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Crooker v. Transportation Security Administration

United States District Court, D. Massachusetts

July 26, 2018





         The 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 decision-maker.

         The 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.

         A. Procedural History

         Crooker 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.

         After a 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.

         B. Facts Alleged

         Crooker 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.

         The Defendants are the agencies of the United States. Id. ¶¶ 3-4. They are described more in detail in the section entitled "Statutory and Regulatory Background," infra.

         LAZ Fly 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. ¶ 7.

         Crooker 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.

         Gomes, 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.

         On 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.

         Crooker 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 ""), as well as DHS, trying to obtain any information or response regarding his situation. Id. ¶¶ 18-23.

         On 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.

         Crooker subsequently brought this action.

         C. Statutory and Regulatory Background

         1. The Transportation Security Administration/ the Federal Bureau of Investigation, and the Terrorist Screening Center

         The 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. § 44903(b).

         The FBI 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.

         "The 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], ...

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