UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ASHRAF MANIAR and UMAIMA SHAIKH,

Plaintiffs,

v. Civil Action No. 19-3826 (EGS)

ALEJANDRO MAYORKAS, in his official capacity as Secretary of the United States Department of Homeland Security, et al.,

Defendants.

MEMORANDUM OPINION

I. Introduction

Plaintiffs Ashraf Maniar (“Mr. Maniar”) and Umaima Shaikh

(“Ms. Shaikh”) (collectively, “Plaintiffs”) bring this action

asserting constitutional and procedural claims related to their

alleged inclusion in the Terrorist Screening Dataset (“TSDS”), a

governmental, interagency tool that compiles the nation’s

watchlists, including the No Fly List and the Selectee List. See

Second Am. Compl. (“Compl.”), ECF No. 22 at 4 ¶ 8. 1 Plaintiffs

have sued various federal government officials in their official

capacities (collectively, “Defendants” or “the government”),

1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document. 1 including Alejandro Mayorkas, Secretary of the U.S. Department

of Homeland Security (“DHS”); David Pekoske, Administrator of

the Transportation Security Administration (“TSA”); Troy Miller,

Acting Commissioner of the U.S. Customs and Border Protection

(“CBP”); Merrick Garland, the U.S. Attorney General; Christopher

Wray, Director of the Federal Bureau of Investigation (“FBI”);

and Charles Kable, IV, Director of the Terrorist Screening

Center (“TSC”). 2 Id. at 3-4 ¶¶ 3-8. Plaintiffs, two U.S. citizens

married to each other who identify as practicing Muslims, id. at

3 ¶¶ 1-2; have alleged violations of the First and Fifth

Amendments of the U.S. Constitution and of the Administrative

Procedure Act (“APA”),

, et seq., and are seeking

declaratory and injunctive relief, see

.

Pending before the Court is Defendants’ Renewed Motion to

Dismiss. See Defs.’ Mot., ECF No. 23. Upon consideration of

Plaintiffs’ complaint, the pending motion, the opposition, the

reply thereto, and the applicable law and regulations, the Court

GRANTS Defendants’ Renewed Motion to Dismiss, ECF No. 23; and

DISMISSES WITHOUT PREJUDICE Plaintiffs’ Second Amended

Complaint, ECF No. 22; for lack of subject-matter jurisdiction

pursuant to Federal Rule of Civil Procedure 12(b)(1).

2 Pursuant to Federal Rule of Civil Procedure 25(d), the current government officials holding these positions are “automatically substituted as” Defendants for their predecessors. 2 II. Background

A. Statutory and Regulatory Background

The TSC is a multi-agency executive organization created by

Presidential Directive in 2003, Defs.’ Mot., ECF No. 23-1 at 17;

that is administered by the FBI in coordination with DHS, the

Department of State, and the Department of Justice, Defs.’ Ex.

A, Overview of the U.S. Government’s Watchlisting Process and

Procedures, ECF No. 23-2 at 3 [hereinafter “Watchlisting

Overview”]. 3 The TSC consolidates the U.S. government’s terrorist

watchlists into a single database known as the TSDS, 4 which

3 The Court takes judicial notice of the Watchlisting Overview, “released by the U.S. government in January 2018” and providing “a description of watchlisting policies and procedures[,]” Defs.’ Mot., ECF No. 23-1 at 17 n.2; and of the other exhibits attached to Defendants’ Motion to Dismiss that are also referenced in Plaintiffs’ complaint, see Patrick v. Dist. of Columbia,

(D.D.C. 2015) (“Although a court generally cannot consider matters beyond the pleadings at the motion-to-dismiss stage, it may consider ‘documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiff’s complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss[.]’” (citation omitted)); Ashbourne v. Hansberry,

(D.D.C. 2017) (noting that courts may take judicial notice of “official, public documents”); Detroit Int’l Bridge Co. v. Gov’t of Canada,

(D.D.C. 2015) (same conclusion for “public records and government documents available from reliable sources”). 4 The TSDS was formerly known as the Terrorist Screening

Database. See Defs.’ Ex. 3, Decl. of Jason V. Herring (TSC’s Deputy Director for Operations), Moharam v. FBI, No. 21-2607 (JDB) (D.D.C. Jan. 18. 2022), ECF No. 20-5 at 3 ¶ 5 (explaining that the term “TSDS” “more accurately describes the terrorist screening information maintained by the TSC”). 3 “contains both biographic and biometric identifying information

. . . of known and suspected terrorists”—which is “accessible

only to persons who have a ‘need to know’ such as federal law

enforcement officials for their screening and vetting

activities.”

Inclusion in the TSDS results from a multi-step

nomination process, in which U.S. government agencies and

foreign partners “nominate” individuals to add to the database

where there is enough credible investigative information “to

satisfy a reasonable suspicion that the individual is a [known

or suspected terrorist].” Id. at 4; Defs.’ Mot., ECF No. 23-1 at

18. These nominations are then reviewed by the FBI and the

National Counterterrorism Center before the TSC makes the final

determination on whether to add the nominated persons to the

TSDS. See Watchlisting Overview, ECF No. 23-2 at 4-5.

Once individuals are added to the database, the TSC sorts

them into subset lists, known as the No Fly List and the

Selectee List, which are used by TSA “to secure commercial air

travel against the threat of terrorism.” Id. at 3; see

(f) (providing TSA’s mandate to “assess” and “deal[] with

threats to transportation security” “at airports and other

transportation facilities”);

(j)(2)(C)(ii)

(directing TSA to perform “the passenger prescreening function

of comparing passenger information to the automatic selectee and

no fly lists” to identify threats to civil aviation or national

4 security). Nominees to the No Fly and Selectee Lists “must

satisfy criteria distinct from that used for mere inclusion in

the TSD[S,]” Watchlisting Overview, ECF No. 23-2 at 5; with

inclusion on the No Fly List being the most restrictive of the

subsets, reserved for individuals presenting “a terrorist threat

with respect to an aircraft, the homeland, U.S. facilities or

interests abroad, or a threat of engaging in or conducting a

violent act of terrorism and is operationally capable of doing

so[,]” id.; Defs.’ Mot., ECF No. 23-1 at 18. TSA prohibits

individuals on the No Fly List from boarding flights on U.S.

carriers, as well as flights into, out of, over, or within U.S.

airspace, Watchlisting Overview, ECF No. 23-2 at 3; while it

subjects individuals on the Selectee List to enhanced security

screenings at airports and border crossings, 5 id.; Compl., ECF

No. 22 at 15 ¶ 104. The U.S. government does not publicly

disclose who is on either TSDS list or the criteria for

placement on the Selectee List. 6 Watchlisting Overview, ECF No.

23-2 at 3, 5; Defs.’ Mot., ECF No. 23-1 at 18.

5 Plaintiffs allege that these enhanced screening measures “can take several hours on departing flights at U.S. airports[,]” which “can result in the individuals missing scheduled flights.” Compl., ECF No. 22 at 15 ¶ 105. They also allege that “Selectee list persons often encounter extreme difficulties traveling abroad, including being detained in foreign countries . . . , or being prohibited from entering them altogether, due to the dissemination of the TSD[S] to foreign governments.”

. 6 According to Plaintiffs, “[p]ersons removed from the No Fly

List are often demoted to the Selectee List.”

at 16 ¶ 112. 5 The U.S. government also has a policy against informing

individuals of their placement on or removal from the Selectee

List, Compl., ECF No. 22 at 16 ¶ 113; although it may inform

U.S. citizens and lawful permanent residents (“U.S. persons”) of

their presence on the No Fly List after they are denied boarding

of a commercial aircraft, Watchlisting Overview, ECF No. 23-2 at

10. U.S. persons who “believe they have been unfairly or

incorrectly delayed, denied boarding, or identified for

additional screening or inspection at airports or U.S. ports of

entry” may submit an inquiry through DHS’s Traveler Redress

Inquiry Program (“DHS TRIP”).

;

(a)-

(b); see also

(j)(2)(C)(iii)(I), (j)(2)(G)(i),

44926(a)-(b);

.201–207. As part of the inquiry,

individuals must send DHS TRIP “personal information and copies

of the specified identification documents.” 7

(c). Then, the TSC’s Redress Office, “a separate

component within the TSC that processes inquires related to the

use of TSD[S] data by screening agencies[,]” works with DHS TRIP

to review travelers’ information and documentation to determine

whether they “should remain in the TSD[S], be modified, or be

removed[.]” Watchlisting Overview, ECF No. 23-2 at 9. If changes

7 Each DHS TRIP inquiry is assigned a unique Redress Control Number, enabling individuals to check the status of their inquiry on DHS’s TRIP website at any time. Watchlisting Overview, ECF No. 23-2 at 8;

(c). 6 to a record’s status are warranted, the TSC’s Redress Office

ensures corrections are made, and then DHS TRIP “sends a

determination letter advising the traveler of the results of the

adjudication of the redress inquiry.”

.

Historically, the U.S. government did not confirm or deny

for DHS TRIP complainants whether they were on the No Fly List,

Compl., ECF No. 22 at 16 ¶ 114; but in 2015, in response to

litigation, TSA adopted revised DHS TRIP procedures to allow

disclosure of No-Fly status to U.S. persons denied boarding who

thereafter file a redress inquiry,

; Defs.’ Mot., ECF

No. 23-1 at 21. Complainants can “request and receive additional

information” regarding the reason(s) for their status, which

includes, “where possible when national security and law

enforcement interests at stake are taken into account, an

unclassified summary of information supporting the individual’s

No Fly List status[,]” and they may also submit information in

rebuttal to their No-Fly designation. See Compl., ECF No. 22 at

17 ¶¶ 118-121 (stating that upon election by the traveler to

receive more information, “DHS TRIP commits to [ ] provide a

second, or ‘stage-two’ letter, including the specific criteria

under which the individual has been placed on the No Fly List”);

Watchlisting Overview, ECF No. 23-2 at 10 (noting that “[t]he

amount and type of information provided will vary on a case-by-

case basis,” and in some instances, an unclassified summary may

7 not be provided due to national security concerns). The TSC will

then review the complainant’s file and either: (1) remove the

person from the No Fly List if it determines that such status is

unwarranted; or (2) conclude that the person should stay on the

No Fly List and provide a recommendation as such to the TSA

Administrator. Watchlisting Overview, ECF No. 23-2 at 9-10;

Compl., ECF No. 22 at 17 ¶ 122. The TSA Administrator “makes

final determinations concerning listing on the No Fly List[,]”

Watchlisting Overview, ECF No. 23-2 at 10 n.5; and will issue a

final order either maintaining or removing the person’s No-Fly

status, or alternatively remanding the matter back to the TSC

for more information or clarification,

. If TSA issues

a final order maintaining the person’s No Fly List designation,

DHS TRIP will send the complainant a determination letter, which

states the basis for the decision “to the extent feasible in

light of national security and law enforcement interests at

stake,” and notifies the person of the ability to seek judicial

review in the appropriate Court of Appeals. Id.; Compl., ECF No.

22 at 17 ¶ 123; see also

(a) (“[A] person

disclosing a substantial interest in an order issued by . . .

the Administrator of the [TSA] . . . may apply for review of the

order by filing a petition for review in the United States Court

of Appeals for the District of Columbia Circuit or in the court

8 of appeals of the United States for the circuit in which the

person resides or has its principal place of business.”). 8

Selectee List persons are also sent “a determination letter

advising [them] of the results of the adjudication of the

redress inquiry[,]” Watchlisting Overview, ECF No. 23-2 at 10;

but this response does not confirm or deny travelers’ inclusion

in or deletion from that list, 9 Compl., ECF No. 22 at 16 ¶ 117,

17 ¶ 124; information which is protected by the law enforcement

privilege and as Sensitive Security Information pursuant to

(r), Defs.’ Mot., ECF No. 23-1 at 14 n.1, 18; see

also

(b)(9). “Individuals who are not on the

8 Prior to the 2015 revisions to DHS TRIP procedures, the TSC was the “sole entity with . . . the authority to remove names from the No-Fly List/TSD[S.]” Ege v. DHS,

(D.C. Cir. 2015) (citation and internal quotation marks omitted). However, under the current procedures, “the TSA Administrator is solely responsible for issuing a final order maintaining a traveler on the No Fly List. TSC submits a recommendation, along with supporting materials, to the TSA Administrator[,]” who “ultimately issues the final order[.]” Kashem v. Barr,

(9th Cir. 2019); accord Busic v. TSA, No. 20-1480,

, at *1 (D.C. Cir. Mar. 20, 2023). 9 According to plaintiffs in similar cases, “the standard

response sent to people who are not on the No Fly List, but who could be on the Selectee List” states as follows: “DHS has researched and completed our review of your case. DHS TRIP can neither confirm nor deny any information about you which may be within federal watchlists or reveal any law enforcement sensitive information. However, we have made any corrections to our records that our inquiries determined were necessary, including, as appropriate, notations that may assist in avoiding incidents of misidentification.” Jibril v. Mayorkas,

(D.C. Cir. 2021); see also Matar v. TSA,

(D.C. Cir. 2018) (indicating that the petitioner received a letter with identical wording from DHS TRIP). 9 No Fly List, but who may be on the Selectee List, are therefore

often unable to receive a response that meaningfully informs

them of the results of their DHS TRIP inquiry.” Jibril v.

