Kovac v. Wray (363 F. Supp. 3d 721, 2019)

Sam A. Lindsay, United States District Judge

Before the court is Defendants' Motion to Dismiss (Doc. 8), filed April 13, 2018. After careful consideration of the pleadings, motion, response, reply, and applicable law, the court denies in part and grants in part Defendants' Motion to Dismiss.

I. Factual Background and Procedural History

Plaintiffs are Adis Kovac ("Mr. Kovac"), Bashar Aljame ("Mr. Aljame"), Abraham Sbyti ("Mr. Sbyti"), Suhaib Allababidi ("Mr. Allababidi"), and Fadumo Warsame ("Ms. Warsame") (sometimes collectively, "Plaintiffs"). Plaintiffs are United States citizens and are all Muslims. Plaintiffs allege that they are included in the Government's Terrorism Screening Database ("TSDB" or "watchlist") which, among other things, has prevented them from boarding commercial flights that traverse United States airspace or caused them to be subjected to additional screening when traveling by air or entering the country at a land border or port.

On January 17, 2018, Plaintiffs filed their Complaint for Injunctive and Declaratory Relief ("Complaint") (Doc. 1), contending that their alleged inclusion on the watchlist and the lack of an adequate process of redress for those individuals placed erroneously on the watchlist violate their rights to due process and equal protection under the Fifth Amendment of the United States Constitution, the non-delegation doctrine of the United States Constitution, and the Administrative Procedure Act. Defendants are officials of multiple government agencies charged with oversight of portions of the TSDB, including implementation, maintenance, and redress processes: Christopher Wray, Director of the Federal Bureau of Investigation ("FBI"); Charles Kable, Director of the Terrorist Screening Center ("TSC"); Deborah Moore, Director of Transportation Security Redress ("TSR") and of the Department of Homeland Security Traveler Redress Inquiry Program ("DHS TRIP"); Joseph McGuire, Director of the National Counterterrorism Center ("NCTC"); David Pekoske, Administrator of the Transportation Security Administration ("TSA"); and Kevin McAleenan, Commissioner of United States Customs and Border Protection ("CBP") (sometimes collectively, "Defendants"). Compl. ¶¶ 19-24. Defendants are sued in their official capacities only. Id.

Plaintiffs assert federal subject matter jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. §§ 702 and 706. Id. ¶ 25. Plaintiffs allege the following facts in their Complaint, which, together with all reasonable inferences, are taken as true for the purposes of analyzing Defendants' Motion to Dismiss.

A. Statutory and Regulatory Background

1. The TSA

The TSA, an agency within the DHS, has the duty to secure all modes of transportation, including aviation security. 49 U.S.C. § 114(d). The TSA is responsible for "day-to-day Federal security screening operations for passenger air transportation," id. § 114(e)(1), and for developing "policies, strategies, and plans for dealing with threats to transportation security," id. § 114(f)(3). Congress directed the TSA to establish procedures for notifying appropriate officials "of the identity of individuals known to pose, or suspected of posing, a risk of air piracy or terrorism or a threat to airline or passenger safety." Id. § 114(h)(2). This mandate requires the TSA, "in consultation with other appropriate Federal agencies and air carriers," id. § 114(h)(3), "to use information from government agencies to identify [travelers] who may be a threat to civil aviation or national security," id. § 114(h)(3)(A), and to "prevent [those individuals] from boarding an aircraft, or take other appropriate action with respect to that individual," id. § 114(h)(3)(B). The TSA may "issue...such regulations as are necessary to carry out [its] functions," id. § 114(l)(1), as well as "prescribe regulations to protect passengers and property on an aircraft," id. § 44903(b).

2. The TSC and the TSDB ("No Fly List" and "Screening List")

In September 2003, Former Attorney General John Ashcroft established the TSC to consolidate the Government's approach to terrorism screening. Compl. ¶ 29. The TSC is a multi-agency center administered by the FBI. The TSC "develops and maintains the federal government's consolidated TSDB" that serves as "the federal government's master repository for suspected international and domestic terrorist records used for watch list related screening." Id. The TSDB is a consolidated database containing identifying information of persons known or reasonably suspected to be terrorists. See Safeguarding Privacy and Civil Liberties While Keeping Our Skies Safe: Hearing Before the H. Comm. on Homeland Security, 113th Cong. 1-2 (2015) (statement of Christopher M. Piehota, Director, TSC/FBI) ("Piehota Statement"). The TSDB has two subsets: the "No Fly List" and the "Selectee List." Compl. ¶ 30. Individuals on the No Fly List are prohibited from boarding commercial flights that traverse United States airspace. Individuals on the Selectee List are systematically subject to enhanced screening at airports and land border crossings. Id. While the DHS TRIP discloses to United States citizens if they are on the No Fly List, it does not disclose if they are on the Selectee List. Id. ¶ 115.

The procedure for submission of identity information for inclusion in the TSDB is known as the "nomination process." Piehota Statement at 11. Government agencies "nominate" individuals who may qualify for inclusion and submit those "nominations" to the NCTC for inclusion in its Terrorist Identities Datamart Environment ("TIDE") database. Id. at 12. The NCTC reviews TIDE entries and recommends specific entries to the TSC for inclusion in the TSDB. Id. The FBI also nominates to the TSDB individuals with what it characterizes as suspected ties to domestic terrorism. Id.

"Before placing any information into the TSDB, the TSC utilizes a multi-level review process to ensure that the nomination meets the criteria for inclusion. Generally, nominations to the TSDB must satisfy two requirements." Id. First, the facts and circumstances pertaining to the nomination must meet the "reasonable suspicion standard of review." Id. Second, "the biographic information associated with a nomination must contain sufficient identifying data so that a person being screened can be matched to or disassociated from another watchlisted individual." Id. "Reasonable suspicion" requires "articulable facts which, taken together with rational inferences, reasonably warrant the determination" that an individual "is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of or related to terrorism and terrorist activities." Id. "The 'reasonable suspicion' standard is based on the totality of the circumstances in order to account for the sometimes fragmentary nature of terrorist information." Id. ; see generally Compl. ¶¶ 57-60.

