Saeb Mokdad v. Jefferson B. Sessions, III , 876 F.3d 167 ( 2017 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0627n.06
No. 16-2442 FILED
Nov 13, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
SAEB MOKDAD, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
JEFFERSON B. SESSIONS, III, et al. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
Defendants-Appellees. )
)
)
BEFORE: GIBBONS, BATCHELDER, and GILMAN, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Saeb Mokdad appeals the district court’s
decision to dismiss his suit for lack of subject matter jurisdiction after finding that Mokdad’s
case is moot. Because we agree that Mokdad’s case is moot following the Terrorist Screening
Center’s (TSC’s) declaration that Mokdad is not on the No Fly List and will not be placed on that
list based on currently available information, we affirm.
I.
A.
Saeb Mokdad is a naturalized United States citizen who resides in Dearborn, Michigan.
This case originated in May 2013, when Mokdad filed suit seeking injunctive and declaratory
relief against the United States Attorney General, the Director of the FBI, and the Director of the
Terrorist Screening Center based on three alleged instances where he was denied boarding on
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commercial airline flights between the United States and his native country of Lebanon.
Claiming that his application for redress under the Department of Homeland Security Traveler
Redress Inquiry Program (“DHS TRIP”) was not adequately resolved, he requested that the
district court order the defendants to remove him from the No Fly List and any other such list
that prevented him from traveling, and to order defendants to provide him notice and an
opportunity to contest his placement on the No Fly List. The district court concluded that it
lacked subject matter jurisdiction over Mokdad’s claims and dismissed his complaint pursuant to
Federal Rule of Civil Procedure 12(b)(1). Mokdad v. Holder, No. 13–12038, 2013 WL 8840322,
at *5 (E.D. Mich. Dec. 5, 2013).
B.
On appeal, we held that the district court had subject matter jurisdiction to hear Mokdad’s
claim challenging his placement on the No Fly List and reversed and remanded for further
proceedings to determine Mokdad’s status on the list. Mokdad v. Lynch, 804 F.3d 807, 808 (6th
Cir. 2015). We declined to reach Mokdad’s claim about the adequacy of the procedures to
contest inclusion on the No Fly List because Mokdad did not join a necessary party—the
Transportation Security Administration (TSA)—as a defendant. Id. at 815.
We noted that the sole issue remanded to the district court was “Mokdad’s claim directly
challenging his placement by TSC on the No Fly List.” Id. On remand, TSC re-examined
Mokdad’s DHS TRIP request and notified him in a December 22, 2015 letter that he was not on
the No Fly List. TSC subsequently moved to dismiss Mokdad’s challenge to his No Fly List
status, arguing that the case was moot. TSC also agreed to issue a declaration that Mokdad is not
on the No Fly List and will not be placed back on the list based on the currently available
information. The district court held a hearing on the motion to dismiss on August 9, 2016 and
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granted TSC’s motion. The district court ordered TSC to issue the declaration and file a copy of
the letter with the court no later than August 16, 2016. Timothy Groh, TSC’s Deputy Director
for Operations, executed the declaration on August 15, 2016, and it was filed with the court.
Mokdad filed a timely notice of appeal to challenge the court’s determination that the case was
moot.
II.
This court reviews de novo a district court’s decision to dismiss for lack of subject matter
jurisdiction. Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 671 (6th Cir. 2013).
A.
Under Article III of the United States Constitution, federal courts have the power to
adjudicate only “Cases” and “Controversies.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726
(2013). “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes
of Article III—‘when the issues presented are no longer “live” or the parties lack a legally
cognizable interest in the outcome.’” Id. at 726–27 (quoting Murphy v. Hunt, 455 U.S. 478, 481
(1982) (per curiam)). Parties lack a legally cognizable interest in a case’s outcome when
“events . . . make it ‘impossible for the court to grant any effectual relief whatever to a prevailing
party.’” Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 713 (6th Cir. 2011)
(quoting Church of Scientology v. United States, 506 U.S. 9, 12 (1992)).
Mokdad argues that his case still presents a live issue for the court because he continued
to experience unreasonable delays in boarding even after receiving TSC’s letter stating that he is
not on the No Fly List. He suggests that these injuries are “plausibly related to or caused by [his]
initial inclusion on the No Fly List or some other watch list.” CA6 R. 20, Appellant Br., at 12.
However, Mokdad’s new factual allegations do not save his case from mootness because the
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narrow issue remanded to the district court was “Mokdad’s challenge to his alleged placement on
the No Fly List by TSC.” Mokdad, 804 F.3d at 815 (emphasis added). Mokdad’s placement on
“some other watch list” was therefore not before the district court. When TSC agreed to
stipulate that Mokdad was not on the No Fly List and would not be put on the list based on
current information, it resolved the narrow issue before the court. After TSC’s stipulation, the
district court could not “grant any effectual relief” to Mokdad because TSC’s declaration had
resolved the only claim before the court. Thus, there was no live case or controversy, and the
district court properly dismissed Mokdad’s claim for lack of subject matter jurisdiction.