Mayorkas, No. 1:19-cv-2457 (RCL),

, at *1 (D.D.C.

Feb. 27, 2023) [hereinafter “Jibril III”]. 10

B. Factual and Procedural Background

The following facts reflect the allegations in the

Complaint and the documents incorporated by reference therein,

which the Court assumes are true for the purposes of deciding

this motion and construes in Plaintiffs’ favor. See Baird v.

Gotbaum,

, 169 n.2 (D.C. Cir. 2015).

Plaintiff Ashraf Maniar is a U.S. citizen by birthright and

of Pakistani national origin. Compl., ECF No. 22 at 3 ¶ 1.

Plaintiff Umaima Shaikh is a U.S. citizen of Pakistani national

origin who acquired citizenship at birth due to the U.S.

citizenship of a parent. Id. ¶ 2. Plaintiffs identify as

practicing Muslims and are a married couple living together in

10Jibril III is the most recent decision issued by this Court regarding TSDS watchlists. It is preceded by Jibril v. Wolf, No. 1:19-cv-2457 (RCL),

(D.D.C. May 9, 2020), which was affirmed in part and reversed in part by Jibril v. Mayorkas,

(D.C. Cir. 2021) (“Jibril II”). The Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) remanded the case for further proceedings consistent with its opinion, which culminated in Jibril III, decided on February 27, 2023. Although these cases primarily concerned the Jibrils’ alleged placement on the Selectee List, the Court relies on Jibril II and Jibril III in its analysis of Plaintiffs’ No Fly List and Selectee List claims. See infra section IV.A. 10 North Carolina. Id. ¶¶ 1-2. Neither has a history of mental

health concerns, id. at 5 ¶ 13, 10 ¶ 64; nor have they ever been

convicted of or charged with criminal activity, id. at 10 ¶ 63;

Pls.’ Opp’n, ECF No. 25 at 9. Both Plaintiffs have “experienced

ongoing and severe difficulties in airport travel,” including

“the inability to print boarding passes and the inability to

board a plane,” with Mr. Maniar also once “being escorted out of

the airport.” Compl., ECF No. 22 at 5 ¶ 19, 10 ¶ 65. They have

also encountered difficulties with ground travel within the U.S.

and traveling via car to Canada. See id. at 9 ¶¶ 50-54, 10-11 ¶¶

66-67. Plaintiffs were placed on the No Fly List, id. at 7 ¶ 36,

12 ¶ 78; but have both since been removed from that list, id. at

8 ¶ 44, 13 ¶ 88. The facts of their alleged experiences

pertaining to their designations on and subsequent removals from

the No Fly List are detailed separately below.

1. Plaintiff Ashraf Maniar

Mr. Maniar has business and religious interests involving

travel abroad. See id. at 5 ¶¶ 15-18. First, he maintains

commercial ventures in Malaysia via online business

transactions. Id. ¶ 15. Second, as a practicing Muslim with

sincerely held religious beliefs, he intends to travel to Saudi

Arabia to complete Hajj and Umrah, two religious pilgrimages.

Id. ¶¶ 15-18. Mr. Maniar has traveled to Saudi Arabia for Umrah

in the past and hopes to complete Hajj in the future. Id. ¶ 17.

11 Mr. Maniar alleges that because of his placement on the No Fly

List, he was “unable to travel to Saudi Arabia to complete Hajj

and pilgrimage requirements, or participate in chosen employment

and business ventures.” Id. ¶ 20, 9 ¶ 56.

Mr. Maniar recalls being prohibited from flying for the

first time in May 2017, id. ¶ 22; and as a result, he filed his

first DHS TRIP inquiry around that time, id. at 6 ¶ 23. Although

he was permitted to fly in November 2017 from Boston to Los

Angeles, id. ¶ 25; he claims his travel experiences worsened

thereafter despite the initiation of his inquiry, id. ¶ 26.

First, on December 14, 2017, FBI agents raided Mr. Maniar’s

house pursuant to a warrant and seized his electronics and

passport. Id. ¶¶ 27-28. Then, on December 16, 2017, Mr. Maniar

booked a flight from Nevada to Georgia to attend his wedding in

Atlanta, but two days later, when he tried to board his flight,

he was not allowed to print his boarding pass, was prohibited

from flying, and was escorted out of the airport. Id. ¶¶ 29-31.

These events led Mr. Maniar to initiate another DHS TRIP inquiry

on February 21, 2018 to “acquire information as to whether he

[was] on the No Fly List, the reasons for that designation, if

any, and a way to appeal any determination.” Id. ¶ 32.

On June 7, 2018, Mr. Maniar filed a Petition for Writ of

Mandamus in this Court, explaining his travel difficulties and

seeking to compel DHS TRIP “to provide an initial determination

12 as to whether or not [he was] on the No Fly List” in line with

the applicable regulations regarding redress. Id. at 7 ¶ 35;

Pet. for Writ of Mandamus, Maniar v. Nielsen, No. 18-1362 (RDM)

(D.D.C. June 7, 2018), ECF No. 1 at 5. 11 On June 27, 2018, DHS

sent Mr. Maniar a letter confirming his placement on the No Fly

List because, following a review of his records “in consultation

with other federal agencies,” he was “identified as an

individual who ‘may be a threat to civil aviation or national

security.’” Defs.’ Ex. B, ECF No. 23-3 at 2 (quoting

(h)(3)(A)). No other information as to the reasons for his

No-Fly designation were provided in the letter. See id.; Compl.,

ECF No. 22 at 7 ¶¶ 36-38. That same day, Mr. Maniar’s counsel

contacted DHS TRIP to notify the agency that its letter was

“insufficient” given Mr. Maniar’s entitlement to “the specific

criterion under which [he was] placed on the No Fly List and . .

. an unclassified summary of information supporting [his] No Fly

List status[.]” Compl., ECF No. 22 at 7 ¶ 39.

On October 30, 2018, DHS TRIP issued Mr. Maniar a stage-two

letter that provided him with “an unclassified summary that

include[d] the reasons supporting [his] placement on the No Fly

List . . . to the extent feasible,” after considering national

11This matter was voluntarily dismissed on August 19, 2020 following Mr. Maniar’s removal from the No Fly List. See Notice of Non-Suit & Voluntary Dismissal, Maniar v. Wolf, No. 18-1362 (RDM) (D.D.C. Aug. 19, 2020), ECF No. 35 at 1. 13 security and law enforcement interests. Defs.’ Ex. C, ECF No.

23-4 at 2. The letter informed Mr. Maniar that he was determined

to represent “a threat of engaging in or conducting a violent

act of terrorism and [ ] operationally capable of doing so[,]”

and stated:

You are on the U.S. Government’s No Fly [L]ist due to, in part, your association and extensive communication with a known extremist located in the United Kingdom who has supported terrorist organizations. The additional details regarding your placement on the U.S. Government’s No Fly List cannot be provided to you due to national security concerns.

; Compl., ECF No. 22 at 7-8 ¶ 40. Despite claiming

that this “unclassified summary” did not provide him with “a

meaningful [way to] challenge” his designation, Compl., ECF No.

22 at 8 ¶ 41; 12 on December 31, 2018, Mr. Maniar timely filed an

administrative appeal with DHS TRIP, which included information

contesting the reasons for his No Fly List status as stated in

his stage-two letter,

.

While his appeal was pending, in June 2020, Mr. Maniar was

pulled over by CBP agents in New Mexico while he was driving

from Georgia to California.

at 9 ¶ 53. Although he only had

12Mr. Maniar claims that the lack of specific information in his stage-two TRIP letter did “not satisfy the Agency’s substantive obligation to disclose sufficient information to allow [him] ‘to correct erroneous information in the government’s terrorism database.’” Compl., ECF No. 22 at 8 ¶ 42 (quoting Latif v. Holder,

(D. Or. 2014)). 14 a backpack with him, CBP detained him for over an hour, searched

him, and fingerprinted him. Id. ¶ 54.

On August 18, 2020, DHS TRIP notified Mr. Maniar by letter

that he had been removed from the No Fly List “based on the

totality of available information, including information [he]

provided to DHS TRIP.” Defs.’ Ex. D, ECF No. 23-5 at 2. The

letter also stated that he would “not be placed back on the No

Fly List based on currently available information[,]” and that

the determination “render[ed his] administrative redress case

moot” and therefore closed. Id.; Compl., ECF No. 22 at 8 ¶ 44.

2. Plaintiff Umaima Shaikh

Ms. Shaikh has familial and religious interests involving

travel abroad. See Compl., ECF No. 22 at 14 ¶ 99, 15 ¶ 100.

First, she has family members residing in Pakistan with whom she

was unable to visit for two years as a result of her designation

on the No Fly List. Id. at 14 ¶ 99. This separation included

missing her brother’s wedding, her grandmother’s funeral, family

members’ graduations, and visits to sick relatives. Id. Second,

as a practicing Muslim with sincerely held religious beliefs,

Ms. Shaikh has pilgrimage obligations that she claims were

hindered by her No-Fly status. Id. at 15 ¶ 100. She has traveled

to Saudi Arabia for Umrah in the past and hopes to travel there

to complete Hajj in the future. Id.

15 Ms. Shaikh recalls being prohibited from traveling via car

to Canada with Mr. Maniar on March 15, 2018, id. at 11 ¶ 67; and

being prohibited from flying for the first time on or before

July 3, 2018, id. ¶ 68. Ms. Shaikh was scheduled to take an

Emirates Airline flight to Pakistan to attend her brother’s

wedding, but when she arrived at the ticketing counter, airline

officials informed her that they could not issue her a boarding

pass, nor provide her with a reason why. Id. ¶¶ 68-71. As a

result, Ms. Shaikh was not able to board her flight and missed

her brother’s wedding. Id. ¶ 72.

On August 13, 2018, Ms. Shaikh initiated a redress inquiry,

in which she notified DHS TRIP that her husband, Mr. Maniar, had

received an initial determination letter that he was on the No

Fly List. Id. ¶¶ 74, 77. Four months later, on December 18,

2018, Ms. Shaikh also received an initial determination letter

from DHS TRIP informing her that she was on the No Fly List

because she was “identified as an individual who ‘may be a

threat to civil aviation or national security.’” Defs.’ Ex. E,

ECF No. 23-6 at 2 (quoting

(h)(3)(A)). No other

information as to the reasons for her No-Fly designation were

provided in the letter, although the letter stated that Ms.

Shaikh could request additional information regarding her

designation within thirty days. See id.; Compl., ECF No. 22 at

12 ¶¶ 78-79. On December 26, 2018, Ms. Shaikh’s counsel

16 contacted DHS TRIP to request all relevant information

supporting her placement on the No Fly List, including an

unclassified summary. Compl., ECF No. 22 at 12 ¶ 81.

On May 14, 2019, Ms. Shaikh filed suit in this Court,

seeking to compel DHS TRIP to provide the specific reasons

supporting her placement on the No Fly List pursuant to a

complaint for declaratory relief under the APA and a Petition

for Writ of Mandamus.

; Compl. & Pet. for Writ of

Mandamus, Shaikh v. McAleenan, No. 19-1398 (RBW) (D.D.C. May 14,

2019), ECF No. 1 at 7. 13 Nearly nine months later, on February 3,

2020, DHS TRIP issued Ms. Shaikh a stage-two letter providing

her with “an unclassified summary that include[d the] reasons

supporting [her] placement on the No Fly List.” Defs.’ Ex. F,

ECF No. 23-7 at 2. The letter informed Ms. Shaikh, like Mr.

Maniar, that she was determined to represent “a threat of

engaging in or conducting a violent act of terrorism and [ ]

operationally capable of doing so[,]” and stated:

You are on the U.S. Government’s No Fly List due to, in part, your provision of support to an individual, made with the knowing purpose of furthering the individual’s desire to join a foreign-based terrorist organization, as well as your association and communication

13This matter was dismissed on March 31, 2020 following Judge Reggie B. Walton’s order granting Defendant’s Second Motion to Dismiss. See Order, Shaikh v. Wolf, No. 19-1398 (RBW) (D.D.C. Mar. 31, 2020), ECF No. 16 at 7. Judge Walton determined that Ms. Shaikh’s claims “were rendered moot when [DHS TRIP] issued the [stage-two] February 3, 2020 letter to [her].”

