Long v. Pekoske
| Decision Date | 29 June 2022 |
| Docket Number | 20-1406 |
| Parties | SAADIQ LONG, a/k/a Paul Anderson, Petitioner, v. DAVID P. PEKOSKE, Administrator, Transportation Security Administration, in his official capacity, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Argued: January 26, 2022
On Petition for Review of an Order of the Transportation Security Administration.
ARGUED:
Justin Mark Sadowsky, CAIR LEGAL DEFENSE FUND, Washington, D.C., for Petitioner.
Joshua Paul Waldman, UNITED STATES DEPARTMENT OF JUSTICE Washington, D.C., for Respondent.
ON BRIEF:
Lena F. Masri, Gadeir I. Abbas, CAIR LEGAL DEFENSE FUND Washington, D.C., for Petitioner.
Brian M. Boynton, Acting Assistant Attorney General, Sharon Swingle, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE Washington, D.C.; Raj Parekh, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Respondent.
Before NIEMEYER, AGEE, and DIAZ, Circuit Judges.
Saadiq Long has asserted a bevy of constitutional and procedural claims related to his inclusion in the Terrorism Screening Database and its subclassification, the No Fly List. These are two governmental, interagency tools used to share information about suspected terrorists. The district court determined that Long's as-applied claims fell within 49 U.S.C. § 46110's grant of exclusive jurisdiction to the federal appellate courts over challenges to final Transportation Security Administration ("TSA") orders. So it transferred those claims to us under 28 U.S.C. § 1631.[1]
Before us, the parties agree on one thing: we lack jurisdiction to decide Long's claims on the merits. Long has moved to remand his claims to the district court, arguing it erred in finding we have exclusive jurisdiction under § 46110. Otherwise, he asks us to transfer the case again. Long (correctly) points out that, even if the district court believed it lacked jurisdiction over the claims, § 46110 mandated transfer to either the D.C. Circuit or the Tenth Circuit, where Long resides.
The government,[2] on the other hand, has cross-moved to dismiss. It asserts that all the claims before us are moot because the government has removed Long from the No Fly List and avowed that it won't reinstate him based on currently available information.
We agree with the government that a portion of Long's claims-those challenging his status on the No Fly List-are moot. But we think it's unclear which of Long's claims the district court intended to transfer under § 1631. So we vacate the transfer order and remand to the district court with instructions to dismiss as moot Long's challenges to his status on the No Fly List; decide whether it has jurisdiction over the rest of Long's claims; and, if not, transfer them to the proper Circuit.
We begin by outlining the division of power among the agencies that maintain and administer the Terrorism Screening Database and the No Fly List.
After the terrorist attacks on September 11, 2001, various government agencies consolidated their approaches to terrorism screening. These efforts produced the Terrorism Screening Center, a multiagency entity administered by the FBI and supported by the Departments of Homeland Security ("DHS"), Justice, and State.
The Screening Center maintains the Terrorism Screening Database, often called the "terrorist watchlist." That watchlist "contains both biographic and biometric identifying information . . . of known and suspected terrorists." J.A. 131. The information on the list is confidential, "accessible only to persons who have a 'need to know[,]' such as federal law enforcement officials for their screening and vetting activities." Id. The watchlist also contains subclassifications, including the No Fly List. Those on the No Fly List can't board flights into, out of, or within U.S. airspace.
The Screening Center decides who to add to both the watchlist and the No Fly List. Getting on the watchlist entails a three-step nomination process, beginning with the nominating agency and continuing to the FBI or National Counterterrorism Center. The Screening Center then makes the final decision whether to add an individual to the watchlist.
Nominees to the No Fly List must satisfy additional criteria beyond those required for the watchlist. TSA relies on the watchlist and the No Fly List to screen air passengers and vet individuals for transportation security credentials.
If a person undergoes increased security measures at an airport, they may seek redress through the DHS Traveler Redress Inquiry Program (“DHS TRIP”). But most people who submit a grievance through DHS TRIP aren't on the watchlist. The Terrorism Screening Center Redress Office independently reviews all DHS TRIP complaints to determine whether the complainant is on the watchlist and, if so, whether they should so remain.
