Summary
The United States Court of Appeals for the District of Columbia Circuit reviews a TSA Administrator order maintaining Saad bin Khalid on the No Fly List. The court dismisses Khalid’s Religious Freedom Restoration Act claim for lack of standing and denies his substantive due process, procedural due process, arbitrary-and-capricious, and major-questions-doctrine challenges. The court also grants the government’s motion to keep the nonpublic administrative record sealed and ex parte.
Topics
Practice areas
Questions Presented
- Whether Khalid had standing to assert a Religious Freedom Restoration Act claim based on a possible future inability to travel through U.S. airspace to perform Hajj.
- Whether the court should maintain the sealed and ex parte portions of the TSA administrative record.
- Whether maintaining Khalid on the No Fly List violated substantive due process by infringing a fundamental right to travel.
- Whether the DHS TRIP redress process provided Khalid constitutionally adequate procedural due process.
- Whether the TSA Administrator's order was arbitrary and capricious or unsupported by substantial evidence.
- Whether the major questions doctrine invalidated TSA's statutory authority to use and maintain the No Fly List.
Holdings
- Khalid lacked Article III standing to assert his RFRA claim because his alleged future injury from being unable to travel through U.S. airspace to perform Hajj was speculative rather than certainly impending or substantially likely.
- The court granted the government's motion to maintain the nonpublic portion of the administrative record under seal and ex parte.
- Maintaining Khalid on the No Fly List did not violate substantive due process because there is no fundamental right to travel by airplane.
- The DHS TRIP process provided Khalid constitutionally adequate procedural due process.
- The TSA Administrator's order maintaining Khalid on the No Fly List was not arbitrary and capricious and was supported by substantial evidence.
- The major questions doctrine did not invalidate TSA's use and maintenance of the No Fly List because Congress expressly authorized TSA to identify persons who may threaten aviation or national security and prevent them from boarding aircraft.
Key quotations
“We do not doubt the sincerity of Khalid’s religious beliefs or intention to make Hajj.” (7)
“Only in the most extraordinary circumstances does our precedent countenance court reliance upon ex parte evidence to decide the merits of a dispute.” (8)
“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” (10)
“Because “[c]ourts have limited competence in the area of national security,” our “role in reviewing factual determinations in this context is highly deferential.”” (11)
“As Khalid acknowledges, Pet’r Br. 48, 52, that provides statutory authority for TSA’s use and maintenance of the No Fly List.” (15)
Factual background
Saad bin Khalid, a U.S. citizen of Pakistani descent and practicing Muslim, was placed on the No Fly List and consequently barred from boarding U.S. commercial aircraft or flying through U.S. airspace. After being denied boarding in 2019, he pursued redress through DHS TRIP, received an unclassified summary citing government concerns about his association with a known terrorist organization and his candor during a 2012 FBI interview, and responded through counsel. The TSA Administrator ultimately determined that Khalid was properly included on the No Fly List, relying on the totality of available information, including the nonpublic record.
Procedural history
Khalid sought administrative redress through DHS TRIP after being denied boarding and receiving notice that he was on the No Fly List. While the administrative process was pending, he filed suit in district court challenging his placement and related claims. The district court concluded that review of the TSA Administrator's order lay exclusively in the D.C. Circuit and transferred the No Fly List claims under 28 U.S.C. § 1631. The court of appeals reviewed the petition, granted the government's motion to maintain the nonpublic administrative record under seal and ex parte, dismissed the RFRA claim for lack of standing, and denied the remaining claims.