Michigan Man’s No-Fly List Challenge Revived

(CN) - A federal judge should have considered a U.S. citizen's challenge to his placement on a no-fly list maintained by the FBI's Terrorist Screening Center, the Sixth Circuit ruled Monday.

Though born in Lebanon, Saeb Mokdad is a naturalized U.S. citizen and resident of Dearborn, Mich. He filed suit in Detroit two years ago after the Department of Homeland Security sent him a letter refusing to confirm or deny whether Mokdad's name was on the No Fly List.

All the letter said was "no changes or corrections are warranted at this time."

Mokdad said he has been denied boarding on commercial flights between the United States and Lebanon three times since September 2012, but U.S. District Judge Victoria Roberts dismissed his case for lack of jurisdiction.

She said that the alleged placement of Mokdad on the no-fly list was inescapably intertwined with orders by the Transportation Security Administration, over which federal courts of appeal have exclusive jurisdiction.

At oral argument before the Sixth Circuit, Mokdad's attorney Nabih Ayad asked the three-judge panel to "think [about] how outrageous this is: A U.S. citizen is put on this list but is not told why."

Counsel stressed that Mokdad has the right to review the information that placed him on the no-fly list.

"I cannot think of a law that takes away someone's rights without allowing them to challenge it," Ayad said.

The Sixth Circuit revived Mokdad's case Monday and remanded to Judge Roberts.

"Notwithstanding the government's attempts to characterize his claim as a challenge to TSA's decision to deny him boarding, Mokdad makes clear that he is 'challeng[ing] his actual placement on the No Fly List by the TSC," Judge Julia Smith Gibbons wrote for the court, abbreviating Terrorist Screen Center.

Gibbons said the lower court's dismissal relied on a misreading of the "doctrine of inescapable intertwinement."

"The government in effect urges that we find that a direct challenge to one agency's order is inescapably intertwined with another agency's order - that Mokdad's challenge to TSC's order placing him on the No Fly List is inescapably intertwined with both TSA's order denying him boarding and TSA's orders governing the redress process. This would be an unprecedented departure from the doctrine of inescapable intertwinement as applied in other circuits," the 13-page opinion states (emphasis in original).

Congress did not intend to apply direct appellate jurisdiction to such a broad range of agency orders, the court concluded.

Mokdad had also claimed that the procedures to contest inclusion on the no-fly list are inadequate.

The appeals court refused to revive this claim, however, since the TSA governs this process, but Mokdad failed to that agency as a defendant.

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