D.C. Circuit Opinion About the No Fly List

An excerpt from D.C. Circuit Judge Cornelia Pillard, joined by Judges Karen LeCraft Henderson and J. Michelle Childs in today's Khalid v. TSA:

Saad bin Khalid, a United States citizen, is on the No Fly List. As a result, he is barred from boarding any planes that fly in U.S. airspace. Believing that placement to be in error, Khalid sought redress through an administrative appeal process run by the Transportation Security Administration (TSA). The TSA Administrator, after reviewing Khalid's submissions and the nonpublic recommendations of the government's Threat Screening Center, determined by order that Khalid should remain on the list.

Khalid now petitions for review of the TSA Administrator's order. He raises statutory and constitutional challenges to his placement on the No Fly List and the adequacy of the redress process. We dismiss one of Khalid's challenges for lack of standing and deny the rest on their merits….

Congress has charged the Transportation Security Administration to "use information from government agencies to identify individuals on [airline] passenger lists who may be a threat to civil aviation or national security" and, if appropriate, require air carriers to "prevent [such] individual[s] from boarding an aircraft." In addition, Congress instructed TSA to "establish a procedure to enable airline passengers" who are "prohibited from boarding a flight" because "they might pose a security threat" to "appeal [that threat] determination."

To carry out those responsibilities, TSA draws on the work of the Threat Screening Center (the Center), a multi-agency body administered by the Federal Bureau of Investigation (FBI). The Center maintains a centralized database of known and suspected terrorists, collecting and screening nominations from other agencies of individuals to include. That database is commonly known as the terrorist watchlist. The No Fly List is a subset of the terrorist watchlist: The Center adds a No Fly List designation to individuals on the terrorist watchlist if it determines that they meet one of four additional criteria, such as posing "a threat of engaging in or conducting a violent act of terrorism and [being] operationally capable of doing so." People included on the No Fly List are prohibited from boarding U.S. commercial aircraft or flying through U.S. airspace….

Saad bin Khalid is a U.S. citizen of Pakistani descent who moved between the United States and Pakistan as a child. He alleges that he was first subjected to enhanced screening in 2012, when he was 16 or 17 years old and sought to board a flight from Pakistan to the United States. After that flight, FBI agents met with Khalid to question him about his activities and contacts in Pakistan. In 2019, when Khalid again made plans to fly from Pakistan to the United States, he was prohibited from boarding his flight and told he could file a redress claim through the DHS TRIP process. He did so. While awaiting a response, he filed suit in the district court challenging, among other things, his maintenance on the No Fly List.

Through DHS TRIP, Khalid received a letter providing an unclassified summary of the FBI's reasons for placing him on the No Fly List. The letter described Khalid as "an individual who represents a threat of engaging in or conducting a violent act of terrorism and [is] operationally capable of doing so." The unclassified summary informed Khalid that "the U.S. Government continue[d] to have concerns about [Khalid's] association with a known terrorist organization" and his "candor" during the 2012 FBI interview concerning his "contacts and activities in Pakistan from 2008 to 2012."

Khalid responded through counsel, stating that he was a minor in 2012 and had been truthful to the best of his recollection in the FBI interview. Khalid also maintained that he had no association with any foreign terrorists, no wish to harm the United States or engage in terrorism, and no operational capability to do so.

Several months later, Khalid received a final decision from the TSA Administrator determining, "based on the totality of available information, including the information [Khalid] provided," that Khalid was "properly included on the U.S. Government's No Fly List." The letter informing Khalid of the decision noted that additional information relevant to the TSA Administrator's order had been withheld to protect information the disclosure of which would risk harm to national security or jeopardize law enforcement activities….

Khalid first contends that the TSA Administrator's order violates substantive due process by illegitimately restricting his right to free movement. That argument is foreclosed by binding precedent.

