United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
WILLIAM G. YOUNG DISTRICT JUDGE
Plaintiff, Michael Alan Crooker ("Crooker"), filed
this action against the Transportation Security
Administration (WTSA") of the Department of
Homeland Security ("DHS") and the Federal Bureau of
Investigation of the United States Department of Justice
("FBI" and collectively,
thewDefendants") seeking a declaratory
judgment that the Defendants' policies, practices and
customs violate the United States Constitution and the
Administrative Procedure Act. Crooker also seeks an
injunction to remedy such violations, including: (1) the
removal of Crooker7s name from any watch list or database
that prevents him from flying, (2) a disclosure of the
reasons and bases for his inclusion on the federal
government's "No Fly List," and (3) the
opportunity to contest such inclusion before a live, neutral
Defendants moved to dismiss the complaint pursuant to Rule
12(b)(1) and (6) of the Federal Rules of Civil Procedure,
asserting that the Court lacks subject matter jurisdiction on
the action and that Crooker fails to state a claim upon which
relief can be granted. In the alternative, the Defendants
request that the Court stay proceedings in this case pending
Crooker's exhaustion of his administrative remedies.
filed his complaint on January 19, 2018, Compl., ECF No. 1,
and later amended it on March 26, 2018, Am. Compl., ECF No.
38. On April 16, 2018, the Defendants filed a motion to
dismiss the amended complaint, Defs.' Mot. Dismiss Am.
Compl. ("Defs.' Mot."), ECF No. 43, along with
a motion to stay, in the alternative, Defs.' Mot. Stay
Am. Compl. ("Defs.' Mot. Stay"), ECF No. 45.
Both motions were fully briefed. See Defs.' Mem.
Law Supp. Mot. Dismiss ("Defs.' Mem. Dismiss"),
ECF No. 44; Defs.' Mem. Law Supp. Mot. Stay
("Defs.' Mem. Stay"), ECF No. 46; PL's
Opp'n Defs.' Mot. Stay Am. Compl. ("PL's
Opp'n Stay"), ECF No. 47, PL's Opp'n
Defs.' Mot. Dismiss Am. Compl. ("PL's Opp'n
Dismiss"), ECF No. 48; Defs.' Reply PL's
Opp'n ("Defs.' Reply"), ECF No. 51.
motion session held on June 11, 2018, at which this Court
took the matter under advisement, the parties filed
additional briefs. See Defs.' Suppl. Mem. Mot.
Dismiss & Mot. Stay ("Defs.' Suppl. Mem."),
ECF No. 58; Pi.'s Reply Suppl. (WP1.'s
Suppl. Reply"), ECF No. 59.
is a Massachusetts citizen residing in Southwick,
Massachusetts, employed as a shuttle bus driver for LAZ Fly
Airport Parking ("LAZ Fly'7), located in Windsor
Locks, Connecticut. Am. Compl. ¶ 2. He is an ex-offender
released from a federal prison on March 15, 2017, to home
confinement and then on August 22, 2017, released from home
confinement. Id. ¶ 5. Crooker's convictions
were: (a) mailing a threatening communication to an officer
of the United States in violation of 18 U.S.C. § 876(c),
a Class C felony, and (b) possession of an unregistered toxin
in violation of 18 U.S.C. § l75b(c)(1), a Class D
felony. Id. The threatening communication was sent
from jail to a federal prosecutor. Id.
Defendants are the agencies of the United States.
Id. ¶¶ 3-4. They are described more in
detail in the section entitled "Statutory and Regulatory
is a public sector company and is known as an
''off-airport parking company," which
has contractual arrangements with the Connecticut Airport
Authority ("CAA") to shuttle airline passengers.
Id.¶ 8. LAZ Fly hired Crooker as a shuttle bus
driver and he began work on July 13, 2017, at which time his
job duties included transporting airline passengers between
the three LAZ Fly parking lots on Ella Grasso Turnpike and
the public curb of the airport terminal. Id. ¶
disclosed his federal conviction status in his LAZ Fly hiring
paperwork and included the name and phone number of his
federal probation officer, Jesse Gomes ("Gomes").
Id. ¶ 10. Crooker7s LAZ Fly superiors were
aware that until August 22, 2017, Crooker was wearing a GPS
ankle bracelet, which limited his ability to stay late at
night for overtime. Id.
concerned about Crooker's possible presence in the
restricted areas of the airport, sought clearance from the
TSA and spoke with Steven Blindbury ("Blindbury")
at the TSA about Crooker's employment driving airline
passengers to and from the public curb of the airport
terminal. Id. ¶ 11. Blindbury approved of the
employment and assured Gomes that Crooker would not have
access to the secured areas of the airport and would be
working only in locations the general public may access,
outside the TSA security checkpoints. Id.
September 24, 2017, LAZ Fly informed Crooker that he could no
longer drive to the airport, and later, on or about October
11, 2017, his job was terminated. Id. ¶ 13.
Crooker alleges that the above action was due to the
disclosure of information to LAZ Fly, which could only have
originated from the TSA, stating that Crooker is on the
federal No Fly List. Id- Crooker subsequently
received a copy of a letter that states that he is on the No
Fly List. Id.; see Letter from CAA
Dep't of Public Safety, ECF No. 25.
contacted FBI Special Agent Richard Winfield
("Winfield"), who informed Crooker that the
Terrorist Screening Center (WTSC") adds names
to the No Fly List and instructed him that the only available
remedy is to file a Traveler Redress Inquiry Program Form
("TRIP Form") with DHS. Id. ¶¶
14-15. Crooker then filed a TRIP Form on October 13, 2017,
complaining that he had been fired from his job due to the
disclosure that he was on the No Fly List. Id.
¶ 16. DHS replied on October 20, 2017, stating
that" [a]fter reviewing your inquiry, we have determined
that it falls outside the scope of the DHS TRIP program.
Therefore, we are closing your inquiry." Id.
¶ 17. In the following weeks, Crooker reached out
multiple times to the TSA Contact Center, (specifically, to
the email address "email@example.com"), as
well as DHS, trying to obtain any information or response
regarding his situation. Id. ¶¶ 18-23.
November 14, 2017, Crooker received an email from the TSA
stating that "TSA can neither confirm nor deny whether
an individual is on a Federal watch list because this
information is derived from classified and sensitive law
enforcement and intelligence information" and that
Crooker's issue was beyond the TSA's jurisdiction.
Id. ¶ 24.
subsequently brought this action.
Statutory and Regulatory Background
The Transportation Security Administration/ the Federal
Bureau of Investigation, and the Terrorist Screening
TSA, as an agency within DHS, has the duty to secure all
modes of transportation, including aviation security. 49
U.S.C. § 114(d). The TSA is responsible for May-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. L §
H4(1)(1), as well as "prescribe regulations to protect
passengers and property on an aircraft," id.
investigates and analyzes intelligence relating to both
domestic and international terrorist activities, see
28 U.S.C. § 533, 28 C.F.R. § 0.85(1), and
administers the TSC.
TSC is a multi-agency center administered by the [FBI] and is
the U.S. Government's consolidated counterterrorism
watchlisting component responsible for the management and
operation of the Terrorist Screening Database, commonly known
as 'the watchlist.'" Terrorist Screening Center,
Frequently AskedQuestions at 1 (last
updated Jan. 2017) ("TSC FAQ"),
frequently-asked-questions.pdf. The TSC "ensures the
timely dissemination of terrorist identity information to
screening partners such as the Department of State, [DHS],