. 17 with multiple known extremists. Additional reasons for and details regarding your placement on the U.S. Government’s No Fly List cannot be provided to you due to law enforcement and national security concerns.

; Compl., ECF No. 22 at 13 ¶¶ 84-85. Despite claiming

that this “cursory stage-two letter” did not “permit her to make

a meaningful response,” Compl., ECF No. 22 at 13 ¶ 86; on March

9, 2020, Ms. Shaikh timely filed an administrative appeal, which

included information contesting the reasons for her No Fly List

status as stated in her stage-two DHS TRIP letter,

.

On July 15, 2020, DHS TRIP notified Ms. Shaikh by letter

that she had been removed from the No Fly List “based on the

totality of available information, including information [she]

provided to DHS TRIP.” Defs.’ Ex. G, ECF No. 23-8 at 2. The

letter also stated that she would “not be placed back on the No

Fly List based on currently available information[,]” and that

the determination “render[ed her] administrative redress case

moot” and therefore closed. Id.; Compl., ECF No. 22 at 13 ¶ 88.

3. Events Following Plaintiffs’ Removals from the No Fly List

Plaintiffs jointly initiated the instant suit on December

26, 2019, see Original Compl., ECF No. 1; but following their

removals from the No Fly List—first Ms. Shaikh on July 15, 2020

(after approximately two years on the list), and then Mr. Maniar

on August 18, 2020 (after approximately three years on the

18 list)—they have since amended their pleading twice, first on

August 12, 2020, see First Am. Compl., ECF No. 19; and again on

September 9, 2020, see Second Am. Compl., ECF No. 22. As

Defendants’ note, “[t]he allegations in the operative Second

Amended Complaint are materially similar to those in

[Plaintiffs’] original pleading . . . except that [they] now

include [ ] additional allegations concerning certain subsequent

events following their removal[s] from the No Fly List.” 14 Defs.’

Mot., ECF No. 23-1 at 25.

As to Ms. Shaikh, she alleges that on July 25, 2020—ten

days after her removal from the No Fly List on July 15, 2020—she

was unable to obtain a boarding pass for her flight from

Raleigh, North Carolina to Atlanta, Georgia without speaking to

a ticketing counter clerk, who in turn had to receive permission

prior to issuing the boarding pass. Compl., ECF No. 22 at 13 ¶¶

89-90. When Ms. Shaikh received her boarding pass, it had an

“SSSS” notation printed on it, which stands for “Secondary

Security Screening Selection.”

at 14 ¶ 91. Ms. Shaikh

alleges that such a notation indicates that she is “still

included within the TSD[S], even though no longer on the No Fly

14Defendants originally moved to dismiss Plaintiffs’ claims on March 9, 2020, see Defs.’ Mot. to Dismiss, ECF No. 9 at 1; but the Court denied that motion as moot after granting Plaintiffs leave to file their first amended complaint, see Minute Order (Aug. 11, 2020); and thereafter granted them leave to file their second amended complaint, see Minute Order (Aug. 24, 2020). 19 List” and that her July 2020 travel experience is “consistent

with persons on the Selectee List.”

.

As to Mr. Maniar, he alleges that on August 30, 2020—twelve

days after his removal from the No Fly List on August 18, 2020—

he traveled to Pakistan to visit family and friends.

at 8 ¶

45; Pls.’ Opp’n, ECF No. 25 at 12. Upon arrival in Turkey for

his connecting flight, Mr. Maniar was subjected to “extensive

individualized questioning” before being allowed to board his

next flight to Pakistan. Compl., ECF No. 22 at 8 ¶ 46. When he

landed in Pakistan, Mr. Maniar was detained by Pakistani

authorities and again questioned extensively.

at 9 ¶ 47.

Although he was released, Mr. Maniar was not permitted to remain

in Pakistan and was forced to immediately book travel back to

the U.S.

Mr. Maniar alleges that such events indicate that

he “is still included within the TSD[S], even though no longer

on the No Fly List” and that his August 2020 travel experience

is “consistent with persons on the Selectee List[,]” which is

“communicat[ed ] to other nations.”

.

Plaintiffs additionally allege that they have both

separately learned that FBI agents have asked people they

personally know questions about them, during which the agents

“strongly impl[ied] that [Plaintiffs have] criminal and/or

nefarious intentions and/or contacts.”

at 10 ¶ 57, 14 ¶ 95.

Both Plaintiffs claim the actions of these FBI agents damaged

20 their reputations and violated their privacy interests,

at

10 ¶ 59, 14 ¶ 97; as well as caused them “extreme emotional

distress, as a result of the stigmatization created by [ ]

Defendants’ actions[,]”

at 10 ¶ 60, 14 ¶ 98; see also

at

9 ¶ 55 (stating Mr. Maniar’s belief that he found helicopters

hovering above his house and has been followed on more than one

occasion subsequent to his placement on the No Fly List).

Plaintiffs claim that their “former designation on the No

Fly List, believed current placement on the Selectee List, and

substantial likelihood that [they] could again be placed on the

No Fly List, infringe on [their] religious exercise,”

at 10

¶ 61, 15 ¶ 100; in addition to prior and ongoing “infringements

on [their] chosen employment [and ability to travel],

reputational damage, [ ] emotional distress[,]” and family

separation,

at 9 ¶ 50, 14 ¶ 94, 16 ¶ 110; see also

(“These ongoing travel difficulties, and the risk of repetition

for [Plaintiffs] to again be placed on the No Fly List, result

in infringements upon their constitutional rights and protected

interests.”); Pls.’ Opp’n, ECF No. 25 at 12 (alleging “ongoing”

harm due to the “continuing heightened scrutiny” of Plaintiffs

during travel and the sharing of their TSDS placement with

foreign governments). They bring the following claims in

“challenging the constitutionality and adequacy of Defendants’

policies and actions,” Pls.’ Opp’n, ECF No. 25 at 7: (1)

21 violations of their Fifth Amendment procedural and substantive

due process rights against all Defendants (Counts One and Two,

respectively); (2) violations of the APA due to alleged

inadequacies in the DHS TRIP redress process against Defendants

Alejandro Mayorkas (DHS) and David Pekoske (TSA) (Count Three);

(3) violations of their First Amendment rights against all

Defendants (Count Four); and (4) entitlement to attorney’s fees

and costs under the Equal Access to Justice Act (“EAJA”), as

amended,

and

(Count Five), see

Compl., ECF No. 22 at 17-25.

Plaintiffs seek declaratory and injunctive relief. See

. First, they ask the Court to declare that Defendants

violated and continue to violate their rights under the U.S.

Constitution. See

. Second, they ask the Court to

declare that Defendants’ actions against them “constitute an

abuse of discretion” and are “arbitrary and capricious” in

violation of the APA. See

. Third, they ask the

Court to order DHS TRIP “to provide persons with meaningful

opportunities to challenge future inclusion on the No Fly List

moving forward[.]”

. Finally, they seek attorney’s fees

and costs and any additional relief the Court deems proper.

On September 28, 2020, Defendants moved to dismiss

Plaintiff’s Second Amended Complaint for lack of subject-matter

jurisdiction and failure to state a claim. See Defs.’ Mot., ECF

22 No. 23 at 1 (citing Fed. R. Civ. P. 12(b)(1), (b)(6)). In

support of that motion, Defendants filed accompanying Exhibits A

through G, of which the Court takes judicial notice. See supra

note 3. Plaintiffs filed their opposition brief on October 19,

2020, see Pls.’ Opp’n, ECF No. 25; to which Defendants replied

on November 2, 2020, see Defs.’ Reply, ECF No. 26. On September

28, 2022, Plaintiffs filed a Notice of Supplemental Authority to

bring to the Court’s attention “the recently issued decision[s]

of Fikre v. FBI,

(9th Cir. 2022)” and Long v.

Pekoske,

(4th Cir. 2022), which they claim “bear[]

directly on the facts of this case.” See Pls.’ Notice of Suppl.

Authority (“Pls.’ Suppl. Notice”), ECF No. 29 at 1. Defendants

responded to this notice on October 16, 2022, claiming that

“neither case aids [Plaintiffs’] claims in this action.” See

Defs.’ Resp. to Pls.’ Notice of Suppl. Authority (“Defs.’ Suppl.

Resp.”), ECF No. 30 at 1. Defendants’ Renewed Motion to Dismiss

is now ripe and ready for the Court’s adjudication.

III. Legal Standard

A. Rule 12(b)(1)—Subject-Matter Jurisdiction

“A federal district court may only hear a claim over which

[it] has subject-matter jurisdiction; therefore, a Rule 12(b)(1)

motion for dismissal is a threshold challenge to a court’s

jurisdiction.” Gregorio v. Hoover,

(D.D.C. 2017) (citation omitted). To survive a Rule 12(b)(1)

23 motion, the plaintiff bears the burden of establishing that the

court has jurisdiction by a preponderance of the evidence. Moran

v. U.S. Capitol Police Bd.,

(D.D.C.

2011) (citing Lujan v. Defs. of Wildlife,

,

,

(1992)). “Because Rule 12(b)(1)

concerns a court’s ability to hear a particular claim, the court

must scrutinize the plaintiff’s allegations more closely when

considering a motion to dismiss pursuant to Rule 12(b)(1) than

it would under a motion to dismiss pursuant to Rule 12(b)(6).”

Schmidt v. U.S. Capitol Police Bd.,

(D.D.C. 2011). In so doing, the court must accept as true all of

the factual allegations in the complaint and draw all reasonable

inferences in the plaintiff’s favor, but the court need not

“accept inferences unsupported by the facts alleged or legal

conclusions that are cast as factual allegations.” Rann v. Chao,

(D.D.C. 2001).

In reviewing a motion to dismiss pursuant to Rule 12(b)(1),

“the court need not limit itself to the allegations of the

complaint.”

(citing Hohri v. United States,

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

,

,

(1987)). Rather, the court “may

consider such materials outside the pleadings as it deems

appropriate to resolve the question whether it has jurisdiction

to hear the case.” Scolaro v. Dist. of Columbia Bd. of Elections

24 & Ethics,

(D.D.C. 2000); see also Jerome

Stevens Pharms., Inc. v. FDA,

(D.C. Cir.

2005). “Faced with motions to dismiss under Rule 12(b)(1) and

Rule 12(b)(6), a court should first consider the Rule 12(b)(1)

motion because [o]nce a court determines that it lacks subject

matter jurisdiction, it can proceed no further.” Ctr. for

Biological Diversity v. Jackson,

(D.D.C.

2011) (citations and internal quotation marks omitted).

1. Article III Standing

“Article III of the Constitution limits the jurisdiction of

federal courts to ‘Cases’ and ‘Controversies.’” Susan B. Anthony

List v. Driehaus,

, 157,

,

(2014) (quoting U.S. Const. art. III, § 2). “‘One element

of the case-or-controversy requirement’ is that plaintiffs ‘must

establish that they have standing to sue.’” Clapper v. Amnesty

Int’l USA,

,

,

(2013) (quoting Raines v. Byrd,

,

,

(1997)); see Lujan,

(calling standing “the irreducible constitutional minimum”); see

also Jibril III,

, at *4 (“[A] court might lack

subject-matter jurisdiction [ ] if a plaintiff lacks Article III

standing.” (citing Haase v. Sessions,

(D.C.

Cir. 1987))). The law of Article III standing “is built on

separation-of-powers principles” and “serves to prevent the

25 judicial process from being used to usurp the powers of the

political branches.” Clapper,

.

To establish standing, “a plaintiff must show (1) an

‘injury in fact,’ (2) a sufficient ‘causal connection between

the injury and the conduct complained of,’ and (3) a

‘likel[ihood]’ that the injury ‘will be redressed by a favorable

decision.’” Susan B. Anthony List, 573 U.S. at 157-58 (quoting

Lujan,

); see also Hollingsworth v. Perry,

,

,

(2013) (“To

have standing, a litigant must seek relief for an injury that

affects him [or her] in a personal and individual way[, i.e.,] .

. . possess[ing] a direct stake in the outcome of the case.”

