ELHADY v. KABLE

No. 20-1119, No. 20-1311.

993 F.3d 208 (2021)

Anas ELHADY; Osama Hussein Ahmed; Ahmad Ibrahim Al Halabi; Michael Edmund Coleman; Murat Frljuckie; Adnan Khalil Shaout; Wael Hakmeh; Saleem Ali; Samir Anwar; John Doe, No. 2; John Doe, No. 3; Shahir Anwar; Baby Doe, 2; Yaseen Kadura; Hassan Shibly; Ausama Elhuzayel; Donald Thomas; Ibrahim Awad; Muhammad Yahya Khan; Hassan Fares; Zuhair El-Shwehdi; John Doe, No. 4; Mark Amri, Plaintiffs-Appellees, v. Charles H. KABLE, Director of the Terrorist Screening Center, in his official capacity; Kelli Ann Burriesci, Principal Deputy Director of the Terrorist Screening Center in her official capacity; Timothy P. Groh, Deputy Director for Operations at the Terrorist Screening Center in his official capacity; Deborah Moore, Director of Department of Homeland Security Traveler Redress Inquiry Program in her official capacity; Nicholas J. Rasmussen, Director of the National Counterterrorism Center in his official capacity; David Pekoske, Administrator of the Transportation Security Administration in his official capacity; Christopher Wray, Director of the Federal Bureau of Investigation in his official capacity; Kevin K. McAleenan, Acting Commissioner of United States Customs and Border Protection in his official capacity, Defendants-Appellants, The Rutherford Institute; Cato Institute; Fred T. Korematsu Center for Law & Equality; Firearms Policy Coalition, Inc.; Firearms Policy Foundation; Jeffrey Kahn; Electronic Frontier Foundation; Muslim Advocates; American Civil Liberties Union; American-Arab Anti-discrimination Committee; Arab American Institute; Brennan Center for Justice at NYU School of Law; Center for Constitutional Rights; Creating Law Enforcement Accountability & Responsibility Project At City University of New York; Sikh Coalition, Amici Supporting Appellees. Anas Elhady; Osama Hussein Ahmed; Ahmad Ibrahim Al Halabi; Michael Edmund Coleman; Murat Frljuckie; Adnan Khalil Shaout; Wael Hakmeh; Saleem Ali; Samir Anwar; John Doe, No. 2; John Doe, No. 3; Shahir Anwar; Baby Doe, 2; Yaseen Kadura; Hassan Shibly; Ausama Elhuzayel; Donald Thomas; Ibrahim Awad; Muhammad Yahya Khan; Hassan Fares; Zuhair El-Shwehdi; John Doe, No. 4; Mark Amri, Plaintiffs-Appellees, v. Charles H. Kable, IV, Director of the Terrorist Screening Center, in his official capacity; Kelli Ann Burriesci, Principal Deputy Director of the Terrorist Screening Center in her official capacity; Timothy P. Groh, Deputy Director for Operations at the Terrorist Screening Center in his official capacity; Deborah Moore, Director of Department of Homeland Security Traveler Redress Inquiry Program in her official capacity; Nicholas J. Rasmussen, Director of the National Counterterrorism Center in his official capacity; David P. Pekoske, Administrator of the Transportation Security Administration in his official capacity; Christopher Asher Wray, Director of the Federal Bureau of Investigation in his official capacity; Kevin K. McAleenan, Acting Commissioner of United States Customs and Border Protection in his official capacity, Defendants-Appellants, The Rutherford Institute; Cato Institute; Fred T. Korematsu Center for Law & Equality; Firearms Policy Coalition, Inc.; Firearms Policy Foundation; Jeffrey Kahn; Electronic Frontier Foundation; Muslim Advocates; American Civil Liberties Union; American-Arab Anti-Discrimination Committee; Arab American Institute; Brennan Center for Justice at NYU School of Law; Center for Constitutional Rights; Creating Law Enforcement Accountability & Responsibility Project At City University of New York; Sikh Coalition, Amici Supporting Appellees.

United States Court of Appeals, Fourth Circuit.

Decided: March 30, 2021.


Attorney(s) appearing for the Case

ARGUED: Joshua Paul Waldman , UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Gadeir Ibrahim Abbas , CAIR LEGAL DEFENSE FUND, Washington, D.C., for Appellees. ON BRIEF: Joseph H. Hunt , Assistant Attorney General, G. Zachary Terwilliger , United States Attorney, Sharon Swingle , Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Lena F. Masri , Justin Sadowsky , CAIR LEGAL DEFENSE FUND, Washington, D.C., for Appellees. John W. Whitehead , Douglas R. McKusick , THE RUTHERFORD INSTITUTE, Charlottesville, Virginia; Ilya Shapiro , Clark M. Neily III , CATO INSTITUTE, Washington, D.C.; Bradley D. Jones , Nicole P. Desbois , ODIN, FELDMAN & PITTLEMAN, P.C., Reston, Virginia, for Amici The Rutherford Institute and Cato Institute. Robert S. Chang , Jessica Levin , Fred T. Korematsu Center for Law and Equality, Ronald A. Peterson Law Clinic, SEATTLE UNIVERSITY SCHOOL OF LAW, Seattle, Washington; Muhammad U. Faridi , Sofia G. Syed , Andrew Willinger , PATTERSON BELKNAP WEBB & TYLER LLP, New York, New York, for Amicus The Fred T. Korematsu Center for Law and Equality. Matthew Larosiere , FIREARMS POLICY COALITION, Sacramento, California; Reilly Stephens , Alexandria, Virginia, for Amici Firearms Policy Coalition and Firearms Policy Foundation. Patrick Toomey , Noor Zafar , Hina Shamsi , Hugh Handeyside , AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Amici American Civil Liberties Union, American-Arab Anti-Discrimination Committee, Arab American Institute, Brennan Center for Justice, Center for Constitutional Rights, Creating Law Enforcement Accountability & Responsibility Project, and the Sikh Coalition. Andrew T. Tutt , R. Stanton Jones , Stephen K. Wirth , Shira V. Anderson , ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Amicus Professor Jeffrey D. Kahn. Matthew W. Callahan , MUSLIM ADVOCATES, Washington, D.C., for Amicus Muslim Advocates. Matthew Borden , Athul Acharya , Gunnar Martz , BRAUNHAGEY & BORDEN LLP, San Francisco, California; Saira Hussain , Mark Rumold , Kit Walsh , ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for Amicus Electronic Frontier Foundation.

Reversed and remanded by published opinion. Judge Wilkinson wrote the opinion, in which Judge Richardson and Judge Quattlebaum joined.


To protect against acts of terrorism, the government maintains the Terrorist Screening Database (TSDB). One of the chief uses of the TSDB is to screen travelers in airports and at the border. The plaintiffs, twenty-three individuals who allege they are in the TSDB, object to the delays and inconveniences they have experienced...

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