Beydoun, et al. v. Sessions, et al., Nos. 16-2168/2406 (CLAY, Griffin, Thapar).

Beydoun, et al. v. Sessions, et al., Nos. 16-2168/2406 (CLAY, Griffin, Thapar).

The plaintiffs-appellants are Michigan residents who were subjected to repeated secondary screenings before flying at airports across the U.S.. They believe that they are on the “Selectee List”—a subset of the Terrorist Screening Database—but their attempts to use Dept. of Homeland Security procedures to get their names removed were futile and the government did not confirm or deny whether they were on the list at all. The plaintiffs each filed suit, arguing that the government failed to provide notice and a hearing to challenge inclusion on the list, in violation of the Fifth Amendment. The district court dismissed both plaintiffs’ complaints, and each appealed. On appeal, they argued that the district court erred in determining that the alleged inclusion on the list does not implicate a liberty interest protected by the Fifth Amendment.

The Sixth Circuit affirmed the dismissal for failure to state a claim upon which relief can be granted. The Court held that the alleged inclusion on the list has not resulted in a constitutional violation. The Court found that the plaintiffs’ right to travel had not been violated because the plaintiffs had not been prevented from flying altogether or traveling by means other than an airplane and delays of “ten minutes, thirty minutes, or even an hour” have not been held to be anything but incidental or negligible, not implicating the right to travel.

The Court also rejected the plaintiffs’ argument that they had been subject to routine humiliation by being singled out for screening, and that their reputations were harmed because other passengers could infer that they were suspected of terrorism when they were pulled for secondary screening. The Court relied on Circuit precedent in holding that a “stigma” claim like this is only cognizable if the damaged reputation is accompanied by a deprivation of a right previously held under law. The Court found that because the plaintiffs’ liberty interest in travel was not infringed upon by being subject to the relatively minor additional screening, this claim failed as well.