26–28. Mr. Maniar was permitted to fly from

Boston to Los Angeles in November 2017, id. ¶ 30; but on

December 14, 2017, FBI agents raided his home. Id. ¶¶ 30–32. The

agents had a warrant to take electronics, but they also took Mr.

Maniar’s passport. Id. ¶ 32. In addition to the FBI searching

their home, FBI agents have questioned Mr. Maniar and Ms.

Shaikh’s friends, which Plaintiffs claim have damaged [their]

reputation and violated [their] privacy interests.” Id. ¶¶ 59–

61; 100–102.

A few days later, on December 18, 2017, Mr. Maniar

attempted to fly from Nevada to Georgia for his wedding, but he

was unable to print his boarding pass, escorted out of the

airport by security, and prohibited from flying. Id. ¶¶ 34–36.

Suspecting that he was on TSC’s No Fly List, Mr. Maniar

initiated a second inquiry with DHS TRIP “to acquire information

as to whether he [was] on the No Fly List, the reasons for that

6

designation, if any, and a way to appeal any determination.” Id.

¶ 37. Mr. Maniar received no response, and on June 7, 2018, his

attorneys filed a Petition for a Writ of Mandamus seeking the

court to compel DHS to respond. Id. ¶ 40. On June 27, 2018, DHS

sent Mr. Maniar a letter informing him that he was on the No Fly

List; however, the letter did not provide any reasoning for the

placement. Id. ¶¶ 41–42. Eventually, after additional requests

from counsel, DHS informed Mr. Maniar that he was on the No Fly

List partially due to his “association and extensive

communication with a known extremist located in the United

Kingdom who has supported terrorist organizations.” Id. ¶ 44.

The government informed Mr. Maniar that this was the only

information it could provide due to the classified nature of

additional details. Id. ¶ 45.

On August 18, 2020, DHS TRIP notified Mr. Maniar that he

was removed from the No Fly List. Id. ¶ 48. DHS TRIP’s reasoning

stated:

[a]fter further review of your inquiry, we

have determined that you [Plaintiff Maniar]

no longer satisfy the criteria for placement

on the No Fly List. You have been removed

from the No Fly List and will not be placed

back on the no Fly List based on currently

available information. The change in your

status was based on the totality of

available information, including information

you provided to DHS TRIP.

Id.

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Mr. Maniar’s traveling difficulties did not, however, end

there. Less than two weeks after receiving the government’s

notice that he was no longer on the No Fly List, Mr. Maniar was

subject to “extensive individualized questioning” during a

layover in Turkey on his way to Pakistan. Id. ¶ 50. Mr. Maniar

was allowed to board his flight to Pakistan, however, upon

arrival, he was detained by the Pakistani officials, handcuffed,

and asked questions about his travel plans. Id. ¶ 51. The

Pakistani officials then placed a black bag over his head and

took him to an unknown location where he was questioned for

three days. Id. ¶¶ 52–53. The Pakistani Officials informed him

that “the U.S. shared information indicating he was involved in

terrorist activity.” Id. ¶ 54. He was immediately directed to

board a flight back to the United States where he was questioned

again by DHS agents for thirty minutes upon landing. Id. ¶¶ 55–

56.

2. Ms. Shaikh’s Travel Difficulties

Ms. Shaikh’s first alleged difficulty traveling was in July

2018 while traveling to Karachi, Pakistan for her brother’s

wedding. Id. ¶ 74. After checking in for her flight, Ms. Shaikh

was informed that she needed to get her boarding pass from a

ticketing agent. Id.¶ 73. When she arrived at the counter,

airline officials “informed her they could not issue [her] the

boarding pass and could not tell her why.” Id. ¶ 75. She was

8

unable to board the flight and missed her brother’s wedding. Id.

¶ 76.

Thereafter, on August 13, 2018, Ms. Shaikh submitted a

redress inquiry to DHS TRIP “to determine whether she [was] on

the No Fly List, the reasons for that designation, if any, and a

way to appeal any No Fly List designation.” Id. ¶ 78. In

response, DHS TRIP notified Ms. Shaikh that she was on the No

Fly List and informed her that she could request additional

information, respond to the information provided, and request an

administrative review of her status. Id. ¶ 82. On December 26,

2018, Ms. Shaikh and her counsel requested an administrative

review of her placement on the No Fly List, asking for all

information related to her placement on the list. Id. ¶ 85.

When she did not receive a response from DHS TRIP, Ms.