Plaintiffs allege that Defendants have not stated publicly "the entirety of what standards or criteria are applied to determine whether an American citizen on the consolidated watch list will be placed on the No-Fly List, Selectee List ('SSSS') or other list that is distributed to the TSA, CBP or other screening agencies." Compl. ¶ 61. Plaintiffs contend that the "standards for watch list inclusion do not evince even internal logic." Id. ¶ 62. As a result, hundreds of thousands of individuals are ensnared in the TSDB via a process that disproportionately targets American Muslims. Id. ¶¶ 71, 77, 80. Plaintiffs allege that Defendants use the watchlist, not as a tool to enhance aviation and border security, but for nefarious, unlawful purposes, including coercing innocent Americans into becoming informants, and disseminating defamatory, false, and stigmatizing information to millions of Americans. Id. ¶ 78. Plaintiffs further allege that because the TSC disseminates the TSDB status to local authorities, foreign governments, and private contractors, placement in the TSDB restricts innocent Americans' ability to exercise their rights of movement and travel while the consequences also affect their ability to buy a gun, obtain or renew a hazmat license, or work in an airport. Id. ¶¶ 49-52.

3. The DHS TRIP

Congress has specifically directed the DHS to establish a redress procedure for individuals wrongly identified as a threat. 49 U.S.C. § 44926(a). Section 44926(a) provides:

The Secretary of Homeland Security shall establish a timely and fair process for individuals who believe they have been delayed or prohibited from boarding a commercial aircraft because they were wrongly identified as a threat under the regimes utilized by the Transportation Security Administration, United States Customs and Border Protection, or any other office or component of the Department of Homeland Security.

Congress has required the TSA to "establish a procedure to ensure airline passengers, who are delayed or prohibited from boarding a flight because the advanced passengers prescreening system determined that they might pose a security threat, to appeal such determination and correct information contained in the system,"id. § 44903(j)(2)(C)(iii)(I), and to "establish a timely and fair process for individuals identified as a threat under [the passenger screening system] to appeal to the [TSA] the determination and correct any erroneous information." Id. § 44903(j)(2)(G)(i).

Pursuant to this authority, the TSA established and administers the DHS TRIP, through which travelers may request the correction of any erroneous information if they believe they have been unfairly or incorrectly delayed or denied boarding on an aircraft or entering a sterile area as a result of the watchlist. See 49 C.F.R. §§ 1560.201 - .207. The TSA promulgated regulations governing the DHS TRIP process and allowing travelers to initiate the redress process by submitting a redress inquiry form. Id. § 1560.205(b); see also DHS TRIP: One Stop Travelers' Redress Process, Department of Homeland Security (Nov. 4, 2016), http:/www.dhs.gov/one-stop-travelers-redress-process (last visited Feb. 28, 2019). Upon receipt of an inquiry form, the TSA, in coordination with the TSC and other appropriate federal law enforcement or intelligence agencies, if necessary, will "review all the documentation and information requested from the individual" who is seeking redress, "correct any erroneous information, and provide the individual with a timely written response." 49 C.F.R. § 1560.205(d).

Plaintiffs allege that the DHS TRIP process is inadequate, as it fails to provide "a fair and effective mechanism through which they can challenge the TSC's decision to place them on the terrorist watch list." Compl. ¶ 108.

B. Individual Plaintiffs' Allegations

Mr. Kovac is a United States citizen and an American Muslim residing in New Jersey. Id. ¶ 14. He alleges that he is on the Government's "No Fly List" and, thereby, is prevented from boarding flights that travel into, out of, or through United States airspace. Id. ¶¶ 121-152. He contends that, on or about October 17, 2014, he appeared at the O'Hare International Airport in Chicago, Illinois, to board his international flight to Turkey, printed his boarding pass, and was thoroughly searched and cleared by TSA security. Id. ¶¶ 121-122. Once boarding for his flight commenced, however, TSA agents stopped him at the gate entrance and prevented him from boarding. Id. ¶¶ 121-123. He further alleges that the TSA agents interrogated him at the gate publicly in front of the other passengers and airline personnel, escorted him to the baggage claim area and searched his luggage, and then informed him that he was cleared to fly. Id. ¶¶ 124-126. By that time, however, he had already missed his flight and, as a result, he had to reschedule his flight for the following day and pay the fees associated with the flight change. Id. ¶ 127. Mr. Kovac contends that the following day, he again appeared at the O'Hare International Airport to board his rescheduled flight, but, once again, at the gate entrance, TSA agents stopped and interrogated him publicly and then escorted him to the baggage claim area and searched his luggage. This time, he alleges, the TSA agents confiscated his cell phone and, upon information and belief, downloaded the data from his cell phone. Id. ¶¶ 128-131. He alleges that afterwards, "two FBI agents-one male and one female-interrogated [him] ... about his travel plans in Turkey and Syria, his views and opinions on Sharia (Islamic) law, his life, family, friends and employment." Id. ¶ 132. Following the interrogation, the FBI agents informed Mr. Kovac that he would not be allowed to board his flight and should return home. Id. ¶ 133. As a result, Mr. Kovac was unable to board his flight and lost the money he paid for the flight. Id. ¶¶ 133-134. He alleges that an FBI agent has informed him that he needs to take a lie detector test or else wait several years before being removed from the No Fly List. Id. ¶ 140. He further alleges that because his TSDB entry is annotated in a way to deny him the ability to fly through United States airspace, he has been denied boarding and, since October 17, 2014, he has not been able to fly. Id. ¶ 144. He alleges Defendants have also targeted his family and interrogated many of his family members. Id. ¶¶ 141-142.

The remaining four Plaintiffs allege that they are on the "Selectee List" and, thereby, are subject to extra screening at airports and land border crossings. Id. ¶¶ 153-247. Their boarding passes are often stamped "SSSS," an indication of the passenger's status as a "known or suspected terrorist" to airport screeners. Id. ¶¶ 171, 191, 211, 227, 235.

Mr. Sybti is a United States citizen and an American Muslim residing in Dallas, Texas. Id. ¶ 16. He alleges that, on or about June 1, 2016, DHS agents approached him in an attempt to coerce him to become an informant in Lebanon. Id. ¶¶ 204-205. He contends that Defendants offered to remove his name from the watchlist if he agreed, raising the inference that Defendants placed him on the list to coerce him into becoming an informant. Id. ¶ 204. He further alleges he has been extensively interrogated, his electronics have been confiscated and searched, and because of the watchlist, he has been humiliated by CBP officers who have waited for him to deplane and then questioned him about his religious practices. Id. ¶¶ 193-196. He contends that at one point, Defendants asked, "do you go to a mosque[?]" and, in Texas, surveilled him for months with an agent who identified himself as "Agent Eric," "randomly" showing up to coerce and "befriend" him. Id. ¶¶ 196, 204-208.

