finding airport burdens can constitute an injury-in-fact for an individual on the Selectee list, a different Terrorist Watchlist sub-list which permits air travel
How later courts described this case
- finding airport burdens can constitute an injury-in-fact for an individual on the Selectee list, a different Terrorist Watchlist sub-list which permits air travel
- finding an injury-in-fact because petitioners had a “history of traveling to Jordan every two years to visit family” and a “professed desire to continue that pattern”
- “[T]his court cannot order TSC to do anything in the exercise of its § 46110(a) jurisdiction.”
- holding this Court lacks jurisdiction under 49 U.S.C. § 46110 to issue an order binding the TSC
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2025 Decided April 14, 2026
No. 24-5091
SAAD BIN KHALID,
APPELLANT
v.
TODD BLANCHE, ACTING ATTORNEY GENERAL OF THE UNITED
STATES, U.S. DEPARTMENT OF JUSTICE, IN HIS OFFICIAL
CAPACITY, ONLY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-02307)
Gadeir I. Abbas argued the cause for appellant. With him
on the briefs were Lena F. Masri and Justin Sadowsky.
Joshua P. Waldman, Attorney, U.S. Department of Justice,
argued the cause for appellees. On the brief were Brian M.
Boynton, Principal Deputy Assistant Attorney General, at the
time the brief was filed, and Sharon Swingle and Catherine
Padhi, Attorneys.
Before: HENDERSON, PILLARD and CHILDS, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Circuit Judge PILLARD.
KAREN LECRAFT HENDERSON, Circuit Judge: In 2019,
Saad Bin Khalid was not allowed to board an Emirates Airline
flight from Pakistan to the United States. Hoping to prevent
this from recurring, he followed the administrative redress
process overseen by the Transportation Security
Administration (TSA). The inquiry revealed that Khalid is on
the federal government’s No Fly List. Designation on the No
Fly List is dependent on inclusion in the Terrorist Screening
Dataset, often called the Terrorist Watchlist. Thus, Khalid’s
appearance on the No Fly List indicated to him that he was also
on the Terrorist Watchlist.
Khalid thought to challenge both designations—Terrorist
Watchlist and No Fly List—in one lawsuit. But a challenge to
inclusion on the No Fly List brought after administrative
redress is pursued must proceed as a petition for review under
49 U.S.C. § 46110, which grants the circuit court exclusive
jurisdiction of TSA Administrator orders. See Busic v. Transp.
Sec. Admin., 62 F.4th 547, 549 (D.C. Cir. 2023) (per curiam).
The same statutory review scheme does not apply to Terrorist
Watchlist claims, however, because the Threat Screening
Center (TSC) alone oversees the broader list. See Ege v. U.S.
Dep’t of Homeland Sec., 784 F.3d 791, 793 (D.C. Cir. 2015)
(holding this Court lacks jurisdiction under 49 U.S.C. § 46110
to issue an order binding the TSC). Thus, Khalid’s claims split,
with the Terrorist Watchlist claims proceeding in the district
court and the No Fly List claims separately proceeding as a
petition for review in this Court.
In this appeal, Khalid challenges his inclusion on the
Terrorist Watchlist. Given the interdependence of the
3
watchlisting system, a district court’s decision favorable to
Khalid as to the Terrorist Watchlist would automatically
operate to remove Khalid from the No Fly List and thereby set
aside a TSA Administrator order. Under Section 46110, as
noted supra, only the circuit court may take this action (which
we today decline to do, Khalid v. Transp. Sec. Admin., No. 23-
1150 (D.C. Cir. April 14, 2026)). The district court therefore
held it lacks the necessary authority to redress Khalid’s injuries
and dismissed Khalid’s Terrorist Watchlist–related claims for
lack of Article III standing. Khalid v. Garland, No. 21-cv-
2307, 2024 WL 1299339, at *5–6 (D.D.C. Mar. 27, 2024). We
now affirm.
I. Background
A. The Terrorist Watchlist System
In the aftermath of the September 11, 2001 attacks, the
federal government created a multi-agency, consolidated list of
suspected-terrorist identity information called the Terrorist
Screening Dataset,1 shortened to the Terrorist Watchlist. See
Homeland Security Presidential Directive/HSPD-6, Directive
on Integration and Use of Screening Information to Protect
Against Terrorism, 2 Pub. Papers 1174 (Sep. 16, 2003). In
2024, this list included over one million names. Priv. and C.L.
