Abdelfattah v. United States Department of Homeland Security

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2014 Decided May 15, 2015

No. 12-5322

OSAMA ABDELFATTAH,

APPELLANT

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET

AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-cv-01842)

Erica L. Ross, appointed by the court, argued the cause as

amicus curiae for appellant. With her on the briefs were

David W. DeBruin and Paul M. Smith, appointed by the court.

Osama Abdelfattah, pro se, filed the briefs on behalf of

appellant.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellees. With him on the brief were Ronald C. Machen Jr.,

U.S. Attorney, and R. Craig Lawrence, Assistant U.S.

Attorney. Wyneva Johnson, Assistant U.S. Attorney, entered

an appearance.

2

Before: BROWN and SRINIVASAN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: Osama Abdelfattah filed a

complaint identifying twenty-one causes of action against the

United States Department of Homeland Security, several of

its divisions, unnamed federal officials, and unnamed private

individuals. Abdelfattah’s claims stem from the

Government’s collection, maintenance, and use of

information about him. The district court granted the federal

defendants’ motion to dismiss each of Abdelfattah’s claims—

some for lack of jurisdiction and some for failure to state a

claim on which relief may be granted. We affirm the district

court’s judgment as to all claims except those brought under

the Fair Credit Reporting Act.

I

A

When reviewing a motion to dismiss, we “treat the

complaint’s factual allegations as true” and “must grant [the

plaintiff] the benefit of all inferences that can be derived from

the facts alleged.” Atherton v. D.C. Office of Mayor, 567 F.3d

672, 677 (D.C. Cir. 2009). The facts set forth below are

compiled from the First Amended Complaint, Abdelfattah’s

Response in Opposition to the Motion to Dismiss or in the

Alternative Motion to Amend the Complaint, two affidavits

filed by Abdelfattah, and the exhibits attached thereto. We

may consider the affidavits and exhibits in this appeal because

they were filed by a pro se litigant and were intended to

clarify the allegations in the complaint. Id. (considering

3

affidavits and exhibits filed by a pro se litigant when

evaluating a motion to dismiss); see also Greenhill v.

Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007) (consideration

may be given to “supplemental materials filed by a pro se

litigant in order to clarify the precise claims being urged”).

The district court considered the affidavits and exhibits under

similar reasoning, Abdelfattah v. U.S. Dep’t. of Homeland

Sec., 893 F. Supp. 2d 75, 76 n.2 (D.D.C. 2012), and neither

the parties nor Amicus have raised an objection.

Mr. Abdelfattah, a Jordanian national, has lived in the

United States since 1996, when he arrived on a student visa to

attend the University of Bridgeport. While a student, he lived

in a shared apartment with several roommates. For a six-

month period in or around 1998, one of his roommates was a

man who later became a person of interest in the investigation

of the September 11, 2001 terrorist attacks. Abdelfattah did

not know this man prior to living with him and has had no

further communications with him, although he is aware that

the man was arrested for fraud and deported.

Abdelfattah graduated with a master’s degree in

computer engineering in 1998 and accepted a job with an

employer who sponsored his work visa. In December 2001,

he submitted an I-485 application to adjust his immigration

status to that of a permanent resident. He also submitted an I-

765 application for employment authorization, which was

approved for a one-year period expiring in January 2003. At

some point in 2002, Abdelfattah moved to New Jersey and

again filed an I-765 to renew his employment authorization.

When this application had not been approved by early 2003,

he phoned the United States Department of Homeland

Security’s (“the Department” or “DHS”) Citizenship and

4

Immigration Services’ (“USCIS”) Vermont Service Center.1

Abdelfattah was informed that he was the subject of a

“security background check” and that the amount of time

needed to process his I-765 application was therefore

“unknown.” First Amend. Compl. ¶ 123. He visited

immigration offices on multiple separate occasions attempting

without success to obtain an interim employment

authorization document. Each time he experienced a lengthy

wait, and once he got into an argument with an immigration

officer who threatened to call the police.

In September 2003, after a visit to an immigration office

where he was “detained for about 8 hours but let go,” id. ¶

129, Abdelfattah obtained an interim employment

authorization valid for eight months. In January 2004,

Abdelfattah accepted a software engineering job with a

company on Long Island, New York. In February 2004, DHS

granted a four-month extension on Abdelfattah’s employment

authorization but did not send him the corresponding card.

Abdelfattah’s employment authorization was again extended

in May 2004, this time for another eight months.

In June 2004, Abdelfattah moved to New York, and DHS

approved his I-485 application and instructed him to appear at

an immigration office in New York for Green Card

processing. On July 2, 2004, Abdelfattah went to the

immigration office and provided documentation, including his

notice to appear, interim employment authorization document,

and passport, to an immigration officer who fingerprinted him

and asked him to wait. While waiting with his wife and one-

1

USCIS is a unit of the Department. Abdelfattah has named the

Department and several of its divisions as defendants. We refer to

the Department and its various divisions collectively and

interchangeably as “the Department” or “DHS.”

5

year-old daughter in a room full of people, Abdelfattah was

approached by six immigration officers with two dogs. He

complied when asked to accompany one of the officers to a

separate room where he was searched, his wallet’s contents

were examined, and he was questioned about his immigration

status and employment.

Two Federal Bureau of Investigation (“FBI”) agents

arrived and questioned Abdelfattah about his former

roommate. The agents then asked a series of questions

including whether Abdelfattah had weapons training, where

he had traveled, if he prayed, whether he gave money to

charity, and what he thought about Americans. Finally, the

agents inquired about his willingness to work as an FBI

informant. He gave the agents the names of and contact

information for some of his family and friends. After the

interview ended, Abdelfattah proceeded to the Alien

Documentation, Identification, and Telecommunications

(“ADIT”) unit and demanded that an immigration officer

stamp his passport.2 The officer refused, stating his

application for permanent resident status had been approved

by mistake. The officer returned Abdelfattah’s passport, but

kept his notice to appear and interim employment

authorization document.

In September 2004, DHS visited both Abdelfattah’s

workplace and his home, inquiring about him at each location.

On September 10, 2004, Abdelfattah returned to the New

2

“[A]n ADIT stamp mark is placed in an alien’s passport at a port

of entry or at an [immigration] . . . district office; . . . this stamp

mark serves as temporary proof of lawful permanent residence in

the United States” and functions as “authorization for employment,

such that a passport with an ADIT stamp mark can be used as

identification to obtain a valid Social Security card.” United States

v. Polar, 369 F.3d 1248, 1250 n.1 (11th Cir. 2004).

