                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                        Pursuant to Sixth Circuit I.O.P. 32.1(b)
                               File Name: 13a0205p.06

             UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                             _________________


                                                   X
                                                    -
 JULIA ANNE SHEARSON,
                                                    -
                          Plaintiff-Appellant,
                                                    -
                                                    -
                                                        No. 11-4234
            v.
                                                    ,
                                                     >
                                                    -
                                                    -
 ERIC H. HOLDER, JR., Attorney General;

 Bureau of Investigation; TIMOTHY J. HEALEY, --
 ROBERT MUELLER III, Director, Federal

                                                    -
                                                    -
 Director, Terrorist Screening Center;

                                                    -
 MICHAEL E. LEITER, Director of the National

                          Defendants-Appellees. -
 Counterterrorism Center,
                                                   N
                     Appeal from the United States District Court
                    for the Northern District of Ohio at Cleveland.
            No. 1:10-cv-1492—Solomon Oliver, Jr., Chief District Judge.
                           Argued: November 29, 2012
                       Decided and Filed: August 5, 2013
            Before: MARTIN, SILER, and DONALD, Circuit Judges.

                               _________________

                                   COUNSEL
ARGUED: Gadeir A. Abbas, COUNCIL ON AMERICAN-ISLAMIC RELATIONS,
Washington, D.C., for Appellant. Sharon Swingle, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Gadeir A. Abbas,
COUNCIL ON AMERICAN-ISLAMIC RELATIONS, Washington, D.C., for Appellant.
Sharon Swingle, Mark B. Stern, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees.




                                         1
No. 11-4234        Shearson v. Holder, et al.                                     Page 2


                                 _________________

                                      OPINION
                                 _________________

       BOYCE F. MARTIN, JR., Circuit Judge. In January 2006, the United States
Customs and Border Protection detained Julia Shearson, a U.S. citizen, and her daughter
as they drove into the United States from Canada. Customs searched Shearson’s car and
then allowed her to enter the country. Shearson filed this lawsuit claiming violations of
the Fifth Amendment’s Procedural Due Process clause, the Equal Protection clause, the
First Amendment, the Administrative Procedure Act, and the Privacy Act. The district
court dismissed all of Shearson’s claims. Shearson appeals the district court’s holding
regarding her due process claim—that Shearson failed to exhaust her administrative
remedies by submitting an inquiry through the Traveler Redress Inquiry Program. We
agree with the district court that Shearson should have used the administrative remedies
available and we AFFIRM the district court’s judgment.

                                           I.

       Julia Shearson is the executive director of the Cleveland, Ohio chapter of the
Council on American-Islamic Relations. In 2006, U.S. Customs and Borders Protection
stopped Shearson and her daughter as they were driving from Canada into the United
States. Customs removed her from her car, handcuffed her, and detained her for about
two and one-half hours while they searched the car. Shearson claims that, when the
customs officer swiped her passport, an “armed and dangerous” warning came up.
Customs allowed Shearson to enter the United States, and Shearson filed a request under
the Freedom of Information Act for documents related to her detention. She then sued
to compel disclosure of the documents, which ultimately led to the release of customs
files. The documents showed that Customs had detained and searched her because when
Customs entered her name into its system, her name returned “an Armed and
Dangerous” designation in Customs’ terrorist database. The documents also revealed
that she was a “POSITIVE VGTOF,” meaning her name was a positive match to the
FBI’s Violent Gang and Terrorist Organization File. Shearson asked the FBI to meet
No. 11-4234        Shearson v. Holder, et al.                                     Page 3


and discuss her alleged placement in its Violent Gang file. The FBI responded to her
request by stating that its policy was neither to confirm nor deny whether someone was
listed in its terrorist and gang files or watchlists. Instead, the FBI recommended that
Shearson use an administrative remedy, the Department of Homeland Security’s
Traveler Redress Inquiry Program, which “serves as the central gateway for travelers to
express concern when they believe they have been incorrectly delayed, denied boarding,
identified for additional screening, or have otherwise experienced difficulties when
traveling or seeking entry into the United States.” Shearson did not seek redress through
the Redress Program and instead brought this action in district court.