(citations and internal quotation marks omitted)). The

plaintiff, as “[t]he party invoking federal jurisdiction[,]

bears the burden of establishing these elements.” Lujan,

. “Since they are not mere pleading requirements but

rather an indispensable part of the plaintiff’s case, each

element must be supported in the same way as any other matter on

which the plaintiff bears the burden of proof, i.e., with the

manner and degree of evidence required at the successive stages

of the litigation.” Id.; see also TransUnion LLC v. Ramirez,

, 210 L. Ed. 2d. 568 (2021) (“[S]tanding is not

dispensed in gross; rather, plaintiffs must demonstrate standing

26 for each claim that they press and for each form of relief that

they seek (for example, injunctive relief and damages).”).

At the pleading stage, plaintiffs need only “‘state a

plausible claim’ that each of the standing elements is present.”

Attias v. Carefirst, Inc.,

(D.C. Cir. 2017)

(citation omitted); see also Kareem v. Haspel,

(D.C. Cir. 2021) (“[A] complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim [of standing] that

is plausible on its face.’” (citation omitted)). The court

“assume[s], for purposes of the standing analysis, that

plaintiffs will prevail on the merits of their claim[s,]”

Attias,

; but it “must dismiss the case pursuant

to Rule 12(b)(1)” if plaintiffs fail to prove that they have

standing, Jibril v. Wolf, No. 1:19-cv-2457 (RCL),

, at *3 (D.D.C. May 9, 2020), aff’d in part, rev’d in

part & remanded, Jibril v. Mayorkas,

(D.C. Cir.

2021) [hereinafter “Jibril II”].

IV. Analysis

Defendants move to dismiss Plaintiffs’ operative complaint

on the ground that Plaintiffs lack standing to pursue any of

their claims, and thus the Court lacks subject-matter

jurisdiction. See Defs.’ Mot., ECF No. 23-1 at 27-31.

Specifically, Defendants claim that Plaintiffs’ “injury theory”

rests on speculation and does not establish “certainly

27 impending” harm sufficient to confer standing since they “seek

prospective relief for a number of alleged injuries associated

with the No Fly List . . . [b]ut [ ] are no longer on the No Fly

List[.]” Id. at 14-15. Plaintiffs argue that they have standing,

despite their removals from the No Fly List, due to ongoing

religious infringements and reputational, employment, and

emotional harms resulting from their former No-Fly status, along

with continued impacts to their ability to travel from their

“believed current placement on the Selectee List,” and because

of a “substantial likelihood [they] could again be placed on the

No Fly List[.]” See Pls.’ Opp’n, ECF No. 25 at 15-17; Compl.,

ECF No. 22 at 9 ¶ 50, 10 ¶ 61, 14 ¶ 94, 15 ¶ 100, 16 ¶ 110.

Moreover, Plaintiffs proffer arguments as to why their claims

under the First and Fifth Amendments, APA, and EAJA should

proceed to the merits. See Pls.’ Opp’n, ECF No. 25 at 21-35.

Because “[a] federal district court may only hear a claim

over which [it] has subject-matter jurisdiction[,]” Gregorio,

; the Court first turns to the parties’

jurisdictional arguments before determining whether “it can

proceed [ ] further” to the merits of Plaintiffs’ constitutional

and statutory claims, Jackson,

.

A. Plaintiffs Lack Standing to Pursue Any of Their Claims

Plaintiffs bear the burden of establishing that they “have

(1) suffered an injury in fact, (2) that is fairly traceable to

28 the challenged conduct of [Defendants], and (3) that is likely

to be redressed by a favorable judicial decision.” Spokeo, Inc.

v. Robins,

,

,

(2016) (citing Lujan,

). Here, Plaintiffs’

case for declaratory and injunctive relief “primarily concerns

injury in fact, the ‘[f]irst and foremost’ of standing’s three

elements.”

(quoting Steel Co. v. Citizens for a Better

Env’t,

,

,

(1998)); Susan B. Anthony List, 573 U.S. at 158 (“This case

concerns the injury-in-fact requirement, which helps to ensure

that [Plaintiffs have] a personal stake in the outcome of the

controversy.” (citation and internal quotation marks omitted)).

To establish injury in fact, Plaintiffs must show that they

suffered “an invasion of a legally protected interest” that is

“concrete and particularized” and “actual or imminent, not

conjectural or hypothetical.” Lujan,

(internal

quotation marks omitted); see also Spokeo,

(defining a “particularized” injury as one that “affect[s] the

plaintiff in a personal and individual way” and a “concrete”

injury as a “real, and not abstract” injury that “must actually

exist” (internal quotation marks omitted)); Am. Chemistry

Council v. Dep’t of Transp.,

(D.C. Cir. 2006)

(“Article III does not require actual harm. . . . [I]mminent

harm will suffice.”). “Although imminence is concededly a

29 somewhat elastic concept,” Clapper,

; for claims

seeking prospective relief, like those alleged by Plaintiffs,

“[a]n allegation of future injury may suffice [as imminent] if

the threatened injury is ‘certainly impending,’ or there is a

‘substantial risk’ that the harm will occur[,]” Susan B. Anthony

List, 573 U.S. at 158 (citation omitted); Clapper,

(distinguishing between threatened injury that is “certainly

impending,” which constitutes injury in fact, and “[a]llegations

of possible future injury,” which are insufficient); see also

TransUnion,

(“[A] person exposed to a risk of

future harm may pursue forward-looking, injunctive relief to

prevent the harm from occurring, at least so long as the risk of

harm is sufficiently imminent and substantial.” (citing Clapper,

n.5; City of Los Angeles v. Lyons,

,

,

(1983))).

Although a plaintiff seeking prospective relief “may not

rest on past injury” alone to establish standing, Arpaio v.

Obama,

(D.C. Cir. 2015); Dearth v. Holder,

(D.C. Cir. 2011); “[p]ast wrongs may serve as

evidence bearing on whether there is a real and immediate threat

of repeated injury,” Jibril II,

(citations and

internal quotation marks omitted). Moreover, past exposure to

illegal conduct, when accompanied by “any continuing, present

adverse effects,” may suffice to support Article III standing in

30 a case or controversy regarding declaratory and injunctive

relief. O’Shea v. Littleton,

,

,

(1974); see also Dearth,

(requiring plaintiffs to show they are suffering from “an

ongoing injury or face[] an immediate threat of injury”).

In addition, at the motion to dismiss stage, Plaintiffs

must state a plausible claim that any alleged injury in fact is

“‘fairly traceable to the actions of [Defendants, and] is likely

to be redressed by a favorable decision on the merits.’” Taylor

v. FAA,

(D.D.C. 2018) (quoting Food &

Water Watch, Inc. v. Vilsack,

(D.C. Cir.

2015)). Causation and redressability “‘are closely related’ like

‘two sides of a . . . coin.’” West v. Lynch,

(D.C. Cir. 2017) (quoting Dynalantic Corp. v. Dep’t of Def.,

(D.C. Cir. 1997)). “Like heads and tails,

however, the two concepts are distinct: causation focuses on the

‘connection between the assertedly unlawful conduct and the

alleged injury’ whereas redressability focuses on the

‘connection between the alleged injury and the judicial relief

requested.’”

at 1235-36 (quoting Allen v. Wright,

, 753 n.19,

,

(1984)).

Given the constitutional import of standing, the Court

delineates in detail the parties’ opposing arguments. First,

Defendants argue that “Plaintiffs do not have standing to obtain

31 prospective relief with respect to their prior No Fly List

placement” because they cannot establish a “certainly impending”

injury. Defs.’ Mot., ECF No. 23-1 at 15, 28. The government

identifies, from the Second Amended Complaint, “a number of

[Plaintiffs’] alleged injuries associated with the No Fly List,”

such as: (1) an alleged inability to travel, including for

religious or professional reasons; and (2) alleged reputational

or emotional impacts. Id. at 14-15, 28. However, at the time

they filed the operative complaint, Plaintiffs were “no longer

on the No Fly List,” so the government argues that they cannot

now proffer allegations of harm “due to any ongoing placement”

on the list, nor allegations that “they are currently unable to

travel[,]” as both have traveled recently. Id. at 15, 28

(emphases added). Instead, to the extent Plaintiffs rely on past

emotional, reputational, or travel impacts, the government

argues that “their requested, prospective relief [ ] cannot

redress th[o]se harms.” Id. at 28; see also Defs.’ Reply, ECF

No. 26 at 10 (“[B]ecause Plaintiffs have been removed from the

No Fly List, any declaration or injunction regarding the

lawfulness of that list . . . could have no immediate . . .

consequences for [them.]”). Also, to the extent “Plaintiffs’

injury theory” rests on the assertion that they “may again be

restored on the [No Fly] list, despite DHS’s assurance that they

will not be placed back on the list based on currently available

32 information[,]” Defs.’ Mot., ECF No. 23-1 at 15; see also Defs.’

Ex. D, ECF No. 23-5 at 2; Defs.’ Ex. G, ECF No. 23-8 at 2;

Defendants argue that such a “speculative” theory “‘does nothing

to establish a real and immediate threat that [they] [will]

again’ be placed on the No Fly List[,]” id. at 15, 25, 29

(quoting Lyons,

); see also Defs.’ Reply, ECF No.

26 at 11 (“[A]ny risk of a future re-designation is . . .

‘hypothetical[.]’”). In other words, Defendants claim that

“Plaintiffs are unable to demonstrate an injury in fact at this

time” in relation to their former placement on the No Fly List.

Id. at 15, 25; Pls.’ Opp’n, ECF No. 25 at 14.

Second, the government argues that Plaintiffs also cannot

establish standing as to their Selectee List claims, as “the

Second Amend[ed] Complaint does not bring [well-pled] claims

that challenge [their] alleged Selectee List placement, and in

any event could not allege that placement on the Selectee List

will result in harms equivalent [to those] associated with the

No Fly List[.]” See Defs.’ Mot., ECF No. 23-1 at 15, 25, 30

(“Plaintiffs also allege that they may be on another, less

restrictive watch list, thus creating the risk of future delays

and additional screening at airports[, b]ut there is no

allegation that [they] will necessarily suffer these injuries

when traveling in the future.”). Finally, Defendants argue that

standing, not mootness, “is the proper jurisdictional framework”

33 for evaluating Plaintiffs’ No Fly and Selectee List claims since

they filed the Second Amended Complaint after being removed from

the No Fly List, and the Court “must measure standing” as of the

date of that complaint. Id. at 27 n.5-28.

Plaintiffs contend that Defendants’ arguments regarding

standing “ignore[] important factual realities[,]” as they

allege that their “harm did not cease at the time of their

removals from the No Fly List[.]” Pls.’ Opp’n, ECF No. at 25 at

14-15. They argue that they continue to suffer from “extreme

emotional distress” because of prior periods of family

separation and hindrances to chosen employment ventures while

they were on the No Fly List, along with “the stigmatization

created by [ ] Defendants’ actions[,]” none of which

“evaporate[d] upon removal from the” list. Id. at 15. Plaintiffs

also allege concrete injury in the form of continued impacts to

their ability to travel, namely the potential for “severe” and

“extensive” questioning and detention abroad, like what Mr.

Maniar experienced in Turkey and Pakistan, and “extensive

screening” in the U.S. Id. at 15-16. Plaintiffs thus allege that

they have standing because “[a]s pled in [their] Amended

Complaint, . . . these actions occurred due to [ ] Defendants[’]

placement of [them] on the No Fly List and Selectee List, and

communication of that placement to other nations[,]” which have

caused them “particularized” and “ongoing” harms. Id. at 16-17.

34 Although Plaintiffs concede they are no longer on the No Fly

List, they furthermore allege harm due to “the very real

possibility of recurrence of [ ] injury[,]” namely redesignation

to the No Fly List. Id. at 17. They argue that this potential

harm is “capable of redress only by a ruling ordering DHS TRIP

to revise [its] procedures to provide [them] with an ability to

meaningfully challenge future likely inclusions on the No Fly

List[.]” Id.; see also Compl., ECF No. 22 at 26.

As an initial matter, the Court adopts the government’s

(uncontested) argument that “standing, rather than mootness, is

the proper jurisdictional framework.” Defs.’ Mot., ECF No. 23-1

at 27 n.5. Whereas standing mandates that “[t]he requisite

personal interest . . . exist at the commencement of the

litigation[,]” mootness “has been described as . . . standing

set in a time frame[,]” requiring that the personal stake

continue throughout the duration of the litigation. Arizonans

for Off. English v. Arizona,

, 68 n.22,

,

(1997) (citations and internal quotation

marks omitted). A case becomes moot, mandating dismissal, “when

the issues presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome.” Already, LLC v.

