Petition for Writ of Certiorari — Mahmudud v. Oberman (No. 07-1585)

Supreme Court, U.S.

FilLeUu

071585 APR 14 2008

OFFICE OF THE CLERK

Wiilam t. Suter, Clerk —

IN THE UNITED STATES

SUPREME COURT

BILAL MAHMUD

Plaintiff-Appellant

V.

JUSTIN P. OBERMAN

Defendant-Appellee

PETITION FOR

CERTIORARI FROM THE

UNITED STATES COURT

OF APPEAL OF THE

ELEVENTH CIRCUIT

STATE OF GEORGIA

STEPHEN M. KATZ

Attorney for Appellant

284 Village Parkway

Marietta GA 30067

Telephone 404.848.9658

QUESTION PRESENTED FOR REVIEW

Whether, in a Bivens action, a federal court

has jurisdiction to grant equitable relief as a remedy

for deprivation of property under the Fifth

Amendment to the United States Constitution?

PARTIES TO THE PROCEEDING IN THE

UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

All of the parties to the proceedings in the

United States Court of Appeals for the Eleventh

Circuit are completely and correctly listed in the

caption.

Part I.

Part II.

Part III.

Part IV.

Part VI.

Part VII.

Part VIII.

Part IX.

Part X.

Part XI.

TABLE OF CONTENTS

Question Presented for Review ...... 1

Parties to the Proceeding in the

United States Court of Appeals

for The Eleventh Circuit ............. 2

Tabse Of CONGCHUS ....65.5si.cccesvevses 3

Table of Authorities ................... 4-6

Statement of the Basis for

Jurisdiction .......... Fat et Ne wom aeoege 7

Statute Involved in This Case ...... 8

Statement of the Case .................. 8

Statement of the Facts ................. 9

A. Preliminary Statement ........ 9

B. PO ariicskireornusie averse 9

POE neiss cess sv tneteseannics 16

Certificate of Service ........ccccccccceees

TABLE OF AUTHORITIES

Cases

American Federation of Government Employees v.

Stone, 502 F.3d 1027, 1039 (9% Cir. 2007)........... zi

Bell Atlantic Corporation, et. al., v. William

Twombly, 550 U.S.-, 127 S.Ct. 1955, 167 L.Ed.2d

Oe Eis cactcnccpcavcecsaSevlcipecacce i Gaeainecsbaa inside 9

Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29

ih te OE sieeve cx gudnsceccss deeds swacisiovap eceenss 16

Berriors v. Dep’t of Army, 884 F.2d 28, 31 (1st Cir.

SI iss de sid ea nacdk aks heecomciseconoes aes 23

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388, 397, 91S. Ct.

1999, 2005, 29 L. Ed. 2d 619 (1970) ..................... 17

Bryant v. Cheney, 924 F.2d 525, 528 n.2 (4th Cir.

LS RMSE ROR scree attr LO ERR ONE eae w aPC ROME AR PD er 23

Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404, 76 L.

as ae I kg ohio sera ined ch deenecaidomiomeneanicwiors 19

Carlson v. Green, 446 U.S. 14, 42, 100 S.Ct. 1468,

BABE, Gb Ti Be 15 CSCO) oii ince csinssccccosaccescets 31,32

Chudasama v. Mazda Motor Corp., 123 F.3d 1353,

EL BED aus sciessistscddccecseincenbiniecbcaieedéteas 27

Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L.

I A III ss cccticens sch cin uabetoea sean aetaneeauaialeecans 17

Dotson v. Griesa, 398 F.3d 156, 181 (2d Cir. 2005) . 23

Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.

OA gah sede inleito\ sashes ida deibuncaininiy abadioneam iets 22

Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633,

Re Ui ee ie oii iii nc ceetsbccccnpenne 24

Hardison v. Cohen, 375 F.3d 1262, 1267-1268 (11

i ee 23

Hubbard v. EPA, 257 U.S. App. D.C. 305, 809 F.2d 1,

BE iF Fa siivstscnnccrncasiararneuanns 20

International Shoe Co. v. Washington, 326 U.S. 310,

316, 66S. Ct. 154, 158, 90 L. Ed. 95 (1945) ......... 25

Lombardi v. Small Bus. Admin., 889 F.2d 959, 962

ee Raia hanes caiccsicnpncropainienle sai deaabiatonies 23

Mitchum v. Hurt, 73 F.3d 30 (8d Cir. 19985) ............ 20

Paige v. Cisneros, 91 F.3d 40, 44 (7th Cir. 1996)..... 23

Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S. Ct.

2460, 2468, 101 L. Ed. 2d 370 (1988) .............. 18,19

Spagnola v. Mathis, 273 U.S. App. D.C. 247, 859

ee Ee a, Rs NERO a cdiersericavccuccsarsencicpeinienite 21

Spagnola v. Mathis, 273 U.S. App. D.C. 247, 859

F.2d 223 (D.C. Cir. 1988) (en banc) ..................008 20

Stephens v. Dep't of Health & Hum. Servs., 901 F.2d

1571, 1675-76 (11th Cir. 1990) .......<:sccccosesecesesees 18

United States v. Fausto, 484 U.S. 439, 455, 108 S. Ct.

668, 677, 98 L. Ed. 2d 830 (1988) ....................00000 19

Statutes

NN i shi A aisle ane anaNba tunel 8

Rules

NN IDG cic ossdevvascecscotacicercccvenesvsesoneccoess 27

MN BC FE TE GIV GE cocncccncsvecdcesvacesccsccnsecdeecuoncies 9

Constitutional Provisions

Fifth Amendment to the United States

IF cascades paoaewehacia 8

STATEMENT OF THE BASIS FOR

JURISDICTION

(i) The judgment by the Court of Appeals was

entered on January 16, 2008. This petition is timely

filed pursuant to Rule 13, The ninetieth (90% day

after the judgment was rendered is Monday. April

15, 2008.