       Shearson believes that Customs detained her because her name appears in the
Terrorist Screening database.     Created in 2003, the Terrorist Screening Center
“consolidates the federal government’s approach to terrorism screening and [ ] provides
for the appropriate and lawful use of terrorist information in screening processes.” The
Terrorist Screening Center maintains a database, called the Terrorist Screening Database,
that compiles all the information about individuals suspected of or known to be involved
in terrorist activity. The Terrorist Screening Database disseminates this information to
different watchlists that various U.S. security agencies use. For example, information
from the Database contributes to watchlists compiled by the FBI, the Transportation
Security Administration, and the Department of State.

       The Department of Homeland Security created the Traveler Redress Program in
response to Congress’s statutory mandate to “establish a timely and fair redress process
for individuals who believe they have been delayed or prohibited from boarding a
commercial aircraft because they were wrongly identified as a threat.” 49 U.S.C.
§ 44926. The statute specifically required the Department to create a process for people
who have had trouble “boarding a commercial aircraft.” Id. But the record in this case
shows that the Program is used as a conduit for the complaints of those who enter and
exit the United States by other means. The Department considers the Redress Program
to be a “single, formal administrative redress process for a wide variety of claims,
including: delayed or denied airplane boarding; delayed or denied entry into or exit from
No. 11-4234         Shearson v. Holder, et al.                                       Page 4


the United States at a port of entry or border checkpoint; and continuous referral for
additional (secondary screening).”        The Program provides assistance to both
misidentified travelers and also travelers who have been told they are on a government
watchlist.

        When a traveler experiences trouble going through security he or she submits a
traveler inquiry form to the Traveler Redress Inquiry Program and receives a Redress
Control Number, which can be used to check on the status of his or her inquiry or used
when he or she books a flight. Upon receipt of the traveler-inquiry form, the Redress
Program reviews the “information submitted by the traveler and routes it to the
appropriate DHS component office . . . to determine whether the traveler is experiencing
screening problems that relate to his or her placement on a government watchlist.” If the
traveler has been misidentified, then the Redress Program attempts to update and correct
the information in the traveler’s record. The traveler then receives a determination letter.

        If a traveler has been positively identified as being on a watchlist not overseen
by Homeland Security, then the record indicates that the Program will “work directly
with the appropriate government agency to review the individual’s record and receive
a determination as to the person’s watchlist status.” If the traveler is a positive match
to a name on the Terrorist Screening Database, then Homeland Security refers the
inquiry to the Redress Unit of the Terrorist Screening Center. The record shows that the
Terrorist Screening Center then, “in consultation with other agencies in the intelligence
community, including the FBI and National Counterterrorism Center, will examine the
underlying intelligence relating to the individual’s watchlist status and make any
necessary corrections or updates to the individual’s watchlist status.” The changes may
sometimes result in the government’s removal of the traveler’s name from the terrorist
database. If the traveler has been misidentified, then the Program attempts to update and
correct the information in the traveler’s record.

        Finally, after the traveler’s records have been reviewed, the Program sends a
determination letter telling the traveler, in general terms, that the government has
considered the traveler’s case, and that the relevant government agencies have reviewed
No. 11-4234        Shearson v. Holder, et al.                                     Page 5


the necessary documents. However, the determination letters do not “disclose whether
or not [the individual] was, or still is, included on a watchlist or if there is other
government interest in the individual that may be considered law enforcement sensitive.”

       Shearson brought suit in the Northern District of Ohio, claiming her inclusion on
a terrorist watchlist violated the Fifth Amendment’s Due Process clause, the Equal
Protection clause, the First Amendment, the Administrative Procedure Act, and the
Privacy Act. Shearson sought prospective declaratory and injunctive relief. The
government moved to dismiss the case, arguing that Shearson lacked standing to sue, and
that she had failed to exhaust her administrative remedies by refusing to proceed through
the Redress Program.

       The district court granted the government’s motion to dismiss. For Shearson’s
due process claim, the court dismissed on the grounds of exhaustion only. Regarding
the due process claim, the court held that Shearson had demonstrated standing to sue, but
that she had sued prematurely because the Redress Program could have possibly
provided a remedy. Shearson appeals the district court’s decision, arguing that she
should not be required to exhaust because the Redress Program does not provide a
meaningful remedy for her injuries. Shearson also asks this Court both to decide the
merits of her due process claim and to use its powers to expunge the records the
government maintains as support for her watchlist status. In its response brief, the
government maintains that Shearson lacks standing.