Nike, Inc.,

,

,

(2013) (citation omitted); see also Clarke v. United States,

(D.C. Cir. 1990) (“Even where litigation poses a

35 live controversy when filed, the [mootness] doctrine requires a

federal court to refrain from deciding it if events have so

transpired that the decision will neither presently affect the

parties’ rights nor have a more-than-speculative chance of

affecting them in the future.” (citation and internal quotation

marks omitted)); Long, 38 F.4th at 423 (defining mootness as

“[a] change in factual circumstances[,] . . . such as when the

plaintiff receives the relief sought”). While plaintiffs bear

the burden of establishing standing, see Lujan,

;

defendants bear the “heavy” burden of establishing “that a once-

live case has become moot[,]” West Virginia v. EPA,

, 2607,

(2022); see also Zukerman v. USPS,

(D.C. Cir. 2020) (“[T]he party urging mootness

bears a heavy burden.”).

“[T]here are important exceptions to the mootness doctrine

that distinguish it from standing.” Nat. L. Party of the U.S. v.

FEC,

(D.D.C. 2000). One such exception is

the voluntary cessation doctrine, which “disfavors dismissal of

claims a defendant purposely ‘moots’ when such dismissal would

leave the defendant ‘free to return to his old ways.’” Hinton v.

Dist. of Columbia,

, 43 (D.D.C. 2021)

(citation omitted). To protect against this unfair outcome, the

doctrine “prohibits courts from conclud[ing] that a defendant’s

voluntary cessation of disputed conduct renders a case moot

36 unless the party urging mootness demonstrates that (1) there is

no reasonable expectation that the alleged violation will recur,

and (2) interim relief or events have completely or irrevocably

eradicated the effects of the alleged violation.”

(citation

and internal quotation marks omitted); see also Friends of the

Earth, Inc. v. Laidlaw Env’t Servs., Inc.,

,

,

(2000) (“[A] defendant

claiming that its voluntary compliance moots a case bears a

formidable burden of showing that it is absolutely clear the

allegedly wrongful behavior could not reasonably be expected to

recur.”). Another exception to mootness is the “capable of

repetition yet evading review” doctrine, requiring a plaintiff

to demonstrate that “(1) the challenged action is in its

duration too short to be fully litigated prior to its cessation

or expiration, and (2) there [is] a reasonable expectation that

the same complaining party would be subjected to the same action

again.” Del Monte Fresh Produce Co. v. United States,

(D.C. Cir. 2009) (citation omitted); see also Clarke,

(requiring proof as to both prongs to “fit [a]

case into one of the ‘exceptional situations’ to which this

doctrine applies”). 15

15Defendants note that “Plaintiffs appear to reference the ‘capable of repetition yet evading review’ mootness exception[.]” Defs.’ Mot., ECF No. 23-1 at 29 n.6; see Pls.’ Opp’n, ECF No. 25 at 17 (arguing that Defendants can “escape 37 In this case, the Court need not address the issue of

whether Plaintiffs’ removals from the No Fly List have possibly

mooted their case, since Defendants argue for dismissal solely

on the basis that Plaintiffs lack standing, and Plaintiffs

proffer no arguments in opposition that the burden should shift

to the government to prove mootness. 16 See Nat. L. Party,

; see also Friends of the Earth,

(addressing the question of standing before determining whether

review” in this and future lawsuits “by removing Plaintiffs from the No Fly List for the time being”). Because the Court is persuaded that standing, not mootness, “is the proper jurisdictional framework,” Defs.’ Mot., ECF No. 23-1 at 27 n.5; to the extent Plaintiffs’ Opposition seeks to apply this mootness exception, the Court rejects that attempt. 16 The Court notes Plaintiffs’ Notice of Supplemental Authority,

which brings to the Court’s attention “the recently issued decision[s] of Fikre v. FBI,

(9th Cir. 2022)” and Long v. Pekoske,

(4th Cir. 2022), which they claim “bear[] directly on the facts of this case.” Pls.’ Suppl. Notice, ECF No. 29 at 1. However, the Court’s review of these cases, which concern the “application of the voluntary cessation exception to mootness to a[ government] affidavit promising that a plaintiff would not be added back to a TSDS watchlist[,]” indicates that they do “not provide a helpful analog.” Jibril III, No. 1:19-cv-2457 (RCL),

, at *7 n.2 (D.D.C. Feb. 27, 2023). “Unlike in those cases,” where mootness was the “proper framework,” under the standing analysis, it is not “incumbent on the government to make ‘absolutely clear that the allegedly wrongful behavior’ of returning [Plaintiffs] to a watchlist ‘could not reasonably be expected to recur.’”

(quoting West Virginia v. EPA,

, 2607,

(2022)). Defendants made the same argument in their response to Plaintiffs’ supplemental notice. See Defs.’ Suppl. Resp., ECF No. 30 at 1-2 (arguing that neither Fikre nor Long “aids [Plaintiffs’] claims in this action[,]” as “the ‘voluntary cessation’ exception to mootness has no analogue relevant to the standing question presented by Defendants’ motion”). 38 to turn to mootness). While standing is generally determined at

the time the suit is initiated, Nat. L. Party,

; “when a plaintiff files a complaint in federal court and

then voluntarily amends the complaint, courts look to the

amended complaint to determine jurisdiction[,]” Rockwell Int’l

Corp. v. United States,

,

,

(2007); see also Cnty. Of Riverside v.

McLaughlin,

,

,

(1991) (assessing standing “at the time the second amended

complaint was filed”); Feinman v. CIA, No. 08-2188 (EGS),

, at *3 n.4 (D.D.C. Aug. 6, 2009) (“Because subject

matter jurisdiction must be evaluated at the time the action was

brought, this Court must evaluate standing from the time the

motion for leave to amend the complaint was filed.”); G&E Real

Estate, Inc. v. Avison Young-Washington, D.C., LLC,

(D.D.C. 2016) (requiring courts to “measure

standing by the state of the world as of the date of . . . a

supplemental or amended complaint”). Here, Ms. Shaikh and Mr.

Maniar were removed from the No Fly List on July 15, 2020 and

August 18, 2020, respectively, Defs.’ Reply, ECF No. 26 at 8;

and thereafter filed their Second Amended Complaint on September

9, 2020, see Compl., ECF No. 22. Therefore, the relevant

question is whether they had “[t]he requisite personal interest”

to establish standing as of “the state of the world” on

39 September 9, 2020. Arizonans,

n.22; G&E Real

Estate,

.

Given the parties’ above arguments as to standing and

Plaintiffs’ burden to establish standing “for each claim” they

are pursuing and “for each form of relief” they are seeking, see

Town of Chester v. Laroe Estates, Inc.,

,

,

(2017) (collecting U.S. Supreme

Court cases “mak[ing it] clear that ‘standing is not dispensed

in gross’”); the Court separately evaluates standing for

Plaintiffs’ claims first as to the No Fly List, and second as to

the Selectee List. For the reasons detailed below, the Court

concludes that Plaintiffs have failed to establish standing to

pursue both their No Fly and Selectee List claims.

1. Plaintiffs Have Failed to Establish Standing to Pursue Their No Fly List Claims

Presuming the truth of the allegations in Plaintiffs’

complaint and drawing all reasonable inferences in their favor,

Rann,

; the Court concludes that Plaintiffs

lack standing to pursue their No Fly List claims because both

were removed from that list as of the date of the Second Amended

Complaint, such that “any declaration or injunction regarding

the lawfulness of that list, their alleged prior status on it,

and/or the procedures that they were afforded to challenge the

same, could have no immediate or real-world consequences for”

40 them, i.e., “nothing concrete remains at stake in their

claims[,]” Defs.’ Reply. ECF No. 26 at 10. Because Plaintiffs

seek prospective relief as to their No Fly List claims, see

Compl., ECF No. 22 at 25-26; they cannot rely on “past injuries

alone” to establish standing, Dearth,

; rather,

they must “establish an ongoing or future injury that is

‘certainly impending[,]’” Williams v. Lew,

(D.C. Cir. 2016) (quoting Arpaio,

). But, by

continuing to advance claims based on their former No Fly List

designations, Plaintiffs fail to allege any “ongoing” injury, as

“[p]ast exposure to illegal conduct does not in itself show a

present case or controversy regarding injunctive relief . . . if

unaccompanied by any continuing, present adverse effects.”

O’Shea,

; see also Defs.’ Mot., ECF No. 23-1

at 15, 28 (arguing that there can be no reputational or

emotional impacts to Plaintiffs due to “ongoing placement on the

No Fly List,” nor allegations that they are “currently unable to

travel” because of that list); Defs.’ Reply, ECF No. 26 at 10

(“Simply put, the No Fly List no longer prevents either

Plaintiff from boarding flights, and can by no means be said to

present any ‘certainly impending’ injury to either of them.”

(quoting Clapper,

)). Recent cases considering

standing following a person’s removal from a TSDS watchlist have

reached the same conclusion. See, e.g., Jibril III,

2240271, at *6 (concluding that subsequent removal from a TSDS

list after initiating a DHS TRIP inquiry but prior to the filing

of a complaint causes plaintiffs to “lack standing to seek

prospective relief because they could not demonstrate a

substantial risk of future injury”); Nur v. Unknown CBP

Officers, No. 1:22-cv-169,

, at *8 (E.D. Va.

Nov. 7, 2022) (concluding that a plaintiff would lack standing

if “he was once on [a TSDS] watchlist but has since been

removed, as he does not face a ‘real and immediate’ threat of

injury”); Scherfen v. DHS, No. 3:CV-08-1554,

, at

*8 (M.D. Pa. Feb. 2, 2010) (concluding that plaintiffs who were

in the TSDS “at one time, but have since been removed” would

lack standing because their removal “would deprive [the c]ourt

of the requisite ‘live controversy’” and would make the court

“unable to grant effective relief”); see also Feinman,

, at *4-5 (concluding that the plaintiff lacked standing

to challenge an FBI policy or practice “at the time she sought

leave to amend her complaint” because “the injury she had

allegedly sustained no longer existed”). 17

17Defendants direct the Court to cases dismissing “analogous claims for lack of subject-matter jurisdiction, following the plaintiff’s removal from the No Fly List.” See Defs.’ Reply, ECF No. 26 at 10; Defs.’ Mot., ECF No. 23-1 at 28-29. The Court does not regard these cases as directly on point because they pertain to dismissal based on mootness rather than standing, but to the extent they support the Court’s conclusion that a plaintiff’s claims are no longer justiciable following removal from a TSDS 42 Although Plaintiffs claim that they continue to suffer from

“extreme emotional distress” and “stigmatization created by [ ]

Defendants’ actions[,]” which “did not cease at the time of

their removals from the No Fly List,” Pls.’ Opp’n, ECF No. 25 at

watchlist, the Court cites them here. See, e.g., Bosnic v. Wray, No. 3:17-cv-826,

, at *4-5 (M.D. Fla. July 10, 2018) (recommending dismissal based on the conclusion “that the relief sought by Plaintiff with respect to the No Fly List— injunctive or declaratory—no longer ‘remains viable, and without any tenable claim to redress, the case [with respect to the No Fly List] has become moot’” where “DHS TRIP affirmatively informed Plaintiff that he had been removed from” that list), report and recommendation adopted, No. 3:17-cv-826 (Aug. 1, 2018), ECF No. 32 at 1-2; Scherfen v. DHS, No. 3:CV-08-1554,

, at *9 (M.D. Pa. Feb. 2, 2010) (concluding that under both the standing and mootness doctrines, plaintiffs who are removed from the TSDS “cannot maintain” their actions because no meaningful injunctive relief could be granted without the existence of the requisite “legally cognizable interest[s]”); Mokdad v. Sessions,

(6th Cir. 2017) (“When TSC agreed to stipulate that [Plaintiff] was not on the No Fly List and would not be put on the list based on current information, . . . there was no live case or controversy, and the district court properly dismissed [his] claim for lack of subject matter jurisdiction.”); see also Defs.’ Reply, ECF No. 26 at 10 (collecting cases from other contexts that were dismissed on mootness grounds following the plaintiffs’ removals from the lists or designations at issue). Thus, even if the Court were to assume Plaintiffs have standing and move on to analyzing their subsequent removals from the No Fly List under the mootness doctrine, see Arizonans for Off. English v. Arizona,

,

,

(1997) (assuming, arguendo, that the plaintiffs had standing to analyze the mootness issue); these cases indicate that their No Fly List claims would still fail, Scherfen,

, at *8-9; see also Long, 38 F.4th at 423 (concluding “that Long’s claims challenging his No-Fly status [were] moot” following his removal from that list); Kovac v. Wray,

, 655 (N.D. Tex. 2020) (finding that the plaintiff’s removal from the No Fly List was a “change in circumstances” that mooted those particular claims). 43 15; however true that may be, the Court is persuaded by existing

caselaw that such “residual” feelings,

; do not amount

to “actual” or “concrete” injury in fact, Lujan,

; see also Jibril III,

, at *7 (“Even if the

interests cited by the Jibrils amount to constitutionally

protected liberty interests[, including travel, religious, and

reputational interests], the alleged injuries to those interests

would be ongoing only if the Jibrils were in fact currently on

the Selectee List.” (emphasis added)). Moreover, the harms

Plaintiffs allegedly experienced because of their placement on

the No Fly List, including “family separation” from relatives

abroad and hindrances to Mr. Maniar’s “chosen employment and

business ventures[,]” Pls.’ Opp’n, ECF No. 25 at 15; are not

“ongoing” but “past” injuries, for which they may not now seek

declaratory and injunctive relief, see Arpaio,

.

