DHS lost a round
 

https://reason.com/blog/2015/04/14/d...n-somebodys-on

As I read it a person must be denied boarding before starting the process to find out why boarding was denied. That is simply not acceptable. DHS is restricting a persons freedom to travel without due process.

ACLU is right to take this back to court.

That's not a surprising provision. To sue (for anything) you need to have standing - in other words, you need have been harmed in some demonstrable way. This is a fundamental legal principle.

So, until you're denied boarding, being on the no-fly list hasn't harmed you, so you have no grounds to sue.

That said, the current situation, where people are denied boarding, but the gov't refuses to tell them whether or not it's because they're on the no-fly list, is absurd.

Once you're denied boarding, you have been harmed, and should have the right to sue. It becomes impossible to sue to get off the no-fly list if you can't even confirm you're on it in the first place.

Which is exactly why the system was set up this way.

A person should have an absolute right to know if government has placed them on some list that may restrict their freedom.

If a person is to dangerous to fly then charge them with a crime and let the courts sort it out.

You may believe this, but it runs completely contrary to a legal principle (standing) that far predates the foundation of the US.

Yup, and I'm in no way defending the policy of refusing to tell people if they were on the no-fly list, nor am I defending the structure of the no-fly list (which is absurdly bloated) itself.

A lot of legal principles far predate the foundation of the U.S. and are still standing in some places. That doesn't mean such approach deserves to remain applicable for all purposes and be applied everywhere.

The blacklist reference goes back to at least the time of England's King Charles the Second who decided that under standing legal principles officials needed to be punished (read: "killed") for engaging in regicide (of his father). Being killed certainly ends the killed ones' freedom of movement.

Obviously I'm not a legal scholar and would appreciate a citation of this principle.

Not something I'd cite in a brief, but... http://en.wikipedia.org/wiki/Standing_(law)

That ("lack of standing") isn't an issue with regard to Boggie Dog's post about people placed -- notice the word "placed" is in the past tense -- on a movement-restricting blacklist.

It ceases to be an issue once the placement has restricted your movement. Until it does, there's no harm, so no standing.

You'll notice that in the cases that have thus far been successful (i.e. Latif v Holder), the plaintiffs had been denied boarding.

The placement on blacklists results in no harm whatsoever prior to denial of boarding? No, that is not true.

That a "successful case" against being blacklisted involved being denied boarding does not mean that the only form of harm (from being blacklisted) requires being denied check-in/boarding. It may just be an easier case to win due to all the scam "secrecy" invocations getting in the way of as easily winning cases about the blacklisting-caused harm that may precede or otherwise be independent of being denied boarding/check-in by an airline.

I wonder if this legal concept has been pushed a little too far. BY extension, this means that if someone puts GHB into your drink at a party, you have no legal standing to sue them unless you actually try to drink the drink.

On the other hand, for criminal prosecution, intent is enough, even if the attempt to harm has failed.

So, what specific harm has been suffered by someone who's placed on the no-fly list, doesn't know it, but never flies? Vague claims of some sort of badness won't hold up - no injury, no case.

If a car dealership decides that, if you ever bring your car in for service, they're going to use orange juice instead of motor oil, and you never know that they have that plan, and you never take your car in for service, you haven't been harmed in any way.

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.

I'm unclear to me as to how a person gets to sue the government for denied boarding as a result of the no-fly list.

The person is denied boarding by the airline, not the government. The airline can't say why it's denying boarding, because the presence on the NFL is a secret. So the person has to sue the airline for damages, since the airline is the only party involved as far as they know. When they go to court, the airline still can't say why they denied, so they lose the case right there and have to pay up.

When and how does the government get involved?

In both cases (NFL and orange juice engine list), the entity has put the individual on a list. Presence on that list has negative implications, should the individual attempt to engage in a specific action (fly, or get his oil changed). Unless and until one's presence on that list actually causes the individual harm (can't fly, is barred from doing something else, gets orange juice in his engine), the mere presence on the list hasn't harmed that person.

You may be stating the legal side of this correctly but I don't think it is right or proper for government to be making secret lists of citizens that will be barred from basic civil rights.

Certainly doesn't complete the picture of a free nation that I was brought up to believe in or spent a career defending.

Don't get me wrong, I don't believe the no fly list is good policy, or something the government should be doing.* I was merely making the point that, to challenge either the existence of the list, or one's placement on it, you're going to need standing.

*Except perhaps in extreme cases, where there's a real, demonstrable, specific concern that someone wants to attack aviation, but there's a good reason that the person can't/shouldn't be arrested right now (i.e. an ongoing investigation into potential accomplices, etc.). Certainly, addition to such a list should require application to a genuine independent party to review the need for the addition (i.e. like FISA is intended to be, not the rubber stamp it actually is).