(ii) There has been no request for rehearing or

rehearing “en banc” before the United States Court

of Appeals for the Eleventh Circuit, nor has there

been a request to extend the time to file this petition

for a Writ of Certiorari.

(111) The statutory provision conferring

jurisdiction on this Court is 28 U.S.C. § 1254(1) and

the opinion below is reported at Mahmud uv.

Oberman., U.S. App. Lexis 1068 (11% Cir. 2008).

7

CONSTITUTIONAL PROVISION INVOLVED IN

THIS CASE

The Fifth Amendment to the United States

Constitution.

STATEMENT OF THE CASE

Basis for Federal Jurisdiction in the United

States Court of Appeals for the Eleventh

Circuit:

The basis for federal jurisdiction in the

Eleventh Circuit is that it was an appeal as a matter

of right from a final judgment of a United States

District Court involving a provision of the United

States Constitution. The Eleventh Circuit had

jurisdiction pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE FACTS

Preliminary Statement

Pursuant to Rule 12¢b)(6), Fed.R.Civ.P.,

federal courts are required to accept as true those

facts which plausibly suggest entitlement to relief.

Bell Atlantic Corporation, et. al., v. William

Twombly, 550 U.S.-, 127 8.Ct. 1955, 167 L.Ed.2d 929

(2007). Accordingly, the facts set forth herein are

taken directly from Mahmud’s Amended Complaint.

Facts

Mahmud, a male natural born citizen of the

United States, is a descendent of slaves and was born

in Richmond, Virginia. Mahmud lives in the

Northern District of Georgia. Mahmud, a veteran,

served in combat in combat in Vietnam, and received

an honorable discharge from the United States

Marine Corps. Mahmud does not smoke, drink

alcohol, or use controlled substances nor has he ever

done so. Mahmud is married with three (3) children.

Mahmud, a Muslim and observant adherent to

Islam, has never been arrested or convicted of any

crime or participated or encouraged any act of

sedition against the United States of America.

Mahmud has never violated any federal, state or

local law or regulation designed to prevent terrorism

and/or secure the safety of citizens of the United

States of America, nor has he engaged in any act,

within or without the United States, which would

cause a reasonable person to believe that Mahmud

may have Viclated any such federa!, state or local law

or regulation. Mahmud has_sonever ___ been

interviewed by any law enforcement official or any

employee or official of any United States agency,

including, without limitation, the Department of

10

Homeland Security. Mahmud is a co-founder and

serves as one of five permanent members of the

Board of Trustees of the Al-Faroog Masjid of Atlanta,

a religious institution (Mosque) devoted to the

service of the international Muslim community of

greater Atlanta and the Southeastern United States

of America. Al-Faroog Masjid is a nonprofit, non-

political, religious organiz&tion.

Mahmud does not belong, and has never

belonged, to any organization, which has been

designated as a terrorist organization by the United

States Department of State or any other federal,

state or local government organization. Mahmud has

been charged by the Board of Trustees of the al-

Farooq Masjid with the distribution of charitable

donations made to the institution for indigent

members of the Atlanta community, both Muslim

11

and non-Muslim. This charitable work includes,

without limitation, distribution of food and other

essentials to the poor, elderly and infirm.

Mahmud is a model, loyal United States

citizen who placed himself in harm’s way to serve his

country in the United States Armed Forces, who

strictly complies and has always complied with the

laws of the United States, and local governments,

who serves his community by assisting those in need.

For twenty (20) years immediately prior to

August 10, 2004, Mahmud was an employee of Old

Dominion. During the course of his employment,

Mahmud was never disciplined or reprimanded,

orally or in writing, in any manner or form

whatsoever. To the contrary, Mahmud was a model

employee who timely, efficiently, and professionally

performed his job at Old Dominion without incident

or making any complaint whatsoever.

On July 30, 2004, Defendants Oberman, and

the other Defendants herein, acting through the

United States Department of Homeland Security,

revoked the endorsement on Mahmud’s commercial

driver's license that allowed him to transport so-

called “hazardous” materials, primarily paint and

corrosives, such as batteries. Prior to the action

undertaken by the Defendants herein, Mahmud did

not transport any form of explosives or material used

in warfare, except for transporting a truck load of

ammunition to the Atlanta Federal Penitentiary two

or three times in twenty years of employment.

At the time that the Defendants undertook to

revoke Mahmud’s hazardous materials endorsement,

Defendants were aware that Mahmud has not

13

engaged and had no reasonable suspicion, much less

probable cause, to believe that Mahmud had engaged

in any activity related to terrorism, was a threat to

national security, or posed any danger whatsoever to

transportation security. On the _ contrary,

Defendants were well aware that Mahmud had never

encouraged or engaged in any act of terrorism

(including the financial support of terrorism), within

or without the United States, and was not a threat to

National Security, or transportation security.

Despite his knowledge that Mahmud had

never encouraged or engaged in any act of terrorism

(including the financial support of terrorism), within

or without the United States, was not a threat to

National Security or transportation security,

Defendant nevertheless suspended Mahmud’s

hazardous materials endorsement on his driver’s

license, causing him to lose his long-time position

with Old Dominion.