                                           II.

       We review determinations of standing de novo. Pedreira v. Ky. Baptist Homes
for Children, Inc., 579 F.3d 722, 728 (6th Cir. 2009).

       The district court determined that Shearson had standing, and we agree. To
prove standing, a plaintiff must meet three requirements. First, the plaintiff must have
suffered an injury in fact, which is “concrete, particularized, and actual or imminent.”
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (citing Monsanto Co. v.
Geertson Seed Farms, 130 S. Ct. 2743, 2752 (2010) (quotations omitted)). “Second,
No. 11-4234           Shearson v. Holder, et al.                                     Page 6


there must be a causal connection between the injury and the conduct complained of”
— the injury has to be “‘fairly . . . trace[able] to the challenged action of the defendant,
and not . . th[e] result [of] the independent action of some third party not before the
court.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (quoting Simon
v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976) (parallel citation
omitted)). Third, it must be “‘likely,’ as opposed to merely ‘speculative,’ that the injury
will be ‘redressed by a favorable decision.’” Id. at 561 (quoting Simon, 426 U.S. at 38,
43). The party invoking federal jurisdiction must prove each of these elements. Id.
(citation omitted).

        While this Circuit has not yet considered standing in terrorist watchlist cases, the
Ninth Circuit held that whether a plaintiff has standing to bring a claim for removal from
a government watchlist is “highly fact-dependent,” and that a plaintiff must show she is
“‘realistically threatened’ with concrete injury in the future.” Ibrahim v. Dep’t of
Homeland Sec., 538 F.3d 1250, 1256 n.9 (9th Cir. 2008) (citations omitted).

        The government argues Shearson lacks standing to bring her due process claim
because she has not suffered an injury in fact. The government claims that Shearson’s
injury is speculative because she has not proven that the government ever put her on a
watchlist. But, as the Ninth Circuit and other district courts have noted, a traveler’s
subjection to heightened searches while entering the United States can be an indicator
that an individual is on a terrorist watchlist. Ibrahim v. Dep’t of Homeland Sec.,
669 F.3d 983, 992–93 (9th Cir. 2012); Scherfen v. U.S. Dep’t of Homeland Sec., No.
3:CV-08-1554, 2010 WL 456784, at *7 (M.D. Pa. Feb. 2, 2010) (“The complaint thus
supports a fair inference that Plaintiffs have experienced intensified screening as a result
of inclusion in the [Terrorist Screening Database], indicating that the alleged harm could
be avoided by the requested injunctive relief.”). Here, Customs subjected Shearson to
a heightened search when she crossed the border in 2006. As a result of her Freedom
of Information Act litigation, Shearson received documentation showing that her name
was a positive match to a name on the Violent Gang list. This evidence supports finding
that Shearson suffered an injury. The government’s argument that Shearson cannot
No. 11-4234          Shearson v. Holder, et al.                                       Page 7


prove that she remains in the terrorist database is not persuasive—the government does
not release information on whether a person continues to be listed in the terrorist
database or on terrorist watchlists, and it is impossible for Shearson to prove that her
name remains on that list.        Unless the government provides documentation on
Shearson’s watchlist status, we will presume that Shearson’s status remains the same.
Furthermore, Shearson argues not only that the government wrongly detained her in
2006, but also that, by remaining on the list, the government is “constrain[ing] her right
to travel freely internationally, to be treated like others situated similarly to her, and has
subjected her to the stigma that attends placement on a government watchlist.”
Shearson’s past detention, in conjunction with the presumption that she remains on
terrorist watchlists, make it likely she is “realistically threatened” with future injury.
Ibrahim, 538 F.3d at 1256 n.9; see City of Los Angeles v. Lyons, 461 U.S. 95, 102
(1983).

          We conclude that Shearson had standing to bring her case.

                                             III.

          We review de novo a court’s dismissal of a case for failure to exhaust
administrative remedies. Curry v. Scott, 249 F.3d 493, 503 (6th Cir. 2001).