6

York immigration office with his counsel to request the ADIT

passport stamp. After Abdelfattah waited in the office for six

hours, an immigration officer then marked his passport with a

stamp valid for 60 days. The officer advised him that the

ADIT unit would be investigating the names he had used and

his former addresses. In December 2004, an FBI agent

contacted Abdelfattah via telephone and threatened him with

deportation if he did not agree to work as an FBI informant.

In May 2005, Abdelfattah sought another stamp for his

passport at the New York immigration office. Officials

refused. He filed suit against the federal government in the

Eastern District of New York and reached a settlement under

the terms of which Abdelfattah agreed to drop the lawsuit in

exchange for an ADIT stamp valid for one year. While

Abdelfattah did not immediately receive a physical Green

Card, he does claim to currently possess one. Decl. of

Abdelfattah ¶ 2 (Mar. 18, 2012).

Mr. Abdelfattah submitted a Freedom of Information Act

(“FOIA”) request for records pertaining to his I-485

application. After filing a FOIA lawsuit in the Eastern

District of New York, he received 337 pages of information in

March 2005. The FOIA response included a Significant

Incident Report outlining the events of July 2, 2004. The

report stated Abdelfattah was an “exact match on a terrorism

lookout,” Mtn. to Amend Compl. Ex. A, and that a TECS

record indicated Abdelfattah may be associated with an

individual, whose name is redacted, who was arrested in

December 2001 for document fraud.

TECS, which is no longer an acronym but once stood for

“Treasury Enforcement Communication System,” is a federal

government database containing “temporary and permanent

enforcement, inspection and intelligence records relevant to

the anti-terrorism and law enforcement mission of U.S.

7

Customs and Border Protection and numerous other federal

agencies that it supports.”3 Privacy Act of 1974; U.S.

Customs and Border Protection – 011 TECS System of

Records Notice, 73 Fed. Reg. 77,778, 77,779 (Dec. 19, 2008).

TECS records are retained for 75 years “from the date of

collection of the information or for the life of the law

enforcement matter to support that activity and other

enforcement activities that may become related.” Id. at

77,782.

The response to his FOIA request also contained a

Memorandum of Investigation dated September 24, 2004

stating Abdelfattah had been referred for investigation based

on a possible match in TECS and that he “may be linked to

terrorist/National Security activities” according to a record in

TECS. Mtn. to Amend Compl. Ex. B. The report concludes

that after further investigation, the “trace hit” for Abdelfattah

was “negative” and that the “[c]ase is closed for IBIS hit

purposes.” Id. The FOIA response documents included

another Memorandum of Investigation discussing DHS’s visit

to Abdelfattah’s place of work and home, several redacted

TECS database entries regarding Abdelfattah, a list of

Abdelfattah’s previous addresses, and a computer screen shot

of data entry fields filled with Abdelfattah’s driver’s license

numbers, credit card number, and notation of the type and

issuer of the credit card. In September 2007, Abdelfattah

wrote to several DHS divisions requesting the TECS records

be expunged. He did not receive a response.

Abdelfattah suffers a malady common to exiles—the

longing to go home. His sense of being a stranger in a strange

land is exacerbated by his belief that he has been subjected to

3

U.S. Customs and Border Protection is a division of the

Department.

8

years of unjustified scrutiny and harassment. Abdelfattah’s

experiences with DHS have left him depressed. He is

reluctant to travel outside the United States, because he fears

he will not be permitted to reenter or that he may be tortured

or killed by a foreign government. As of March 2012,

Abdelfattah had not seen his siblings for ten years. He has

expended significant resources on attorney’s fees in fifteen

lawsuits he has filed against the United States government.

B

Abdelfattah filed this suit pro se on October 11, 2007.

His amended complaint identifies twenty-one causes of

action. Abdelfattah claims unidentified companies and their

employees provided—and DHS received—Abdelfattah’s

address history, driver’s license number, and credit card

number in violation of the Privacy Act of 1974, 5 U.S.C. §

552a, the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.,

and the Right to Financial Privacy Act, 12 U.S.C. § 3401 et

seq. Abdelfattah further asserts that DHS’s creation and

maintenance of the TECS records violates the Fifth

Amendment to the Constitution. As relief, Abdelfattah seeks

monetary awards for the alleged statutory violations, and

expungement of the TECS records for the alleged

constitutional violations.

In addition to these claims, Abdelfattah raised, and the

district court dismissed, Fifth Amendment equal protection

claims, along with claims brought under the Declaratory

Judgment Act, 28 U.S.C. § 2201(a), the Gramm Leach Bliley

Act, 15 U.S.C. §§ 6801 et seq., and 42 U.S.C. § 1983.

However, since neither Abdelfattah nor court-appointed

Amicus pursue these claims on appeal, they are forfeited. See

American Wildlands v. Kempthorne, 530 F.3d 991, 1001

(D.C. Cir. 2008) (stating issues not argued in the opening

9

brief are forfeited on appeal). Abdelfattah also asserted a

Fourth Amendment claim, a Due Process reputation-plus

claim, and an Administrative Procedure Act, 5 U.S.C. §

706(2)(A), claim below but did not pursue them on appeal,

and Amicus’s references to these claims constitute “cursory

arguments made only in [] footnote[s]” which we need not

consider and deem forfeited. Hutchins v. Dist. of Columbia,

188 F.3d 531, 539–40 n.3 (D.C. Cir. 1999); see also CTS

Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (“A footnote

is no place to make a substantive legal argument on appeal;

hiding an argument there and then articulating it only in a

conclusory fashion results in forfeiture.”).

In September 2012, the district court dismissed

Abdelfattah’s claims. Abdelfattah, 893 F. Supp. 2d at 76.

The district court first found TECS exempt from any relevant

Privacy Act requirements and accordingly dismissed

Abdelfattah’s Privacy Act claims for lack of jurisdiction. Id.

at 81. The district court next dismissed the constitutional

claims, related to the Department’s failure to amend or delete

its TECS records, for failure to state a claim upon which relief

could be granted. The court explained these claims were

“‘encompassed within the remedial scheme of the Privacy

Act’ and so cannot be brought separately when Privacy Act

claims are available.” Id. at 81–82 (quoting Chung v. U.S.

Dep’t of Justice, 333 F.3d 273, 274 (D.C. Cir. 2003)). In the

alternative, the district court found Abdelfattah’s factual

allegations insufficient to state any plausible claim.

