Although legal arguments over the government's secret No Fly List (i.e. the list of people the U.S. government does not permit to board airplanes) are often framed in terms of national security and turn on statutes governing the relationship between the courts and security-focused government agencies like the TSA, decisions concerning where, when, and how -- and even, as a crucial threshold matter, if -- an individual can challenge her inclusion in the No Fly List are vitally important to those consumers affected, given the importance of modern air travel.
Here's a rare decision concluding that there is a way forward for plaintiffs challenging their inclusion in the No Fly List -- rare because plaintiffs in national security cases almost always lose their cases on a threshold procedural matter. Today's ruling in Latif v. Holder does not follow that pattern: a panel of the Ninth Circuit reversed a district court decision holding that individuals who believe they are on the No Fly List could not sue to contest their apparent inclusion even after the government "refused to confirm or deny their inclusion on the List, to disclose the bases for their apparent inclusion, or to provide any assurances about future travel." This passage reveals the panel's baseline recognition that consumers must have some way to litigate this issue:
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-
This decision rightly answers this question by permitting aggrieved individuals to pursue their challenge in federal court. Over a decade after 9/11, it's nice to see courts finally requiring that the executive branch crawl out from behind its bunker and answer basic questions concerning whether it is treating people fairly.
Interesting tidbit: despite many caricatures of the Ninth Circuit as unflaggingly liberal (in fact, the court is about evenly divided between liberals and conservatives), the judges on this particular panel tend to be moderate-to-conservative, or simply conservative.