“[I]t is equally insufficient for a plaintiff claiming

standing to observe that the challenged conduct is repeatable in

the future.” See Lebron v. Rumsfeld,

(4th Cir.

2012) (“The Supreme Court has repeatedly rejected such a basis

for standing.” (citing Golden v. Zwickler,

,

,

(1969))). Yet, Plaintiffs argue

that “the power to decide whether to place them back on the No

Fly List . . . rests entirely and exclusively in the hands of

Defendants with no meaningful way for Plaintiffs to challenge

44 the underlying data[,]” and that the “threat of recurring harm

continue[s]” because they have “no assurance that they will not

again be placed on the No Fly List[.]” Pls.’ Opp’n, ECF No. 25

at 15, 17. Although DHS TRIP told both Plaintiffs, in their

letters informing them of their removals from the No Fly List,

that they “no longer satisfy the criteria for placement” on that

list “based on currently available information[,]” Defs.’ Ex. D,

ECF No. 23-5 at 2, & Ex. G, ECF No. 23-8 at 2; Plaintiffs argue

that this “explicit language . . . leaves open the possibility

for recurrence[,]” Pls.’ Opp’n, ECF No. 25 at 17. The government

responds that “any risk of a future re-designation is the very

definition of an entirely ‘conjectural’ or ‘hypothetical’

alleged harm that cannot support Article III standing.” Defs.’

Reply, ECF No. 26 at 11. The Court agrees.

To establish standing based on an “imminent” injury in

fact, Plaintiffs must allege that the threatened injury—

redesignation to the No Fly List—is not merely “possible” but

“certainly impending” or has a “substantial risk” of occurrence.

Clapper,

, 414 n.5 (emphasis in original);

TransUnion,

(requiring future injury for

purposes of prospective relief to be “sufficiently imminent and

substantial”). However, when “the prospect of future injury

rest[s] on the likelihood that [Plaintiffs] will again be”

redesignated to the No Fly List, “[t]he most that can be said

45 for [their] standing” is that if they are redesignated to the No

Fly List, they will again be subjected to the subsequent

discriminatory harms alleged in their complaint. See Lyons,

(internal quotation marks omitted). However, the

Court cannot “find a case or controversy in those circumstances:

the threat to [Plaintiffs is] not sufficiently real and

immediate to show an existing controversy simply because they

anticipate” redesignation to the No Fly List.

(citation and internal quotation marks omitted); O’Shea,

(“attempting to anticipate whether and when” a

future injury will recur is “speculation and conjecture”);

Golden,

(stating that prior events are “hardly a

substitute for evidence . . . of ‘immediacy and reality’”); see

also Lebron,

(concluding that a plaintiff,

who was formerly designated and detained as an enemy combatant,

lacked standing to pursue declaratory relief when his prior

designation “prove[d] no more than . . . a possibility that [he]

could be redesignated as an enemy combatant” in the future);

Feinman,

, at *4 (“[T]here is simply nothing in

the record the Court could rely on—aside from ‘unadorned

speculation’—to conclude that Plaintiff [ ] is likely to be

subjected to the FBI’s alleged policy or practice again.”).

Moreover, both Plaintiffs have received confirmation from

the government that they will “not be placed back on the No Fly

46 List based on currently available information[,]” Defs.’ Ex. D,

ECF No. 23-5 at 2, & Ex. G, ECF No. 23-8 at 2; which leads to

the inference that the same information that led to their

original designations, “without more, cannot be used to re-

nominate either of them to th[at l]ist,” Defs.’ Reply, ECF No.

26 at 11; or create an “‘immediate threat that [they] [will]

again’ be placed on the No Fly List[,]” Defs.’ Mot., ECF No. 23-

1 at 29. Another Judge in this District reached a similar

conclusion in Jibril III, when he determined that the plaintiffs

in that case could not establish standing based on hypothetical

future redesignation to the Selectee List:

[I]f the government satisfied the Court with an affidavit given under penalty of perjury that it would not add Mohammed Jibril back to the Selectee List unless new information provided a reason for doing so, any apprehension that the Jibrils might be subjected to similar enhanced screening measures on a future trip . . . or have any reason to make further attempts to contest their potential watchlist status . . . , would depend on the hypothetical possibility that the government might receive new information in the future convincing it that Mohammed Jibril once again met the criteria for inclusion on the Selectee List. Without a way of demonstrating that ‘a threatened inquiry [was] certainly impending or there [was] a substantial risk that the harm will occur,’ the Jibrils would be unable to meet their burden of establishing standing.

Jibril III,

, at *6 (emphasis added) (citations

and some internal quotation marks omitted). The Court of Appeals

47 for the Fourth Circuit (“Fourth Circuit”) reached a similar

conclusion in Long: “The [TSC] has removed Long from the No Fly

List and has assured us that won’t change based on the

information it has now. Taking that assertion at face value, any

future controversy over Long’s No-Fly status is not only distant

and hypothetical but would also depend on a new set of facts.”

38 F.4th at 423; see also Scherfen,

, at *8

(concluding that removal from a TSDS watchlist “would render

speculative any claim that Plaintiffs will again experience the

kind of injury attributable to the alleged wrongful conduct that

animates this litigation” (emphasis added)); Bosnic v. Wray, No.

3:17-cv-826,

, at *4 (M.D. Fla. July 10, 2018)

(finding it “not reasonably likely that Plaintiff will be added

back to the No Fly List, based on existing circumstances”),

report and recommendation adopted, No. 3:17-cv-826 (Aug. 1,

2018), ECF No. 32 at 1-2. The Fourth Circuit further held that

it was “satisfied”—based on identical language to that in

Plaintiffs’ final determination letters, that “the government

[would] only return Long to the No Fly List on a new factual

record[,]” which could include, though not exclusively,

“whatever information prompted it to add him in the first

place.” 18 Compare Long, 38 F.4th at 422, 425 (quoting DHS TRIP’s

18The Court of Appeals for the Ninth Circuit (“Ninth Circuit”) reached an opposing conclusion in Fikre v. FBI,

48 letter to Mr. Long, and a similar signed declaration from the

government, “that [he would] not be placed back on the No Fly

List based on the currently available information”), with Defs.’

(9th Cir. 2022). In Fikre, the Ninth Circuit declined to moot the plaintiff’s claim after he was removed from the No Fly List following the commencement of the litigation despite a government declaration that he “was removed from the No Fly List upon determination that he no longer satisfied the criteria for placement on the [list]” and would “not be placed back on the [list] in the future based on currently available information.” 35 F.4th at 767. In its analysis of the voluntary cessation exception to the mootness doctrine, the Ninth Circuit held that the government’s declaration did “not satisfy the heavy burden of making it absolutely clear that the government would not in the future return Fikre to the No Fly List for the same reason it placed him there originally[,]” leaving the government “practically and legally free to return to [its] old ways.” Id. at 771-72 (citation and internal quotation marks omitted). However, the Court of Appeals for the Fourth Circuit (“Fourth Circuit”) rejected the Ninth Circuit’s “strict application of” the voluntary cessation doctrine to the government. See Long, 38 F.4th at 424-25 (determining that Fikre went “too far” and “demand[ed] too much of the government” because “[t]o say otherwise would be to suggest the government risked national security simply to moot a lawsuit”); see also Nur v. Unknown CBP Officers, No. 1:22-cv-169,

, at *9 (E.D. Va. Nov. 7, 2022) (following the approach in Long rather than Fikre to find the plaintiff lacked standing); Kovac, 449 F. Supp. 3d at 655 n.17 (distinguishing Fikre and finding the plaintiff’s challenge to his No-Fly status moot because DHS “informed Kovac that he no longer satisfie[d] the criteria for placement, he was removed, and he [would] not be placed back on the list based on currently available information”). The Court reiterates its prior determination, see supra note 16; that neither Fikre nor Long directly apply, since they analyzed the voluntary cessation doctrine, which imposes a heavy burden on the government to prove mootness, in contrast to the standing analysis at issue here, in which Plaintiffs bear the burden of proof, see Jibril III,

, at *7 n.2. In addition, both cases from outside this Circuit are merely persuasive authority, but the Court finds itself persuaded by Long, to the extent it supports Jibril III’s position as to the speculative nature of Plaintiffs’ No Fly List redesignation arguments. See

. 49 Ex. D, ECF No. 23-5 at 2, & Ex. G, ECF No. 23-8 at 2 (exhibiting

nearly identical assurances). “The plain lesson of these cases

is that there are circumstances in which the prospect that a

defendant will engage in (or resume) harmful conduct may be too

speculative to support standing,” Friends of the Earth,

; and since Plaintiffs have not alleged the existence of

“new evidence that has or will come to light which would result

in their reinstatement onto the No Fly List[,]” Defs.’ Mot., ECF

No. 23-1 at 29; the Court concludes that their “speculative

chain of possibilities does not establish that injury based on

potential future [redesignation] is certainly impending[,]”

Clapper,

.

Finally, Plaintiffs appear to argue that removal from the

No Fly List should at least “not affect their standing to bring

their due process and APA challenges to the policy itself—that

is, the DHS TRIP procedures for [challenging] one’s possible

placement on the [No Fly] List.” Jibril III,

, at

*6; see Pls.’ Opp’n, ECF No. 25 at 17 (arguing that they have

standing, despite their removals from the No Fly List, to

challenge “the current regulatory framework” and request that

the Court order DHS TRIP “to revise their procedures to provide

Plaintiffs with an ability to meaningfully challenge future

likely inclusions on the No Fly List”); Compl., ECF No. 22 at

26. Specifically, Plaintiffs argue that “under the legal

50 analysis urged by Defendants, [they] would not possess standing

to challenge their placement on a watchlist until after they

‘tested’ that placement by attempting to travel, encountered

difficulties, and suffered the effects of those injuries[,]” and

that Defendants could “escape review” in “this or any future

lawsuit” by removing individuals from the No Fly List “for the

time being.” Pls.’ Opp’n, ECF No. 25 at 17. However, to pursue a

challenge to the government’s policy once their “request for

specific relief is no longer at issue,” Plaintiffs “must still

demonstrate standing to challenge th[at] disputed policy or

practice.” See Cause of Action Inst. v. Dep’t of Just.,

(D.C. Cir. 2021) (finding the plaintiff met that

standard in establishing standing because it had “additional

FOIA requests” pending with the Department of Justice and was

thus “at risk of receiving the same improper treatment in the

future” based on the application of the policy guidance).