Abdelfattah, 893 F. Supp. 2d at 82. The district court then

found Abdelfattah failed to state a Fair Credit Reporting Act

claim, because collection of information such as an

individual’s name, address history, and credit card number is

not prohibited by the Act. Id. at 82–83. Finally, the court

found Abdelfattah failed to plead sufficient factual allegations

to state a Right to Financial Privacy Act claim. Id. at 83.

10

This appeal followed. After receiving supplemental

briefing, a special panel of this court denied the Appellees’

Motion for Summary Affirmance and appointed amicus to

represent Abdelfattah. Order, Abdelfattah v. Dep’t of

Homeland Security, No. 12-5322 (D.C. Cir. Feb. 8, 2014).

The district court exercised jurisdiction over this case

pursuant to 28 U.S.C. § 1331, and we have jurisdiction to

review its final order under 28 U.S.C. § 1291.

We review the district court’s “dismissal of claims for

want of subject matter jurisdiction under Rule 12(b)(1) or for

failure to state a claim under Rule 12(b)(6)” de novo. El Paso

Natural Gas Co. v. United States, 750 F.3d 863, 874 (D.C.

Cir. 2014) (citing Kim v. United States, 632 F.3d 713, 715

(D.C. Cir. 2011)). “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) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Iqbal, 556

U.S. at 678. “A document filed pro se is to be liberally

construed, . . . and a pro se complaint, however inartfully

pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.

89, 94 (2007) (internal quotation marks omitted). Even still, a

pro se complaint “must plead factual matter that permits the

court to infer more than the mere possibility of misconduct.”

Jones v. Horne, 634 F.3d 588, 596 (D.C. Cir. 2011) (internal

quotation marks omitted).

11

II

Under the Privacy Act, an agency may “maintain in its

records only such information about an individual as is

relevant and necessary to accomplish a purpose of the agency

required to be accomplished by statute or by executive order

of the President” and is required to “collect information to the

greatest extent practicable directly from the subject individual

when the information may result in adverse determinations

about an individual’s rights, benefits, and privileges under

Federal programs.” 5 U.S.C. § 552a(e)(1), (2). Under some

circumstances, however, an agency may “exempt certain of

[its] systems of records from many of the obligations [the

Privacy Act] imposes.” Skinner v. U.S. Dep’t of Justice, 584

F.3d 1093, 1096 (D.C. Cir. 2009) (citing 5 U.S.C. § 552a(j)).

Invoking this provision, the Department of Treasury

exempted TECS from certain Privacy Act provisions. See 31

C.F.R. § 1.36(c)(1)(iv), (2) (exempting TECS from 5 U.S.C.

§§ 552a(d)(1)–(4), 552a(e)(1)–(3), (5), 552a(g)). The district

court found TECS is exempt “from all of the Privacy Act

requirements that Mr. Abdelfattah would enforce in this suit,

as well as the jurisdictional provision that would allow him to

bring it.” Abdelfattah, 893 F. Supp. 2d at 81. The district

court therefore dismissed the Privacy Act claims against the

Department, and Abdelfattah does not challenge this

determination on appeal. 4

4

Abdelfattah also raised Privacy Act claims against unnamed

private corporations and DHS officials. The district court properly

dismissed these claims sua sponte, as the Privacy Act creates a

cause of action against only federal government agencies and not

private corporations or individual officials. See Martinez v. Bureau

of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (stating no cause of

action against individual employees exists under the Privacy Act);

12

Abdelfattah does argue—and we agree—the district court

erred in holding that constitutional claims related to DHS’s

collection and maintenance of the TECS records are barred by

the Privacy Act. In Chung, this court noted the Privacy Act

provided a comprehensive remedial scheme—one of the

factors the Supreme Court has held militates against a court-

erected course of action for money damages—and we

therefore declined to recognize a Bivens cause of action for

the plaintiff’s constitutional claims. 333 F.3d at 273. It

follows that Abdelfattah cannot pursue a Bivens action for

DHS’s collection and maintenance of his information.

Further, to the extent he seeks a Bivens remedy from the

Department itself, Bivens claims are not available against

federal agencies. FDIC v. Meyer, 510 U.S. 471, 484–85

(1994).

Our precedent does not foreclose, however, the equitable

relief of expungement of government records for violations of

the Constitution. We have repeatedly recognized a plaintiff

may request expungement of agency records for both

violations of the Privacy Act and the Constitution. See Doe v.

U.S. Air Force, 812 F.2d 738, 741 (D.C. Cir. 1987); Smith v.

Nixon, 807 F.2d 197, 204 (D.C. Cir. 1986); Hobson v. Wilson,

737 F.2d 1, 65 (D.C. Cir. 1984) (overruled in part on other

grounds by Leatherman v. Tarrant Cnty. Narcotics

Intelligence & Coordination Unit, 507 U.S. 163 (1993)).

Williams v. ALFA Ins. Agency, 349 F. App’x 375, 376 (11th Cir.

2009) (per curiam) (explaining the Privacy Act does not apply to

private corporations). Therefore, it is “patently obvious,”

Abdelfattah’s Privacy Act claims against private corporations and

individual officials cannot prevail, and the district court could

dismiss them pursuant to Rule 12(b)(6) without notice. Rollings v.

Wackenhut Services, Inc., 703 F.3d 122, 127 (D.C. Cir. 2012)

(quoting Baker v. Dir., U.S. Parole Comm’n, 916 F.2d 725, 727

(D.C. Cir. 1990)).

13

Such recognition is consistent with our conclusion in

Spagnola v. Mathis, 859 F.2d 223, 229–230 (D.C. Cir. 1988)

(per curiam). There we held the availability of a

comprehensive remedial scheme in the Civil Service Reform

Act (“CRSA”) counseled against extending a Bivens cause of

action for damages to compensate federal employees and job

applicants for constitutional claims. Id. at 229. We

nevertheless made clear that the CRSA did not preclude

judicial review of such constitutional claims altogether. Civil

servants and job applicants could still “seek equitable relief

against their supervisors, and the agency itself, in vindication

of their constitutional rights.” Id. at 230. Abdelfattah seeks

equitable relief for the Department’s alleged violations of the

Constitution, and Congress’s provision of specific Privacy

Act remedies does not bar his claims.

