Arguing by analogy is cute but it ordinarily leads to conclusions that are not logically sound and valid products of reasoning. So I'm not going to even address that car servicing matter as it's a different scenario entirely.

That specific harm from the blacklisting is unknown to you prior to boarding/check-in attempt, if any, doesn't make the harm vague and non-existent. Need an example? Whether you accept the following example or not, not my issue: the aviation blacklisting leading to denial of membership in government programs or vocational educational programs despite having incurred application related costs. That is but one of many concrete examples of people having been injured due to aviation blacklisting that was prior to or independent of check-in/boarding attempts. If you want more details about such concrete examples, I'm not here to spoon-feed on demand. Eventually, depending on how long you are around, you may have a chance to see this evidence too -- for government "secrets" are not all secrets for eternity.

It's a travesty of justice that the government mostly gets away with harming, -- secretly or otherwise -- individuals by way of extrajudicial blacklisting and invokes "security" and/or "secrecy" "needs" as an excuse to get away with the harm perpetrated.

Is it really a surprise that lists like the following (from some nutwing paranoid about the paranoid government) become news? If government transparency was far greater and trust levels were higher, that kind of weird behavior would be less likely. Is it really any surprise that former TSA head Pistole's name showed up there? I just hope it wasn't meant to be a Charles II type of blacklist.

A plaintiff who could show this sort of damage would have a claim. Thus far, no plaintiff has made such claims. If they had, it'd be public record, and you'd have a case to point to.

Translation: you don't actually have examples you can point to.

So passengers may not have standing to sue until they have in fact been denied boarding. But why should it fall to the individual to challenge their inclusion on the list in such a manner, instead of the government being required to meet some burden at the time they wish to place someone on the list via a proceeding that gives the individual the opportunity to participate at that time? Seems to me that is the essence of due process.

You are free to translate things however you fancy, even as I pointed you toward concrete examples of harm that have taken place. All you have to do is try to hunt down more details about those examples yourself, as I pointed you in the relevant direction in that post.

It's not my problem that some of us checking out this forum are well aware of incidents of blacklisting-caused harm arising that may not have yet become cases in a public courtroom. Don't you realize that a lot of harm that takes place doesn't necessarily end up becoming a court case in the U.S.? It's not like the USG would always refrain from taking action to try to pre-empt some court filings. ;)

So a person can plan a murder, even talk about that plan, but as long as the plan is not acted on they have done nothing wrong? No one has been harmed!

At what point does "no fly" kick in?
(I'm in pre-check, and the id-bp tsa agent does scan my bp), its been a long time:), but I don't think bps for non-pre-check are scanned. If so, the pax would then be denied boarding at the gate(?)
Would the price he paid for his ticket be refunded?

If he informs ONLY has dog about his plan...no harm (yet).:D

If he confides in the undercover cop seated in the booth next to him at his local diner...he'd probably wind up in jail.:rolleyes:

As I pointed out above, criminal prosecution has a different standard involving intent and attempt, even if the attempt is unsuccessful. As I understand this, it's only lawsuits which have the prerequisite of actual harm to establish standing.

Which sucks, of course, as in my example of someone drugging your drink at a party; if you didn't drink it, you've suffered no harm and have no standing to sue, but they've still committed a crime by attempting to drug you and can be criminally charged.

You should be allowed to sue those who knowingly attempt to harm you by arbitrarily stripping you of your civil rights without due process of law, whether or not you choose to exercise those rights - they've still been stripped from you, whether you know it or not.

Perhaps a new category of legal action should be created, where citizens can bring complaints through the courts against government agencies which violate the law and overstep their legal authority, PRIOR to those overreaches actually harming people. After all, isn't prevention better than reparations?

I'm afraid that while I understand completely where you're coming from on this, there isn't a case I'd take to court without either (a) the client having been denied boarding or (b) some other objectively demonstrable adverse consequence as a result of having been put on that list. The law is pretty clear that until you can show damage in a tangible way, there is no standing to litigate.