Here, Plaintiffs have been removed from the No Fly List and

are therefore not presently “at risk” of the same treatment they

allegedly experienced in the past based on their prior placement

on that list. See id.; Jibril III,

, at *7

(concluding that the Jibrils would lack standing to challenge

DHS TRIP procedures if they were removed from the Selectee List

because then “there would be no agency policy ‘continu[ing] to

affect a present interest’ asserted in the complaint”). Because

51 the Court has already concluded that the challenged policy—the

DHS TRIP process for challenging one’s No-Fly status—“[does] not

continue to injure” Plaintiffs and does not pose “a substantial

likelihood that it [will] injure them again in the future, they

[do] not have standing to challenge that policy” in its

entirety. Jibril III,

, at *7; see also Lyons,

(holding that the plaintiff lacked standing

to challenge the city’s allegedly unconstitutional policy of

using chokeholds, and concluding that his claim of having

previously been subjected to the policy was insufficient to

confer standing to challenge future applications of that

policy); Feinman,

, at *4 (deciding that the

plaintiff lacked standing because she was unlikely to again be

subjected to the FBI’s alleged policy and that her additional

attempt “to challenge the legality of the policy itself rather

than a particular application of that policy [did] not permit

her to simply sidestep the constitutional standing

requirement”); Bosnic,

, at *5 (negating the

plaintiff’s claim for declaratory relief as to the legality of

the No Fly List nomination policies since those claims were moot

after his removal from that list). 19

19The Court acknowledges the possibility that the government could remove someone from the No Fly List during the pendency of litigation “to escape review.” Pls.’ Opp’n, ECF No. 25 at 17. The Court encourages caution regarding this possibility, but it 52 In sum, because Plaintiffs cannot show an ongoing, legally

cognizable harm capable of redress today from their former No

Fly List statuses, or certainly impending injury from the

potential for redesignation to that list, the Court concludes

that Plaintiffs have failed to establish standing to pursue

their No Fly List claims and are constitutionally prohibited

from proceeding to the merits of those claims. See Defs.’ Mot.,

ECF No. 23-1 at 25; Long, 38 F.4th at 427 (reaching the same

conclusion based on mootness grounds). 20

notes that Plaintiffs in this case have proffered no factual allegations in their complaint that the government specifically removed them from the No Fly List for the purposes of escaping judicial review (instead only mentioning this argument for the first time in their opposition brief). Since Plaintiffs have not pled any such allegations to substantiate this possibility, the Court declines in this instance to consider that the government might have “risked national security simply to” have this lawsuit dismissed on standing grounds. See Long, 38 F.4th at 425; Bosnic,

, at *4 (finding that “the decision to remove Plaintiff from the No Fly List appear[ed] to be the result of substantial deliberation, and not merely an attempt to manipulate jurisdiction[,]” as there was “no evidence to suggest that Plaintiff’s removal from the No Fly List was not a result of a genuine assessment of [his] DHS TRIP complaint”). Thus, to the extent Plaintiffs argue for “a pre-deprivation challenge to the No Fly List,” Defs.’ Reply, ECF No. 26 at 11 n.1; the Court rejects that attempt, see Mohamed v. Holder, No. 1:11-cv-50,

, at *8 (E.D. Va. July 16, 2015) (concluding that “a balancing of the respective interests does not weigh in favor of pre-deprivation notice” of a No Fly List designation since such notice “would alert an individual, and through him or her, others, whom the government suspects of terrorist activity, and thereby compromise on-going investigations and endanger those persons involved in those investigations”). 20 The government also argues that “even if Plaintiffs ha[ve]

standing, the Court lacks jurisdiction over their claims relating to the No Fly List because there is a special review 53 2. Plaintiffs Have Failed to Establish Standing to Pursue Their Selectee List Claims

procedure for challenging No Fly List determinations and related procedures:

(“[§] 46110”).” Defs.’ Mot., ECF No. 23-1 at 15. § 46110 states that “a person disclosing a substantial interest in an order issued by . . . the Administrator of the [TSA] with respect to security duties and powers . . . may apply for review of the order by filing a petition for review in” the D.C. Circuit.

. The statute further states that the D.C. Circuit “has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order[.]”

The D.C. Circuit recently embraced § 46110’s review scheme to conclude that it has exclusive jurisdiction to review petitions challenging No Fly List designations made pursuant to a final order issued by the TSA Administrator. Busic v. TSA, No. 20-1480,

, at *1 (D.C. Cir. Mar. 20, 2023); accord Kashem v. Barr,

(9th Cir. 2019). However, the Court does not view Busic as divesting it of jurisdiction in this instance because: (1) Plaintiffs are no longer on the No Fly List and thus cannot challenge the earlier order maintaining them on the list, and (2) they have not framed their complaint as challenging the final order removing them from the list. See Busic,

, at *1 (noting that a traveler may challenge the TSA Administrator’s final order either “‘maintaining’ or ‘removing’ [them] from the No Fly List”). In any event, the Court has concluded that Plaintiffs lack standing to pursue their No-Fly claims (in relation to both their former statuses and possible re-designations), so there remain no substantive claims to transfer to the D.C. Circuit. In addition, Plaintiffs’ complaint asks for declaratory relief as to the DHS TRIP procedures for challenging future No Fly List designations, Compl., ECF No. 22 at 26; but the “procedures themselves are not an order within § 46110, . . . [so those] claims fall outside § 46110 jurisdiction[,]” Long v. Barr,

, 530 (E.D. Va. 2020). But see Mokdad v. Lynch,

(6th Cir. 2015) (declining to opine whether § 46110 would deprive the district court of subject-matter jurisdiction over claims challenging the adequacy of the DHS redress process but noting that such challenges to the redress process could “amount to a challenge to a TSA order”). Ultimately, should Plaintiffs be re-designated to the No Fly List, they will need to “file a new redress inquiry[,]” which “could culminate in a final order by the TSA over which the [D.C. Circuit] would [then] have ‘exclusive’ jurisdiction.” Defs.’ Mot., ECF No. 23-1 at 32. 54 Presuming the truth of the allegations in Plaintiffs’

complaint and drawing all reasonable inferences in their favor,

Rann,

; the Court next concludes that the

remaining allegations in Plaintiffs’ complaint specific to the

Selectee List, along with their current prayer for relief as to

that list, do not establish that Plaintiffs have standing to

pursue those claims.

Defendants argue that to the extent “Plaintiffs attempt to

premise their standing on their alleged continued placement on

‘another watchlist’—by which Defendants assume Plaintiffs mean

the [TSDS] and its Selectee List subset—any such argument”

should fail for two reasons. Defs.’ Reply, ECF No. 26 at 11.

First, Defendants argue that assuming Plaintiffs are currently

on the Selectee List, “the Second Amended Complaint does not

bring any actual claims based on such status[,]” id. at 12; and

that “in any event [it does] not allege that placement on [that

l]ist will result in harms equivalent [to those] associated with

the No Fly List (e.g., an inability to travel)[,]” instead only

alleging risks “of being subject[ed] to additional screening and

delays at airports” when traveling in the future, Defs.’ Mot.,

ECF No. 23-1 at 15, 25, 30. Second, Defendants note factual

allegations in the Complaint about travel incidents Plaintiffs

experienced following their removals from the No Fly List, such

as the extensive questioning and detention abroad that Mr.

55 Maniar experienced in August 2020 when he traveled to Turkey and

Pakistan, see Compl., ECF No. 22 at 8-9 ¶¶ 45-47; and the

difficulties Ms. Shaikh encountered in obtaining a boarding pass

for a domestic flight in July 2020, see id. at 13-14 ¶¶ 89-91;

but they argue that nothing in these allegations supports a

finding that the incidents are fairly traceable to Defendants,

nor “attributable to [Plaintiffs’] alleged placement on the

Selectee List[,]” Defs.’ Reply, ECF No. 26 at 12; Defs.’ Mot.,

ECF No. 23-1 at 30. Plaintiffs rebut “Defendants[’] attempt to

reduce [their] harm [from the Selectee List] to the possibility

that [they] may ‘face delays and inconveniences when traveling,’

[as] the realit[ies]” of extensive questioning, screening, and

foreign detention are “substantially more severe.” Pls.’ Opp’n,

ECF No. 25 at 15-16. In addition, they specifically allege that

“these actions occurred due to the Defendants[’] placement of

[them] on the . . . Selectee List, and communication of that

placement to other nations.” Id. at 16.

After a careful analysis of Plaintiffs’ Second Amended

Complaint, the Court disagrees with the government’s assertion

that the Complaint “includes no well-pled” factual allegations

regarding harms based on Plaintiffs’ alleged placement on the

Selectee List. See Defs. Mot., ECF No. 23-1 at 30; Defs.’ Reply,

ECF No. 26 at 12. To the contrary, it alleges that, shortly

after his removal from the No Fly List, Mr. Maniar was

56 extensively questioned in Turkey before being allowed to board

his flight to Pakistan, and that upon arrival in Pakistan, he

was detained and again questioned extensively before being

forced to immediately return to the U.S., where he was also

extensively screened. Compl., ECF No. 22 at 8-9 ¶¶ 45-47; see

also Pls.’ Opp’n, ECF No. 25 at 16 (adding that Mr. Maniar was

detained in Pakistan “by unknown government agents[] and taken

to an unidentified location with a bag over his head during

travel”). The Complaint notes that these travel experiences “are

consistent with persons on the Selectee List” and specifically

alleges that “Plaintiff Maniar believes these actions occurred

due to [ ] Defendants placing him on the . . . Selectee List”

and communicating that list to other countries. Compl., ECF No.

22 at 9 ¶¶ 47, 49. The Complaint also alleges that Ms. Shaikh’s

difficulties, following her removal from the No Fly List, in

obtaining a boarding pass for a domestic flight and subsequently

receiving a boarding pass with the notation “SSSS” are

experiences “consistent with persons on the Selectee List.” Id.

at 14 ¶ 93. Both Plaintiffs furthermore claim that their

“believed current placement on the Selectee List” infringes on

their religious exercise and ability to travel. Id. at 10 ¶ 61,

15 ¶ 100. Thus, contrary to Defendants’ claims, the Second

Amended Complaint not only “challenge[s Plaintiffs’] alleged

Selectee List placement,” but also alleges “comparable” harms,

57 such as severely restricted travel abilities (i.e., Mr. Maniar

being forced to immediately book travel back to the U.S. upon

arrival in Pakistan), detention abroad (which, drawing all

inferences in Plaintiffs’ favor, resulted from their inclusion

in the TSDS and the global dissemination of that information, as

opposed to the random “actions of foreign governments” detaining

or denying admission to traveling U.S. citizens), and excessive

screening and questioning (including FBI agents asking invasive

personal questions about Plaintiffs to their acquaintances).

Compare Defs.’ Mot., ECF No. 23-1 at 30, and Defs.’ Reply, ECF

No. 26 at 11-12, with Compl., ECF No. 22 at 9 ¶ 47, 10 ¶¶ 57-59,

13 ¶ 90, 14 ¶¶ 95-97.

Plaintiffs’ factual allegations, taken as true, “lead to

the reasonable inference that [they] will again be subjected to

many of the alleged illegalities they challenge in this action”

should they attempt to travel again, which appears plausible

from the Complaint. Jibril II,

. Plaintiffs’

travel history abroad for employment and religious purposes, and

their existing family ties to Pakistan, “combined with their

professed desire to continue” traveling for those reasons,

“strongly suggest[] that they will travel internationally within

the next year or two.”

. For example, Mr. Maniar’s

ongoing commercial ventures in Malaysia, Compl., ECF No. 22 at 5

¶ 15; Ms. Shaikh’s inability to visit family members in Pakistan

58 during the two years she was on the No Fly List,

at 14 ¶ 99;

and Mr. Maniar’s immediate travel to Pakistan just twelve days

after the lifting of his No-Fly status,

at 8 ¶¶ 44-45;

provide support for this inference, see Jibril II,

. “It is also noteworthy that [Plaintiffs’] sincerely held

religious beliefs require them to travel to Saudi Arabia to

fulfill religious obligations[,]” id.; which they have both done

in the past and have professed an intent to do again in the

future, Compl., ECF No. 22 at 5 ¶¶ 15-17, 15 ¶ 100-01. These

allegations enable the Court to infer that Plaintiffs “will soon

travel again,” opening them up to “a substantial risk of future

harm” from more searches, screenings, interrogations, and

detentions. See Jibril II,

(“The Jibrils’

allegations plausibly support their claim that they will soon

fly again and . . . [be] expose[d ] to an imminent risk of

invasive and undue Government actions[.]”).

Caselaw supports the conclusion that Plaintiffs can allege

“concrete travel plans.” Ghedi v. Mayorkas,

(5th Cir. 2021). For example, in Jibril II, the D.C. Circuit

rejected the government’s contention that the Jibrils had only

alleged “‘some day’ intentions” to travel, as was the case for

the plaintiffs in Lujan v. Defenders of Wildlife,

,

,

(1992).

.

Based on the Lujan plaintiffs’ affidavits that they intended to

59 travel abroad but “had no current plans” to do so, the U.S.

Supreme Court concluded that their previous travel “prove[d]

nothing,” and only “‘some day’ intentions—without any

description of concrete plans, or indeed even any specification

of when the some day will be”—could not support an imminent

future injury sufficient to confer standing. Lujan,

. The D.C. Circuit concluded that Lujan “is easily

distinguishable, as the Jibrils allege[d] an extensive travel

history supporting their future plans, which evince[d] an

imminence the Lujan plaintiffs’ ‘some day’ intentions lacked.”

Jibril II,

(some internal quotation marks

omitted); see also Ghedi,

(concluding that a

plaintiff, purportedly on the Selectee List, who “allege[d] both

a professional need for habitual travel and that his injuries

[were] tied to the act of flying, not his destination” plausibly

pled “that his next flight, and thus, injury, [wa]s both real

and immediate” and that the government’s attempt to compare his

case to Lujan was “an apples-to-oranges comparison”).