Shaikh filed a Petition for a Writ of Mandamus seeking an order

compelling DHS to respond to her request. Id. ¶ 86. On February

3, 2020, DHS TRIP informed Ms. Shaikh that she was on the No Fly

List partially due to her “provision of support to an

individual, made with the knowing purpose of furthering the

individual’s desire to join a foreign-based terrorist

organization, as well as your association and communication with

multiple known extremists.” Id. ¶ 88. The letter also stated

that additional reasons could not be given “due to law

enforcement and security concerns.” Id. ¶ 89. Ms. Shaikh filed

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an administrative appeal on March 9, 2020, id. ¶ 91; and on July

15, 2020, DHS TRIP notified Ms. Shaikh that she was no longer on

the No Fly List, with the same statement that explained Mr.

Maniar’s removal from the list, id. ¶ 92.

A few days after notification of her removal from the No

Fly List, Ms. Shaikh took a flight from Raleigh, North Carolina

to Atlanta, Georgia. Id. at 93. When she was again unable to

print her own boarding pass, she had to speak with an airline

clerk who “had to get permission from . . . the TSC[] before

issuing [her] a boarding pass.” Id. ¶ 94. She and her young

son’s boarding passes had both been marked with “SSSS”—a

notation typical for individuals in the TSDS and subset

watchlists—indicating selection for secondary security

screening. Id. ¶¶ 95–97.

Plaintiffs believe that they are still included within the

TSDS and listed on the Selectee List. Id. ¶ 57. However, the

government will not release records or confirmation regarding

whether an individual is on the Selectee List. Id. ¶ 127. In

January 2023, the government acknowledged the authenticity of

copies of the No Fly List and Selectee List discovered by a

Swiss “hacktivist.” Id. ¶¶ 128–130. Mr. Maniar’s name was on the

Selectee List in multiple discovered versions. Id. ¶ 132.

Plaintiffs allege that these lists were posted on the internet,

making them available to the public. Id. ¶¶ 130-33.

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C. Procedural Background

In December 2019, after filing an administrative appeal to

DHS TRIP regarding Mr. Maniar’s status on the No Fly List,

Plaintiffs filed this lawsuit. See Compl., ECF No. 1. Plaintiffs

filed an Amended Complaint on August 12, 2020 alleging: (1)

violations of Fifth Amendment right to procedural and

substantive due process (Counts 1 and 2); (2) violations of the

Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq.,

due to alleged inadequacies in DHS TRIP redress process (Count

3); (3) violations of First Amendment rights (Count 4); (4)

entitlement to attorney’s fees and costs under Equal Access to

Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C. §

2412. See Am. Compl., ECF No. 19.

On September 28, 2020, Defendants moved to dismiss the

Amended Complaint for lack of subject matter jurisdiction and

failure to state a claim upon which relief could be granted. See

Second Mot. to Dismiss for Lack of Jurisdiction, ECF No. 23-1.

Defendants argued that as an initial matter, the Court lacked

jurisdiction over Plaintiffs’ claims because they lacked

standing. Id. at 27—31. On March 30, 2023, this Court issued a

Memorandum Opinion granting Defendants’ Motion to Dismiss. See

generally Maniar v. Mayorkas, Civil Action No. 19-3826, 2023 WL

2709040 (D.D.C. Mar. 30, 2023). First, the Court concluded that,

since Plaintiffs were removed from the No Fly List in August

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2020, they failed to allege any “ongoing” injury and thus lacked

standing to pursue their No Fly List claims. Id. at *10-*17.

The Court also concluded that Plaintiffs lacked standing as

to their Selectee List claims because they failed to establish

that a favorable decision from the Court would redress their

alleged injuries. Id. at *17-*21. Specifically, the Court found

that the Second Amended Complaint did not indicate how the

specific declaratory and injunctive relief Plaintiffs sought had

to do with their status on the Selectee List. Id. at 64. Rather,

Plaintiffs’ Selectee List claims were “so intertwined” with

their No Fly List claims that it was difficult to evaluate their

Selectee List claims on their own. Id. at 63. Rather than

dismiss the action, however, the Court permitted Plaintiffs to

file an amended complaint “to disentangle their Selectee List

claims from their nonjusticiable No Fly List claims.” Id. at

*20.

On May 1, 2023, Plaintiffs filed their Third Amended

Complaint, alleging five counts: (1) Violation of Fifth

Amendment Procedural Due Process Rights (against all

Defendants); (2) Violation of Substantive Due Process Rights

(against all Defendants); (3) Violation of the APA (against all

Defendants); (4) Violation of the First Amendment (against all

Defendants); (5) Violation of the Religious Freedom Restoration

Act (“RFRA”), 42 U.S.C. § 2000bb et seq. (against all

12

Defendants); (6) Nominal and Compensatory Damages (against the

unknown TSC and/or FBI employees); and (7) Attorney’s Fees under

the EAJA (from all Defendants). TAC, ECF No. 36 ¶¶ 141-219. 4

On September 20, 2023, the Official Capacity Defendants

filed a motion to dismiss. See Defs.’ Mot., ECF No. 43.