Substantive due process protects "fundamental rights" that are so "deeply rooted in our legal tradition" that the government may infringe them only through actions narrowly tailored to serve a compelling government interest. While Americans "enjoy[ ] 'the right to travel,'" that does not imply "a fundamental right to travel by airplane." Khalid may continue to travel to, from, and inside of the United States by means other than airplanes. As a result, the TSA Administrator's order maintaining Khalid on the No Fly List does not infringe a fundamental right, and Khalid's substantive due process claim fails….

Khalid next asserts that the TSA Administrator's order prevents his free movement and harms his reputation without constitutionally required procedural due process. "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" … [W]we have previously concluded that TSA through DHS TRIP provides constitutionally adequate process to those on the No Fly List, even considering the significant private interest at stake when the government denies access to air travel. "[P]rotecting national security is a government interest of the highest order," and "alternatives to the No Fly List cannot be 100 percent effective against all potential threat[s]." Given that other modes of travel remain available to Khalid, the government's national security interest in restricting access to U.S. airspace "outweighs [his] individual travel preferences."

Khalid does not tip that balance in his favor by asserting an additional private interest in his reputation. "[I]njury to reputation by itself [is] not a 'liberty' interest protected under the Fourteenth Amendment." Rather, such injury must be accompanied by the loss or alteration of some "right or status previously recognized by … law." Khalid cites that standard, but fails to argue that, in addition to his claimed reputational harm from the government's instruction to airlines to refuse him boarding, he was deprived of some recognized right or status that tips his claim into the "stigma-plus" category. Paul v. Davis (1976) (explaining that a due process claim was appropriate where the government's stigmatizing action "deprived the individual of a right previously held under state law … to purchase or obtain liquor in common with the rest of the citizenry"). Accordingly, Khalid makes no showing that TSA denied him additional process he was due….

Khalid [also] argues that the TSA Administrator's order was arbitrary and capricious because "there is no appropriate, current evidence that Khalid is a threat to aviation security." He asserts that his No Fly List designation and the TSA Administrator's order maintaining him on the No Fly List "likely" relied on "inherently unreliable statements made by Khalid's estranged mother." Khalid also asserts that the No Fly List placement standards themselves are arbitrary insofar as they allow consideration of race, ethnicity, and religion, as well as First Amendment–protected "beliefs and activities."  Finally, he contends that the lack of additional process renders the DHS TRIP process arbitrary and capricious….

After reviewing the public and ex parte record, we conclude that the TSA Administrator acted with adequate justification when he retained Khalid on the No Fly List. The Administrator's factfinding and analysis closely tracked the Center's recommendation. "Agencies can be expected to 'respect [the] views of such other agencies as to those problems' for which those 'other agencies are more directly responsible and more competent.'" Nothing in Khalid's submission rendered it unreasonable for the TSA Administrator to credit the factual analysis of the Center—the entity that oversees a centralized repository of intelligence information, maintains the terrorist watchlist, and makes all No Fly List determinations in the first instance. Nor did our review of the ex parte record otherwise suggest that the TSA Administrator's decision making was arbitrary and capricious or unsupported by substantial evidence.

In the unclassified portion of his final order, the TSA Administrator agrees that placing Khalid on the No Fly List "based upon his status as a young Muslim male with Pakistani roots" would be improper and denies that the order rests on such grounds. And the ex parte record confirms that, at least as to Khalid, TSA's actions were based on consideration of relevant, permissible factors….

Khalid lastly argues that the No Fly List involves an agency decision of a "major question" without express congressional authorization. The major questions doctrine does not apply here…. Congress has authorized TSA to "use information from government agencies to identify individuals … who may be a threat to civil aviation or national security" and "prevent [such] individual[s] from boarding an aircraft." As Khalid acknowledges, that provides statutory authority for TSA's use and maintenance of the No Fly List….

A companion decision also rejects Khalid's challenge to his inclusion on the Terrorist Watchlist, though that decision is 2-1, written by Judge Henderson and with a dissent by Judge Pillard.

Joshua P. Waldman, Sharon Swingle, and Catherine Padhi represent the TSA.