Circuit Court Affirms Dismissal of Terror Watchlist Claims Due to Jurisdictional 'Ordering Problem'

Saad Bin Khalid, a U.S. citizen of Pakistani descent, was denied boarding on an Emirates Airlines flight from Pakistan to the United States in 2019. After pursuing the DHS Traveler Redress Inquiry Program (TRIP), he learned he was on both the federal government's terrorist watchlist and the No Fly List, prompting him to file suit challenging both designations on constitutional and statutory grounds.

In a 2-1 decision, Circuit Judge Karen LeCraft Henderson, joined by Circuit Judge Childs, affirmed the district court's dismissal of Khalid's terrorist watchlist claims for lack of standing. "Any remedy that removes Khalid from the Terrorist Watchlist would violate the TSA Final Order affirming Khalid's No Fly List designation and thereby set it aside, something only the circuit court may do under Section 46110," Henderson wrote.

The majority emphasized the jurisdictional constraints: "Fundamentally, Khalid faces an ordering problem. To challenge his Terrorist Watchlist placement while a related No Fly List order is in effect, he must first seek removal from the No Fly List in circuit court." Henderson noted that while this creates sequential rather than simultaneous litigation, "it is not unprecedented for a jurisdictional scheme to require plaintiffs to file two actions in different courts to obtain complete relief."

The case arose after Khalid completed the post-2015 DHS TRIP process. TSA Administrator David Pekoske issued a final order in June 2022 maintaining Khalid on the No Fly List, finding he "represents a threat of engaging in or conducting a violent act of terrorism and who is operationally capable of doing so."

Circuit Judge Nina Pillard issued a sharp dissent, arguing the majority's decision improperly strips district courts of jurisdiction they should retain. "Section 46110 is a grant of judicial review power; it is not a shield that prevents review of any action that might upset the continued operation of the TSA Final Order," Pillard wrote. She emphasized that "the result that the majority announces today places our circuit in tension with other courts interpreting section 46110."