Plaintiffs filed their response on February 1, 2024, see Pls.’

Response to Official Capacity Defs.’ Mot. to Dismiss Pls.’ Third

Am. Compl. (“Pls.’ Opp’n”), ECF No. 45; and Defendants filed

their reply on March 13, 2024, see Defs.’ Reply Mem. in Support

of Official Capacity Defs.’ Mot. to Dismiss Pls.’ Third Am.

Compl. (“Defs.’ Reply”), ECF No. 46. 5

4 The TAC includes numerous allegations related to Plaintiffs’

former placement on the No Fly List. Because the Court

determined that Plaintiffs failed to establish standing to

pursue their No Fly List claims, the Court construes these

allegations as background information supporting their Selectee

List claims. Plaintiffs briefly argue in their Opposition that

“[jurisdiction [e]xists for [their] No Fly List Claims,” but

neither ask the Court to reconsider its prior determination, nor

provide legal support for the brief argument. See Opp’n, ECF No.

45 at 16-17. Accordingly, the Court does not construe the TAC to

assert any claims based on Plaintiffs’ prior placement on the No

Fly Lists and therefore does not need to address whether there

is jurisdiction for such claims.

5 On March 25, 2024, Plaintiffs filed a Notice of Supplemental

Authority, bringing to the Court’s attention a recent Supreme

Court decision, see Pls.’ Notice of Suppl. Authority (“Pls.’

Suppl.”), ECF No. 47; and Defendants filed a response on April

3, 2024. See Defs.’ Response to Pls.’ Notice of Suppl. Authority

(“Defs.’ Suppl. Response”), ECF No. 49. The Court previously

explained why the issues raised in the underlying case from the

Court of Appeals for the Ninth Circuit (“Ninth Circuit”) do “not

provide a helpful analog.” Maniar, 2023 WL 2709040, at *13 n.16

(quoting Jibril v. Maykorkas, No. 19-cv-2457 2023 WL 2240271, at

*7 n.2 (D.D.C. Feb. 27, 2023). The Supreme Court decision

13

Defendants’ motion is now ripe for the Court’s

adjudication.

II. Legal Standard

A. Federal Rule of Civil Procedure 12(b)(6)

To survive a motion to dismiss, a complaint “must contain

sufficient factual matter accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). “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.” Id.

In considering a 12(b)(6) motion, the Court should

liberally view the complaint in the plaintiff's favor, accepting

all factual allegations as true, and giving the plaintiff the

benefit of all inferences that can be drawn therefrom. Redding

v. Edwards, 569 F. Supp. 2d 129, 131 (D.D.C. 2008) (citing Kowal

v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).

Nevertheless, “[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not

suffice.” Id. “While detailed factual allegations are not

necessary, [the] plaintiff must plead enough facts to ‘raise a

right to relief above the speculative level.’” Morello v.

affirming the underlying case from the Ninth Circuit does not

change the Court’s analysis.

14

D.C., 73 F.Supp.3d 1, 3 (D.D.C.2014) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). The court “may consider

attachments to the complaint as well as the allegations

contained in the complaint itself.” English v. D.C., 717 F.3d

968, 971 (D.C. Cir. 2013).

III. Analysis

A. Due Process

The Due Process Clause guarantees that no person “shall . .

. be deprived of life, liberty, or property, without due process

of law.” U.S. Const. amend. V. This guarantee “has both

procedural and substantive components.” Jacinto-Castanon de

Nolasco v. U.S. Immigr. & Customs Enf’t, 319 F. Supp. 3d 491,

499 (D.D.C. 2018). To adequately plead either type of due

process claim, a plaintiff must establish: “(i) deprivation of a

protected liberty interest or property interest; (ii) by the

government; (iii) without the process that is ‘due’ under the

Fifth Amendment.” N.B. ex rel. Peacock v. Dist. of Columbia, 794

F.3d 31, 41 (D.C. Cir. 2015) (citations omitted); Gen. Elec. Co.

v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010) (“The first

inquiry in every due process challenge is whether the plaintiff

has been deprived of a protected interest in ‘liberty’ or

‘property.’”). The first inquiry is a threshold question, and

“[o]nly after finding the deprivation of a protected interest do

we look to see if the [government’s] procedures comport with due

15

process.” Am. Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 59

(1999).

Here, Plaintiffs allege that their placement and retention

on the Selectee List violates both procedural and substantive

due process. “[T]he threshold element of both claims is the

deprivation of a protected interest.” Ahmed v. Kable, Civ.