The key thing here is that you aren't deprived of anything merely by being on a list of some sort. Once you have been, you have a deprivation of liberty without due process argument. A grayer area would be the case where someone somehow knows they're on the list and consequently doesn't travel. This one is arguable. But in any case, were such a person to come in and ask me to sue TSA over this, I'd recommend that they buy a cheap ticket somewhere and actually be denied boarding before proceeding. The deprivation of liberty argument is clearer that way and ultimately cheaper for the client, who would otherwise see their lawsuit held up while DOJ litigates the standing issue.

I understand the argument but believe a person should have the right to know if government has taken some action that infringes on a right. It could be as simple as a notification that some action has been taken.

Condition (b) is possible without having been denied check-in/boarding. Condition (a) is a more common circumstance and easier case than various Condition (b) situations that don't involve Condition (a). This is why Condition (a) harm related to the aviation blacklists are known more widely than Condition (b) harm situations. Because of that disparity, Condition (a) cases coming first and/or in greater amounts should be anything but a surprise.

My point is that it's possible to have standing for being injured by the aviation blacklists without being denied check-in/boarding. Even with those denied check-in/boarding, not all with such standing have cared to pursue litigation.

An analogy that comes to mind is the wife who hires a hitman to kill her husband and that "hitman" turns out to be an undercover police officer. She's arrested for conspiracy to commit murder, but the husband has no civil case as he was never in any kind of danger. Is this what you're saying?

Civil liability for unlawful conspiracy being limited to actual damages does undermine the opportunity to have legal standing.

I note that standing here has two fairly distinct issues.

1. Can the plaintiff make a plausible* showing that they are on the no-fly list?

If denied boarding, then that's clear evidence. Before that, it's simply hard to prove that you're even in the affected class. See e.g. ACLU v NSA, which lost on that basis: the plaintiffs couldn't show that they were being spied on.

2. Can the plaintiff make a plausible showing that being on the no-fly list has caused them harm?

Article III standing requires a 'case or controversy', i.e. some sort of harm to the plaintiff. Purely hypothetical prospective harm isn't enough, but imminent plausible harm is, and chilling effect can be. Also, the harm can be principled — e.g. if you could show the NSA spied on you without probable cause, that's a violation of your 4th Amendment rights, and it's not necessary for them to have also used that information against you, since the search/seizure itself was a harm.

Is being on the NFL a priori a harm, without flight denial? Possibly, IMO. It's a kind of defamation (albeit not public, which is usually a required element IIRC). It subjects you to increased surveillance, since it's propagated to other agencies' lists. If you're aware of it, it has a chilling effect on your actions (e.g. why would you buy a flight that you reasonably believe will get denied). It makes you likely to be denied services, e.g. a visa, flight, etc.


I think #1 is more of an issue for standing overall than #2. If you can show you're probably on it, then IMO you don't need to prove that you've actually been denied boarding; that's a virtually certain prospective harm, which chills your ability to travel. (The cost of a ticket that gets denied boarding would be pointless additional harm.)

This is one of the more fundamental problems with our current standing system, IMO — it's very hard to challenge a program that keeps its victims secret, or laws that are selectively enforced against people who are less able to put up a fight (or not enforced at all, but have a chilling effect by their existence).

I'm not sure how to improve that, and I get the reasoning for having a standing requirement, but it's a problem.


* "Plausible" here is meant as in the Iqbal v Ashcroft standard on a motion to dismiss.

That's a terrible analogy. You're confusing intent with action. Intending to put orange juice in an engine is not the same as actually putting someone on a no-fly list.

Taking it further, the damage to the engine if they then did put the orange juice into the engine is only broadly the same as actually subsequently denying someone boarding: you have the engine and can show it's orange juice, whereas (by design) you can't easily show why someone was denied boarding.

The action of placing someone on a no-fly list does cause harm: it causes them to be unable to fly if they should subsequently try to do so. They may not *discover* this fact until they do try to fly, but the action that harmed them (being put on the no-fly list) is still there. The result of that harm (being denied boarding) is simply the only way to discover the action that caused second harm.