Defendant Oberman, and, upon information

and belief, the other defendants!, falsely stated in

writing that he had “personally reviewed” material

which indicated that Mahmud was a threat to

national security, transportation security, and had

engaged and/or encouraged terrorism. At all

times relevant to this action, Defendants acted

maliciously, wantonly, and with reckless disregard

for the Constitutional rights of Mahmud. As a direct

and proximate result of Defendants’ actions,

Mahmud has suffered financial and emotional harm

for which he is entitled to recover.

' Because discovery in this action never began, the

“John Doe” Defendants were never identified.

ARGUMENT

There is no question that Mahmud’s driver’s

license and hazardous materials endorsement is

Constitutionally protected property that cannot be

taken away without due process. Bell v. Burson, 402

U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971)(“Once

[Georgia driver’s] licenses are issued, as in

petitioner’s case, their continued possession may

become essential in the pursuit of a_ livelihood.

Suspension of issued licenses thus involves state

action that adjudicates :mportant interests of the

licensees. In such cases licenses are not to be taken

away without that procedural due process required

by the Fourteenth Amendment.”)

The facts as alleged in the Amended

Complaint make it plain that Mahmud’s livelihood

was dependent upon his driver’s license and the

16

hazardous materials endorsement, which was a

required part of his job.

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 397, 91 S.

Ct. 1999, 2005, 29 L. Ed. 2d 619 (1970) provides a

cause of action against a federal agent who, while

acting under the color of federal law, violates the

constitutional nghts of an individual.. Bivens actions

are brought directiy under the Constitution, without

specific statutory authorization. While Bivens

involved alleged violations of the Fourth

Amendment, this Court has held that Bivens

provides a right of action for violations of the Due

Process Clause of the Fifth Amendment, Davis uv.

Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d

846 (1979).

Damages can be obtained in a Bivens action

are generally limited to circumstances where (1) the

plaintiff has no alternative means of obtaining

redress and (2) no "special factors counseling

hesitation" are present. Stephens v. Dep't of Health &

Hum. Servs., 901 F.2d 1571, 1575-76 (11th Cir.

1990), cert. denied, 498 U.S. 998, 111 S. Ct. 555, 112

L. Ed. 2d 562 (1990). Those special factors "include

an appropriate judicial deference" toward the will of

Congress: "When the design of a Government

program suggests that Congress has provided what it

considers adequate remedial mechanisms for

constitutional violations that may occur in the course

of its administration, we have not created additional

Bivens remedies." Schweiker v. Chilicky, 487 U.S.

412, 423, 108 S. Ct. 2460, 2468, 101 L. Ed. 2d 370

(1988).

18

The question of whether a comprehensive

remedial scheme precludes an action seeking to

recover damages under Bivens arises most frequently

in cases involving federal employees or ultimate

beneficiaries of federal entitlement programs, such

as Social Security. United States v. Fausto, 484 U.S.

439, 455, 108 S. Ct. 668, 677, 98 L. Ed. 2d 830 (1988);

Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404, 76 L.

Ed. 2d 648 (1983); Schweiker v. Chilicky, 487 U.S.

412, 423, 108 S. Ct. 2460, 2468, 101 L. Ed. 2d 370

(1988). The circuits appear to agree that a

comprehensive remedial scheme in a _ governing

statute precludes recovery of damages in a Bivens

action.

However, the question of whether a remedial

scheme under a statute precludes an action for

equitable relief remains an open question with

19

differing results and commentary among the circuits.

The District of Columbia Circuit held that a federal

court’s power to award equitable relief is broader

than its power to award equitable relief. Hubbard v.

EPA, 257 U.S. App. D.C. 305, 809 F.2d 1, 11 n.15

(D.C. Cir. 1986) vacated on other grounds by

Spagnola v. Mathis, 273 U.S. App. D.C. 247, 859

F.2d 223 (D.C. Cir. 1988) (en banc). Similarly, in

Mitchum v. Hurt, 73 F.3d 30 (3d Cir. 1995)(Alito, J.),

the Third Circuit stated:

The power of ‘ederal courts to grant equitable

relief for constitutional violations has long been

established. Thus,, . .. there is a ‘presumed

availability of federal equitable relief against

threatened invasions of constitutional interests.’ It

is reasonable to assume that Congress legislates with

the understanding that this form of judicial relief is

generally available to protect constitutional rights.

While Congress may restrict the availability of

injunctive relief, we believe that we should be very

hesitant before concluding that Congress has

impliedly imposed such a restriction on the authority

to award injunctive relief to vindicate constitutional

rights.

Mitchum, 73 F.3d at 35. Mitchum partially relied

upon the D.C. Circuit’s en banc decision in Spagnola

v. Mathis, 273 U.S. App. D.C. 247, 859 F.2d 223 (D.C.

Cir. 1988), which held that “.. . time and again this

court has affirmed the right of civil servants to seek

equitable relief against their supervisors, and the

agency itself, in vindication of their constitutional

9

rights.” The Ninth Circuit recently issued a decision

in which it specifically agreed with the holding and

reasoning of Mitchum and Spagnola. See American

Federation of Government Employees v. Stone, 502

F.3d 1027, 1039 (9th Cir. 2007).

While this court has been reluctant to

authorize damages awards with specific

Congressional intent, this Court has not seen fit to

limit the broad authority of the federal courts to

grant equitable relief. Carlson v. Green, 446 U.S. 14,

42, 100 S.Ct. 1468, 1484, 64 L.Ed.2d 15

(1980)(Rehnquist, J. dissenting). In Carlson, a

Bivens case, former Chief Justice Rehnquist, while

arguing that federal courts are not empowered to

infer a private civil damage remedy from any

constitutional provision, suggested that courts did

have the authority to grant equitable relief. See also

Ex Parte Young, 209 U.S. 128, 28 S.Ct. 441, 52 L.Ed.