          The exhaustion doctrine both allows agencies to “apply [their] special expertise
in interpreting relevant statues” and promotes judicial efficiency. Cent. States, Se. & Sw.
Areas Pension Fund v. 888 Corp., 813 F.2d 760, 764 (6th Cir. 1987) (citations omitted);
see also McCarthy v. Madigan, 503 U.S. 140, 145 (1992) (“The exhaustion doctrine also
acknowledges the commonsense notion of dispute resolution that an agency ought to
have an opportunity to correct its own mistakes with respect to the programs it
administers before it is haled into federal court.”). To determine whether a plaintiff
should have exhausted administrative remedies before bringing a claim, we must first
look to congressional intent. McCarthy, 503 U.S. at 144. Here, the government
concedes that there is no discernible congressional intent because 49 U.S.C. § 44926
does not require administrative exhaustion.
No. 11-4234            Shearson v. Holder, et al.                                                  Page 8


         When “Congress has not clearly required exhaustion, sound judicial discretion
governs” whether or not exhaustion should be required. Id. (citing McGee v. United
States, 402 U.S. 479, 483 n.6 (1971)) (rest of citation and parenthetical omitted).1 This
discretion requires “fashioning [ ] exhaustion principles in a manner consistent with
congressional intent and any applicable statutory scheme.” Id. (citation omitted); Patsy
v. Bd. of Regents of State of Fla., 457 U.S. 496, 501 (1982) (“[C]ourts play an important
role in determining the limits of an exhaustion requirement and may impose such a
requirement even where Congress has not expressly so provided.”).

         While a court has discretion to fashion exhaustion requirements, there are some
exceptions to the exhaustion doctrine. For example, exhaustion may not be required
when the administrative remedy “does not serve the purposes behind the exhaustion
doctrine[],” if the “administrative remedies are inadequate or not efficacious,” or “where
pursuit of administrative remedies would be a futile gesture.” Shawnee Coal Co. v.
Andrus, 661 F.2d 1083, 1093 (6th Cir. 1981) (citation omitted).                            Additionally,
“[e]xhaustion of administrative remedies may not be required in cases of non-frivolous
constitutional challenges to an agency’s procedures.” Bangura v. Hansen, 434 F.3d 487,
493 (6th Cir. 2006) (citing S. Ohio Coal Co. v. Office of Surface, Mining, Reclamation
and Enforcement, 20 F.3d 1418, 1425 (6th Cir. 1994)).

         Shearson appeals the district court’s dismissal of the case for failure to exhaust
administrative remedies for three reasons. First, Shearson argues that she is bringing a
non-frivolous constitutional challenge to the Terrorist Screening Center’s procedures for
compiling the terrorist database and the Redress Program will not provide constitutional
review of her claim. Second, she argues that the Redress Program is an inadequate

         1
           It is unclear whether Shearson would be required to exhaust under the Administrative Procedure
Act (“APA”). See 5 U.S.C. § 704; Darby v. Cisneros, 509 U.S. 137, 146–47 (1993). Under Darby v.
Cisneros, a court cannot require exhaustion if, under the APA, the agency action is considered final and
the neither the statute nor agency rule requires exhaustion. Id. In cases not governed by the APA, the
exhaustion doctrine continues to apply. Id.
          In supplemental briefing, Shearson argues that under Darby her “APA claim must move forward.”
That may well be; however, Shearson abandoned her APA claim. Shearson brought an APA claim in the
district court, which the district court dismissed on standing grounds. She made a decision not to appeal
that claim and we decline to consider it now. Robinson v. Jones, 142 F.3d 905, 906 (6th Cir. 1998)
(“Issues which were raised in the district court, yet not raised on appeal, are considered abandoned and not
reviewable on appeal.” (citing Enertech Elec., Inc. v. Mahoning Cnty Comm’rs, 85 F.3d 257, 259
(6th Cir.1996))).
No. 11-4234        Shearson v. Holder, et al.                                      Page 9


administrative procedure because it was created to solve the problems of air travelers
who have been misidentified as being on the terrorist watchlist. Shearson alleges that
the Redress Program is not a process for resolving the problems of individuals actually
on the watchlist or of land travelers. Finally, Shearson argues that the Redress Program
is inadequate because only the Terrorist Screening Center, not Homeland Security, can
grant her relief and there is “doubt as to whether the agency was empowered to grant
effective relief.” McCarthy, 503 U.S. at 147 (1992) (quoting Gibson v. Berryhill,
411 U.S. 564, 575 n.14 (1973) (parallel citation omitted)).