III

A

Because Abdelfattah’s claims “stem[] from [his]

difficulty finding work and obtaining Lawful Permanent

Resident [‘LPR’] status and a Green Card reflecting” that

status, the Government makes a tepid argument that his

constitutional claims are moot because he is working as a

software engineer and has obtained both LPR status and a

Green Card. Appellees’ Br. at 10 (citing First Amend.

Compl. ¶ 39; Decl. of Abdelfattah ¶ 2 (Mar. 18, 2012). Under

the mootness doctrine that derives from Article III of the

Constitution, federal courts “may only adjudicate actual,

ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317

(1988). Judicial review is precluded where “events have so

transpired that [a judicial] decision will neither presently

affect the parties’ rights nor have a more-than-speculative

chance of affecting them in the future.” Clarke v. United

14

States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc) (internal

quotation marks omitted). If Abdelfattah were somehow

seeking a declaration of entitlement to LPR status or a

physical Green Card, we agree both claims would be moot.

However, Abdelfattah requests expungement of the TECS

records to remedy DHS’s continued maintenance and use of

those records. He argues the threat remains that the

maintenance and use of the TECS records will lead to future

deprivation of his rights. The Government argues Abdelfattah

is not entitled to the remedy of expungement and that his

allegations of future harm are mere speculation. This is a live

controversy, and our decision will affect the respective rights

of the parties. See, e.g., Hedgepath ex rel. Hedgepath v.

Washington Metro. Area Transit Auth., 386 F.3d 1148, 1152–

52 (D.C. Cir. 2004) (Fourth and Fifth Amendment claims not

mooted by a change in policy where plaintiff sought

expungement of arrest record as a remedy); Doe v. U.S. Air

Force, 812 F.2d 738, 740–41 (D.C. Cir. 1987) (claims not

moot where seized documents were returned because an issue

remained as to whether expungement of copies retained

would be an appropriate remedy should Fourth Amendment

violation be found). Abdelfattah’s constitutional claims are

therefore not moot, and we have jurisdiction to consider

whether he has stated a claim or claims upon which relief may

be granted.

B

Amicus argues our ruling in Chastain v. Kelley

recognized a right to expungement or amendment5 of

government records if a plaintiff is “adversely affected” by

information contained in them that is “prejudicial without

5

For brevity’s sake, we will refer to both expungement and

amendment of government records as “expungement.”

15

serving any proper [governmental] purpose.”6 510 F.2d 1232,

1236 (D.C. Cir. 1975). In Chastain, the FBI accused one of

its special agents of, inter alia, misusing his credentials when,

in an attempt to help a female friend, he displayed his badge

to and questioned her neighbor about a string of obscene

phone calls. Id. at 1234. The agent was suspended without

pay and notified of his proposed dismissal. Id. The agent

sued the FBI in federal court seeking restoration to active

service, claiming, among other things, he was not afforded

due process and the reasons for his suspension and proposed

dismissal were “improper or unsubstantiated.” Id. at 1235–

36. While the case was pending, the FBI changed positions,

cancelling both the suspension and proposed dismissal. Id. at

1235. Accordingly, the Government requested the agent’s

claims be dismissed as moot. Id. The agent, however, moved

for an order requiring all records related to the incident to be

expunged, which the district court granted after the

Government failed to timely oppose the motion. Id. In an

untimely filing, the Government opposed expunction,

6

The Government argues Abdelfattah waived this argument—

raised here by Amicus—by not raising it in the proceedings before

the district court. Abdelfattah’s pro se pleadings must be liberally

construed. Erickson, 551 U.S. at 94. He did claim below that the

TECS records should be expunged, stating the records associate

him with terrorism, that he is being adversely affected as a result,

and that the Department has no need for maintaining the records.

Mtn. to Amend Compl. at 2, 6 (citing Chastain, 510 F.2d at 1235).

This is sufficient for a pro se litigant to preserve the argument that

he possesses a legally cognizable right to the expungement of

prejudicial records that do not serve a proper governmental

purpose. Amicus refined the argument, but “[i]t is precisely

because an untrained pro se party may be unable to identify and

articulate the potentially meritorious arguments in his case that we

sometimes exercise our discretion to appoint amici.” Bowie v.

Maddox, 642 F.3d 1122, 1135 n.6 (D.C. Cir. 2011).

16

explaining its decision not to terminate the agent did not mean

he had been “absolved of any wrongdoing.” Id. at 1237. To

the contrary, the Government maintained the agent had in fact

“misuse[d] his credentials and . . . unnecessarily involve[d]

the FBI in a matter over which it had no jurisdiction.” Id.

Further, the agent himself did not entirely deny wrongdoing

and recognized he was guilty of “questionable judgment.” Id.

at 1238.

After unsuccessfully requesting reconsideration, the

Government appealed. We began by noting “federal courts

are empowered to order the expungement of Government

records where necessary to vindicate rights secured by the

Constitution or statute.” Id. at 1235. This power is an

“instance of the general power of the federal courts to fashion

appropriate remedies to protect important legal rights.” Id.

While the equitable remedy of expungement is a “versatile

tool,” it is one that “must be applied with close attention to

the peculiar facts of each case.” Id. at 1236. The district

court appeared to have issued the expungement order because

the motion was not opposed within the appropriate time

period and not because the court found expungement

warranted after consideration of the merits. Id. at 1238.

While the district court’s order was understandable due to the

Government’s failure to make a timely filing, we thought the

consequences of the Government’s errors should not fall on

other FBI agents who could potentially be unfairly passed up

for promotions or other job benefits in favor of the accused

agent once his records were expunged of all mention of his

“serious want of sound judgment . . . in the exercise of his

official authority.”7 Id.

7

The Government argues the relevant language in Chastain is

dicta, as the “core holding of Chastain was reversal of the district

court’s order of expungement.” Appellee’s Br. at 13. To the

17

Consequently, we vacated the order of expungement and

instructed the district court not to reissue it “prior to a hearing

on the extent to which the information in the [FBI’s] files

violates [Chastain’s] rights without serving any legitimate

needs of the [FBI].” Id. at 1237. Assuming the FBI had

violated the agent’s rights, those rights had largely been

vindicated when he was reinstated to active duty. Id. at 1238.

However, we noted in language that now forms the basis of

Amicus’s argument, “There may remain a right not to be

adversely affected by the information in the future. Such a

right may exist if the information (1) is inaccurate, (2) was

acquired by fatally flawed procedures, or (3) . . . is prejudicial

without serving any proper purpose of the [FBI].” Id. at 1236.