714 (1908)(Excepting actions seeking equitable relief

from Eleventh Amendment immunity).?

The First, Second and Tenth Circuits have

issued opinions indicating that, at least in the

2 Even though Ex Parte Young is said to have been

based upon a legal fiction, see e.g. Central Virginia Comm.

College v. Katz, 546 U.S. 356, 378 n.14, 126 S.Ct. 990, 1005,

n.14, 163 L.Ed.2d 945 (2006), the legal principle, i.e. allowing

courts broad authority to award equitable relief even where

legal relief is unavailable, is established law.

iw)

bo

context of suits involving federal employees,

constitutional claims seeking equitable relief as well

as damages are precluded. Dotson v. Griesa, 398

F.3d 156, 181 (2d Cir. 2005); Lombardi v. Small Bus.

Admin., 889 F.2d 959, 962 (10* Cir. 1989); Berriors

v. Dep't of Army, 884 F.2d 28, 31 (15t Cir. 1989).

The Fourth and Seventh Circuits have not

decided the issue. Bryant v. Cheney, 924 F.2d 5285,

528 n.2 (4th Cir. 1991); Paige v. Cisneros, 91 F.3d 40,

44 (7th Cir. 1996). The Eleventh Circuit appears to

have issued inconsistent opinions. Hardison uv.

Cohen, 375 F.3d 1262, 1267-1268 (11% Cir.

2004)(Concluding that equitable relief was not

precluded after reviewing its decisions in Stephens uv.

Dep't of Health & Hum. Servs., 901 F.2d at 1575-76

with Perry v. Thomas, 849 F.2d 484, 484 (11th Cir.

1988) (per curiam).

In Hardison, the Eleventh Circuit concluded

that it was only required to face the question of

whether equitable remedies are available where a

property interest was implicated. Hardison, 375

F.3d at 1268. In the instant case, there does not

appear to be much doubt that Mahmud had a

property right in the hazardous’ materials

endorsement to his driver’s license, which was

required for his livelihood. Burson, supra. The idea

that an official of a federal agency can unilaterally

take away a citizen’s property based upon race or

ethnicity without due process of law is inimical to the

Constitution. National Security considerations

cannot automatically override a citizen’s right to due

process. Hamdiv. Rumsfeld, 542 U.S. 507, 124 S.Ct.

2633, 159 L.Ed.2d 578 (2004).

Mahmud contends that the trial court should

have held a hearing or allowed limited discovery on

the issue of personal jurisdiction. In this instance,

the questions was. whether or not sufficient

"minimum contacts" exist to satisfy Due Process.

such that "maintenance of the suit does not offend

‘traditional notions of fair play and substantial

justice." International Shoe Co. v. Washington, 326

U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945).

The Georgia Long Arm Statute allows Georgia

courts to exercise personal jurisdiction over a

nonresident if the defendant: (1) transacts any

business within the state; (2) commits a tortious act

or omission within the state, except as to a cause of

action for defamation of character arising from the

act; (3) commits a tortuous injury in the state caused

by an act or omission outside the state if the tort-

25

feasor regularly does or solicits business, or engages

in any other persistent course of conduct, or derives

substantial revenue from goods used or consumed .or

services rendered in the state; or (4) owns, uses, or

possesses any real property situated within the state.

In the instant case, the complaint clearly

alleges that Defendant Oberman, and perhaps

others, intentionally deprived Mahmud, a United

States citizen, of his rights under the United

Constitution. The compiaint alleges that the

tortuous act and the resulting injury occurred in the

State of Georgia. The allegations in the complaint

fairly set forth a prima facie case for personal

jurisdiction because handling matters within the

State of Georgia was within the scope of Oberman’s

job at the time of the act and injury. In the Eleventh

Circuit, as in other circuits, the law is clear that a

district court may allow limited discovery on the

issue of personal jurisdiction because the question is

fact driven. Chudasama uv. Mazda Motor Corp., 123

F.3d 1353, 1367 (11th Cir. 1997)(“Resolution of a

pretrial motion that turns on findings of fact--for

example, a motion to dismiss for lack of personal

jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2)—may

require some limited discovery before a meaningful

ruling can be made.”) This case is one in which

pretrial discovery should be allowed because the

allegations are that the primary Defendant’s act was

willful, that it occurred in the State of Georgia and

that the resulting injury occurred here. Under these

circumstances, discovery, at least with regard to the

issue of personal jurisdiction, should be allowed to

proceed.

27

This/O" dayrot June 2008.

Respectfully submitted,

Syl yf ba.

Stephen M. Katz

284 Village Parkway

Marietta, Georgia 30067-4602

Telephone: 404.848.9658

Facsimile: 404.848.9904

CERTIFICATE OF SERVICE

I certify under penalty of perjury that on June ;

2008, I caused to be served by first class U.S. Mail,

postage prepaid, three true and correct copies of the

foregoing Petition for Writ of Certiorari addressed as

follows:

Andrew D. Silverman

Constitutional Torts Office

U.S. Department of Justice

P.O. Box 7146

Ben Franklin Station

Washington DC 20044

Andrew.silverman@usdo}j.gov

e

Vraee M. Katz

Georgia Bar No. 409065

284 Village Parkway

Marietta, Georgia 30068

Telephone: 404.848.9658

Facsimile: 404.848.9904

E-Mail: smkatz@smk-law.com

APPRENDIXA 1

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 0713311

Non-Argument Calendar

D.C. Docket No. 06-01720-CV-CWSD-1

BILAL MAHMUD,

Plaintiff-Appellant,

KAHIJAH MAHMUD,

Plaintiff,

versus

U.S. DEPARTMENT OF HOMELAND SECURITY, et. al.,

Defendants,

JUSTIN P. OBERMAN, individually and in his official

capacity as Director, Credientialing Program Office,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Georgia

(January 16, 2008)

APPRENDIXA2

Before CARNE, PRYOR and HILL, Circuit Judges.