I may have it wrong but isn't this exactly what the UCLA is fighting to change in this particular case?

https://reason.com/blog/2015/04/14/d...n-somebodys-on

As the trial court stated in Latif v Holder, this is a "Stigma-Plus" case. Stigma-Plus began with Wisconsin v Constantineau, and was narrowed by Paul v Davis. To summarize this simply: if the DHS boss says "RedSnapper is a terrorist", the Paul case is controlling and I can only sue him for defamation. If he says I am a terrorist and places me on a no-fly list, then Constantineau controls, the "plus" part of the test has been met, and I can sue for a deprivation of my civil rights.

The question for standing is: "when does the deprivation occur?" Does the person put on the no-fly list need to buy a ticket and attempt to board? Does the person who has been verbally denied boarding need to rush the gate to see if he is physically stopped from boarding? Does the person who has physically been denied boarding have to fight with the gate agents to see if the police come and arrest him? Does the person who has been verbally told that he is under arrest have to scuffle with the cops to see if they really mean it?

The answer to all of these questions is "No". Once a person is placed on a no-fly-list, his legal status has been altered in an actionable way. He is under no obligation to push the envelope to find out if the government officials will make good on their promise to deny him boarding. He has been harmed once he is on that list. He has standing to sue immediately.

...with the oblig "I am not your lawyer, and this is not to be taken as personal legal advice"...

To meet the first prong of the Stigma or Stigma Plus test, the placement on the list has to be "public disclosure of a stigmatizing statement by the
government, the accuracy of which is contested."

As the NFL isn't public, I don't see how mere placement on the list (without that having some impact on the person) would meet either Stigma or Stigma Plus. I'd note that, in Latif, the plaintiffs' underlying complaint, and request for redress, was in regards to the redress process once their placement on the list had actually impacted their ability to travel, which the court did find deficient.

I don't see anything in Latif that would argue that someone who hasn't actually been prevented from doing something by their placement on the NFL would have standing to sue.

It Latif the defendant did not even contest the stigma part, they only contested the "plus" part, and their argument failed. And the stigma is only important in that it carries weight in the Mathews balancing test; the "plus" portion would be enough to trigger the test in its own right.

With regard to standing:
"A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement. But '[o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough.'
When contesting the constitutionality of a criminal statute, 'it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.' When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he 'should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.'" Babbitt v Farm Workers, 442 U. S. 289 (internal citations omitted)

With the NFL, the only reason prospective plaintiffs needed to buy a ticket is because that was the only way they could discover they were on the list! Now one can find out simply by asking. If the government tells you you are on the list, you should have just as much standing to sue as if a gate agent tells you you are on the list. You need not buy a ticket to fly and risk your money; you need not barge past a gate agent and risk arrest. Simply submit a sworn statement saying "I'd like to buy a ticket to fly, I want to fly, but I know I can't because I'm on the list." Once you know you are on the NFL, the injury of being denied boarding and bearing the associated costs is "certain and impending".

Is this now the case? I hadn't realized that DHS has changed policy, and will now inform people whether or not they're on the list. If so, then that does change things in terms of standing, since someone can make the "would fly, but know that I can't" claim, without actually being denied flying.

Previously, when you couldn't find out whether you were on the NFL, then there was no restraint (until you were actually restrained), since you couldn't be discouraged from doing something that you didn't know that you were being discouraged from doing. In Babbitt, the farm workers already knew that the behavior they wanted to engage in was prohibited by law (a law they wanted to challenge).

You seem to be very familiar with the case, so maybe you can help me with something: at the time Latif was filed, the only way to know (or have good reason to believe) you were on the NFL was to be denied (at some stage) when attempting to travel. If just potentially being on the NFL gave one standing, why did the ACLU only use people who had been denied travel (and, in many cases, had been told it was because of the NFL) as plaintiffs? It would seem that anyone could have been a plaintiff.

Certainly agree. So long as the list remained secret, however, there was no way (as far as I can tell) to establish standing without actually being denied travel at some point.

The list being classified as secret is distinct from a listing of an individual. There are ways that people have found out they were aviation blacklisted by the USG despite not having found that out by trying to check-in/board a covered flight.

Lots more blacklisted people could be plaintiffs, but of the people who know they are blacklisted (despite having no criminal activity) not all are interested in pursuing litigation against the USG for having been blacklisted; nor do all those harmed (even by being denied boarding) have the means to pursue the matter (or to get others to pursue it) in court.