Action No. 21-3333, 2023 WL 6215024, *17 n.29 (D.D.C. Sept. 25,

2023) (citing Gen. Elec. Co., 610 F.3d at 117 (procedural);

Fraternal Ord. of Police v. Dist. of Columbia, 502 F. Supp. 3d

45, 60 (D.D.C. 2020) (substantive), aff’d, 45 F.4th 954 (D.C.

Cir. 2022)).

1. Plaintiffs Have Failed to Plead the Deprivation of a

Liberty Interest Stemming From their Alleged

Inclusion on the Selectee List

Plaintiffs allege that their inclusion on the Selectee

List—or otherwise within TSDS—infringes upon their right to

travel, religious exercise, and reputation. Pls.’ Opp’n, ECF No.

45 at 17-21, 22-23. Additionally, Mr. Maniar alleges that

Defendants’ conduct infringes upon his right to practice his

chosen employment. See Id. at 21. Defendants argue that none of

these alleged liberty interests satisfy the threshold question.

See Defs.’ Mot., ECF No. 43-1 at 25. For the reasons explained

below, the Court concludes that Plaintiffs have failed to

adequately plead that they have been deprived of a liberty

interest to support their due process claims.

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a. Right to Travel

Plaintiffs do not allege that their placement on the

Selectee List—or within the TSDS more broadly—has placed any

restrictions on their ability to travel via plane. See generally

TAC, ECF No. 36 ¶¶ 26-105. Rather, Plaintiffs assert that their

alleged status within the TSDS makes air travel “difficult,

humiliating, and often costly[.]” Pls.’ Opp’n, ECF No. 45 at 18.

In response, Defendants argue that regardless of the extent to

which Plaintiffs have a right to travel, Plaintiffs’ alleged

travel delays or difficulties do not amount to a deprivation of

any such right. See Defs.’ Mot., ECF No. 43-1 at 25-31. The

Court agrees.

While Plaintiffs plead two distinct instances of facing

difficulties while traveling via plane since being removed from

the No Fly List, neither Plaintiff alleges that he or she has

been prevented from flying altogether. See TAC, ECF No. 36 ¶¶

26-105. For example, Ms. Shaikh’s only allegation is that she

“could not obtain a boarding pass without speaking to a

ticketing counter clerk.” Id. ¶ 94. Once she obtained her

boarding pass, it was marked with “SSSS,” indicating “Secondary

Security Screening Selection,” id. ¶ 95; however, Ms. Shaikh

does not allege that she was subject to additional screening,

that she missed a flight, or that she was otherwise delayed

17

during this trip. Id. ¶ 95. 6 In contrast, Mr. Maniar’s alleged

travel difficulties appear more burdensome. Mr. Maniar alleges

that during a trip to Pakistan, he was subjected to extensive

questioning when he arrived in Turkey for a layover and upon his

arrival in Pakistan. Id. ¶¶ 50-55. While in Pakistan, Mr. Maniar

asserts that he was detained and questioned for three days by

Pakistani officials before being forced to board a plane back to

the United States. Id. ¶ 55. Thereafter, upon his arrival in the

United States, Mr. Maniar was questioned by DHS agents for

approximately thirty minutes. Id. ¶ 56.

Examining Mr. Maniar and Ms. Shaikh’s alleged travel

difficulties after their removal from the No Fly List, the Court

concludes that their alleged placement on the Selectee List has

not substantially burdened their right to travel. First, Ms.

Shaikh has failed to allege any burden to her air travel beyond

having to obtain her boarding pass from a ticketing agent and

the boarding pass being designated for secondary screening. Id.

¶¶ 94-95. Compared to delays faced by everyday air travelers,

and even other cases where plaintiffs alleged travel

6 Plaintiffs’ Opposition asserts that Ms. Shaikh “faced scrutiny

and questioning that led to her missing flights, necessitating

the cost and lost time of rebooking the flight” even after she

was removed from the No Fly List. Pls.’ Opp’n, ECF No. 45 at 20

(citing TAC, ECF No. 36 ¶¶ 93-101). However, the paragraphs

cited from the Third Amended Complaint raise no such factual

allegations, and Plaintiffs have not provided any details about

what type of screening she was subjected to nor how long the

delays were.

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difficulties due to placement on the Selectee List, Ms. Shaikh’s

allegations are mere inconveniences. See, e.g., Abdi v. Wray,

942 F.3d 1019, 1031 (10th Cir. 2019) (holding plaintiff’s

placement on Selectee List did not interfere with right to

travel where delays did not “exceed those experienced by many

air travelers nor preclude his ability to travel”); Beydoun v.

Sessions, 871 F.3d 459, 468 (6th Cir. 2017) (concluding the

extra security hurdles resulting in delays from ten minutes to

an hour “do not amount to a constitutional violation” of

plaintiff’s right to travel).