PER CURIAM:

Plaintiff-appellant Bilal Mahmud appeals the dis-

missal of his actions. The judgement of the district court was

accompanied by a full published opinion, Mahmud v.

Oberman, 508 F.Supp. 2d 1294 (2007). In his complaint,

Mahmud asserted claims which he sought to establish un-

der the Bivens doctrine, 403 U.S. 388, 397 (1970), based upon

the suspension or revocation of the Hazardous Materials En-

dorsement on his commercial drivers license. Based on the

facts of this case, the district court held that a Bivens rem-

edy for damages was not available to Mahmud, and, further-

more, Mahmud had not met his burden of establishing that

due process is satisfied by the exercise of personal jurisdic-

tion over defendant-appellee Justin P. Oberman. It granted

Oberman’s motion to dismiss for both reasons.

Having carefully considered the judgement and opin-

ion of the district court, the briefs of the parties, and the record,

and finding no reversible error, the judgment is AFFIRMED.

APPENDIX B 1

Case 1:06-cv-01720-WSB Document34 _ Filed 06/19/2007 Page 1of20

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

BILAL MAHMUD

Plaintiff,

Vv.

JUSTIN P. OBERMAN, et al.,

Defendants

1:06-cv-1720-WSD

OPINION AND ORDER

This matter is before the court on Defendant Justin P.

Oberman’s (“Defendant”) Motion to Dismiss [23].

I. INTRODUCTION

This is a Bivens action filed by Plaintiff Bilal Mahmud (“Plain-

tiff’), a Muslim, against Defendant Justin P. Oberman, the

former Director of the Credentialing Program Office for the

Transportation Security Administration (“TSA”) and numer-

ous John Doe defendants. ' Plaintiff asserts his claims against

APPENDIX B 2

Case 1:06-cv-01720-WSB Document34 _ Filed 06/19/2007 Page 2 of 20

Defendant solely in his individual capacity.

From December 1984 through August 2004, Plaintiff was em-

ployed as a commercial truck driver with Old Dominion Freight

Line (“Old Dominion”). He had a commercial driver’s license

with a Hazardous Material Endorsement (“HSE”), an autho-

rization by the federai government to transport hazardous

materiais.? On July 30, 2004, Defendant, acting through the

United States Department of Homeland Security, revoked the :

HME on Plaintiffs commercial driver’s license. Defendant

revoked the HME under the Hazardous Materials

1

[Fictitious party practice is not permitted in federal court.” New

v. Sports & Recreation, Inc., 114 F.3d 1092, 1094 n.1(11th Cir. 1997); see

also Lewis v. City of Montgomery, No. 2:04-CV-858-WKW, 2006 WL

1761673, at *2 (M.D. Ala. June 27, 2006) (“In general, ‘fictitious-party

pleading is not permitted in federal court.”) While courts have sometimes

made exceptions when the plaintiff may be able to describe an individual

(e.g., the driver of an automobile) without stating his name precisely or

correctly, the unspecific description of the John Doe defendants in this

case does not fall under this exception. Dean v. Barber, 951 F.2d 1210,

1215-16 (11th cir. 1992) (finding plaintiffs description of “Chief Deputy of

the Jefferson County Jail” John Doe sufficient because the proposed defen-

dant existed and plaintiff adequately described the person to be sued so

that the person could be identified for service). Defendants John Does I to

X are therefore dismissed.

* For purposes of a motion to dismiss, the court takes Plaintiffs

allegations as true. Thus, the court discusses the facts as they are alleged

by Plaintiffin his Complaint.

Case 1:06-cv-01720-WSB Docunen se ” Filed 06/1 9/2007 Page 3 of 20

Threat Assessment Program (“the Program”), which prohib-

its any individual from possessing a license to transport haz-

ardous materials in commerce unless the Transportation Sec-

retary has first found that the individual does not pose a

security risk. See 49 U.S.C. §§ 5101,5103(b)(1). The Program

sets forth procedures for revoking an individual’s HME as

well as for appealing both the initial and final agency deci-

sions.

Plaintiff claims that when Defendant revoked his HME, De-

fendant knew that Plaintiff had not engaged in any terror-

ism-related activity and had no reasonable suspicion of such

activity. Plaintiff further alleges that Defendant falsely

stated in writing that he had personally reviewed material

indicating that Plaintiff was a threat to national security

and transportation security, and had engaged in or encour-

aged terrorism. Plaintiff alleges the suspension of his en-

dorsement caused him to lose his position as a truck driver

with Old Dominion.

On July 24, 2006, Plaintiff filed this actin, asserting

five claims against numerous defendants, including

Oberman, Old Dominion, the United States Department of

Case 1:06-cv-01720-WSB Decunent se * Filed 06/19/2007 Page 4 of 20

Homeland Security, the TSA, the Georgia Department of

Motor Vehicle Safety, and numerous individuals. On Novem-

ber 3, 2006, Plaintiff dismissed all the defendants, except

Oberman, and filed an Amended Complaint asserting a

single Bivens claim against Oberman. Plaintiff claims De-

fendant deprived him of his due process rights under the

Fifth Amendment by revoking his HME.