While we expressed skepticism that any of these conditions

existed in the case at hand, we left the determination to be

made by the district court after a hearing on the merits. Id.

This passage does not recognize a standalone right to

expungement of government records that are inaccurate, were

acquired by flawed procedures, or are prejudicial and do not

serve any proper governmental purpose. We clearly stated in

Chastain that expungement is a remedy that may be available

to vindicate statutory or constitutional rights. See id. at 1235

(expungement may be ordered “where necessary to vindicate

rights secured by the Constitution or by statute”); id.

(authority to order records expunged is part of courts’ power

“to fashion appropriate remedies to protect important legal

rights”); id. at 1236 (describing expungement as an “equitable

remedy”). A court does not fashion equitable remedies

without first finding a violation of an established legal right

contrary, our “core holding” in Chastain was that the order of

expungement was premature. Our identification of the factors the

district court must consider before reissuing the order of

expungement was essential to the decision and therefore part of our

holding.

18

has occurred or is imminent. See, e.g., BLACK’S LAW

DICTIONARY (10th ed. 2014) (defining a remedy as “[t]he

means of enforcing a right or preventing or redressing a

wrong”). In Chastain, it was not clear the agent’s rights had

been violated. We therefore ordered the district court to

conduct a hearing to determine the extent to which his rights

were violated. Chastain, 510 F.2d at 1237. We further

instructed that even if the agent’s rights were violated, the

remedy of expungement would only be appropriate if at least

one of the enumerated conditions were present. Id. at 1236.

In other words, if the agent’s suspension and proposed

termination were illegal, the district court must then

separately determine whether he should be protected from any

adverse consequences that might arise from the information

about the incident remaining in his records. This

determination would involve careful weighing of the litigants’

respective interests.

Admittedly, our use of the word “right” in describing the

conditions under which the remedy of expungement would be

appropriate could be a source of confusion. But Amicus’s

reading requires finding the proverbial elephant in the mouse

hole. There is no indication in Chastain that we were

recognizing a distinct legal right to expungement of

government records. None of the substantive analysis

prerequisite to recognizing a right enforceable in federal court

is present. The source of the right to expungement is not

identified, although Amicus focuses on substantive due

process. Amicus’s Rep. Br. at 7–8 n.7. Nor does the court

grapple with separation of powers concerns that would arise

from the judiciary assuming authority over routine

maintenance of executive branch records. See Sealed

Appellant v. Sealed Appellee, 130 F.3d 695, 699 (5th Cir.

1997) (“The President, not the district court, runs the

executive branch—and it is he who decides how that branch

19

will function. There is no specific exception to this general

constitutional rule for expungement.”). A court intending to

identify a substantive constitutional right to compel

expungement of material “not serving any proper purpose”

would surely have wrestled with the difficult questions

inherent in every word of that phrase. Finally, the Chastain

court made no attempt to distinguish conflicting precedent.

See Finley v. Hampton, 473 F.2d 180, 185 (D.C. Cir. 1972)

(holding a federal employee had no legally cognizable right to

expungement of “adverse and perhaps untrue” information in

his personnel file “in absence of a real threat of injury”).

Therefore, reading Chastain both for what it says and

what it does not say, the case establishes a modest

proposition: expungement of government records is an

equitable remedy that may be available under certain

circumstances to vindicate constitutional and statutory rights.

The subsequent treatment of Chastain—in cases cited by

Amicus—further supports this reading. Orders of

expungement have typically been contemplated for well-

defined constitutional claims. In Doe v. U.S. Air Force, we

relied on Chastain to explain expungement of the copies of

records seized from the plaintiff’s Air Force barracks may be

an “available as a remedy if it be determined that the retained

copies and information were unconstitutionally obtained.”

812 F.2d 738, 740–41 (D.C. Cir. 1987) (emphasis added). In

Hobson v. Wilson, we cited Chastain when explaining

“expungement of records is, in proper circumstances, a proper

remedy in an action brought directly under the Constitution.”

737 F.2d at 65 (emphasis added). The actions brought

directly under the Constitution in that case were claims that

federal officials had interfered with the plaintiffs’ “exercise of

their First Amendment rights.” Id. at 13.

20

As a thorough reading of the opinion and our subsequent

case law demonstrate, we did not in Chastain—nor do we

today—recognize a nebulous right to expungement of

government records that are inaccurate, were illegally

obtained, or are “prejudicial without serving any proper

purpose;” instead expungement is a potentially available

remedy for legally cognizable injuries.8 Abdelfattah fails to

state a claim under Amicus’s Chastain theory, because

identifying a remedy is not stating a claim. See Sealed

Appellant, 130 F.3d at 700 (“We should not elevate a mere

remedy to the status of a right. The fashioning of a remedy

should be based on something else. A petitioner cannot come

into court to ask for an injunction and have the harm the

injunction is based on be the fact that the government officers

would not enjoin themselves. Something is missing. That

something is injury to a legally protected interest.”).

C

We next consider Abdelfattah’s procedural due process

claim. “A procedural due process violation occurs when an

official deprives an individual of a liberty or property interest

without providing appropriate procedural protections.”

8

We note that even if Chastain did recognize a distinct right to, or

liberty interest in, expungement of prejudicial records that do not

serve any proper governmental purpose, Abdelfattah’s claims

arguably fail. It would be difficult for a court to find the

government has no “proper purpose” in retaining information about

Abdelfattah’s association—albeit attenuated—with his former

roommate and DHS’s investigation into that association. We can

readily perceive that DHS could have a legitimate purpose in

retaining information that “connects the dots” in an investigation

into a terrorist attack—both to avoid duplicating work in the future

and because records of the identities of a suspect’s known

acquaintances may prove useful.

21

Atherton, 567 F.3d at 689.9 While Abdelfattah’s First

Amended Complaint and Motion to Amend the Complaint

repeatedly state his “right to work” and “right to travel” have

been stymied, entitlement to relief requires more than putting

forth “labels and conclusions.” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 555). Abdelfattah must allege

sufficient facts to state a plausible claim for relief. Id. We

accept, as we must, that the facts he pleaded are true, but we

“are not bound to accept as true a legal conclusion couched as

a factual allegation.” Twombly, 550 U.S. at 555.

Amicus cites Greene v. McElroy for the proposition that

“the right to hold specific private employment and to follow a

chosen profession free from unreasonable governmental

interference comes within the ‘liberty’ and ‘property’”

interests protected by the Fifth Amendment. 360 U.S. 474,

492 (1959). Greene and its related line of cases recognize a

constitutional “right to follow a chosen trade or profession,”

Kartseva v. Dep’t of State, 37 F.3d 1524, 1529 (D.C. Cir.

