Suit over government watchlist dismissed

Where a man alleged his inclusion on the federal government’s watchlist resulted in detentions, interrogations and searches of his electronic devices when flying, but the government showed he was no longer on the watchlist, the suit was dismissed for lack of standing.

Background

Abdulkadir Nur sued Chris Magnus, Commissioner, U.S. Customs and Border Protection, and Christopher Wray, Director, Federal Bureau of Investigations, in their official capacity only, bringing claims under the U.S. Constitution’s Fourth Amendment and the Fifth Amendment’s Self-Incrimination Clause, and the Administrative Procedure Act.

Plaintiff seeks declaratory and injunctive relief, including an injunction that (1) “prohibits Defendants from applying CBP Policy that permits a forensic search of the electronic devices of US citizens or permanent residents solely because of watchlist status;” (2) “prohibits Defendants from applying CBP Policy that permits nonroutine detention and interrogation of US citizens or permanent residents solely because of watchlist status;” (3) “prohibits Defendants from ordering individuals at the border [to] provide passwords or biometric means to access electronic devices, including by asserting or suggesting consequences (such as prolonged detention, confiscation or seizure of the person or the electronic device) for failure to provide passwords or biometric means of access;” and (4) “ordering Defendants to remove the status and annotations imposed on Mr. Nur, expunge any records regarding his illegal status and annotations, and expunge any information illegally seized from Mr. Nur.” Defendants have filed a motion to dismiss.

Jurisdiction

A declaration submitted by the government attests that “According to CBP records, CBP did not conduct an advanced search on any electronic device in possession of Plaintiff from January 1, 2018, until the filing of the Complaint on February 17, 2022.” The government contends that that fact alone demonstrates that plaintiff lacks standing.

Plaintiff alleges that defendants performed advanced searches on his electronic devices, including an occasion where CBP officers confiscated plaintiff’s laptop computer, cell phone and flash drive for two weeks before shipping the devices to his lawyers’ office, while defendants claim they did not. Therefore, the jurisdictional facts are “inextricably intertwined” with the merits of his claims.

When an issue “is determinative of both jurisdiction and the underlying merits” of a claim, “dismissal under Rule 12(b)(1) is inappropriate.” Plaintiff’s jurisdictional allegations are not “clearly immaterial” nor are they “wholly unsubstantial and frivolous.” Accordingly, the court declines to resolve, at the pleading stage, the jurisdictional challenge based on whether CBP performed an advanced search.

Standing

Nevertheless, ex parte, in camera declarations submitted by the government bear directly on whether this court has subject matter jurisdiction, separate and apart from jurisdiction facts that are intertwined with the merits of plaintiff’s claim; and the court has an “independent obligation to determine whether subject-matter exists.”

The CBP Policy plaintiff challenges only applies to individuals who are on the watchlist at the time of inspection. Plaintiff would therefore lack standing if he was never on the watchlist. Likewise, he would lack standing if he was once on the watchlist but has since been removed, as he does not face a “real and immediate” threat of injury.

Ostensibly in recognition that he may have been removed from the watchlist, plaintiff argues that the voluntary-cessation exception preserves his otherwise moot claims. In Long v. Pekoske, 38 F.4th 417 (4th Cir. 2022), “the government [] promised not to put [plaintiff] back on the No Fly List without new information that justifies doing so.” The Fourth Circuit determined that this promise satisfied the government’s “burden to show the conduct [plaintiff] challenges is unlikely to recur.”

Based on Long, plaintiff does not, under the voluntary-cessation exception to the mootness doctrine, maintain standing he would not otherwise have. The court thus concludes that plaintiff lacks standing to pursue his claims.

Defendants’ motion to dismiss granted.

Nur v. Unknown CBP Officers, Case No. 1:22-cv-169, Nov. 7, 2022. EDVA at Alexandria (Trenga). VLW 022-3-501. 18 pp.