On January 29, 2007, Defendant filed this Motion to

dismiss the Amended Complaint. He argues that: 1) Plain-

tiff cannot establish personal jurisdiction over him; 2) Plain-

tiff has no right of action for due process violations where

administrative and judicial review was available and prompt

action was necessary to protect homeland security; and 3)

Defendant is entitled to qualified immunity.

Il. DISCUSSION

A. Standard on Motion to Dismiss

The law in this Circuit governing motions to dismiss

pursuant to Rule 12(b)(6) for failure to state a claim is well-

settled. Dismissal of a complaint is appropriate only “when,

on the basis of a dispositive issue of law, no construction of

APPENDIX B5

Case 1:06-cv-01720-WSB Document34 Filed 06/19/2007 Page 5of 20

the factual allegation will support the cause of action.”

Marshall County Bd. of Educ. v. Marshall County Gas Dist.,

992 F.2d 1171, 1174 (11th cir. 1993). “Although a plaintiff is

not held to a very high standard in a motion to dismiss for

failure to state a claim, some minimal pleading standard does

exist.” Wagner v. Daewoo Heavy Indus. Am. Corp., 289 F.3d

1268, 1270 (11th Cir.) rev'd on other grounds, 314 F.3d 541

(11th Cir. 2002) (en banc). “To survive a motion to dismiss,

plaintiffs must do more than merely state legal conclusions;

they are required to allege some specific factual bases for

those conclusions or face dismissal] of their claims.” Jackson

v. BellSouth Telecomms., 372 F.3d 1250, 1263 (11th Cir.

2004) (“[C]onclusory allegations, unwarranted deductions of

facts or legal conclusions masquerading as facts will not pre-

vent dismissal.”) (citations omitted).

In considering a defendant’s motion to dismiss, the

court accepts the plaintiffs allegations as true Hishon v. King

& Spalding, 467 U.S. 69, 73 (1984), and construes the com-

plaint in the plaintiffs favor. Duke v. Cleland, 5 F.3d 1399,

1402 (11th cir.1993). to survive . motion to dismiss, a com-

plaint need not contain “detailed factual allegations, “ but

APPENDIX B 6

Case 1:06-cv-01720-WSB Document34 _ Filed 06/19/2007 Page 6of20

must “five the defendant fair notice of what the claim is and

the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

127 SCt. 1955, 1964 (2007). Ultimately, the complaint is re-

quired to contain “only enough facts to state a claim to relief

that is plausible on its fact.” Id. at 1974.

B. Private Right of Action through Bivens

Defendant argues that Plaintiff has no private right

of action because administrative and judicial review of any

adverse decisions were available to Plaintiff, and the revo-

cation action was necessary to protect homeland security.

Plaintiff argues he is entitled to damages under Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcot-

ics, which permits a cause of action against a federal agent

who, while acting under the color of federal law, violates the

constitutional rights of an individual. Bivens, 403 U.S. 388,

397 (1970). Bivens actions are brought directly under the

Constitution and are necessarily limited because they are

brought without a statute providing a right of action.

The Eleventh Circuit has made clear that a Bivens

actin for damages is available only where: “(1) the plaintiff

has no alternative means of obtaining redress and (2) no ‘spe-

Case 1:06-cv-01720-WSB Coomnents4 P Filed 06/19/2007 Page 7 of 20

cial factors counseling hesitation’ are present.” Hardison v.

Cohen, 375 F.3d 1262, 1264 (11th cir. 2004) (citing Stephens

v. Dep’t of Health & Hum. Servs., 901 F.2d 1571, 1575-76

(11th Cir. 1990)). “those special factors ‘include an appropri-

ate judicial deference’ toward the will of Congress,” and when

“the design of a Government program suggests that Con-

gress has provided what it considers adequate remedial

mechanisms for constitutional violations that may occur in

the course of its administration,” the court will not fashion

additional Bivens remedies. Id. (citing Schweiker v. Chilicky,

487 U.S. 412, 423 (1988)). The Supreme Court has “responded

cautiously to suggestions that Bivens remedies be extended

into new contexts. The absence of statutory relief for a con-

stitutional violation, for example, does not be any means

necessarily imply that courts should award money damages

against the officers responsible for the violation.” Chilicky,

487 U.S. at 4212.

A court will not fashion a Bivens remedy even if the

statutory remedy does not provide complete relief. For ex-

ample, in Bush v. Lucas, the Supreme Court prohibited a

federal employee from asserting, under the First Amend-

Case 1:06-cv-01720-WSB Decunett gg Filed 06/19/2007 Page 8 of 20

ment, a Bivens action against his former government agency

employer. Bush v. Lucas, 462 U.S. 367 (1983). The Court

reasoned that, although the existing remedies would not al-

low complete relief, the statutory remedial scheme was

“clearly constitutionally adequate.” Id. at 378 n.14. The Bush

court noted that Congress is in a better position to decide

whether or not the public interest would be served by a dam-

ages remedy, and courts should not modify or supplement

“an elaborate remedial system that has been constructed step

by step, with careful attention to conflicting policy consider-

ations, ... [with] a new judicial remedy for the constitutional

violation at issue.” Id. at 388; see also Chilicky, 487 U.S. at

428-29 (declining to allow plaintiffs, who asserted a Fifth

Amendment due process violation because their Social Se-

curity disability benefits were wrongfully terminated, to

maintain a Bivens action and stating that although they

could not be “fully remedied by the belated restoration of

back benefits,” “Congress is the body charged with making

the inevitable compromises” in fashioning remedies for in-

juries relating to “massive and complex” government pro-

grams).

