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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1036%3A1. Public record. Not legal advice.