Constitutional – Screening database doesn’t violate Due Process

Where 23 individuals argued their inclusion in a terrorist screening database subjected them to delays at airports, because the alleged delays were relatively modest and not atypical for travelers, their experiences did not arise to the level of constitutional concern.

Background

To protect against acts of terrorism, the government maintains the terrorist screening database, or TSDB. The plaintiffs, 23 individuals who allege they are in the TSDB, object to the delays and inconveniences they have experienced in airports and at the border.

The district court found violations of plaintiffs’ protected liberty interests under the Due Process Clause on two theories. First, it found the TSDB harmed plaintiffs’ “movement-related interests” by deterring their travel and by burdening their travel through extra screening and searches. Second, it reasoned that the TSDB implicated plaintiffs’ reputational liberty interests under a “stigma-plus” theory.

Travel

The experiences alleged by plaintiffs do not rise to the level of constitutional concern. Most plaintiffs complain of minor delays in airports of an hour or less. These burdens are not dissimilar from what many travelers routinely face, whether in standard or enhanced screenings, particularly at busy airports.

Plaintiffs also argue that, aside from the objective burdens that TSDB status imposes on their right to travel, they have subjectively been deterred from traveling by the inconveniences and humiliations experienced in airports. However this court does not understand the majority of the Supreme Court to have adopted anything like a subjective standard for measuring travel burdens.

Moreover, even accepting plaintiffs’ assertions that these inconveniences have actually deterred them from flying, this court’s analysis would stand firm. The Sixth and 10th Circuits recognized this reality in finding no protected liberty interest in similar cases. This court finds the reasoning in these cases to be sound and thus again decline plaintiffs’ invitation to create a circuit split.

History and practical reality reveal that plaintiffs’ claims with respect to additional screenings when crossing national borders are even less persuasive. No plaintiff alleges he was unable to cross an international border. The plaintiffs complain of extra delays ranging from a few minutes to 12 hours, with most being on the shorter end of that spectrum. Such delays are not atypical for travelers, particularly at busy ports of entry at land borders. Given the government’s broad power to control movement across the nation’s borders, the burdens experienced by plaintiffs are not infringements of “liberty” within the meaning of the Due Process Clause.

Reputation

Plaintiffs also allege in this appeal that inclusion in the TSDB infringes their constitutionally protected interest in their reputations. The plaintiffs’ basic contention is that inclusion in the TSDB stigmatizes them by associating them with terrorism. The court rejects this argument for two reasons.

First, plaintiffs’ claims fall short because they have not shown adequate “public disclosure” by the government. Second, the Supreme Court has explained that stigma or “reputation alone, apart from some more tangible interests such as employment,” is not “liberty” within the meaning of the Due Process Clause. Plaintiffs cannot make this “plus” showing because they have not demonstrated that TSDB status has altered their legal status or extinguished rights.

The district court concluded that plaintiffs demonstrated a “plus” injury because inclusion on the TSDB could affect plaintiffs “in traffic stops, field interviews, house visits, municipal permit processes, firearm purchases, certain licensing applications, and other scenarios.” The district court erred, however, in concluding that this is an adequate “plus” injury. Plaintiffs have not adequately demonstrated denials of employment, permits, licenses or firearms. Speculation coupled with a few isolated incidents inadequately tethered to TSDB status is not enough.

Remedies

Because plaintiffs have not demonstrated infringements of constitutional liberty interests under the Due Process Clause, the court need not address plaintiffs’ claims as to the adequacy of existing processes. But in all events it remains unclear that additional procedures may be judicially mandated. First, the government’s interest is extraordinarily significant in this case. Second, the weight of the private interests at stake is comparatively weak. Third, the court would not casually second-guess Congress’s specific judgment as to how much procedure was needed in this context.

Reversed and remanded.

Elhady v. Kable (Lawyers Weekly No. 001-068-21, 38 pp.) (J. Harvie Wilkinson, J.) Case Nos. 20-1119 and 20-1311. March 30, 2021. From E.D. Va. (Anthony John Trenga, J.) Joshua Paul Waldman for Appellants. Gadeir Ibrahim Abbas for Appellees.