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Scherfen v. United States Dep't of Homeland Security

February 2, 2010


The opinion of the court was delivered by: Judge Vanaskie


A party seeking only a declaratory judgment and prospective injunctive relief in federal court, as have the Plaintiffs in this action, must present a claim for which meaningful relief may be granted, i.e., standing, and the asserted claims must fall within the federal court's authority as delimited by the United States Constitution and congressional enactments, i.e., subject matter jurisdiction. The absence of either standing or subject matter jurisdiction compels dismissal of such an action. In this case, Plaintiffs satisfy neither standing nor subject matter jurisdiction. Accordingly, Defendants' challenge to this Court's authority to entertain this action will be sustained.


Plaintiffs, citizens of the United States, contend that they have been placed on "watch lists and in the Terrorist Screening Data Base" compiled by the United States Government solely "because they are Muslim and have been active in promoting their faith."

(Comp., Dkt. 1, at ¶ 69.)*fn1 Plaintiffs also contend that they have been "falsely stigmatized as individuals associated with terrorist activity" without being afforded "a legal mechanism that affords them notice and an opportunity to contest their inclusion on the terrorist watch lists." (Id. at ¶ 73, ¶ 74.) Plaintiffs seek a declaratory judgment as well as injunctive relief in the form of "removal of Plaintiffs from any watch lists or databases that inhibit their travel in any manner." (Id., p. 21.)

Plaintiff Erich Scherfen is an American-born United States citizen and a combat veteran of the first Gulf War who resides in Schuylkill County, Pennsylvania. Mr. Scherfen obtained employment as a commercial pilot in May of 2007. Plaintiff Rubina Tareen is a naturalized citizen of the United States who emigrated from Pakistan in 1974. Ms. Tareen is engaged in the business of selling books about Islam through a website and at conferences. Mr. Scherfen and Ms. Tareen are husband and wife.

Both Mr. Scherfen and Ms. Tareen are active members of the Islamic community, attend Islamic prayer services every week, and speak publicly regarding comparative religion and Islam. Both Plaintiffs allege that, commencing in September of 2006, they were subjected to enhanced screening prior to boarding flights at airports within the United States.*fn2 Both Plaintiffs allege that they have been informed by airlines and airport personnel that they are on terrorist watch lists maintained by the United States Government.

Plaintiffs also describe an incident that occurred on December 25, 2006, when they were returning home by car from Toronto, Canada, and were stopped and interrogated by agents of the Department of Homeland Security (DHS) for several hours. During this incident, the contents of their vehicle, including boxes of books that Ms. Tareen had offered for sale at an Islamic conference in Toronto, were searched. A letter Mr. Scherfen wrote to DHS complaining about the December 25, 2006 incident went unanswered. (Id. at ¶ 39.)

Mr. Scherfen alleges that on April 29, 2008, his employer informed him that he was "a 'positive match' on a TSA 'list.'" (Id. at ¶ 54.) By this time, Mr. Scherfen had been employed as a commercial airline pilot for almost one year, evidently without encountering any problems. Mr. Scherfen's employer placed him on administrative leave and required the surrender of his pilot identification card. On May 19, 2008, Mr. Scherfen was suspended without pay and informed that he would be terminated if he was unable to resolve his placement on a watch list.

Earlier in May of 2008, Mr. Scherfen wrote to the DHS "Traveler Redress Inquiry Program" (TRIP), requesting that his name be removed from the "list" as promptly as possible. (May 5, 2008 Letter, Ex. "A" to Comp., Dkt. 2.) Mr. Scherfen's letter stated:

I cannot begin to imagine why I am on this list and I can only believe there must be some mistake. I have served our country honorably as an officer and am proud of the values on which it is based. I am a Veteran of the 1991 Gulf War, serving as an enlisted infantry man, a paratrooper, and as an officer/helicopter pilot in the National Guard. I joined the United States Army in August 1989 and have served in the military for a total of thirteen years. Honorably discharged on 9 February 2006. (Id.)