Mr. Aljame is a United States citizen and an American Muslim residing in Dallas, Texas. Id. ¶ 15. He alleges that in April 2013, he was stopped at the airport in Amman, Jordan, and, without explanation, prevented from boarding his flight to San Diego, California. Id. ¶ 154. He alleges that on two separate occasions he went to the United States Embassy in Amman, Jordan, to find out why he was denied boarding and was, instead, interrogated by FBI agents, one of whom offered to arrange a flight for him to Chicago, Illinois, rather than San Diego, California, if he agreed to take a lie detector test. Id. ¶¶ 157-159. He further alleges that as a "direct result of being prevented from flying to the United States," he "and his family were forced to remain in Jordan for approximately two years." Id. ¶ 161. He alleges that in April 2015, he attempted to board a flight to the United States with a connection in Frankfort, Germany. He alleges that when he deplaned in Frankfort, Germany, CBP officers escorted him to the baggage claim area, confiscated his passport, and interrogated him. Id. ¶¶ 162-166. He contends that he was cleared eventually to board his flight to the United States. Id. ¶ 167. According to Mr. Aljame, since April 2015, when he travels by air he must check in manually with airline representatives to obtain a boarding pass, rather than at a kiosk, and the airline representative must clear his name with the DHS before he is permitted to board his flight. Id. ¶¶ 168-171. He alleges he continues to endure long interrogations and secondary inspections, has had documents confiscated, has been separated from his loved ones, and has missed flights because of Defendants' treatment of him. Id. ¶¶ 177-185. He alleges that in June 2015, he and his ten-year-old son were denied boarding at Dubai International Airport and required to wait several hours before the DHS cleared them to fly to the United States. Id. ¶¶ 179-180. Recently, he alleges, he was detained and denied entry into Jordan and was deported by Jordanian officials back to Dallas, Texas. Id. ¶ 186.

Mr. Allababidi is a United States citizen and an American Muslim residing in Dallas, Texas. Id. ¶ 17. He alleges he is a successful businessman ensnared by Defendants' discriminatory watchlist. Id. ¶ 216. He alleges that, prior to being added to the watchlist, he traveled frequently and had "Global Entry." Id. ¶¶ 216-217. He contends that because of Defendants' actions, his "Global Entry" was revoked without explanation, and he has endured humiliating searches, long interrogations, and his electronics have been confiscated and downloaded. Id. ¶¶ 217-224. He further contends that he has missed flights, had his vacations ruined, and has forgone business opportunities because of Defendants. Id. ¶¶ 229-231.

Ms. Warsame is a United States citizen and an American Muslim residing in Dallas, Texas. Id. ¶ 18. She alleges that Defendants' watchlist has affected her travels since 2015. Id. ¶ 235. She alleges she is always delayed and needs clearance before flying [id. ¶¶ 235-236]; subjected to long, humiliating searches and interrogations [id. ¶ 237]; and upon information and belief, has been denied a credit card and bank loan due to the watchlist [id. ¶ 239].

Each Plaintiff contends, upon information and belief, that his or her nomination to and designation on the federal terror watchlist was made based solely upon a hunch (formed upon race, ethnicity, national origin, religious affiliation, guilt-by-association, or First Amendment protected activities). Id. ¶¶ 2, 150, 189, 214, 233, 246, 251, 261. Each further contends, upon information and belief, that because he or she is included on the federal terror watchlist, Defendants disseminated and are continuing to disseminate his or her designation as a "known or suspected terrorist" to state and local authorities, foreign governments, corporations, private contractors, airlines, gun sellers, car dealerships, and financial institutions, among other official and private entities and individuals. Id. ¶¶ 151, 215, 234, 247, 257, 266, 272. Each Plaintiff has filed a redress request challenging his or her alleged placement on the watchlist. Id. ¶¶ 147, 173, 197, 225, 240. In response to his redress inquiry, in 2018, after Defendants filed their motion to dismiss, Mr. Kovac received confirmation from the DHS that he is on the No Fly List. With respect to the redress inquiries of the remaining four Plaintiffs, each received a form letter from the DHS that neither confirmed nor denied the existence of terrorist watchlist records related to him or her, failed to set forth any basis for his or her inclusion on a watchlist, and failed to state whether Defendants had resolved the complaint at issue. Id. ¶¶ 113, 174-175, 198, 226, 241.

Plaintiffs allege they were never charged or convicted of a terrorism-related offense, provided notice of the factual bases for their respective placements on the watchlist before or after their listings, given a meaningful opportunity to contest their designation, or given notice of the deprivation of their liberty interests or violation of their constitutional rights. Id. ¶¶ 145-146, 187, 209, 242.

C. This Lawsuit

Plaintiffs have filed a five-count Complaint based on their alleged inclusion in the TSDB and the alleged lack of an adequate process of redress for challenging erroneous placement on the "No Fly List" or "Screening List." In Count I, titled "Failure to Provide Post-Deprivation Notice and Hearing in Violation of the Fifth Amendment Right to Procedural Due Process," Plaintiffs contend that their alleged inclusion on the watchlist and the associated stigmatizing label of "known or suspected terrorist," without notice or a constitutionally adequate legal mechanism to challenge the placement, deprive them of their protected liberty interest in traveling free from unreasonable burdens, freedom from false stigmatization, and nonattainder (the interest against being singled out for punishment without trial), in violation of their constitutional right to procedural due process. Id. ¶¶ 248-258.

In Count II, titled "Deprivation of Protected Liberties in Violation of Fifth Amendment Right to Substantive Due Process," Plaintiffs contend that their alleged inclusion on the watchlist and the associated stigmatizing label of "known or suspected terrorist," unduly burden these same liberty interests, as Defendants' interference is not necessary to further a compelling governmental interest and has not been narrowly tailored to achieve that interest, in violation of their constitutional right to substantive due process. Id. ¶¶ 259-270.

In Count III, titled "Unlawful Agency Action in Violation of the Administrative Procedure Act, 5 U.S.C. §§ 702, 706 (APA)," Plaintiffs contend that Defendants' actions detailed in the Complaint "were and are arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, and contrary to constitutional rights, power, privilege, or immunity, and should be set aside as unlawful pursuant to 5 U.S.C. § 706." Id. ¶ 272.

