Homeland Security

Changes in the No-Fly List Process and Judicial Review

By Paul Rosenzweig
Friday, November 6, 2015, 10:45 AM

The other day Rob Leob and Matthew Weybrecht reported on the failure of an effort by the US government to have a case challenging the No-Fly list dismissed. The suit was brought by Saeb Mokad who alleged that he was improperly put on the No-Fly list. The 6th Circuit rejected an effort to divest the district court of jurisdiction based on the text of 49 U.S.C. §46110(a), which says: "[A] person disclosing a substantial interest in an order issued by the Secretary of Transportation … in whole or in part…may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business." The goverment's argument was that alleged inclusion on the No-Fly list can only be appealed to the DC Circuit.

The Sixth Circuit rejected that argument because the No-Fly list is managed by the Terrorist Screening Center (TSC) which is a component of the FBI and not part of DHS/TSA. Hence, by its terms, the Court said that the exclusive jurisdiction provisions of section 46110 did not apply to the decision made by TSC to put the plaintiff on the list or to not remove him.

All of that is absolutely accurate as far as it goes -- but the story has another layer of complexity to it that is worth detailing, if only to complete the story. As Edward Hasbrouck reminded me, [HT: "Papers Please"] DHS and the TSC have changed their operational procedures since the time the Mokad case was filed. Today, under revised review procedures, the government's view is that the final decision on whether or not a person is allowed to fly is no longer made by the FBI (which formerly was responsible for maintaining the TSC list) but rather by the TSA Administrator who now uses the data provided by TSC/FBI only as an input into his/her decision. The consequence of this is that government is now better positioned to argue that future No-Fly cases can only be heard under the section 46110 procedures in the DC Circuit. To quote the new DHS review procedures for those who are seeking redress:

Upon DHS TRIP’s receipt of an individual’s submission … the matter will be reviewed by the Administrator of the Transportation Security Administration (TSA) or his/her designee in coordination with other relevant agencies, who will review the submission, as well as the unclassified and classified information that is being relied upon to support the No Fly listing, and will issue a final determination. TSA will provide the individual with a final written determination… and will notify the individual of the ability to seek further judicial review under 49 U.S.C. § 46110.

While this revision has not been tested in court yet, the consequences are obvious. I tend to think that centralizing the decision making authority in TSA will improve the process somewhat and provide travellers with greater transparency than when the decision making was at the TSC/FBI. But I also tend to think that one collateral result of this will be greater success by the government in avoiding judicial review of its decsion making.