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Ninth Circuit reinstates no-fly list challenge

The US Court of Appeals for the Ninth Circuit [official website] on Thursday reinstated [opinion, PDF] a challenge brought by the American Civil Liberties Union (ACLU) [advocacy website] over the no-fly list maintained by the Transportation Safety Administration (TSA) [official website]. The appeals court, without deciding on the merits of the case, decided the case could go forward and remanded it to the lower court. The lower court originally dismissed the case [opinion, PDF] claiming that the suit would have to be filed against the TSA itself and not the FBI [official website] and its subagency, the Terrorist Screening Center. In the unanimous ruling the three-judge panel decided the Terrorist Screening Center, not the TSA, can provide the relief the 15 citizen plaintiffs are seeking and that the district court has jurisdiction over the center. The opinion states:

We [have] held that district courts have original jurisdiction over travelers' substantive challenge to inclusion on the List. Today, we take another step toward providing an answer. We hold that the district court also has original jurisdiction over Plaintiffs' claim that the government failed to afford them an adequate opportunity to contest their apparent inclusion on the List. We leave it to the district court to determine whether to require joinder of TSA on remand. We hold only that [there is] no barrier to adding TSA as an indispensable party.
The ACLU called the decision a victory [press release], finally affording their clients their constitutional right, a chance to clear their names from the list. The Department of Justice is reviewing the decision [AP report]. Unless the decision is appealed, the case will be remanded to the US District Court for the District of Oregon [official website].

The ACLU filed the lawsuit [JURIST report] in 2010. The Ninth Circuit ruled in 2008 that those placed on the government's "no-fly list" can challenge their inclusion on the list [JURIST report] in federal district courts. The court held that the Terrorist Screening Center, which actually maintains the list, is a subsection of the FBI and is therefore subject to review by the district courts. Also in 2008, the DOJ Office of the Inspector General (OIG) [official website] issued a report [text, PDF] saying that the FBI had submitted inaccurate information to the list [JURIST report], that the information was rarely reviewed before its submission and even if discrepancies became apparent they were often left unchanged. In 2006, the FBI and the TSA agreed to pay the ACLU $200,000 in attorney's fees to settle a case brought by the civil rights organization in 2003 challenging the government's no-fly list [JURIST report] and requesting the disclosure of records. The documents noted that construction of the list was based on "two primary principles," but that there were "no hard and fast" rules governing decisions of who was put on the list.

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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

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