APPENDIX B 9

Case 1:06-cv-01720-WSB Document34_ Filed 06/19/2007 Page 9 of 20

An important consideration in deciding whether a

regulatory scheme is sufficiently comprehensive to consti-

tute a “special factor” is whether it provides “meaningful safe-

guards or remedies” for the plaintiff. Chilicky, 487 U.S. at

425; Spagnola v. Mathis, 859 mF.2d 223, 228 (D.C. Cir. 1988)

(“[C]ourts must withhold their power to fashion damages rem-

edies when Congress has put in place a comprehensive sys-

tem to administer public rights, has ‘not inadvertently’ omit-

ted damages remedies for certain claimants, and has not

plainly expressed an intention that the courts preserve

Bivens remedies.’).

The Hazardous Materials Threat Assessment Pro-

gram enacted by Congress is a comprehensive effort to regu-

late the safety of, and avoid risks associated with, hazardous

material transportation. The Program provides remedial

mechanisms for individuals adversely affected by regulatory

action under the Act, sets forth reasonable procedures for

revoking a individual’s HME, and provides an appeal of both

the initial and final agency decisions.

Agency regulations state that an individual cannot

possess an HME unless he or she meets several criteria. 49

APPENDIX B 10

Case 1:06-cv-01720-WSB Document34 Filed 06/19/2007 Page 10 of 20

U.S.C. §§ 5101, 5103(b)(1); 49 C.F.R. § 1572.5(b)(1)(a),

amended by 69 Fed. Reg. 68,742 (Nov. 24, 2004).° An indi-

vidual cannot possess an HME if the TSA has notified the

person that he poses a security threat warranting denial of

the endorsement. 49 C.F.R. § 1572.5(b)(1)(@)(D).

Once a determination is made that an individual poses

a security threat, the TSA issues an Initial Notification of

Threat Assessment (“Initial Notification”). Id. at § 1572.5(g)(2).

The Initial Notification informs the individual that the TSA

has deemed him a security threat, states the basis for the de-

termination, describes the procedure for correcting the

records, and provides information about the appeals process.

An individual may appeal an Initial Notification by assert-

ing that he does not pose a security threat, and the affected

person must submit a written reply to the TSA or request the

materials upon which the Initial Notification was

3TSA’s administrative regulations were amended by 69 Fed. Reg.

68,742 (Nov. 24, 2004), but the Court refers to the 2003 regulations be-

cause they were in effect at the time of the incidents alleged in the Com-

plaint.

APPENDIX B 11

Case 1:06-cv-01720-WSB Document34 Filed 06/19/2007 Page 11 of 20

based. Id. at § 1572.141(d). If an individual requests the ma-

terials, the TSA provides copies of all releasable, non-classi-

fied information on which the Initial Notification was based.

After review is requested, the Associate Administra-

tor/Chief Operating Officer of the TSA reviews the Initial

Notification, the supporting materials, the individual’s re-

ply, and any other relevant information. If the TSA cannot

conclude the individual poses a security threat, it must with-

draw its Initial Notification. If the TSA again determines

that the individual poses a security threat, it issues a Final

Notification of Threat Assessment (“Final Notification”). Id

at § 1572.141(e)(1)-(3).

If a Final Notification is issued, the individual may

seek judicial review of the final determination in accordance

with the Administrative Procedure Act (“APA”). 5 U.S.C. §§

702, 704; 49 U.S.C. § 5127. The APA gives a reviewing court

broad discretion to fashion a remedy, other than money dam-

ages, including “hold[ing] unlawful and set[ting] aside agency

action, findings, and conclusions found to be ,a) arbitrary,

capricious, an abuse of discretion, or otherwise not in accor-

dance with law [or] (b) contrary to constitutional right, power,

APPENDIX B 12

Case 1:06-cv-01720-WSB Document34 Filed 06/19/2007 Page 12 of 20

privilege or immunity.” 5 U.S.C. § 706(2)(A), (B).

The Court concludes that the Program provides a

meaningful remedy and review procedure for Plaintiff in this

case. An individual aggrieved by the TSA’s revocation of his

HME can seek administrative review of the decision and

have it restored through the process provided under federal

regulations and the review procedures pursuant to the APA.

“(T]he existence of a right to judicial review under the APA

is, alone, sufficient to preclude ...a Bivens action.” Miller v.

United States Dep’t of Agric. Farm Servs. Agency, 143 F.3d

1413, 1416 (11th Cir. 1998).

The mechanisms under the APA would not constitute

a complete remedy, but ‘the Constitution does not require

Congress to provide comprehensive relief for violations of . .

. constitutional rights.” Id. In determining whether a right

of action exists under Bivens, the Court acknowledges the

will of Congress in enacting the Program to protect against

threats to citizen safety. The design of the Program evidences

that Congress has provided what it considers adequate re-

medial mechanisms for constitutional violations that may

occur in the course of its administration, that Plaintiff has

APPENDIX B 13

Case 1:06-cv-0°720-WSB Document34 _ Filed 06/19/2007 Page 13 of 20

meaningful means of obtaining redress, and that there are

special factors counseling against this Court creating a dam-

ages remedy in the context of a program which addresses an

important issue of citizen well-being and safety. The Court

concludes that a Bivens remedy was not contemplated, is not

warranted, and thus is not available in this case, and

Plaintiff's claim must be dismissed.‘

4 Although the Court did not consider it in deciding this motion,

the efficacy of the remedial mechanisms under the Program is further

demonstrated by Plaintiffs successful appeal of the revocation of his HME.

In his original complaint, Plaintiff admitted he provided TSA with addi-

tional background information, and TSA subsequently reversed its initial

threat assessment and notified the Georgia Department of Motor Vehicles

that Plaintiff was eligible to hold an HME.

