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Media Alerts - Ege v. U.S. Dept. of Homeland Security
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April 29, 2015
  Ege v. U.S. Dept. of Homeland Security
Headline: D.C. Circuit rejects pilot's challenge to TSA order barring him from flying to, from, or over the United States for want of Article III standing.

Area of Law: National Security

Issue(s) Presented: Whether Petitioner, a commercial pilot, may challenge a TSA order barring him from flying to, from, or over the United States.

Brief Summary: Petitioner, an Emirates Airlines pilot, sought review of a Transportation Security Administration (TSA) order barring him from flying to, from, or over the United States, which he took as evidence that he is on a "No-Fly List," a subset of the "Terrorist Screening Database" (TSDB).

After Petitioner experience unspecified travel problems in 2009, he sought remedy with the TSA and indicated his belief that he was on a "No-Fly List." On January 22, 2013, the TSA issued a final order upholding its initial order and indicating that Petitioner had the right to appeal to a U.S. Court of Appeals pursuant to 49 U.S.C. § 46110. Petitioner filed a timely appeal to the U.S. Court of Appeals for the District of Columbia Circuit, which ordered supplemental briefing on the question of its subject matter jurisdiction to adjudicate Petitioner's claim.

The D.C. Circuit concluded that Petitioner lacked Article III standing to bring the action. The court observed that 49 U.S.C. § 46110 gave it authority to entertain appeals only from orders of the TSA, DHS, and FAA. Because the TSA's order rested on Petitioner's presumed inclusion on the "No-Fly list," and the sole entity with power to remove individuals from the "No-Fly List" is the Terrorist Screening Center (TSC), not the TSA or DHS, the court found it lacked power to redress Petitioner's asserted injury. The court rejected Petitioner's and the TSA's argument that it could redress Petitioner's injury by ordering the TSA to permit Petitioner to board a plane because his ability actually to enter or fly over the United States would remain speculative so long as he remained on the TSC's lists.

Judge Kavanaugh concurred in the judgment. He believed that Petitioner had standing, having challenged the TSA's order prohibiting him from boarding the plane, rather than his underlying inclusion on the TSC's lists. However, Judge Kavanaugh concluded that Petitioner's challenge to the 2009 action was untimely.

The full text of the opinion may be found at http://www.cadc.uscourts.gov/i...le/13-1110-1549403.pdf

Panel: Henderson, Rogers, Kavanaugh

Argument Date: 9/19/2014

Date of Issued Opinion: 4/28/2015

Docket Number: 13-1110

Decided: Dismissed

Counsel: Charles A. Zdebski for Petitioner; Sharon Swingle, Stuart F. Delery, Ronald C. Machen, Jr., Mark B. Stern for Respondents.

Author of Opinion: Henderson

Concurrence: Kavanaugh

Case Alert Author: Elizabeth Beske

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 04/29/2015 11:13 AM     DC Circuit  

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