As to Mr. Maniar’s travel experience, Defendants argue that

the bulk of his allegations stem from actions of foreign agents,

and “the actions taken by [other countries] are not redressable

by this Court.” Defs.’ Mot., ECF No. 43-1 at 31–32 (citing Simon

v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)).

Regardless of whether the Court considers the allegations of

detention and delay by the Pakistani officials, the Court

concludes that Mr. Maniar’s singular air travel-related incident

is insufficient to establish a substantial interference with his

ability to travel. See El Ali v. Barr, 473 F. Supp. 3d 479, 509

(D. Md. 2020) (finding that placement on Selectee List deprived

plaintiffs of right to travel where they experienced “pattern[s]

of multi-hour delays nearly every time they travel . . .

amount[ing] to a significant impediment to travel”).

19

Moreover, Plaintiffs alleged status on the Selectee List

does not affect their ability to travel within the United States

by any other mode of transportation. Busic, 62 F.4th at 550

(emphasizing there is no “fundamental right to travel by

airplane” (quoting Gilmore v. Gonzales, 435 F.3d 1125, 1137 (9th

Cir. 2006)). And to the extent that Plaintiffs have a right to

international travel, it “does not include the right to be ‘free

from screening and delays at the border.’” Ahmed v. Kable, No.

21-3333, 2023 WL 6215025, at *17 (D.D.C. Sept. 25, 2023)

(quoting Elhady v. Kable, 993 F.3d 2018, 219-24). This

conclusion is consistent “with the weight of authority, which

establishes that travel delays resulting from inclusion on the

selectee list ‘do not substantially interfere with [the] ability

to travel.” Ahmed, 2023 WL 6215025, at *17 (quoting Abdi, 942

F.3d at 1030-31) (collecting cases).

To the extent Plaintiffs argue that their right to travel

has been impeded because they are deterred from traveling due to

their previous experience, see Pls.’ Opp’n, ECF No. 45 at 27;

this argument has no merit. As the D.C. Circuit has recognized,

a law’s “effect upon [a plaintiff’s] willingness to travel,

i.e., to exercise her right to travel, is ‘negligible’ and does

not warrant scrutiny under the Constitution.” Pollack v. Duff,

793 F.3d 34, 45 (D.C. Cir. 2015) (citing Kansas v. United

States, 16 F.3d 436, 442 (D.C. Cir. 1994)); see Matsuo v. United

20

States, 586 F.3d 1180, 1183 (9th Cir. 2009) (“[N]ot everything

that deters travel burdens the fundamental right to travel.”).

Finally, Plaintiffs assert that their case “aligns in part”

with the Fifth Circuit’s decision in Ghedi v. Mayorkas, 16 F.4th

456 (5th Cir. 2021), because “it determined that Mr. Ghedi

alleged a sufficient harm tied to ‘the act of flying, not his

destination.’”. Pls.’ Opp’n, ECF No. 45 at 20–21 (quoting Ghedi,

16 F.4th at 465). However, the holding Plaintiffs pick out of

Ghedi to support their argument is tied to whether Mr. Ghedi

alleged an injury in fact sufficient for standing, not whether

he sufficiently alleged a due process violation. Ghedi, 16 F.4th

at 465. In fact, the Fifth Circuit affirmed the district court’s

dismissal of Ms. Ghedi’s due process claims, holding that he did

not plausibly allege the deprivation of his right to travel

where he was required to obtain his boarding pass at the

airport, received extra searches upon arrival in the United

States after international trip, missed flights and was removed

from an airplane twice after boarding. Id. at 466–67. It is

illustrative that Plaintiffs’ alleged difficulties traveling

after being removed from the No Fly List are even more minimal

than Mr. Ghedi’s.

For all these reasons, the Court concludes that Plaintiffs

have failed to allege a deprivation of their right to travel

from their alleged inclusion on the Selectee List.

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b. Right to Chosen Profession

The Fifth Amendment protects the right to “follow a chosen

profession free from unreasonable governmental interference.”

Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 538

(D.C. Cir. 2015) (quoting Greene v. McElroy, 360 U.S. 474, 492

(1959)). A plaintiff can establish a deprivation of this right

by showing that the government’s action: (1) “‘formally or

automatically excludes’ her from some category of work,”

Campbell v. Dist. of Columbia, 894 F.3d 281, 289-90 (D.C. Cir.

2018) (quoting Kartseva v. Dep’t of State, 37 F.3d 1524, 1528

(D.C. Cir. 1994)); or (2) “has ‘the broad effect of largely

precluding [the plaintiff] from pursuing her chosen career,’”

id. (quoting O’Donnell v. Barry, 148 F.3d 1126, 1141 (D.C. Cir.

1998) (alteration in original)).