       While there are deficiencies in the Redress Program process, we agree with the
district court that Shearson should be required to exhaust her administrative procedures
by submitting a traveler inquiry form through the Redress Program before she can
proceed with this case. There is very little guidance in any Circuit considering
administrative exhaustion as it pertains to the Redress Program and there is no case law
in this Circuit. However, when considering the purposes of the exhaustion doctrine,
making Shearson submit a Traveler Redress inquiry is reasonable to promote judicial
efficiency and allow the agencies involved an opportunity to resolve problems with their
procedures.

       Shearson is correct that exhaustion need not be required for non-frivolous
constitutional challenges. S. Ohio Coal Co., 20 F.3d at 1425. However, this does not
mean that all non-frivolous constitutional challenges are free from exhaustion
requirements. Ghaffar v. Mukasey, 551 F.3d 651, 655 (7th Cir. 2008) (citations omitted)
(holding that plaintiffs who bring a due process claim “based on a procedural failing that
the [agency] could have remedied” will not excuse failure to exhaust); Shurney v. INS,
201 F. Supp. 2d 783, 789 (N.D. Ohio 2001) (holding exhaustion not required where
administrative relief will be ineffective and futile). Here, requiring exhaustion and
forcing Shearson to go through the Redress Program’s inquiry process may help remove
her from the terrorist list and help end her continuing injury.

       Shearson is right that there is no express statutory grant to the Redress Program
to deal with constitutional claims brought against the Terrorist Screening Center. She
No. 11-4234        Shearson v. Holder, et al.                                    Page 10


is also right that Homeland Security runs the Redress Program and her issues are with
the Terrorist Screening Center, a section of the FBI. However, this does not mean that
her submitted inquiry will go un-reviewed. While the Department of Homeland Security
administers the Program, the Terrorist Screening Center still reviews traveler inquiries
submitted through the process. Redress Procedures, TERRORIST SCREENING CENTER
(Apr. 19, 2012), http://www.fbi.gov/about-us/nsb/tsc/tsc_redress.          The Terrorist
Screening Center does not have its own redress unit that deals directly with the public
and its website directs any travelers who have problems with Terrorist Screening Center
watchlists to submit a proper inquiry through the Traveler Redress Inquiry Program. Id.
Allowing the Terrorist Screening Center to use its expertise to try and resolve Shearson’s
claim through the Redress Program is prudent.

       Additionally, forcing Shearson to advance her claims through the Program will
promote judicial efficiency, despite the Redress Program’s shortcomings. There are
thousands of people on the government’s terrorist watchlists, and there are thousands
more people each year whom the government misidentifies as being on the lists. The
Redress Program procedures help force an internal review of the data and may lead to
the removal of a person’s name from the terrorist database. While the Redress
Program’s determination letters do not provide a direct answer for travelers about
whether the terrorist watchlist has included or continues to include them, the Redress
Program review process creates a record that may be reviewed by a judge in camera.
Scherfen, 2010 WL 456784, at *8. This record will help a court better determine the
issues, determine whether a plaintiff has standing, and whether the plaintiff’s claim is
moot. Id. Making it easier for plaintiffs to bypass the Redress Program will burden the
courts when many cases can be easily resolved.

                                           IV.

       In addition to arguing that she does not need to proceed with her claim through
the Redress Program, Shearson also asks this Court to consider deciding her due-process
claim on the merits. We need not consider this argument because we hold that Shearson
has not exhausted her administrative remedies.
No. 11-4234        Shearson v. Holder, et al.                                     Page 11


                                           V.

       Lastly, Shearson requests this Court use its equitable powers to expunge all the
government records held by the Terrorist Screening Center that supported its placement
of her in the terrorist databases. Despite having no information on what those documents
hold, Shearson asks this Court to find in her favor because, she claims, the injury to her
outweighs the documents’ utility to the government. We refuse to entertain this
argument.

                                           VI.

       We AFFIRM the district court.
