If you think the No Fly List seems like a violation of due process, you’re not alone. The good news? The No Fly List is finally going to be reviewed in federal court.
Last week, the Ninth Circuit Court of Appeals ruled that an Oregon district court had improperly dismissed a lawsuit challenging the No Fly List, The Wall Street Journal reports.
The FBI's Terrorist Screening Center (TSC) maintains the No Fly List, a roster of known and suspected terrorists who are not permitted to fly in United States airspace. The plaintiffs in this case -- all United States citizens or legal permanent residents -- believe that they are on the List. They initially submitted grievances through the redress program run by the Transportation Security Administration (TSA), but the government refused to confirm or deny their inclusion on the List, to disclose the bases for their apparent inclusion, or to provide any assurances about future travel.
The plaintiffs then turned to the American Civil Liberties Union (ACLU) for help.
In 2010, the ACLU sued the FBI and TSC on their behalf. It challenged both the plaintiffs' alleged inclusion on the No Fly List, and the government's failure to afford them a fair redress process after depriving them of their right to travel. Last year, a district court in Portland dismissed the case for lack of jurisdiction, ruling that the Transportation Security Administration was a necessary party to the litigation because the lawsuit challenged adequacy of TSA's grievance procedures, but that TSA could not feasibly be joined in the district court because federal appellate courts have exclusive jurisdiction to review TSA's final orders.
The Ninth Circuit Court of Appeals reversed and remanded that decision, finding the district court has jurisdiction over the substantive challenge.
The court noted that, because TSC "actually compiles the list of names ultimately placed" on the No Fly List, the district court has federal question jurisdiction over substantive challenges to the inclusion of one's name on the List. Furthermore, the Ninth Circuit found that its exclusive jurisdiction only applies to affirming, amending, modifying, or setting aside any part of TSA's orders, or to order TSA to "conduct further proceedings;" appellate courts have no jurisdiction to grant other remedies. (Here, the plaintiffs are demanding to know why they are apparently included on the List, as well as an opportunity to advocate for their removal.)
Now that the case is heading back to the district court, do you think the No Fly List will survive judicial review?
- Latif v. Holder (FindLaw's CaseLaw)
- ACLU Asks Ninth Circuit for No Fly List Due Process (FindLaw's Ninth Circuit Blog)
- Oregon: Lawsuit Challenging No-Fly List Is Allowed to Proceed (AP)