In Count IV, titled "Violation of the Fifth Amendment to the United States Constitution (Equal Protection)," Plaintiffs contend that Defendants' actions detailed in the Complaint "have had a discriminatory effect upon and have disparately impacted Plaintiffs and other similarly situated American citizens who are Muslim American travelers, and not travelers of other faiths," in violation of their constitutional right to equal protection. Id. ¶ 283.

In Count V, titled "Violation of the United States Constitution (Non-Delegation)," Plaintiffs contend that Defendants, in implementing and disseminating the watchlist and in providing an inadequate redress procedure, "have illegally acted beyond their authority" in violation of the non-delegation doctrine. Id. ¶ 293.

Plaintiffs seek the following declaratory judgment and injunctive relief:

1. A declaratory judgment that Defendants' policies, practices, and customs violate the Fifth Amendment to the United States Constitution and the Administrative Procedure Act;

2. A declaratory judgment that Defendants' policies, practices, and customs violate the non-delegation doctrine of the United States Constitution;

3. An injunction that:

a. requires Defendants to remedy the constitutional and statutory violations identified above, including the removal of Plaintiffs from any watch list or database that burdens or prevents them from flying or entering the United States across the border; and,

b. requires Defendants to provide individuals designated on the federal terror watch list with a legal mechanism that affords them notice of the reasons and bases for their placement on the federal terror watch list and a meaningful opportunity to contest their continued inclusion on the federal terror watch list.

Id. at 50. Plaintiffs also seek trial by jury, attorney's fees, and costs. Id.

On April 13, 2018, Defendants moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In support, they contend that: (1) 49 U.S.C. § 46110 bars this action because it provides for "exclusive" jurisdiction in the courts of appeals to review orders issued "in whole or in part" by the TSA; (2) Mr. Kovac has failed to exhaust his administrative remedies and his claims are, therefore, not ripe for adjudication; and (3) Plaintiffs have failed to state a claim upon which relief may be granted, and all claims must, therefore, be dismissed under Federal Rules of Civil Procedure 12(b)(6). Defendants' Motion to Dismiss has been fully briefed and is ripe for adjudication. The court will address the parties' arguments after setting forth the applicable legal standards.

II. Legal Standards

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

A federal court has subject matter jurisdiction over civil cases "arising under the Constitution, laws, or treaties of the United States," or over civil cases in which the amount in controversy exceeds $ 75,000, exclusive of interest and costs, and in which diversity of citizenship exists between the parties. 28 U.S.C. §§ 1331, 1332. Federal courts are courts of limited jurisdiction and must have statutory or constitutional power to adjudicate a claim. Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted); Home Builders Ass'n of Miss., Inc. v. City of Madison , 143 F.3d 1006, 1010 (5th Cir. 1998). Absent jurisdiction conferred by statute or the Constitution, they lack the power to adjudicate claims and must dismiss an action if subject matter jurisdiction is lacking. Id. ; Stockman v. Federal Election Comm'n , 138 F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard , 35 F.3d 222, 225 (5th Cir. 1994) ). A federal court must presume that an action lies outside its limited jurisdiction, and the burden of establishing that the court has subject matter jurisdiction to entertain an action rests with the party asserting jurisdiction. Kokkonen , 511 U.S. at 377, 114 S.Ct. 1673 (citations omitted). "[S]ubject-matter jurisdiction cannot be created by waiver or consent." Howery v. Allstate Ins. Co. , 243 F.3d 912, 919 (5th Cir. 2001).

In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, "a court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts."

Den Norske Stats Oljeselskap As v. HeereMac Vof , 241 F.3d 420, 424 (5th Cir. 2001) (citation omitted). Thus, unlike a Rule 12(b)(6) motion to dismiss for failure to state a claim, the district court is entitled to consider disputed facts as well as undisputed facts in the record and make findings of fact related to the jurisdictional issue. Clark v. Tarrant Cnty. , 798 F.2d 736, 741 (5th Cir. 1986). All factual allegations of the complaint, however, must be accepted as true. Den Norske Stats Oljeselskap As , 241 F.3d at 424.

B. Rule 12(b)(6) - Failure to State a Claim

To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Reliable Consultants, Inc. v. Earle , 517 F.3d 738, 742 (5th Cir. 2008) ; Guidry v. American Pub. Life Ins. Co. , 512 F.3d 177, 180 (5th Cir. 2007). A claim meets the plausibility test "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted). While a complaint need not contain detailed factual allegations, it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). The "[f]actual allegations of [a complaint] must be enough to raise a right to relief above the speculative level...on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (quotation marks, citations, and footnote omitted). When the allegations of the pleading do not allow the court to infer more than the mere possibility of wrongdoing, they fall short of showing that the pleader is entitled to relief. Iqbal , 556 U.S. at 679, 129 S.Ct. 1937.

In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm Mutual Auto. Ins. Co. , 509 F.3d 673, 675 (5th Cir. 2007) ; Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit , 369 F.3d 464, 467 (5th Cir. 2004) ; Baker v. Putnal , 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id. ; Spivey v. Robertson , 197 F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint and any documents attached to it. Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498-99 (5th Cir. 2000). Likewise, " '[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [the plaintiff's] claims.' " Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp. , 987 F.2d 429, 431 (7th Cir. 1993) ). In this regard, a document that is part of the record but not referred to in a plaintiff's complaint and not attached to a motion to dismiss may not be considered by the court in ruling on a 12(b)(6) motion. Gines v. D.R. Horton, Inc. , 699 F.3d 812, 820 & n.9 (5th Cir. 2012) (citation omitted). Further, it is well-established and " 'clearly proper in deciding a 12(b)(6) motion [that a court may] take judicial notice of matters of public record.' " Funk v. Stryker Corp. , 631 F.3d 777, 783 (5th Cir. 2011) (quoting Norris v. Hearst Trust , 500 F.3d 454, 461 n.9 (5th Cir. 2007) (citing Cinel v. Connick , 15 F.3d 1338, 1343 n.6 (5th Cir. 1994) ).