1994) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886,

895–96 (1961)). Thus, when the government formally debars

an individual from certain work or implements broadly

preclusive criteria that prevent pursuit of a chosen career,

there is a cognizable “deprivation of liberty that triggers the

procedural guarantees of the Due Process Clause.” Trifax

Corp. v. Dist. of Columbia, 314 F.3d 641, 643–44 (D.C. Cir.

2003).

Abdelfattah has not alleged facts suggesting his liberty or

property interest in pursuing his chosen profession has been

9

Abdelfattah, a lawful permanent resident physically present in the

United States, is a “person” within the meaning of the Fifth

Amendment and is entitled to its protections. See Kwong Hai Chew

v. Colding, 344 U.S. 590, 596 (1953).

22

implicated. He is a software engineer and has made no

allegations to suggest that any action on the part of DHS has

precluded him from working in that field. To the contrary, at

the time he filed his First Amended Complaint, he claimed to

still be working as a software engineer. First Amend. Compl.

¶ 39. Abdelfattah alleges the government interfered with his

right to work by visiting his workplace and speaking with his

employer and that he could have lost his job as a result. But

even if he had, the loss of “one position in [the] profession” is

insufficient to implicate a Fifth Amendment liberty interest in

following one’s chosen trade or profession. Kartseva, 37 F.3d

at 1529. Rather an individual must suffer a binding

disqualification from work or broad preclusion from his or her

chosen field. Id. at 1528–29.

Abdelfattah further asserts DHS deprived him of his

“right” to travel internationally. The Due Process Clause of

the Fifth Amendment protects a liberty interest in

international travel. See, e.g., Califano v. Aznavorian, 439

U.S. 170, 176 (1978). However, Abdelfattah has not alleged

any facts suggesting that his freedom to travel internationally

has been infringed or adversely affected. His passport has not

been confiscated, and he makes no claim of being denied

access—even temporarily—to any means of transportation

exiting or entering the United States; nor does he claim to

have been subjected to heightened searches or questioning

while traveling. He is therefore unlike the plaintiffs in the

cases cited by Amicus. See Shachtman v. Dulles, 225 F.2d

938 (D.C. Cir. 1955) (Secretary of State denied U.S. citizen’s

application for a passport); Mohamed v. Holder, 995 F. Supp.

2d 520 (E.D. Va. 2014) (plaintiff told he was on the No Fly

List and denied boarding on a flight to United States); Latif v.

Holder, 969 F. Supp. 2d 1293, 1296 (D. Or. 2013) (plaintiffs

“not allowed to board flights to or from the United States or

over United States air space”). Instead Abdelfattah alleges he

23

is concerned that because of the TECS records, if he leaves

the United States he will not be permitted to return or that he

may be tortured or killed by a foreign government. His fears

are largely based on anecdotal evidence of others being

subjected to such treatment. First Amend. Compl. ¶¶ 199–

204; 205–211. Abdelfattah’s allegations are too speculative

and intangible to state a claim of deprivation of liberty.

Our discussion thus far has been limited to the liberty

interests in work and travel protected under the Fifth

Amendment’s Due Process Clause. Abdelfattah seems to

argue, however, that his status as a LPR creates concomitant

rights to proper documentation of that status. To the extent

we can understand their arguments, Abdelfattah and Amicus

both seem to suggest that these rights form the basis of liberty

or property interests protected by due process. If they are

making such an argument, we are unable to evaluate it. First,

neither Abdelfattah nor Amicus cites the statutes or

regulations conferring these rights on LPRs. Next, they failed

to put forth any argument or citation to authority supporting

the proposition that the statutory or regulatory rights of LPRs

create Fifth Amendment liberty or property interests. Further,

they did not discuss the parameters of these asserted interests.

Therefore, whether Abdelfattah has stated a claim on these

grounds is not a question properly before us, and we decline

to reach it. See FED. R. APP. P. 28(a)(9)(A) (requiring parties

to provide “citations to the authorities . . . on which [they]

rel[y]” to support their arguments). We do “not consider

‘asserted but unanalyzed arguments’ because ‘appellate courts

do not sit as self-directed boards of legal inquiry and research,

but essentially as arbiters of legal questions presented and

argued by the parties before them.’” Anna Jacques Hosp. v.

Sebelius, 583 F.3d 1, 7 (D.C. Cir. 2009) (quoting Carducci v.

Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)).

24

D

Abdelfattah, with the help of Amicus, argues he has

stated claims of violations of his substantive due process

rights. “The touchstone of due process is protection of the

individual against arbitrary action of government.” Wolff v.

McDonnell, 418 U.S. 539, 558 (1974). This is so “whether

the fault lies in a denial of fundamental procedural fairness . .

. or in the exercise of power without any reasonable

justification in the service of a legitimate governmental

objective.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845–

46 (1998). However, the Constitution is not a “font of tort

law,” and the need to protect the “constitutional proportions

of constitutional claims” is particularly acute “in a due

process challenge to executive action.” Id. at 847 n.8.

Balancing these principles, the Supreme Court has recognized

that some executive actions may be “arbitrary in the

constitutional sense.” Id. at 846. However, only

“deprivations of liberty caused by ‘the most egregious official

conduct,’ . . . may violate the Due Process Clause.” Chavez v.

Martinez, 538 U.S. 760, 774 (2003) (plurality opinion)

(quoting Lewis, 523 U.S. at 846). “Thus, in a due process

challenge to executive action, the threshold question is

whether the behavior of the governmental officer is so

egregious, so outrageous, that it may fairly be said to shock

the contemporary conscience.” Lewis, 523 U.S. at 847 n.8.

Amicus argues Abdelfattah stated a substantive due

process claim that DHS deprived him of his liberty interests in

working and in travelling internationally in a manner that was

“arbitrary, or conscience shocking, in the constitutional

sense.” Id. at 849. But these arguments fail for the same

reason as the procedural due process claims discussed above:

Abdelfattah has not alleged facts suggesting he has been

deprived—arbitrarily or otherwise—of a cognizable liberty or

25

property interest. See George Washington Univ. v. Dist. of

Columbia, 318 F.3d 203, 206 (D.C. Cir. 2003) (stating the

“doctrine [of substantive due process] normally imposes only

very slight burdens on the government to justify its actions, it

imposes none at all in the absence of a liberty or property

interest”); Yates v. Dist. of Columbia, 324 F.3d 724, 725–26

(D.C. Cir. 2003) (asking first whether plaintiff possessed a

property interest before evaluating whether the official

conduct he complained of was egregious).

