On June 30, 2010, this suit was filed by a group of Americans denied boarding onto international flights into the United States because of their inclusion on the "No Fly List." The suit was filed in U.S. District Court for the District of Oregon. The complaint named as defendants the U.S. Department of Justice, the Federal Bureau of Investigation, and the Terrorist Screening Center, which created the list. Represented by the American Civil Liberties Union, the plaintiffs alleged violations of their constitutional rights to due process, as well as violations of the Immigration and Nationality Act and the Administrative Procedure Act. The plaintiffs sought clearance to return to the United States and injunctions requiring the defendants to adopt procedures for notice and opportunity to challenge inclusion on the list. The case was assigned to U.S. District Judge Anna J. Brown.

The plaintiffs immediately sought a preliminary injunction requiring the defendants to allow them to return from locations abroad where they had been stranded by their inclusion on the list. On October 20, 2010, without a response to this motion from the defendants or an injunction from the court, the defendants apparently allowed the plaintiffs to return to the U.S. The plaintiffs withdrew their motion for preliminary injunction, but they remained on the list, and the suit continued with respect to notice for the reasons of their inclusion and a meaningful process for challenging their inclusion.

The defendants then filed motions to dismiss on the grounds that the District Court lacked jurisdiction, and that the plaintiffs had failed to include as a defendant the Transportation Security Administration, which administers the Traveler Redress Inquiry Program (TRIP), the statutory redress process for individuals wrongfully denied boarding. On May 3, 2011, Judge Brown granted the government's motion to dismiss. Judge Brown held that because the internal orders of the TSA denying removal from the list were reviewable only in federal courts of appeals, the District Court lacked jurisdiction. 2011 WL 1667471.

The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit, which reversed the District Court's decision on July 26, 2012. Writing for a unanimous panel, U.S. Circuit Judge Richard C. Tallman held that the District Court had jurisdiction to review the plaintiff's procedural challenge because the plaintiffs did not request review of a TSA order, but rather challenged the adequacy of the redress process itself. The case was remanded to the lower court. 686 F.3d 1122.

The parties then filed cross-motions for summary judgment in the District Court. Ruling on these motions on August 28, 2013, the court held that the plaintiffs' due process rights were potentially implicated by the denial of their ability to fly. But the court lacked a sufficient factual record to determine whether the defendants' policies actually violated the plaintiffs' due process rights. It requested that the parties submit further information regarding the defendants' existing policies. 969 F.Supp.2d 1293.

Following these submissions, on June 24, 2014, Judge Brown issued an opinion holding unconstitutional the No Fly List redress procedures. The court held that the procedures did not sufficiently apprise the plaintiffs of the reasons for their inclusion or allow meaningful administrative challenges. The result was an unfair and stigmatizing deprivation of the liberty interest in international travel. However, Judge Brown declined to issue an injunction, instead requiring that the government propose new procedures. The defendants initially appealed this decision but quickly withdrew their appeal. 28 F.Supp.3d 1134.

On December 19, 2015, the government notified the court that seven of the plaintiffs had been removed from the list, and that the remaining plaintiffs had been provided letters of explanation for their continued inclusion. The court entered non-final judgment in favor of these plaintiffs. 2015 WL 1883890. The court asked the parties to brief on the details and adequacy of the new review procedure used by the defendants. Accordingly, the parties submitted stipulated facts and cross-motions for summary judgment. The defendants argued that they had instituted new procedures which allowed the plaintiffs to receive written explanations for their inclusion on the list and to submit a written response or other evidence contesting the decision. The plaintiffs argued that this new process was still insufficient because it did not allow the plaintiffs to contest their inclusion in front of a neutral fact finder or provide other due process safeguards.

On March 28, 2016, Judge Brown denied the plaintiffs’ motion for summary judgement and granted the defendant’s motion for summary judgement in part. The court held that due process did not require the defendant to allow the plaintiffs to challenge their inclusion on the list before a neutral fact finder. However, the court asked the defendant to develop the record as to whether some of the plaintiffs had received full notice regarding the reasons for their inclusion. 2016 WL 1239925. The court allowed the defendants to submit this additional information under seal due to its classified status. After they submitted, the court granted the defendants' remaining motions for summary judgment as to the plaintiffs’ claims that they had not received adequate notice from the court's earlier March 2016 order.

The court asked the parties to submit a status report with respect to the remaining issue of whether the District Court retained jurisdiction to review substantive challenges to the plaintiffs’ inclusion on the No Fly List in light of the adopted redress and review process. The parties stipulated to the outlines of the new review process, and the defendant filed a motion to dismiss for lack of jurisdiction on January 18, 2017, arguing that decisions under the new process were final administrative decisions that were unreviewable by the District Court under the Administrative Procedure Act.

On April 21, 2017, Judge Brown granted the defendant’s motion to dismiss for lack of jurisdiction, agreeing that the new TRIP procedures made the defendant’s No Fly List determinations final and unreviewable by the District Court. 2017 WL 1434648.

On August 7, 2017, the plaintiffs appealed to the Ninth Circuit; the appeal was captioned as Kashem v. Barr. The plaintiffs argued the revised review procedures still failed to provide adequate due process protections. A panel of Circuit Judges Raymond C. Fisher and Consuelo M. Callahan and District Court Judge Cathy Ann Bencivengo upheld the District Court's dismissal on October 21, 2019. Procedurally, the panel found that, because the TSA had final say over who is placed on the No Fly List and who is not after an internal policy chance, district courts no longer had jurisdiction to rule on No Fly List cases. They found that the an association with terrorist groups and potential for future criminal activity was not impermissibly vague criteria for classification on the No Fly List. In addition, they wrote that balancing the state interest of national security against the potential denial of liberty from a wrongful placement on the list, with the chance to appeal classification to DHS, did not deprive the plaintiffs of their due process rights. 941 F.3d 358.

The plaintiffs declined to appeal the outcome to the Supreme Court. The case is closed.

Elizabeth Homan - 09/30/2013
Michael Mirdamadi - 04/01/2014
John He - 02/20/2016
Nathaniel Flack - 10/17/2018
Ellen Aldin - 06/05/2020


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