The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid claim when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v. Morgan Stanley Dean Witter , 313 F.3d 305, 312 (5th Cir. 2002). While well-pleaded facts of a complaint are to be accepted as true, legal conclusions are not "entitled to the assumption of truth." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (citation omitted). Further, a court is not to strain to find inferences favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or legal conclusions. R2 Invs. LDC v. Phillips , 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted). The court does not evaluate the plaintiff's likelihood of success; instead, it only determines whether the plaintiff has pleaded a legally cognizable claim. United States ex rel. Riley v. St. Luke's Episcopal Hosp. , 355 F.3d 370, 376 (5th Cir. 2004). Stated another way, when a court deals with a Rule 12(b)(6) motion, its task is to test the sufficiency of the allegations contained in the pleadings to determine whether they are adequate enough to state a claim upon which relief can be granted. Mann v. Adams Realty Co. , 556 F.2d 288, 293 (5th Cir. 1977) ; Doe v. Hillsboro Indep. Sch. Dist. , 81 F.3d 1395, 1401 (5th Cir. 1996), rev'd on other grounds , 113 F.3d 1412 (5th Cir. 1997) (en banc). Accordingly, denial of a 12(b)(6) motion has no bearing on whether a plaintiff ultimately establishes the necessary proof to prevail on a claim that withstands a 12(b)(6) challenge. Adams , 556 F.2d at 293.

III. Analysis

A. Defendants' Challenge to the Court's Subject Matter Jurisdiction

As a threshold matter, Defendants argue that this court lacks subject matter jurisdiction to consider Plaintiffs' challenges to the adequacy of the DHS TRIP under 49 U.S.C. § 46110, which grants exclusive jurisdiction to the federal courts of appeals to review the "orders" of a number of federal agencies, including the TSA. See Defs.' Mot. to Dismiss 6-7 (Doc. 8). Defendants further contend that the court also lacks jurisdiction over Plaintiffs' claims challenging their alleged placement in the TSDB, as "all claims inescapably intertwined with orders that fall within Section 46110 are subject to the statute's channeling effect, including claims against TSC for alleged placement in the TSDB." Id. at 7 (original emphasis). Plaintiffs counter that their claims fall outside the scope of section 46110 because they are not merely challenging the adequacy of the DHS TRIP redress procedures but also are challenging their continued placement on the watchlist, a placement made by the TSC, which is not one of the agencies enumerated in section 46110. Pls.' Resp. 24 (Doc. 9). According to Plaintiffs, because their continued placement on the watchlist requires scrutiny of both the TSA's and the TSC's actions, section 46110 does not deprive this court of jurisdiction, as it only provides for exclusive appellate jurisdiction of TSA orders. Id.

Whether a district court has subject matter jurisdiction to hear Plaintiffs' challenges to the DHS TRIP redress procedures and inclusion in the TSDB is an issue of first impression in the Fifth Circuit. The court begins with the language of the statute.

Title 49 U.S.C. § 46110(a) of the Federal Aviation Act vests the courts of appeals with jurisdiction to review the orders of certain federal agencies, including the TSA. Section 46110 provides:

[A] person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security with respect to security duties and powers designated to be carried out by the Under Secretary or the Administrator of the Federal Aviation Administration with respect to aviation duties and powers designated to be carried out by the Administrator) in whole or in part under this part, part B, or subsection (I) or (s) of section 114 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 of appeals of the United States for the circuit in which the person resides or has its principal place of business.

49 U.S.C. § 46110(a). (Although the Under Secretary of Transportation for Security was the head of the TSA when it was created in 2001 as part of the Department of Transportation, the TSA and its "functions, personnel, assets, and liabilities" were moved to the DHS in 2002. See 6 U.S.C. § 203(2).) Section 46110(c) provides, in relevant part, that the courts of appeals have "exclusive jurisdiction to affirm, amend, modify, or set aside any part of the [TSA's] order." Id. § 46110(c). "Specific grants of jurisdiction to the courts of appeals override general grants of jurisdiction to the district courts." Ligon v. LaHood , 614 F.3d 150, 154 (5th Cir. 2010) (citation omitted). Further, "[w]here Congress has provided for review jurisdiction in the courts of appeals, jurisdiction there is exclusive." Id. at 154-55 (citation omitted) (collecting cases). In addition, "a plaintiff may not circumvent the exclusive jurisdiction of the court of appeals by collaterally attacking an administrative order in a federal district court." Id. at 155 (citation omitted).

With section 46110, Congress arguably sought to limit the jurisdiction of the district courts by channeling review of a TSA final order to the courts of appeals. The Supreme Court has recognized that the scope of exclusive jurisdiction provisions such as section 46110 should include action by district courts that would enjoin the outcome of the relevant agency's order. City of Tacoma v. Taxpayers of Tacoma , 357 U.S. 320, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958). In City of Tacoma , the statutory provision at issue was section 313(b) of the Federal Power Act, which vested in the courts of appeals exclusive jurisdiction for judicial review of orders of the Federal Power Commission. Id. at 335, 78 S.Ct. 1209. The Court ruled that this provision

necessarily precluded de novo litigation between the parties of all issues inhering in the controversy, and all other modes of judicial review. Hence, upon judicial review of the Commission's order, all objections to the order, to the license it directs to be issued, and to the legal competence of the licensee to execute its terms, must be made in the Court of Appeals or not at all.

Id. at 336 (footnote omitted). Later decisions of the Supreme Court have reiterated that exclusive jurisdiction provisions bar litigants from "requesting the District Court to enjoin action that is the outcome of the agency's order[,]" FCC v. ITT World Communications, Inc. , 466 U.S. 463, 468, 104 S.Ct. 1936, 80 L.Ed.2d 480 (1984), but not claims that are "wholly collateral to a statute's review provisions and outside the agency's expertise." Thunder Basin Coal Co. v. Reich , 510 U.S. 200, 212, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994) (internal quotation marks and citation omitted).

In considering the application of section 46110 in this case, the court must focus on the nature of Plaintiffs' allegations. As previously summarized by the court, Plaintiffs assert five causes of action against six Defendants. Plaintiffs' allegations and causes of action, however, can be divided into two groups. First, Plaintiffs challenge the adequacy of redress procedures established to contest inclusion in the TSDB, contending that the procedures are unconstitutional and also unlawful under the APA. Second, Plaintiffs challenge their alleged placement on the "No Fly List" and "Screening List," arguing that their continued inclusion on these lists is unconstitutional and also unlawful under the APA. The court considers Defendants' jurisdictional challenges in the context of these two categories of claims asserted by Plaintiffs in the Complaint.