C. Personal Jurisdiction

Even if a Bivens remedy were available here, the

Amended Complaint should be dismissed for lack of personal

jurisdiction because Georgia’s long-arm statute and the re-

quirements of due process are not satisfied. Where an evi-

dentiary hearing is not held® on a motion to dismiss for lack

of personal jurisdiction, a plaintiff must establish a prima

Case 1:06-cv-01720-WSB hice sa Filed 06/19/2007 Page 14 of 20

facie case of jurisdiction to survive a motion to dismiss.

Francosteel Corp. v. M/V Charm. 19 F.3d 624, 626 (11th Cir.

1994). “The court csustrues the allegations in the complaint

as true to the extent that they are uncontroverted by

defendant’s evidence.” Paul, Hastings, Janofsky & Walker

v. city of Tulsa, Okla., 245 F.Supp. 2d 1248. 1253 (N.D. Ga.

2002) (citations

5 Neither party requested a hearing in this case.

omitted). “Where there are conflicts between the parties’ evi-

dence, the court makes all reasonable inferences in favor of

the plaintiff.” Id.

“In the Eleventh Circuit, a determination of personal

jurisdiction requires consideration of both the Georgia long-

arm statute and the Due Process Clause of the United Staters

Constitution.” Paul, Hastings, 145 F. Supp. 2d at 1253. In

Burger King Corp. v. Rudzewicz, the Supreme Court stated

that due process dictates that a nonresident defendant may

Case 1:06-cv-01720-WSB Document 34 Filed 06/19/2007 Page 15 of 20

be subject to personal jurisdiction when “the defendant’s con-

duct and connection with the forum State are such that he

should reasonably anticipate being haled into court there.”

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985).

“Due process contemplates two types of jurisdiction

over the person: general and specific jurisdiction.” Paul,

Hastings, 245 F. Supp. 2d at 1253; see also Nippon Credit

Bank, Ltd. v. Matthews, 291 F.3d 738, 747 (11th Cir. 2002).

A nonresident defendant’s “contacts with the forum that are

unrelated to the litigation must be substantial in order to

warrant the exercise of general personal jurisdiction.” Meier

v. Sun Int'l Hotels, Ltd., 288 F.3d 1274 (stating that “the

due process requirements for general personal jurisdiction

are more stringent than for specific personal jurisdiction, and

require a showing of continuous and systematic general busi-

ness contacts between the defendant and the forum state”).

In this case, Defendant states that he has never lived

in Georgia or owned property in Georgia. “rom November

2001 to December 2005, Defendant resided in Washington,

D.C., and worked for the TSA in Washington, D.C., and Ar-

lington, Virginia. During his four-year employment with the

APPENDIX B 16

Case 1:06-cv-01720-WSB Document34 Filed 06/19/2007 Page 16 of 20

TSA, Defendant traveled to Georgia on business for three or

four one-day trips. None of the visits related to Plaintiff's

case or the Program. Defendant currently resides in Chicago

and owns a consulting company. Defendant states that in

April and August 2006, he was in Georgia on business for

two two-day trips for his current employment. These mini-

mal contacts, occurring over the span of six years, do not

demonstrate continuous and systematic general business

contacts between Defendant and Georgia and are clearly in-

sufficient to establish the more stringent general personal

jurisdiction over Defendant.

“A nonresident defendant may be subject to specific

jurisdiction in a state when: (1) it has purposefully estab-

lished minimum contacts with the forum state; and (2) the

exercise of jurisdiction will not offend traditional notions of

fair play those same governmental officials in their individual

capacities.” Wag-Aero, Inc. v. United States, 837 F. Supp.

1479, 1485 (E.D. Wis. 1993), affd 35 F.3d 569 (7th Cir. 1994)

(citing Stafford v. Briggs, 444 U.S. 527, 543-45 (1980)).’

Rees

APPENDIX B 17

Case 1:06-cv-01720-WSB Document34 Filed 06/19/2007 Page 17 of 20

‘Even though Defendant signed the notice of revocation and mailed

it to Plaintiff who received it in Georgia, “[i]t is well-established that phone

calls and letters are not necessarily sufficient in themselves to establish

minimum contacts.” Far West Captial, Inc. v. Towne, 46 F.3d 1071, 1077

(10th Cir. 1995); see also Lockard v. Equifax, Inc., 163 F/3d 1259, 1265-66

(11th Cir. 1998) (finding no personal jurisdiction existed over defendant

where defendant’s sole action was mailing a defamatory tape to Georgia).

Plaintiff, however, does not even make this argument in his Response.

Plaintiff has not met his burden of establishing that due pro-

cess is satisfied such that personal jurisdiction exists over

Defendant.®

®In his response to the motion to dismiss, Plaintiff asks for “lim-

ited discovery on the issue of personal jurisdiction . . . because the allega-

tions are that the primary Defendant's act was willful, that it occurred in

the State of Georgia and that the resulting injury occurred [t]here.” (Opp.

to Mot. to dismiss [28], at 7.) There is no evidence to support Plaintiffs

jurisdiction theory, and jurisdictional discovery is unnecessary because

Plaintiff's claim fails on other grounds.

APPENDIX B 18

Case 1:06-cv-01720-WSB Document34 Filed 06/19/2007 Page 18 of 20

Iii. CONCLUSION

For the foregoing reasons,

IT IS HEREBY ORDERED that Defendant’s

Motion to Dismiss [23] is GRANTED.

SO ORDERED this 19th day of June, 2007.

WILLIAM §. DUFFEY. IR.

UNITED STATES DISTRICT nce