On May 8, 2013, a private individual who was previously denied boarding on commercial airline flights filed this lawsuit in the U.S. District Court for the Eastern District of Michigan. Represented by private counsel, the plaintiff brought this action against the U.S. Department of Justice and the Federal Bureau of Investigation under the Administrative Procedures Act, 5 U.S.C. §§ 551 et seq. and the Declaratory Judgment Act, 28 U.S.C. § 2201.

Specifically, the plaintiff, a U.S. citizen, claimed that he was previously denied boarding of flights to and from the United States to his home country of Lebanon. The plaintiff claimed that he was listed on the Transportation Security Administration's No Fly List, which is maintained by the Terrorist Screening Center (TSC), a division of the FBI. Individuals who are listed on the No Fly List are able to complain via the Traveler Redress Inquiry Program (TRIP) to the U.S. Department of Homeland Security. The plaintiff claimed to have filed three TRIP inquiries with the DHS, to no avail. As such, he had been unable to visit his family members in Lebanon or be present in Lebanon for an ongoing civil suit that he was a participant in. The plaintiff claimed the government's actions violated his Due Process rights under the Fifth Amendment and his rights under the Administrative Procedures Act to adequate redress regarding his placement on the No Fly List. The plaintiff requested declaratory and injunctive relief, as well as attorneys' fees and litigation costs.

On July 22, 2013, the government moved to dismiss for lack of subject-matter jurisdiction under 49 U.S.C. § 46110. This statute limits jurisdiction of TSA orders to U.S. Courts of Appeal. On December 5, U.S. District Judge Victoria Roberts granted the government's motion and dismissed this case. 2013 WL 8840322.

On January 24, 2014, the plaintiff appealed the District Court's decision to the U.S. Court of Appeals for the Sixth Circuit. The plaintiff argued § 46110 did not apply because he was contesting his placement on the No Fly List by the TSC, which is not part of the TSA. The plaintiff relied on Ibrahim v. Department of Homeland Security, 538 F.3d 1250 (9th Cir. 2008) (NS-CA-0009 in this Clearinghouse), which held that the TSC was not covered by § 46110. On October 26, 2015, the Sixth Circuit issued a decision reversing the District Court's dismissal. The Sixth Circuit agreed with the Ninth Circuit, holding that the plaintiff was indeed challenging a TSC order, not a TSA order. However, the Sixth Circuit dismissed the plaintiff's challenges to the adequacy of the redress process because the TSA was not joined as a defendant. The Sixth Circuit remanded this case to the District Court for further proceedings on plaintiff's "Challenge to his alleged placement on the No Fly List by TSC." 2015 WL 6444668.

On May 18, 2015, the defendants moved for dismissal for lack of jurisdiction and failure to state a claim. The Court granted the motion on August 10, 2016. The Court found that since the defendants issued a letter stating the plaintiff was not on the No Fly List, plaintiff's claim regarding his inclusion on the No Fly List was moot, no live controversy remained, and the Court lacked subject matter jurisdiction to continue to hear the case. 2016 WL 4205909.

The plaintiff appealed the district court's decision on October 17, 2016. On November 13, 2017, the Sixth Circuit Court (Judge Julia Smith Gibbons, Judge Alice Moore Batchelder, and Judge Ronald Lee Gilman) affirmed the district court's August 10 decision. As the issue on remand was narrowly plaintiff's challenge to his placement on the No Fly List by TSC, and the defendant stipulated that the plaintiff was not on that list, the issue before the court was resolved. Although the plaintiff alleged placement on other watch lists, the district court could not resolve those claims as it was not within the issue before the court, the plaintiff could not identify those lists, and the district court was given no basis for relief regarding those lists. 876 F.3d 167.

As of March 25, 2018, there has been no action on the docket since November 21, 2017.

John He - 11/11/2015
Cade Boland - 03/25/2018


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