Historically, the government wouldn't tell DHS TRIP complainants whether they were on the watchlist or the No Fly List. But in 2015, it changed the procedure in response to litigation. Now, when TSA prevents someone from boarding because they're on the No Fly List and the individual files a grievance, DHS TRIP will disclose their No-Fly status.
The individual can then request more information about their status and may also offer information in rebuttal. From there, the Screening Center will review the complainant's file and do one of two things: If the Screening Center decides someone doesn't belong on the No Fly List, it will remove them. But if it determines the complainant should stay on the list, it will submit that recommendation to the TSA Administrator, who has the final say.
In the latter set of cases, TSA will review all available information, including the Screening Center's recommendation. It will then (a) issue a final order that settles the individual's No-Fly status or (b) remand the matter to the Screening Center for more information.
Saadiq Long (formerly Paul Anderson) is a United States citizen and an Oklahoma resident. While stationed in Turkey as a U.S. airman, Long converted to Islam and changed his name. He then applied for conscientious-objector status. The Air Force denied his request, and Long received an Other than Honorable Discharge soon after. He then moved his family to Egypt and later to Qatar.
Nearly a decade after moving to Qatar, Long tried to renew his passport to visit his critically ill mother in the United States. He had trouble renewing online, so Long went to the U.S. Embassy and Consulate in Qatar. Qatari officials detained him-allegedly at the behest of U.S. agents. Although Long ultimately received a new passport, he wasn't allowed to fly to the U.S. because he was on the No Fly List. Long filed a complaint through DHS TRIP but heard nothing for months.
According to Long, his difficulty renewing his passport was only the beginning of his travel-related woes. His complaint alleges more travel restrictions, unlawful searches and detentions, harassment by law enforcement, and job termination-all stemming from his placement on the watchlist and No Fly List.
Eventually, DHS TRIP confirmed in writing that Long was on the No Fly List. The government offered a brief rationale for his No-Fly status, explaining he "participated in training that may make [him] a threat to U.S. national security" and was arrested once in Turkey (which, Long alleges, only occurred because he was on the watchlist). Suppl. App. 8-9. In early 2019, the Acting Deputy Administrator of TSA sent Long a letter noting the agency's final decision that he would remain on the No Fly List.
Long sued various government defendants, raising (as relevant here) facial and as-applied substantive-due-process challenges, facial and as-applied procedural-due-process challenges, Administrative Procedure Act ("APA") violations, and facial and as-applied equal-protection challenges. Long requested declaratory and injunctive relief, including removal from the No Fly List and the watchlist.
The government moved to dismiss the amended complaint for lack of subject-matter jurisdiction and for failure to state a claim. The district court assessed its jurisdiction under 49 U.S.C. § 46110, which grants "exclusive jurisdiction to affirm, amend, modify, or set aside any part of" TSA orders to the federal courts of appeals-specifically, the D.C. Circuit or "the court of appeals . . . for the circuit in which the [petitioner] resides." Id. § 46110(a), (c).
The district court determined that § 46110 stripped it of jurisdiction to hear Long's challenges. As it explained, given the 2015 DHS TRIP revisions, "TSA's ultimate redress authority is an 'order' within the meaning of § 46110." Long v. Barr, 451 F.Supp.3d 507, 528 (E.D. Va. 2020). The district court also considered whether any of Long's claims fell within the inescapable-intertwinement doctrine, which extends appellate courts' exclusive jurisdiction to claims that collaterally attack an order covered by § 46110. See Mokdad v. Lynch, 804 F.3d 807, 812 (6th Cir. 2015); Ligon v. LaHood, 614 F.3d 150, 155 (5th Cir. 2010). The court said, "[t]he upshot is that Long's as-applied challenges to his redress proceedings and his ongoing [w]atchlist status, as determined through DHS TRIP, belong in the Fourth Circuit." Long, 451 F.Supp.3d at 529.
So the court severed Long's as-applied constitutional challenges, along with one of his APA claims, and transferred them here. It retained jurisdiction over Long's facial constitutional challenges but stayed them pending our review.
The parties have cross-moved to contest our jurisdiction, but on different grounds. Long asks us to remand his claims to the district court, arguing they fall outside § 46110's exclusive-jurisdiction...
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