1. Plaintiffs' Challenges to the Adequacy of the DHS TRIP

In opposition to Defendants' jurisdictional challenge, Plaintiffs contend that section 46110 does not deprive this court of jurisdiction over their claims challenging the adequacy of the redress procedures under the DHS TRIP. In support, Plaintiffs rely primarily on an unpublished Fourth Circuit decision in which the court held that an action seeking removal from the No Fly List and challenging the adequacy of redress procedures was properly before the district court, as any remedy would involve both the TSA and the TSC, and the circuit court's authority under section 46110 only extended to the TSA's orders. See Mohamed v. Holder , No. 11-1924, 2013 U.S. App. LEXIS 26340 at *5-6 (4th Cir. May 28, 2013) ("[W]e do not fairly discern from either grant of authority a congressional intent to remove such claims from review of the district court."). The D.C. Circuit and Ninth Circuit have similarly held that the district court has jurisdiction in such cases. See Ege v. United States Dep't of Homeland Sec. , 784 F.3d 791, 796 (D.C. Cir. 2015) ; Latif v. Holder , 686 F.3d 1122, 1128-29 (9th Cir. 2012). As reasoned by the D.C. Circuit in Ege :

Because "TSC-not TSA-actually reviews the classified intelligence information about the travelers and decides whether to remove them from the List" and "established the policies governing that stage of the redress process," we agree that [the court of appeals] cannot, on section 46110 review, provide relief to an individual included on the No Fly List or in the TSDB by "simply amending, modifying, or setting aside TSA's orders by directing TSA to conduct further proceedings."

Ege , 784 F.3d at 795-96 (quoting Latif , 686 F.3d at 1128-29 ) (internal citations omitted). More recently, relying on the reasoning in Ege and Latif , a federal district court in Minnesota and a federal district court in Virginia have similarly held that section 46110 does not deprive the district court of jurisdiction to consider challenges to the redress process relating to an individual's alleged inclusion on the watchlist. See Wilwal v. Nielsen , 346 F. Supp. 3d 1290, 1304 (D. Minn. 2018) ; Elhady v. Piehota , 303 F. Supp. 3d 453, 461-62 (E.D. Va. 2017).

In support of their position that section 46110 deprives this court of subject matter jurisdiction over Plaintiffs' challenges to the adequacy of the DHS TRIP redress process, Defendants rely on Mokdad v. Lynch , 804 F.3d 807 (6th Cir. 2015). See Defs.' Mot. to Dismiss 6 (Doc. 8). In Mokdad , the Sixth Circuit concluded that a procedural challenge to the DHS TRIP redress process "amount[ed] to a challenge to a TSA order[,]" and that, therefore, the TSA was "a required party to [the plaintiff's] litigation about the adequacy of the redress procedures." Id. at 811-12. Because the plaintiff had failed to include the TSA as a defendant to the lawsuit, the court dismissed without prejudice his claims challenging the adequacy of the redress process. Notably, the Sixth Circuit "declined to opine ... whether § 46110 would deprive the district court of subject-matter jurisdiction over Mokdad's claims challenging the adequacy of the redress process, including any broad constitutional claims, if he were to file a new suit naming TSA as a defendant." Id. at 812. In this case, by contrast, Plaintiffs have included the TSA as a Defendant. The concerns expressed by the Sixth Circuit in Mokdad are, therefore, not present in this case. In addition, contrary to Defendants' argument, nothing about the Sixth Circuit's decision in Mokdad compels this court to conclude that section 46110 deprives it of jurisdiction over Plaintiffs' claims challenging the adequacy of the DHS TRIP redress process, as the Sixth Circuit expressly declined to opine on the jurisdictional question.

In light of the foregoing, and having carefully considered the decisions of the Fourth Circuit in Mohamed , the Ninth Circuit in Latif , the D.C. Circuit in Ege , and the federal district courts in Wilwal and Elhady , the court finds the reasoning in these cases persuasive and similarly concludes that section 46110 does not bar its consideration of Plaintiffs' challenge to the adequacy of the redress process under the circumstances of this case, in which Plaintiffs are also raising broad constitutional challenges to their continued inclusion in the TSDB. The court, therefore, will deny Defendants' Rule 12(b)(1) motion to dismiss Plaintiffs' Complaint insofar as Plaintiffs' challenges relate to the adequacy of the redress procedures under the DHS TRIP.

2. Plaintiffs' Challenges to Placement on the Watchlist

As previously stated, Defendants also contend that the court lacks jurisdiction over Plaintiffs' challenges to their inclusion on the watchlist, as "all claims inescapably intertwined with orders that fall within the Section 46110 are subject to the statute's channeling effect, including claims against TSC for alleged placement in the TSDB." See Defs.' Mot. to Dismiss 7 (Doc. 8). For the reasons that follow, the court rejects Defendants' argument.

The purpose of the inescapable-intertwinement doctrine is to prevent a plaintiff from "circumvent[ing] the exclusive jurisdiction of the court of appeals by collaterally attacking an administrative order in a federal district court."

Ligon , 614 F.3d at 155 (citation omitted). A claim is inescapably intertwined under section 46110 if it alleges that the plaintiff was injured by an agency order and that the court of appeals has authority to hear the claim on direct review of the agency order. See generally City of Tacoma , 357 U.S. at 336, 78 S.Ct. 1209.

First, Defendants' reliance on the doctrine of inescapable intertwinement is predicated on the court's acceptance of their primary jurisdictional argument, namely, that section 46110 bars the district court from hearing Plaintiffs' challenges to the adequacy of the redress procedure. The court has rejected Defendants' primary argument and, accordingly, need not reach their contingent argument that the doctrine of inescapable intertwinement also channels Plaintiffs' challenges to their inclusion in the TSDB to the courts of appeals.

Second, even were the court to consider Defendants' argument, the court notes that in Mokdad , discussed above, the Sixth Circuit rejected a nearly identical argument and stated:

[W]e decline to accept the government's invitation to expand the inescapable-intertwinement doctrine so as to find Mokdad's claim against the TSC is pulled within the ambit of the exclusive-review statute that applies to the TSA. Doing so not only would be inconsistent with existing law but also would run the risk of inadvertently expanding the number and range of agency orders that might fall under exclusive-jurisdiction provisions that Congress did not intend to sweep so broadly.

