For the second time this year, the 9th Circuit Court of Appeals has rejected jurisdictional and procedural challenges and claims of immunity, and remanded a case challenging “no-fly” orders for further proceedings on the merits of the plaintiff’s claims that their rights were violated by being prevented from flying.
The decision last week in Latif v. Holder is complex and technical. There’s still no certainty that the case will make it to trial, or that any court will ever review the legality of the government’s secret “no-fly” orders to airlines preventing them transporting the 15 plaintiffs (all US citizens or green card holders) to or from the US or through US airspace.
But as in the decision of another panel of the same court in Ibrahim v. DHS this February, the 9th Circuit was unwilling to dismiss the claims of travelers grounded by the government without any substantive hearing on the basis for their inclusion on the “no-fly” list. And this time the court went further to reject the government’s attempt to force grounded travelers to exhaust their “remedies” through the TSA’s “Traveler Redress Inquiry Program”, a charade in which an “inquiry” is “resolved” (after an indefinite amount of time) without the complainant ever finding out anything about why they have been prevented from flying, having any chance to rebut the evidence (if any) against them, or knowing what, if any, decision has been made.
According to the latest, unanimous decision by a panel of three 9th-Circuit judges:
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? … Today, we take another step toward providing an answer.
The Court of Appeals also noted the issue of banishment from the US by no-fly order, but relegated it to a footnote:
A few of the plaintiffs were allegedly stranded abroad at the time this lawsuit was originally filed, but all have now been granted “one-time waivers” to return home.
To date, despite these and other lawsuits, neither the general legality of secret, standardless, administrative no-fly orders, nor the validity or substantive basis for any individual no-fly order, has been reviewed on its merits by any US court. We’ll see if that changes in the wake of these decisions.