Amicus next argues, alternatively, that Chastain creates a

cognizable liberty interest in the expungement of prejudicial

government records that do not serve a proper purpose. As

discussed above, expungement is an equitable remedy that

may be warranted to vindicate violations of constitutional or

statutory rights. As there is no right to expungement, it

follows there is no liberty interest in expungement. See

Roberts v. United States, 741 F.3d 152, 161 (D.C. Cir. 2014)

(explaining to constitute a cognizable liberty interest, plaintiff

must have a “legitimate claim of entitlement” to the

government conduct in question). At its base, Amicus’s

argument is that Abdelfattah has stated a substantive due

process claim simply because he has alleged DHS treated him

arbitrarily. However, “[m]erely labeling a governmental

action as arbitrary and capricious, in the absence of a

deprivation of life, liberty, or property, will not support a

substantive due process claim.” Singleton v. Cecil, 176 F.3d

419, 424 (8th Cir. 1999) (en banc); see also Nunez v. City of

Los Angeles, 147 F.3d 867, 873–74 (9th Cir. 1998)

(explaining “[t]here is no general liberty interest in being free

from capricious government action. . . . Otherwise, as then-

Judge Stevens explained, ‘every time a citizen [i]s affected by

government action, he would have a federal right to judicial

review.’”) (quoting Jeffries v. Turkey Run Consol. Sch. Dist.,

492 F.2d 1, 4 n.8 (7th Cir. 1974)); but see Willowbrook v.

26

Olech, 528 U.S. 562, 564 (2000) (noting the Court’s

recognition of “successful equal protection claims brought by

a ‘class of one,’ where the plaintiff alleges that she has been

intentionally treated differently from others similarly situated

and that there is no rational basis for the difference in

treatment”).

Abdelfattah alleges DHS violated his substantive due

process rights by detaining him. “Where a particular

Amendment provides an explicit textual source of

constitutional protection against a particular sort of

government behavior, that Amendment, not the more

generalized notion of ‘substantive due process,’ must be the

guide for analyzing” a claim. Albright v. Oliver, 510 U.S.

266, 273 (1994) (plurality opinion) (internal quotation marks

omitted). Abdelfattah’s claim of illegal seizure is cognizable

under the Fourth Amendment and therefore cannot proceed

under the doctrine of substantive due process. Id.

He next argues the FBI and DHS’s repeated questioning,

requests that he become an informant, threats of deportation,

delays in processing his applications for immigration benefits,

and refusals to provide proper documentation constitute

substantive due process violations. He alleges DHS will

continue to subject him to similar treatment so long as the

TECS records remain. But neither Abdelfattah nor Amicus

offers an argument or citation to authority to establish that

these alleged acts implicate a liberty interest cognizable under

the Due Process Clause. Cf. Mudric v. Attorney General of

United States, 469 F.3d 94, 99 (3d Cir. 2006) (“No

constitutional injury occurred from the INS delays in this case

because [the plaintiff] simply had no due process entitlement

to the wholly discretionary benefits of which he and his

mother were allegedly deprived, much less a constitutional

right to have them doled out as quickly as he desired.”);

27

Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991) (“Fear or

emotional injury which results solely from verbal harassment

or idle threats is generally not sufficient to constitute an

invasion of an identified liberty interest.”) (citations omitted)

(abrogated in part on other grounds by Martinez v. Cui, 608

F.3d 54, 64–65 (1st Cir. 2010)). We therefore do not evaluate

whether he has stated a substantive due process claim based

on harassment, threats of deportation, or administrative delays

he has been or will be subjected to by DHS. See FED. R. APP.

P. 28(a)(9)(A), Anna Jacques Hosp., 583 F.3d at 7.

Even if Abdelfattah had alleged a cognizable deprivation

of a liberty or property interest, a question would remain: do

his pleadings state plausible allegations of conduct that “may

fairly be said to shock the contemporary conscience”? Lewis,

523 U.S. at 847 n.8; cf. Vogrin v. Swartswelder, No. 04-5052,

2004 WL 2905328 (D.C. Cir. Apr. 5, 2004) (per curiam)

(finding at the motions to dismiss stage plaintiffs had not

stated a claim of “abuse of government power that shocks the

conscience”). While the precise threshold for alleging an

executive action violates substantive due process rights is

“unclear,” Am. Fed’n of Gov’t Emps., AFL-CIO, Local 466 v.

Nicholson, 475 F.3d 341, 344 (D.C. Cir. 2007) (stating “a

mere violation of law does not give rise to a due process

claim”); see also Lewis, 523 U.S. at 847 (“While the measure

of what is conscience shocking is no calibrated yard stick, it

does, as Judge Friendly put it, ‘poin[t] the way.’” (quoting

Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)

(alteration in original))), the bar is high. Accepting the facts

as true, Abdelfattah has gone through an ordeal that surely has

been frustrating, distressing, and, at intervals, infuriating, but

the exasperation engendered by bureaucratic obduracy is

probably not enough. While we need not and do not make

that determination here, we remain skeptical.

28

IV

Abdelfattah asserts claims under the Fair Credit

Reporting Act and the Right to Financial Privacy Act against

the Department, unnamed federal officials, and unnamed

corporate defendants. Abdelfattah learned the Department is

in possession of his previous addresses and phone numbers,

his social security number, his driver’s license numbers, and

his credit card number when he reviewed information he

received in response to a FOIA request. He also alleges this

information was obtained without his consent and not

pursuant to a court order. Finally, Abdelfattah says that after

conducting research he has concluded the “only place” the

Department could have obtained this information is his “credit

report header info.” First Amend. Compl. ¶ 59.

A

The Right to Financial Privacy Act (“RFPA”) “bars

financial institutions from ‘provid[ing] to any Government

authority access to . . . the financial records of any customer’

without complying with certain procedures.” Stein v. Bank of

America Corp., 540 F. App’x 10, 10 (D.C. Cir. 2013) (per

curiam) (quoting 12 U.S.C. § 3403(a)). These procedures

include receiving the customer’s authorization to release the

record or obtaining a valid subpoena or warrant. 12 U.S.C. §

3402. “Customers aggrieved by the improper disclosure of

their records have a private right of action against the

governmental authority that obtained the records and the

financial institution that disclosed the records.” Tucker v.

