Friday, July 27, 2012
Ninth Circuit Allows Challenge to No-Fly List to Proceed
By KENNETH OFGANG, Staff Writer
Citizens and resident aliens challenging their apparent inclusion on the federal government’s no-fly list may sue in U.S. District Court in Oregon, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel said U.S. District Judge Anna Brown erred in dismissing the suit last year on jurisdictional grounds.
Brown said the suit was improperly brought because district courts can’t review decisions of the Transportation Security Administration. But Judge Richard Tallman, writing for the Ninth Circuit, said the Terrorist Screening Center, not the TSA, possesses the information as to why the plaintiffs were placed on the list and has the ultimate authority to remove them from it.
The lawsuit was filed two years ago by American Civil Liberties Union lawyers on behalf of 15 men who were barred from leaving or returning to the United States. Those who alleged they were stranded abroad have since returned under “one-time waivers,” Tallman explained in a footnote.
TSC and TSA
The TSC, which is administered by the FBI, maintains the list of known or suspected terrorists who are not permitted to fly in United States airspace. The evidence that it relies on is classified, and the list is provided to the TSA, which enforces the bans in cooperation with local law enforcement and the airlines.
Individuals who believe they have been wrongfully barred from flying may file grievances under the Department of Homeland Security’s Traveler Redress Inquiry Program, or DHS TRIP. The department provides each grievant with a determination letter, reviewable by the federal appeals courts.
In the case before the Ninth Circuit, each plaintiff received a determination letter saying that the government would neither confirm nor deny that he was on the list, or that the agency found that “no changes or corrections are warranted at this time.”
The plaintiffs sued the FBI, the TSC, and the attorney general for injunctive relief. In dismissing, Brown cited 46 U.S.C. § 46110.
The section grants exclusive jurisdiction to the federal appellate courts to “review” the “order[s]” of a number of agencies, including the TSA. But Tallman said the statute does not bar the plaintiff’s substantive due process challenge, citing Ibrahim v. Dep’t of Homeland Security (9th Cir. 2008) 538 F.3d 1250.
The court held there that a passenger whose name apparently appeared on the No-Fly List and who was detained at an airport could sue in district court because the TSC, not the TSA, was responsible for placing her on the list.
With respect to the plaintiffs’ procedural due process claim, the judge said it was “neither clear nor fairly discernible from the statutory scheme that Congress intended to strip the district court of jurisdiction over Plaintiffs’ constitutional claim.”
While the district judge did not abuse her discretion in finding that the TSA is a necessary party, he wrote, it was error to conclude that it could not be joined. Since only the Terrorist Screening Center, not the TSA, can provide the relief that the plaintiffs are seeking, Tallman added, the district court has jurisdiction.
Chief Judge Alex Kozinski and Senior Judge A. Wallace Tashima concurred.
Nusrat Choudhury, the New York-based ACLU lawyer who argued the case, said in a statement:
“More than two years ago, our clients were placed on a secret government blacklist that denied their right to travel without an explanation or chance to confront the evidence against them. The Constitution requires the government to provide our clients a fair chance to clear their names and a court will finally hear their claims.”
A Department of Justice spokesman told The Associated Press that agency officials are reviewing the decision and declined to comment.
The case is Latif v. Holder, 11-35407.
Copyright 2012, Metropolitan News Company