Mokdad , 804 F.3d at 815. As in Mokdad , Defendants, in effect, are urging the court to find that "a direct challenge to one agency's order is inescapably intertwined with another agency's order-that Plaintiffs' challenge to TSC's orders placing them on the No Fly List or the Selectee List are inescapably intertwined with both TSA's orders denying them boarding and TSA's orders governing the redress process." Id. at 814. The court agrees with the Sixth Circuit that "this would be an unprecedented departure from the doctrine of inescapable intertwinement[.]" Id. In sum, the considerations undergirding the doctrine of "inescapable intertwinement" that led the Fifth Circuit to apply it in Ligon are not at play here.

For these reasons, the court will deny Defendants' Rule 12(b)(1) motion to dismiss Plaintiffs' Complaint for lack of subject matter jurisdiction.

B. Ripeness and Exhaustion of Administrative Remedies - Mr. Kovac's Claims

Defendants argue that before bringing this action challenging his placement on the "No Fly List" and the inadequacy of the redress procedures, Mr. Kovac should be required to exhaust "the congressionally mandated administrative redress process" and, until that time, "his challenge to his alleged placement on the No Fly List is premature." Defs.' Mot. to Dismiss 8 (Doc. 8). Plaintiffs counter that there are no regulations regarding the DHS TRIP that mandate exhaustion and that "there is nothing 'hypothetical' about [Mr. Kovac's] claims." Pls.' Resp. 24 (Doc. 9). Plaintiffs further assert that Mr. Kovac filed for redress through the DHS TRIP and that, after Defendants filed their motion to dismiss, he received confirmation that he is on the "No Fly List." Id. Defendants confirm in their reply brief that Mr. Kovac submitted a redress inquiry to the DHS TRIP and has been notified that his name appears on the "No Fly List." See Reply 3 (Doc. 10). Under these facts, and for the reasons that follow, the court concludes that Mr. Kovac's claims are ripe for adjudication and that no further exhaustion of administrative remedies is required.

Article III of the Constitution confines the federal courts to adjudicating actual "cases" and "controversies." U.S. Const. art. III, § 2. In an attempt to give meaning to Article III's "case or controversy requirement," the courts have developed a series of principles termed "justiciability doctrines." United Transp. Union v. Foster , 205 F.3d 851, 857 (5th Cir. 2000). One such doctrine is ripeness. The "[r]ipeness doctrine 'is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.' " Opulent Life Church v. City of Holly Springs , 697 F.3d 279, 286 (5th Cir. 2012) (quoting Reno v. Catholic Soc. Servs., Inc. , 509 U.S. 43, 58 n.18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) ); Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. , 559 U.S. 662, 670 n.2, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) ("Ripeness reflects constitutional considerations that implicate Article III limitations on judicial power, as well as prudential reasons for refusing to exercise jurisdiction." (internal quotation marks omitted) ). The ripeness doctrine prevents the courts, "through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies," while also protecting "agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Labs. v. Gardner , 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders , 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). A case is ripe for adjudication if all remaining questions are legal and further factual development is unnecessary. New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans , 833 F.2d 583, 587 (5th Cir. 1987). A claim is not ripe if it "rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States , 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (internal punctuation and citations omitted). Two key considerations exist for courts evaluating the ripeness of an action: "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." New Orleans Pub. Serv. , 833 F.2d at 586 (quoting Abbott Labs. , 387 U.S. at 149, 87 S.Ct. 1507 ). Finally, "[R]ipeness may be used to express the exhaustion principle that administrative remedies should be tried before running to the courts." 13B The Late Charles A. Wright, et al., Federal Practice & Procedure § 3532.6 (3d ed. 2008).

Defendants appear to be using the doctrine of ripeness in this case to "express the exhaustion principle that administrative remedies should be tried before running to the courts." Id. "Where Congress specifically mandates, exhaustion is required." McCarthy v. Madigan , 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), superseded by statute on other grounds, as recognized in Booth v. Churner , 532 U.S. 731, 740, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). When exhaustion is not congressionally mandated, on the other hand, "sound judicial discretion" generally governs. Id. A federal court cannot require a plaintiff to exhaust administrative remedies before seeking judicial review of a final agency action under the APA when neither the relevant statute nor an agency rule imposes such a requirement. Darby v. Cisneros , 509 U.S. 137, 153-54, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993). For non-APA claims, "federal courts must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion." McCarthy , 503 U.S. at 146, 112 S.Ct. 1081. Requiring administrative exhaustion allows the agency to "correct its own mistakes with respect to programs it administers before it is haled into federal court" and helps to avoid piecemeal appeals. Id. at 145-46, 112 S.Ct. 1081.

In balancing these conflicting considerations, the Fifth Circuit has recognized that exhaustion should not be required in certain limited circumstances, including situations in which:

(1) the unexhausted administrative remedy would be plainly inadequate, (2) the claimant has made a constitutional challenge that would remain standing after exhaustion of the administrative remedy, (3) the adequacy of the administrative remedy is essentially coextensive with the merits of the claim (e.g., the claimant contends that the administrative process itself is unlawful), and (4) exhaustion of administrative remedies would be futile because the administrative agency will clearly reject the claim.

Dawson Farms, LLC v. Farm Serv. Agency , 504 F.3d 592, 606 (5th Cir. 2007) (quoting Taylor v. United States Treasury Dep't , 127 F.3d 470, 477 (5th Cir. 1997) ). In addition, exhaustion may be excused when (5) irreparable injury will result absent immediate judicial review. Id. (citation omitted).

The court concludes that it would be inappropriate to require exhaustion in this case. First, contrary to Defendants' assertion, Congress has not mandated exhaustion of the DHS TRIP process, and there are no regulations regarding the DHS TRIP that mandate exhaustion. See 49 U.S.C. §§ 44903(j)(2) & 44926(a) (directing the DHS to create a redress program without requiring that travelers take advantage of it). The court could not, therefore, under the holding in Darby v. Cisneros , supra , require Mr. Kovac to exhaust the DHS TRIP process before proceeding with his APA appeal in Count III. To require exhaustion with respect to Mr. Kovac's other claims would, therefore, only bifurcate substantially related claims and create, not avoid, piecemeal litigation.

