Metropolitan News-Enterprise


Tuesday, August 19, 2008


Page 3


Ninth Circuit: District Courts Can Hear Challenge to No-Fly List


By SHERRI M. OKAMOTO, Staff Writer


A passenger whose name appears on the No-Fly List and who is detained at an airport may sue in U.S. district court, the Ninth U.S. Circuit Court of Appeals held yesterday.

A divided court said Rahinah Ibrahim can sue, under the Administrative Procedure Act, for an injunction directing the government to remove her name from the No-Fly List and to cease certain policies and procedures implementing the list. She cannot, however, sue federal agents for damges under 42 U.S.C. § 1983, which covers claims for violations of civil rights under color of state law, the panel unanimously agreed.

Ibrahim’s Sec. 1983 and state tort claims against San Francisco officers remain pending in the district court and were not at issue in the appeal.

Ibrahim is a Malaysian Muslim who was attempting to fly home from San Francisco—she was a student at Stanford—when she was detained in January 2005. After being handcuffed in front of her 14-year-old daughter and held for about two hours, she was released at the direction of the FBI, and allowed to fly the next day.

Among the defendants named in Ibrahim’s complaint were the FBI’s Terrorist Screening Center, which is responsible for compiling the list of names ultimately placed on the No-Fly List, and the Transportation Security Administration, which implemented the No-Fly List with a “Security Directive” requiring airlines to check passengers’ identification against the list and setting forth the procedures to be followed if they find a passenger’s name on the list.

U.S. District Judge William H. Alsup of the Northern District of California ruled that the No-Fly List was an “order” of the TSA and thus non-reviewable by the district court under 49 U.S.C. § 46110(a)—which grants exclusive jurisdiction to the federal appellate courts to “review” the “order[s]” of a number of agencies, including the TSA.

But Chief Judge Alex Kozinski, writing for the Ninth Circuit, reasoned that the placement of Ibrahim’s name on the No-Fly list was an order by the Terrorist Screening Center, not the TSA or any other agency named Sec. 46110.

Thus, assuming that the APA waived sovereign immunity and provided Ibrahim with a cause of action, he concluded, the district court retained jurisdiction to review Ibrahim’s claims.

U.S. District Judge S. James Otero of the Central District of California, sitting by designation, joined Kozinski in his opinion, but Judge N. Randy Smith dissented.

Because Congress delegated the responsibility for promulgating regulations and directives relating to the No-Fly List to the TSA, Smith argued, Ibrahim’s claims against the Terrorist Screening Center constituted a challenge to an order of the TSA.

“At a minimum,” Smith contended, Ibrahim’s claims were “inescapably intertwined’ with the TSA’s Security Directive and therefore should be subject to Sec. 46110(a).

However, Kozinski declined to take the broader statutory interpretation Smith advocated, reasoning “the statute provides jurisdiction to review an ‘order’—it says nothing about ‘intertwining,’ escapable or otherwise.”

The case is Ibrahim v. Department of Homeland Security, 06-16727.


Copyright 2008, Metropolitan News Company