Mr. Maniar alleges that “Defendants’ actions infringed upon

his right to practice his chosen employment” because his

profession requires international and domestic travel, and he

cannot travel to maintain his businesses in the United States

and abroad. Pls.’ Opp’n, ECF No. 45 at 21-22. Defendants argue

that since Mr. Maniar has not been barred from traveling, he has

failed to allege that he has been deprived of the right to

follow his chosen profession. Defs.’ Mot., ECF No. 43-1 at 33.

Mr. Maniar’s only assertion is that he is unable to travel,

and therefore unable to maintain his businesses abroad and here

22

in the United States. Pls.’ Opp’n, ECF No. 45 at 21. Aside from

Mr. Maniar’s trip to Pakistan, which he does not allege was for

business purposes, Mr. Maniar alleges no instances where he was

unable to travel to a foreign country or unable to travel

domestically, let alone unable to travel for business ventures.

See generally TAC, ECF No. 36. In fact, he fails to allege any

tangible harm to his professional life, such as a loss of income

or business due to an inability to travel. Furthermore, as

explained above, Mr. Maniar’s alleged status on the Selectee

List does not prevent him from traveling, nor does he allege

that it does. See id. Without more, the Court fails to see how

the Defendants’ alleged act of including him within the TSDS is

precluding him from maintaining his businesses. Accordingly, the

Court concludes that Mr. Maniar has failed to allege a

deprivation of such a right. 7

c. Religion

Plaintiffs allege that Defendants have “infringe[d] upon

their right[] to practice their religion freely by making it

7 The Parties disagree as to the standard that applies in

determining whether a plaintiff has adequately demonstrated a

deprivation of the right to a chosen profession. See Defs.’

Mot., ECF No. 43-1 at 33 (arguing that in Conn v. Gabert, 526

U.S. 286, 292 (1999), the Supreme Court created a “complete

prohibition” standard); Pls.’ Opp’n, ECF No. 46 at 21 (citing

Campbell’s “broad effect” standard). However, the Court need not

decide whether Conn created a stricter standard because even

under the more lenient inquiry, the Court’s conclusion remains

the same.

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dangerous, if not impossible, for them to complete their

religious pilgrimage obligations.” Pls.’ Opp’n, ECF No. 45 at

27. Specifically, Plaintiffs allege that because of the

treatment that Mr. Maniar was subject to in Pakistan, he and his

wife are concerned that they will be subject to similar

treatment if they were to attempt to travel internationally to

fulfill their religious obligations. Id.

Once again, however, Mr. Maniar and Ms. Shaikh’s status on

the Selectee List does not prevent them from traveling to

fulfill their religious obligations. Pointing to Mr. Maniar’s

experience in Pakistan, Plaintiffs argue that Ms. Shaikh is

“concerned about similar treatment were she to travel

internationally.” Id. at 27. To the extent Plaintiffs’ argument

is that they are deterred from or worried about encountering

delays or being detained in other countries, the Court

considered and rejected this argument above. Plaintiffs cite no

authority to support their argument that a fear of traveling

violates their right to religious expression. Thus, for the same

reasons that Plaintiffs failed to allege a deprivation of their

right to travel, they have failed to allege any deprivation of

their right to practice their religion freely.

d. Reputational Harm

Plaintiffs argue that their due process rights were

violated when the “2019 No Fly list and watchlist were at the

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very least distributed outside of the ‘intragovernmental

dissemination’ to private airline companies.” Pls.’ Opp’n, ECF

No. 45 at 22-23.

“[R]eputation by itself [is] not a ‘liberty’ interest

protected under the Fourteenth Amendment.” Siegert v. Gilley,

500 U.S. 226, 233 (1991). However, “reputational harm that also

alters or extinguishes ‘a right or status previously recognized

by state law’ does implicate the protections of due process.”

Khalid, 2023 WL 2561943, at *4 (quoting Paul v. Davis, 424 U.S.

693, 711-12 (1976)). In the D.C. Circuit, there are two theories

according to which a plaintiff can establish a due process

violation based on a reputational harm. See Hutchinson v. CIA,

393 F.3d 226, 231 (D.C. Cir. 2005). Relevant here is the

“stigma-plus” test. 8

Under the “stigma-plus” test, a plaintiff adequately pleads

a due process claim where “in addition to reputational harm,

[plaintiffs show] that (1) the government has deprived them of

some benefit to which they have a legal right . . . or (2) the

government-imposed stigma is so severe that it ‘broadly

8 Here, Plaintiffs’ claims and arguments focus solely on the

stigma associated with being labeled a “known or suspected

terrorist.” See TAC, ECF No. 36 ¶ 154; Pls.’ Opp’n, ECF No. 45

at 22-23. Accordingly, the Court concludes that the “reputation-

plus” test, which focuses on harms resulting from defamation

resulting in loss of government employment, is inapplicable

here. See, e.g., Jefferson v. Harris, 170 F. Supp. 3d 194, 205

(D.D.C. 2016) (laying out the requirements to plead a

reputation-plus claim).