By letter dated June 17, 2008, Mr. Jim Kennedy of the DHS TRIP responded to Mr. Scherfen's inquiry. (Ex. "B" to Comp., Dkt. 3.) While explaining that DHS "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," Mr. Kennedy's letter informed Mr. Scherfen of the process by which "individuals who believe they have been incorrectly delayed, denied boarding, identified for additional screening, or have experienced difficulties when seeking entry into the United States," may seek redress. (Id.) The June 17, 2008 letter further provided:

[DHS] requires airlines to verify the identity of all passengers to insure that persons on Federal watch lists who are known to pose, or are suspected of posing, a threat to civil aviation or national security receive secondary screening or are denied boarding on commercial aircraft. The Federal watch lists are maintained by the U.S. Terrorist Screening Center in a consolidated Terrorist Screening Database, and are compiled from information provided by the Federal intelligence and law enforcement agencies. The Federal watch lists include a No-Fly List and a Selectee List. Individuals on the No-Fly List are prohibited from traveling on commercial aircraft. Individuals on the Selectee List are permitted to fly but receive secondary screening at airport security checkpoints. (Id.) Mr. Kennedy advised Mr. Scherfen that he could invoke the TRIP process either by completing a "Traveler Inquiry Form" online or by completing a written form and sending it to DHS. Mr. Scherfen was further informed that a control number would be assigned when an online inquiry was submitted. Finally, Mr. Scherfen was told that he would receive a written response to the Traveler Inquiry Form upon completion of review.

On June 17, 2008, both Plaintiffs submitted Traveler Inquiry Forms in hard copy. On his form, Mr. Scherfen checked the boxes for the following scenarios that purported to describe his travel experience:

[A]lways subjected to additional screening when going through an airport security check point.

[U]nable to print a boarding pass at the airport kiosk or at home.

[D]irected to the ticket counter every time I fly.

[A]irline ticket agent states that I am on a Federal Government Watch List.

[D]etained during my travel experience.

[T]icket agent took my identification and 'called someone' before handing me a boarding pass.

[R]epeatedly referred for secondary screening when clearing U.S. Customs and Border Protection.

(Ex. C to Comp., Dkt. 4.) On her Traveler Inquiry Form, Ms. Tareen, in addition to the boxes for the above-mentioned scenarios, checked the box for the scenario of having missed a flight while attempting to obtain a boarding pass. (Id.) Both Plaintiffs checked the box to indicate that they believed that they had been discriminated against based on race, disability, religion, gender, or ethnicity. (Id.)

On August 19, 2008, not having received any response to their Traveler Inquiry Forms or even a control number by which to track the processing of the forms despite a follow-up inquiry by their counsel, Plaintiffs commenced this litigation. Accompanying the complaint was an "expedited" motion for emergency injunctive relief due to the impending termination of Mr. Scherfen's employment. (Dkt. 5.) By Order dated August 21, 2008, a hearing on the preliminary injunction motion was scheduled for September 18, 2008. (Dkt. 14.)

By letter dated August 26, 2008, addressed to the Office of Chief Counsel of the Transportation Security Administration (TSA), an attorney for Mr. Scherfen's employer confirmed that Mr. Scherfen was being returned to flight status. (Dkt. 17-2.) In light of this development, Plaintiffs withdrew their motion for a preliminary injunction. (Dkt. 18.)

By separate letters dated October 15, 2008, Mr. Kennedy of TRIP provided his agency's response to Plaintiffs' separate Traveler Inquiry Forms. Mr. Kennedy's letters are identical in content, stating in part:

In response to your inquiry concerning travel delays at the airline ticket counter or airport security checkpoint, we conducted a review of any applicable records in consultation with other Federal agencies, as appropriate. Where it was determined that a correction to records was warranted, these records were modified to address any delay or denial of boarding that you may have experienced as a result of the Transportation Security Administration's watch list screening process. This determination ...

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