That the Complaint only states Plaintiffs’ beliefs that

these actions occurred due to their placement on the Selectee

List, see Defs.’ Mot., ECF No. 23-1 at 30; does not necessarily

prevent the Court, at the motion-to-dismiss stage, from

accepting the truth of these allegations, especially since the

government “does not disclose the status of any individual with

60 respect to the TSD[S], or its subset lists[,]”

at 14 n.1. 21

Drawing all reasonable inferences in their favor, as it must,

the Court concludes that Plaintiffs have plausibly alleged that

they appeared on a terrorist watchlist in 2020. The Court

“infer[s] from the inclusion of ‘SSSS’ on [Ms. Shaikh’s]

boarding pass[]” from her July 2020 domestic flight, along with

her inability to obtain that boarding pass without speaking with

airline officials, and from “the extensive searches and

interrogation [Mr. Maniar] endured during [his] international

travels” in Turkey and Pakistan in August 2020 that they both

“appeared on a terrorist watchlist during [those] trip[s].”

Jibril II,

. The D.C. Circuit in Jibril II used

nearly identical experiences to those of Plaintiffs, including

extensive searches and screenings, interrogations, and prolonged

detainment, which it labeled “severe and time-delaying”

treatment, to infer that the Jibrils appeared on the Selectee

List in 2018 at the time of their travels.

; see

also Scherfen,

, at *3, *7 (finding that the

plaintiffs’ complaint alleging additional screenings at airport

security checkpoints, difficulties obtaining a boarding pass,

detention during travel, and advisement that they were “on some

21In fact, the government states that the Court must, pursuant to Federal Rule of Civil Procedure 12(b), accept as true “Plaintiffs’ apparent allegations that they are now on the Selectee List.” Defs.’ Mot., ECF No. 23-1 at 14 n.1. 61 watch list” supported “a fair inference that [they] ha[d]

experienced intensified screening as a result of inclusion in

the TSD[S]”); Shearson v. Holder,

(6th Cir.

2013) (noting the conclusion of other courts that “a traveler’s

subjection to heightened searches while entering the United

States can be an indicator that an individual is on a terrorist

watchlist”). Thus, the Court concludes that Plaintiffs have

plausibly alleged imminent injury that “is plainly traceable to

the [g]overnment’s actions,” Jibril II,

; thereby

negating Defendants’ argument to the contrary, see Defs.’ Reply,

ECF No. 26 at 12 (“[N]othing in Plaintiff Maniar’s allegations

supports any finding that the actions of the Pakistani

Government are fairly traceable to [ ] Defendants.”); Defs.’

Mot., ECF No. 23-1 at 30 (attempting to argue that the alleged

injuries resulted “from the independent actions of some third

party not before the court”).

Despite Plaintiffs’ plausible satisfaction of the first two

standing elements, however, the Court concludes that Plaintiffs

have failed to satisfy their burden to prove the redressability

aspect of their Selectee List harms. “To demonstrate that a

claimed injury is redressable requires [Plaintiffs] to show that

the [C]ourt possesses the authority to grant the remedy

requested.” Taylor,

; see also Swan v.

Clinton,

(D.C. Cir. 1996) (stating that the

62 “‘redressability’ element of standing . . . causes [ ] concern”

when the federal court does not have the power to grant the

plaintiff’s requested relief); West,

(noting

that “redressability focuses on the connection between the

alleged injury and the judicial relief requested” (citation and

internal quotation marks omitted)). In other words, “[t]he

redressability inquiry, to which the [C]ourt now turns, poses a

simple question: If [P]laintiffs secured the relief they sought,

. . . would [it] redress their injury?” Taylor,

(citations and internal quotation marks omitted).

However, this question is not so “simple” in Plaintiffs’

case because the Complaint, as written, does not indicate the

specific declaratory and injunctive relief Plaintiffs are

seeking regarding the Selectee List. The Court finds that

Plaintiffs’ causes of action “based on the No Fly List and the

TSD[S] are so intertwined that it is difficult to evaluate

[their] claims based on the [Selectee List alone] now that [they

have] been removed from the No Fly List.” Bosnic,

, at *5. Although Plaintiffs were given leave to amend

their complaint following their removals from the No Fly List

and did so twice to reflect this change, see First Am. Compl.,

ECF No. 19; Second Am. Compl., ECF No. 22; as discussed above,

their operative complaint continues to maintain claims related

to the No Fly List, including allegations of ongoing injury

63 related to that list, the possibility of redesignation to that

list, and procedural insufficiencies related to the process for

challenging future inclusion on that list, see Pls.’ Opp’n, ECF

No. 25 at 15-17. Claims related to the No Fly List dominate the

operative complaint, and in their prayer for relief, Plaintiffs

mention only the No Fly List, see Compl., ECF No. 22 at 26

(requesting that the Court “[o]rder DHS TRIP to provide persons

with meaningful opportunities to challenge future inclusion on

the No Fly List moving forward (emphasis added)); while only

generally requesting that the Court declare that Defendants’

actions “violated, and continue to violate” their rights under

the First and Fifth Amendments and the APA, see

.

Plaintiffs thus never mention the Selectee List by name in their

request for prospective relief. See

Instead, in the “Causes of Action” section of their

complaint, Plaintiffs allege, without reference to either list

by name, that they “have suffered punishments, including the

inability to fly, substantial burdens on their religious

exercise, the inability to engage in chosen employment, and

more,” including, injury to their reputations and stigmatization

by the government and in their community. See

at 20-21 ¶¶

148-49 (appearing in Count One: “Violations of Plaintiffs’ Fifth

Amendment Procedural Due Process Rights”). The Court notes that

these alleged Fifth Amendment violations could refer to factual

64 allegations in the Complaint pertaining to both the No Fly and

Selectee Lists; however, the Selectee List is only named under

Count Four: “Violations of the First Amendment.” See

at 23-

24 ¶ 180 (stating that “Defendants’ supposed demotion of

[Plaintiffs] to the Selectee List still creates a risk that they

will likely be detained internationally or prohibited from

traveling overseas altogether”). The Court therefore concludes

that the Complaint fails to clearly request a specific remedy

for Plaintiffs’ Selectee List claims, separate and apart from

that requested for their No Fly List claims, such that the Court

could be certain that there remains any requested prospective

relief that could redress injuries related to the Selectee List.

See, e.g.,

at 10 ¶ 61 (combining Mr. Maniar’s “former

designation on the No Fly List, believed current placement on

the Selectee List, and substantial likelihood that he could

again be placed on the No Fly List” as the reasons for the

alleged constitutional infringements requiring redress).

For example, in Jibril II, the plaintiffs “ask[ed] the

court to order the Government to revise its TRIP policies” as to

the Selectee List redress process and “then re-examine [their]

inquiries” regarding “the extensive and intrusive security

screenings they endured [ ] consistent with the Government’s

treatment of Selectee List travelers.”

. Here,

however, as part of their prayer for relief, Plaintiffs have not

65 asked for redress regarding the sufficiency of the procedures

involved in challenging potential Selectee (as opposed to No

Fly) List inclusion, nor have they asked for removal from the

Selectee List or the TSDS as a whole. See, e.g., Scherfen,

, at *1 (“Plaintiffs seek a declaratory judgment as

well as injunctive relief in the form of ‘removal of Plaintiffs

from any watch lists or databases that inhibit their travel in

any manner.’”). Moreover, Plaintiffs have not alleged that they

attempted the DHS TRIP process in relation to their 2020 travel

experiences, which as Plaintiffs admit, “represents [their] only

administrative avenue of redress” before proceeding to judicial

review. Compl., ECF No. 22 at 6 ¶ 34, 11 ¶ 76. In other words,

Plaintiffs have alleged the resolution of their DHS TRIP

inquiries as to their No Fly List status, but not whether they

ever began or followed through to completion such inquiries

following their 2020 Selectee List suspicions. And completion of

“the only redress process available to them” is necessary for

the Court to reasonably infer, for purposes of redressability,

that they may remain on the Selectee List today. See Jibril II,

(inferring that the Jibrils remained on the

Selectee List when they completed the DHS TRIP process and the

government “provided no information to the contrary”). Thus, the

Court is not persuaded that Plaintiffs’ alleged Selectee List

injuries are redressable by a favorable judicial decision

66 because: (1) they have not alleged completing the DHS TRIP

process as to their 2020 travel experiences, and (2) they have

not asked for any specific relief that might affect their

alleged placement on that list or the procedures involved in

challenging such placement. Cf.

(concluding that “the

prospective relief the Jibrils [sought], including revisions to

the TRIP policies [as to the Selectee List], would ameliorate

the alleged future harms with respect to which they complain”).

In sum, the operative Complaint does not make clear what

redress Plaintiffs seek for their remaining claims. It is also

unclear “whether [they] remain[] on any [ ] federal terrorist

watchlist or whether [they are presently] being injured by

[their] presence on any such list.” Bosnic,

, at

*5. Accordingly, the Court concludes that Plaintiffs have failed

to meet their burden to establish all three elements of standing

as to their Selectee List claims, and that it must grant

Defendants’ Motion to Dismiss and dismiss without prejudice the

Second Amended Complaint. The Court, however, “will not dismiss

the action itself at this time[,]” and will instead afford

Plaintiffs the chance to file an amended complaint, as they are

in the best position to disentangle their Selectee List claims

from their nonjusticiable No Fly List claims. See Momenian v.

Davidson, No. 1:15-cv-00828,

, at *7 (D.D.C. Jan.

21, 2016) (similarly granting the defendant’s motion to dismiss,

67 dismissing the plaintiffs’ complaint without prejudice, and

granting the plaintiffs time to file an amended complaint to

address timeliness issues); see also Ciralsky v. CIA,

(D.C. Cir. 2004) (distinguishing between dismissal

of the complaint and dismissal of the action); Food & Water

Watch,

(“[A]n inability to establish a

substantial likelihood of standing requires denial of the motion

[to dismiss], not dismissal of the case.”). The Court will

afford Plaintiffs 30 days from this date to file an amended

complaint should they choose to do so. 22 See Bosnic,

, at *1, *5 (recommending that the plaintiff’s claims

based on the TSDS “be re-pled in light of his removal from the

No Fly List so that the [c]omplaint [could] reflect[] his

present circumstances”). If Plaintiffs amend their complaint,

the government may file a motion to dismiss that complaint.

Because the Court has concluded that Plaintiffs presently

lack standing to pursue their No Fly List and Selectee List

claims, the Court lacks subject-matter jurisdiction to consider

22Federal Rule of Civil Procedure 15(a) provides that leave to file an amended complaint should be “freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). Where the court grants a plaintiff leave to file an amended complaint, the amended complaint supersedes the prior complaint(s) to become the operative complaint. Nat’l City Mortg. Co. v. Navarro,

(D.D.C. 2006) (citing Washer v. Bullitt Cnty.,

,

,

(1884)). 68 whether the Complaint also fails to state a claim upon which

relief can be granted. 23

V. Conclusion

For the foregoing reasons, the Court GRANTS Defendants’

Renewed Motion to Dismiss, ECF No. 23; and DISMISSES WITHOUT

PREJUDICE Plaintiffs’ Second Amended Complaint for Injunctive

and Declaratory Relief, ECF No. 22.

Plaintiffs shall file, by no later than May 1, 2023, an

amended complaint that addresses the Court’s concerns stated

herein. If Plaintiffs do not timely file an amended complaint,

the Court will enter a final, appealable order dismissing this

case.

23Because the Court reaches this conclusion, it does not consider Defendants’ additional argument that Plaintiffs have improperly attempted “to expand the reach of their claims to agencies other than TSA, DHS, and the [TSC.]” See Defs.’ Reply, ECF No. 26 at 9, 31-32; Defs.’ Mot., ECF No. 23-1 at 54-56. Additionally, should the Court ever determine “that Plaintiffs have standing to challenge their placement on the Selectee List,” Defendants seek to “preserve[] . . . for the record” an argument that

would deprive the Court of jurisdiction over a procedural due process challenge to the DHS TRIP redress procedures involving the Selectee List. Defs.’ Mot., ECF No. 23-1 at 30, 34. While the Court need not fully address this issue today, it notes that this argument would likely fail because § 46110 gives the D.C. Circuit exclusive jurisdiction over final determinations made by the TSA Administrator “concerning listing on the No Fly List[,]” not the Selectee List. See

; Watchlisting Overview, ECF No. 23-2 at 10 n.5. Moreover, as noted above, any challenge to the DHS TRIP procedures involving the Selectee List would likely be outside the purview of § 46110 because the “procedures themselves are not an order within § 46110[.]” Long, 451 F. Supp. 3d at 530. 69 An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge March 30, 2023

70