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precludes’ plaintiffs from pursuing ‘a chosen trade or

business[.]’” Gen. Elec. Co. v. Jackson, 610 F.3d 110, 121 (D.C.

Cir. 2010) (quoting Trifax Corp. v. Dist. of Columbia, 314 F.3d

641, 644 (D.C. Cir. 2003)). Additionally, a plaintiff must show

that the government “publicly disclos[ed] [] the allegedly

damaging statements.” Orange v. Dist. of Columbia, 59 F.3d 1267,

1274 (D.D.C. 1995) (collecting cases).

Defendants argue that Plaintiffs have failed to adequately

plead a reputational harm infringing upon their due process

rights for two reasons. First, Defendants assert that Plaintiffs

have failed to establish that the government “publicly”

disclosed any TSDS data. See Defs.’ Mot., ECF No. 43-1 at 34-35.

Second, Defendants argue that Plaintiffs failed to identify any

change in legal status to meet the “plus factor.” Id. at 37. The

Court concludes that regardless of whether the government’s

actions constitute “public disclosure” of TSDS data, Plaintiffs

failed to establish the loss of a legal right. The only legal

rights Plaintiffs argue they lost with the disclosure of the

TSDS data is their right to travel and right to employment, see

Pls.’ Opp’n, ECF No. 45 at 23; both of which the Court already

concluded Plaintiffs were not deprived of due to their status on

the Selectee List.

Accordingly, the Court concludes that Plaintiffs failed to

adequately plead a due process violation based on a stigmatized

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reputation. Further, the Court concludes that Plaintiffs failed

to adequately allege a deprivation of any property or liberty

interest. Accordingly, the Court need not reach the question of

whether Defendants redress procedures are sufficient nor whether

a governmental interest justifies any such action.

B. Plaintiffs Have Failed to State an Administrative

Procedure Act Claim

Next, Defendants argue that Plaintiffs have failed to state

a claim under the APA. Defs.’ Mot., ECF No. 43-1 at 45-46.

Plaintiffs allege that “Defendants’ actions in placing [them] on

a watchlist without any professed reason is arbitrary,

capricious, or an abuse of discretion” under the APA. Pls.’

Opp’n, ECF No. 45 at 28. Specifically, Plaintiffs allege that

the DHS TRIP redress procedures failed to provide them with a

meaningful notice or a meaningful opportunity to challenge their

placement on the list. Id.; TAC, ECF No. 36 ¶¶ 180–182.

Defendants argue that the DHS TRIP redress procedures are

“plainly reasonable” balancing “the significant national

security interest at stake.” Defs.’ Mot., ECF No. 43-1 at 46.

“The APA’s arbitrary and capricious standard is

deferential,” Jackson v. Mabus, 808 F.3d 933, 936 (D.C. Cir.

2015) (citing Motor Vehicle Manufacturers Ass’n v. State Farm

Mutual Automobile Ins., 463 U.S. 29, 43 (1983)); and “a court is

not to substitute its judgment for that of the agency.” Motor

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Vehicle Manufacturers Ass’n, 463 U.S. at 43. “Rather the

question is whether the agency action was reasonable and

reasonably explained.” Jackson, 808 F.3d at 936 (citing Roberts

v. United States, 741 F.3d 152, 158 (D.C. Cir. 2014)).

The Court concludes that Plaintiffs have failed to

adequately allege any arbitrary or capricious conduct by the

Defendants. First, Plaintiffs do not even allege that they

submitted DHS TRIP inquiries regarding their status on the

Selectee List. See generally TAC, ECF No. 36. Regardless, the

Defendants’ actions in not disclosing the criteria for the

Selectee List nor why Plaintiffs are on the Selectee List are

reasonable. The criteria for being placed on the Selectee List

is not publicly disclosed “because disclosure of the Selectee

criteria could give known or suspected terrorists information

that may assist in developing strategies to circumvent security

screening.” Watchlisting Overview at 4. Plaintiffs fail to

allege any facts that undermine this rationale. For these

reasons, Plaintiffs have failed to establish a plausible APA

claim.

C. Plaintiffs Have Failed to Plausibly Allege a First

Amendment Violation

Next, Plaintiffs claim that their placement within the TSDS

violates their First Amendment right to free exercise of

religion. TAC, ECF No. 36 ¶¶ 185-96. Due to their placement in

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the TSDS, Plaintiffs allege that they “believe they will be

unable to travel to Saudi Arabia to complete religious

pilgrimage requirements as observant Muslims, without extensive

difficulty and invasive, unjustified and prolonged searches, due

to information provided to other countries by Defendants.” TAC,

ECF No. 36 ¶ 188. The Court concludes that Plaintiffs have

failed to plausibly allege a violation of their First Amendment

rights.

