“It’s déjà vu all over again”: Tanvir v. Holder — The Latest No Fly List Case
On Tuesday, attorneys for the Center for Constitutional Rights, the CLEAR Project, and Debevoise & Plimpton filed a First Amended Complaint in the latest federal lawsuit to challenge the No Fly List. The case is captioned Tanvir v. Holder. The lawsuit, filed in the United States District Court for the Southern District of New York, seeks declaratory, injunctive, and monetary relief under the APA, Religious Freedom Restoration Act (RFRA), and Bivens. There are four causes of action — (1) Retaliation in Violation of Plaintiffs’ First Amendment Rights, (2) Violation of RFRA, (3) Violation of Procedural Due Process under the Fifth Amendment, and (4) Unlawful agency action under the APA.
That is all a rather technical way of expressing the headline-grabbing — but not particularly new — allegation at the heart of the case. What is new about this case is the depth of detail in the 58-page, 228-paragraph newly amended complaint. The plaintiffs allege that the FBI used the No Fly List as a crude tool of coercion to try to press them to become informants in Muslim communities. The four plaintiffs are a United States Citizen and three Lawful Permanent Residents. All four plaintiffs identify themselves as Muslims. And each tells a similar story of catch-and-release pressure by FBI agents who wanted them to become informants or agents provocateurs against members of their religious communities. In addition to naming Attorney General Eric Holder, FBI Director James Comey, Terrorist Screening Center Director Christopher Piehota, and DHS Secretary Jeh Johnson as defendants, the plaintiffs also include twenty-four FBI agents and one DHS agent either by full name, partial name, or “John Doe” reference.
The First Amended Complaint may be read here. The lawsuit has been assigned to Judge Ronnie Abrams. The Government’s response is due June 23. I think a motion to dismiss, rather than an answer, is a fairly safe prediction. More interesting, although a bit more inside baseball, will be whether an AUSA from the U.S. Attorney’s Office for the Southern District of New York runs the case (as the docket currently indicates) or attorneys from the Department of Justice in Washington D.C. take it over. The Southern District has historically been fairly autonomous from Main Justice with regard to its cases, successfully resisting such takeovers. But the Justice Department’s Federal Programs Branch (a part of the Civil Division) has developed a cadre of attorneys with experience in No Fly List cases, including most recently both Latif v. Holder (in Oregon) and Ibrahim v. DHS (in California). (Full disclosure: I served as a testifying expert for the plaintiff in Ibrahim in 2013 and served as a trial attorney in Federal Programs Branch from October 2003 to April 2006, although I had no exposure there to any No Fly List cases.)