Waddell, 83 F.3d 688, 692 (4th Cir. 1996) (citing 12 U.S.C. §

3417(a)). However, “[t]he most salient feature of the Act is

the narrow scope of entitlements it creates. Thus it carefully

limits the kinds of customers to whom it applies . . . and the

types of records they may seek to protect.” SEC v. Jerry T.

29

O’Brien, 467 U.S. 735, 745 (1984). Under the RFPA,

“financial records” are “information known to have been

derived from, any record held by a financial institution

pertaining to a customer’s relationship with the financial

institution.” 12 U.S.C. § 3401(2). A “customer” is “any

person or authorized representative of that person who

utilized or is utilizing any service of a financial institution, or

for whom a financial institution is acting or has acted as a

fiduciary, in relation to an account maintained in the person’s

name.” Id. § 3401(5). Finally, a “financial institution” is

“any office of a bank, savings bank, card issuer, . . . industrial

loan company, trust company, savings association, building

and loan, or homestead association (including cooperative

banks), credit union, or consumer finance institution.” Id. §

3401(1).10

Abdelfattah has not alleged facts sufficient to show a

violation of the RFPA’s narrow provisions. He has not

identified the source of the alleged disclosure to the

government, and he failed to allege that entity is a “financial

institution” within the meaning of the Act. He has not alleged

he was a “customer” of the offending entity. Finally, he

alleged on information and belief that the record that was

disclosed was his credit report header. He does not explain

how that record pertains to his relationship with the financial

institution that made the alleged disclosure or why he believes

the credit report header was disclosed by a financial

institution as opposed to a credit reporting agency not

10

RFPA contains an exception allowing access to financial records

to a “Government authority authorized to conduct investigations of,

or intelligence or counterintelligence analyses related to,

international terrorism for the purpose of conducting such

investigations or analyses.” 12 U.S.C. § 3414(a)(1)(c). The

Government expressly waived reliance on this provision at oral

argument. Oral Arg. Tr. at 40:2–10.

30

regulated by the RFPA. Even liberally construing

Abdelfattah’s pro se complaint, he has not “plead[ed] factual

matter that permits [us] to infer more than the mere possibility

of misconduct.” Jones v. Horne, 634 F.3d 588, 596 (D.C. Cir.

2011) (internal quotation marks omitted).

B

“Congress enacted the [Fair Credit Reporting Act

(“FCRA”)] in 1970 to ensure fair and accurate credit

reporting, promote efficiency in the banking system, and

protect consumer privacy.” Safeco Ins. Co. of America v.

Burr, 551 U.S. 47 (2007). FCRA regulates the dissemination

and use of “consumer reports.” To qualify as a consumer

report under FCRA, information must satisfy two elements.

First, it must be a “written, oral, or other communication of

any information by a consumer reporting agency bearing on a

consumer’s credit worthiness, credit standing, credit capacity,

character, general reputation, personal characteristics, or

mode of living.” 15 U.S.C. § 1681a(d)(1). Second, the

information must be “used or expected to be used or collected

in whole or in part for” one of several purposes identified in

the Act. Id. The Act prohibits consumer reporting agencies

from “furnish[ing] a consumer report” except under specified

conditions, and it forbids any person from “us[ing] or

obtaining” a consumer report unless it is obtained for certain

permissible purposes identified in the statute. Id. § 1681b(a),

(f). The Act’s definition of “person” includes any

“government or governmental subdivision or agency.” Id. §

1681a(b). Under FCRA, a governmental agency may obtain

basic identifying information about a consumer from a credit

reporting agency. Id. § 1681f. This identifying information is

limited to the consumer’s name, address, former address,

places of employment, or former places of employment. Id.

If a governmental agency desires more detailed information, it

31

must generally seek a court order or subpoena. Id. §

1681b(a)(1). 11 FCRA provides a private cause of action

against “[a]ny person” who willfully or negligently fails to

comply with its requirements. Id. §§ 1681n; 1681o. The

Government argues, and the district court found, that the

information Abdelfattah alleges was illegally furnished to the

Department does not constitute a “consumer report” within

the meaning of the Act because it does not bear on

Abdelfattah’s “credit worthiness, credit standing, credit

capacity, character, general reputation, personal

characteristics, or mode of living.” 15 U.S.C. § 1681a(d)(1).

The district court therefore dismissed the claims. Abdelfattah,

893 F. Supp. 2d at 82–83. Amicus contests this holding only

in regards to Abdelfattah’s credit card number. Amicus first

argues credit card numbers are subject to FCRA’s

requirements because section 1681c(g) requires the truncation

of credit card numbers contained in receipts. This provision

is irrelevant, however, as Abdelfattah has made no allegation

that the document containing his credit card number is a

receipt for a business transaction or that it was “provided . . .

at the point of the sale or transaction.” 15 U.S.C. §

1681a(d)(1).

11

FCRA contains an exception under which a consumer reporting

agency “shall furnish a consumer report of a consumer and all other

information in a consumer’s file to a government agency authorized

to conduct investigations of, or intelligence or counterintelligence

activities or analysis related to, international terrorism when

presented with a written certification by such government agency

that such information is necessary for the agency’s conduct or such

investigation, activity or analysis.” 15 U.S.C. § 1681v. This

provision became effective March 9, 2006. The Government

expressly waived reliance on this counterterrorism exception to

FCRA at oral argument. Oral Arg. Tr. at 40:2–10.

32

Amicus next argues a credit card number is a “consumer

report.” The Government responds that the definition of

“consumer report” cannot be read so broadly as to include the

mere fact that an individual possesses a credit card. This case

does not call for us to address whether information merely

confirming the existence of a credit card bears on one of the

seven enumerated factors because Abdelfattah alleged DHS is

in possession of his full and specific credit card number,

along with information regarding the type and issuer of the

card. That Abdelfattah possesses a major credit card of a

specific type and number bears on his mode of living. Cf.

Trans Union Corp. v. FTC, 81 F.3d 228, 231 (D.C. Cir. 1996)

(finding the fact that individuals established two tradelines

bore “at least on [their] mode of living”). We therefore

reverse the district court’s ruling that the FCRA claims failed

on the first prong of the definition of “consumer report” and

remand for further proceedings.

V

The judgment of the district court should be affirmed as

to all aspects except the dismissal of the FCRA claims.

So ordered.