The Free Exercise Clause prohibits Congress from enacting

laws “respecting an establishment of religion.” U.S CONST.,

amend. I § 1. A plaintiff bringing a free exercise case must

“show the coercive effect of the enactment as it operated

against him in the practice of his religion.” School Dist. Of

Abington Tp., Pa. v. Schempp, 374 U.S. 203, 223 (1963). “[A]

burden upon religion exists [when governmental action] put[s]

substantial pressure on an adherent to modify his behavior and

to violate his beliefs.” Thomas v. Review Bd. Of Indiana

Employment Security Div., 450 U.S. 707, 718 (1981). “[T]he right

of free exercise does not relieve an individual of the

obligation to comply with a ‘valid and neutral law of general

applicability on the ground that the law proscribes (or

prescribes) conduct that his religion prescribed (or

proscribes).’” Employment Div., Dept. of Human Resources of

Oregon v. Smith, 494 U.S. 872, 879 (1990) (quoting United States

29

v. Lee, 455 U.S. 252, 263, n.3 (1982) (Stevens, J, concurring in

judgment)).

Here, Plaintiffs’ claim is premised on the assertion that

they will be unable to travel to complete Hajj. However, as

discussed in detail above, Plaintiffs have failed to allege that

their status on the Selectee List has resulted in significant,

frequent travel delays, let alone an inability to travel at all.

Plaintiffs assert that they “are subject to secondary screenings

nearly every time they fly[,]” id.; however, Plaintiffs each

only assert one instance of travel since being removed from the

No Fly List, and Ms. Shaikh does not allege that she was subject

to secondary screenings at all during that trip. TAC, ECF No. 36

¶¶ 49-56, 93-96. Mr. Maniar’s only alleged delays were cause by

foreign agents. Id. ¶¶ 49-56. For these reasons, Plaintiffs have

failed to plausibly allege that their ability to perform their

religious pilgrimage has been burdened by their alleged

placement on the Selectee List. Because Plaintiffs have failed

to do so, the Court need not consider whether the statute that

requires the Transportation Security Administration “to use

information from government agencies to identify [travelers] who

may be a threat to civil aviation or national security,” 49

U.S.C. § 114(h)(3)(A), and to “prevent [those] individual[s]

from boarding an aircraft, or take other appropriate action with

respect to th[em],” id. § 114(h)(3)(B); is a neutral law of

30

general applicability, nor whether there is a disparate impact

on Muslim Americans.

D. Plaintiffs Fail to Plausible Allege a RFRA Violation

Next, Plaintiffs allege that their inclusion on the

government watchlists violates the RFRA because it “limits their

freedom of movement and prevents them from engaging in one of

the most basic tenets of their religion.” Pls.’ Opp’n, ECF No.

45 at 31.

Enacted in 1993, the RFRA was intended “to provide greater

protection for religious exercise than is available under the

First Amendment.” Holt v. Hobbs, 574 U.S. 352, 357 (2015)

(citing Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 694-

95 (2014)).

The RFRA provides:

“Government shall not substantially burden a

person’s exercise of religion even if the

burden results from a rule of general

applicability, [unless] . . . it

demonstrates that application of the burden

to the person (1) is in furtherance of a

compelling governmental interest; and (2) is

the least restrictive means of furthering

that compelling governmental interest.”

42 U.S.C. § 2000bb-1(a)-(b). “A substantial burden exists when

government action puts ‘substantial pressure on an adherent to

modify his behavior and to violate his beliefs.’” Kaemmerling v.

Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008) (quoting Thomas v.

31

Review Bd., 450 U.S. 707, 718, 101 S. Ct. 1425, 67 L.Ed.2d 624

(1981)).

The Court has discussed in detail above why Plaintiffs have

failed to allege facts supporting the claim that their freedom

of movement is burdened, much less substantially burdened, by

their placement within the TSDS. Since they have failed to do

so, they have failed to plausibly allege a violation of the

RFRA. See id. at 679 (a plaintiff must allege facts sufficient

to state a substantial burden on religious exercise).

E. Plaintiffs’ EAJA Claim Is Premature

Finally, Plaintiffs’ EAJA claim is premature because there

has been no final judgment in this action. See Melkonyan v.

Sullivan, 501 U.S. 89, 94 (1991). Accordingly, this claim will

be dismissed.

IV. Conclusion

For the reasons explained above, the Court GRANTS

Defendants’ Motion to Dismiss, ECF No. 43; and DISMISSES this

case WITHOUT PREJUDICE.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan

United States District Judge

April 1, 2026

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