PORTLAND (CN) – The 9th Circuit held that a federal court in Oregon erred when it said the Transportation Safety Administration could not be joined in an action by 15 American citizens and residents who protested their inclusion on a federal “no-fly” list.
The FBI operates a Terrorist Screening Center, which keeps a “no-fly” list of known or suspected terrorists.
The 15 plaintiffs, who are all U.S. citizens or permanent residents, say the government refuses to either confirm or deny that they are on the no-fly list.
Initially the plaintiffs filed administrative grievances with the TSA, and then sued in Oregon District Court, demanding the government either remove them from the list or give them a meaningful opportunity to challenge their inclusion.
The district court dismissed the action, holding that the TSA was a necessary party because the plaintiffs were challenging the agency’s grievance procedure, but it could not be joined to the action.
The plaintiffs appealed to the 9th Circuit, and the court reversed the district judge’s dismissal.
Circuit Judge Richard Tallman found the lower court had correctly ruled that the TSA was a necessary party to the action, but was wrong that the agency could not be joined.
Noting that the DHS Traveler Redress Inquiry Program “is essentially a clearinghouse for traveler grievances,” Judge Tallman found the plaintiffs’ challenge requires review of orders by both the TSA and the FBI’s Terrorist Screening Center.
“TSA’s implementation of [the grievance program] is at issue, but TSA is merely a conduit for a traveler’s challenge to inclusion on the list. TSA simply passes grievances along to [the Terrorist Screening Center] and informs travelers when [TSC] has made a final determination. TSC – not TSA – actually reviews the classified intelligence information about travelers and decides whether to remove them from the list,” Judge Tallman wrote.
“If plaintiffs are entitled to judicial relief, any remedy must involve both TSA and TSC. Here, plaintiffs demand to know why they are apparently included on the list and an opportunity to advocate for their removal. Ordering TSA to tell plaintiffs why they were included on the list and to consider their responses in deciding whether they should remain on it, would be futile.”
The 9th Circuit does not have authority to amend, modify or set aside the TSA’s orders, and the court found it lacked jurisdiction to address the plaintiff’s challenge to the grievance program.
The three-judge panel remanded the procedural challenge to the district court.
“At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No- Fly List?” Judge Tallman wrote. “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.”