In addition, the DHS TRIP process would not provide Mr. Kovac with an opportunity to present for consideration his constitutional claims. The DHS TRIP process addresses only whether a traveler who has submitted an inquiry is, in fact, the individual listed in the TSDB, and if so, whether there is sufficient information to support the listing. Consequently, at the conclusion of the DHS TRIP process, even were the TSC to voluntarily remove Mr. Kovac from the No Fly List, the underlying constitutional infirmities he alleges that allowed his name to be included on the list and distributed to airlines would remain in place, unreviewed and with no assurances that he would not suffer the same alleged injury in the future.

Also weighing against requiring further exhaustion in this case is Mr. Kovac's interest in a prompt adjudication of his claims, first filed over one year ago, coupled with the lack of any information pertaining to how long the process of further exhaustion would take. Cf. Coit Indep. Joint Venture v. Federal Sav. & Loan Ins. Corp. , 489 U.S. 561, 586-87, 109 S.Ct. 1361, 103 L.Ed.2d 602 (1989) (holding that available administrative remedy was inadequate, and, therefore, declining to require exhaustion, when administrative agency was not required to render a decision within a reasonable time limit).

Moreover, the court has no reason to believe that the DHS TRIP process would create a factual record more helpful than the one that already exists for the purposes of Mr. Kovac's constitutional claims, given the limited scope of the issues addressed in the DHS TRIP. As previously stated, Defendants acknowledge that Mr. Kovac was informed he was on the "No Fly List" after Defendants filed their motion to dismiss. See Reply 3 (Doc. 10).

Finally, Defendants' reliance on Shearson v. Holder , 725 F.3d 588, 594 (6th Cir. 2013), is misplaced. See Defs.' Mot. to Dismiss 9 (Doc. 8). In Shearson , the Sixth Circuit, while recognizing that exhaustion is not mandatory in this context, affirmed a district court's decision requiring a plaintiff challenging the adequacy of the redress program to exhaust her administrative remedies. The court explained:

While there are deficiencies in the Redress Program process, we agree with the district court that Shearson should be required to exhaust her administrative procedures by submitting a traveler inquiry form through the Redress Program before she can proceed with this case. There is very little guidance in any Circuit considering administrative exhaustion as it pertains to the Redress Program and there is no case law in this Circuit. However, when considering the purposes of the exhaustion doctrine, making Shearson submit a Traveler Redress inquiry is reasonable to promote judicial efficiency and allow the agencies involved an opportunity to resolve problems with their procedures.

Shearson , 725 F.3d at 594. Here, in contrast to the plaintiff in Shearson , Defendants concede that Mr. Kovac submitted a redress inquiry to the DHS TRIP and, in their reply, confirm that he has been notified of his "No Fly List" status. See Reply 3 (Doc. 10).

Under these circumstances, the court rejects as untenable Defendants' position that Mr. Kovac's claims are not ripe and that he must further exhaust administrative remedies before he can proceed in this court. No order or remedy would necessarily result from further administrative process. In addition, in cases relied upon by Defendants, the plaintiffs had not even sought redress through DHS TRIP. Here, Mr. Kovac has not only filed a redress inquiry, but he has also been notified that he is on the No Fly List. Therefore, the court concludes Mr. Kovac's claims are ripe and declines to prevent review of his claims by creating an exhaustion requirement when none has been statutorily mandated.

C. Claims Against Defendant CBP

Defendants move to dismiss all claims against the CBP. In support, they argue that Plaintiffs fail to allege any wrongful acts by the CBP and do not seek a remedy with respect to the CBP. Defs.' Mot. to Dismiss 9 (Doc. 8). In their response, Plaintiffs do not address dismissal of the CBP.

When a party fails to pursue a claim or defense beyond the party's initial complaint, the claim is deemed abandoned or waived.

Black v. Panola Sch. Dist. , 461 F.3d 584, 588 n.1 (5th Cir. 2006) (plaintiff abandoned claim when she failed to defend claim in response to motion to dismiss); see also Keenan v. Tejeda , 290 F.3d 252, 262 (5th Cir. 2002) (noting that "an issue raised in the complaint but ignored at summary judgment may be deemed waived[ ]") (citation omitted). As Plaintiffs have failed to pursue these claims, the court concludes that they have abandoned or waived their claims against the CBP. Accordingly, based on Plaintiffs' abandonment or waiver of their claims against the CBP, the court will grant Defendants' Motion to Dismiss all claims against Defendant CBP, and these claims will be dismissed with prejudice.

D. Plaintiffs' Constitutional and APA Claims

Defendants move to dismiss Counts I through V of the Complaint on numerous grounds, some of which overlap. With respect to Plaintiffs' substantive due process claims (Count II), Defendants' overriding argument is that the court should dismiss these claims because Plaintiffs' inclusion in the TSDB has not deprived them of any "fundamental right" as required to establish a substantive due process violation. In particular, Defendants contend that inclusion on the No Fly List (in the case of Mr. Kovac) or Screening List (in the case of the remaining four Plaintiffs) does not result in a burden sufficient to maintain a substantive due process claim. Defendants make similar arguments in support of their motion to dismiss Plaintiffs' procedural due process claims (Count I), contending that Plaintiffs have not alleged a sufficient deprivation of any liberty interests and that, even if they have, the DHS TRIP redress procedures are constitutionally adequate. Defendants move to dismiss Plaintiffs' APA claims (Count III) on similar grounds, arguing that their APA claims are largely coextensive with their constitutional claims and, therefore, fail for the same reasons. Defendants further contend that Plaintiffs cannot separately demonstrate that the DHS TRIP redress process is arbitrary or capricious in violation of the APA. In support of their motion to dismiss Plaintiffs' equal protection claims (Count IV), Defendants contend that the watchlist criteria are facially neutral and Plaintiffs' allegations of disparate impact are conclusory, formulaic, and insufficient to state a claim for a violation of their rights to equal protection. Finally, in support of their motion to dismiss Plaintiffs' claims that the watchlist constitutes an unconstitutional delegation of legislative power in violation of the non-delegation doctrine (Count V), Defendants argue that Plaintiffs fail to state a claim because consideration of the applicable statutes reveals that Congress has provided "intelligible principles" both as to the goals the TSA should seek to achieve and also how it should go about achieving them.

In the interest of clarity and to minimize redundancies, the court will first address Plaintiffs' substant