Even if Mokdad has in fact been placed on another watch list, Mokdad did not identify
any other lists or name other defendants in his complaint. There would still be no way for this
court to grant effectual relief because Mokdad has not provided us with any basis on which to do
so—there are no other named defendants against whom the court could enter a judgment and no
other causes of action alleging a basis for relief.
Mokdad relies on a case from the Northern District of California, Ibrahim v. Dep’t of
Homeland Sec., 62 F. Supp. 3d 909 (N.D. Cal. 2014), for his argument that his case has not yet
been fully resolved.1 After finding that the plaintiff had been mistakenly entered on the No Fly
List, the Ibrahim court ordered the government to “search and trace all of its terrorist watchlists
and records . . . and the no-fly and selectee lists, for entries identifying Dr. Ibrahim” and to
remove her from those lists. Ibrahim, 62 F. Supp. 3d at 936. Mokdad argues that the district
1
In Ibrahim, the plaintiff was a Malaysian citizen who had been admitted to the United States to study at
Stanford University. Ibrahim, 62 F. Supp. 3d at 911. In 2005, she attempted to board a plane in San Francisco and
was taken to a holding cell and informed that she was on the No Fly List. Id. She was eventually permitted to fly to
Hawaii and ultimately to Malaysia. Id. Her student visa was revoked in Malaysia and she was unable to return to
the United States. Id. After protracted litigation over whether or not the plaintiff, a nonimmigrant alien, had
standing, the Ninth Circuit ruled that she did because she “had a ‘substantial voluntary connection’ to the United
States.” Id. at 912 (quoting Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 993–94 (9th Cir. 2012)). The case
was remanded to the district court and a bench trial was held. Id. at 914–15. It was determined at trial that the
plaintiff had been entered on the No Fly List by mistake. Id. at 916.
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court in his case should have followed the Ibrahim court’s example and removed his name “from
any list that prevents him from exercising his constitutionally guaranteed right to travel.” CA6
R. 20, Appellant Br., at 18.
Mokdad’s reliance on Ibrahim is misplaced for two reasons. First, in Ibrahim the
plaintiff had been entered on the No Fly List by “human error.” Id. at 916. By contrast, Mokdad
has not established that his placement on the No Fly List was due to human error. As the district
court noted in the hearing on the defendants’ motion to dismiss, the government has not even
admitted that Mokdad was ever on the No Fly List in the first place. Second, the plaintiff in
Ibrahim presented evidence at trial showing her status on various watchlists and so the court
granted relief specific to this evidence. In contrast, Mokdad has failed to even amend his
complaint to add new defendants or new causes of action. Based on the “narrowness” of
Mokdad’s claim, the district court could not grant any relief to Mokdad because the court could
not “order what [TSC has] already agreed that they won’t do.” DE 61, Hearing Tr., Page ID 643.
If Mokdad believes that he is on another type of government list, the proper way for him to
remedy the situation, as the district court has stated, is to file a new action.
B.
Mokdad also argues that his case cannot be moot because TSC’s actions fall under the
voluntary cessation doctrine. “A defendant’s voluntary cessation of allegedly unlawful conduct
ordinarily does not suffice to moot a case.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 174 (2000). The reason for this, the Supreme Court has explained, is
to prevent underhanded litigation tactics: “Otherwise, a defendant could engage in unlawful
conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating
this cycle until he achieves all his unlawful ends.” Already, 133 S. Ct. at 727.
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The voluntary-cessation doctrine does not apply here because the government’s actions
were not voluntary. See Am. Bar Ass’n v. Trade Comm’n, 636 F.3d 641, 648 (D.C. Cir. 2011).
In a December 16, 2015 order, the district court held that “Defendant must immediately reopen
Plaintiff’s [DHS TRIP] request” and “[i]ssue a letter to Plaintiff and the Court, stating whether or
not he is on the No Fly List.” DE 43, Order, Page ID 457. TSC complied with the order and
issued Mokdad a letter dated December 22, 2015, informing him that he was not on the No Fly
List. TSC thus made the determination that Mokdad is not currently on the No Fly List to
comply with a court order—hardly a voluntary action.
Similarly, in the hearing on the defendants’ motion to dismiss, the district court asked if
the government would be “willing” to make a supplemental declaration, which the government
agreed to do. DE 61, Hearing Tr., Page ID 623. Although such a request is not mandatory
(unlike a court order), it does suggest that TSC did not agree to issue the formal declaration
entirely of its own free will. In fact, the defendants had initially argued that such a declaration
was unnecessary. Moreover, in its order granting the motion to dismiss, the district court
incorporated TSC’s offer to issue a formal declaration and ordered that “[t]he declaration must,
at a minimum, state that Mokdad will not be placed back on the No Fly List based on the
currently available information.” DE 57, Order Granting Mot. to Dismiss, Page ID 614
(emphasis added). Because TSC did not issue the declaration of its own volition, its actions do
not fall under the voluntary cessation doctrine.
III.
For the foregoing reasons, we affirm the district court’s dismissal of Mokdad’s case.
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