Oversight Bd. (PCLOB), Report on the Terrorist Watchlist 8
1
The Terrorist Screening Dataset was formerly known as the
Terrorist Screening Database, J.A. 51, and the Threat Screening
Center was formerly known as the Terrorist Screening Center, Press
Release, Fed. Bureau of Investigation, The Terrorist Screening
Center Changes Name to the Threat Screening Center (Mar. 19,
2025), https://www.fbi.gov/news/press-releases/the-terrorist-screen
ing-center-changes-name-to-the-threat-screening-center [https://
perma.cc/9R5B-J8S9]. The record and precedent refer to them by
the earlier names.
4
(2025). The Terrorist Watchlist floats in an alphabet soup of
government agencies and programs. Courts have steadily
digested its intricacies as the precise contours change. It is
critical to understand this complex system to determine how an
individual may challenge its decisions.
The TSC is an entity administered by the Federal Bureau
of Investigation (FBI) in coordination with the Department of
Homeland Security (DHS), the Department of State, the
Department of Justice and the Office of the Director of
National Intelligence. It manages the Terrorist Watchlist. A
variety of agencies and foreign allies may nominate an
individual for listing and the TSC ultimately determines
whether the standard for placement on the list is met. To
support a listing, there must be “reasonable suspicion that the
individual is a known or suspected terrorist.” J.A. 20.
Inclusion on the Terrorist Watchlist can lead to supplemental
screenings at airports and border checkpoints and can require
personal records to undergo additional scrutiny when
government benefits or services are sought.
The TSC may also designate individuals on the Terrorist
Watchlist for several sub-lists. One sub-list, relevant here, is
the No Fly List. Those on the No Fly List may not board flights
that are operated by U.S. carriers or that fly over or within U.S.
airspace. In addition to meeting the Terrorist Watchlist’s
reasonable suspicion standard, an individual must meet at least
one of four additional criteria for inclusion on the No Fly List.
These criteria are that the individual poses:
(1) a threat of committing an act of
international terrorism (as defined in 18 U.S.C.
§ 2331(1)) or domestic terrorism (as defined in
18 U.S.C. § 2331(5)) with respect to an aircraft
5
(including a threat of piracy, or a threat to
airline, passenger, or civil aviation security);
(2) a threat of committing an act of
domestic terrorism (as defined in 18 U.S.C.
§ 2331(5)) with respect to the homeland;
(3) a threat of committing an act of
international terrorism (as defined in 18 U.S.C.
§ 2331(1)) against any U.S. Government
facility abroad and associated or supporting
personnel, including U.S. embassies, consulates
and missions, military installations (as defined
by 10 U.S.C. [§] 2801(c)(4)), U.S. ships, U.S.
aircraft, or other auxiliary craft owned or leased
by the U.S. Government; or,
(4) a threat of engaging in or conducting a
violent act of terrorism and who is operationally
capable of doing so.
J.A. 57 (emphasis omitted). An individual cannot be
designated for the No Fly List unless he is already on the
Terrorist Watchlist, although an individual need not be on the
No Fly List to be included on the Terrorist Watchlist.
The TSC distributes information from the Terrorist
Watchlist throughout the U.S. government via smaller
databases as needed for certain agencies’ “respective public
missions.” J.A. 58; accord PCLOB, supra, at 24–26. For
example, the State Department receives Terrorist Watchlist
information for visa and passport screening, Customs and
Border Protection (CBP) for vetting travelers to the United
States, Citizenship and Immigration Services for immigration
screening and the TSA for air passenger screening.
6
The TSC and nominating agencies periodically review
Terrorist Watchlist placements and No Fly List designations to
ensure there is sufficient evidence to support the relevant
listing. The TSC has authority to remove a person from either
or both lists at any time and occasionally does so. See, e.g.,
Moharam v. Transp. Sec. Admin., 134 F.4th 598, 603 (D.C. Cir.
2025). In addition to these regular reviews, individuals delayed
at an airport or denied boarding may initiate an administrative
review through the DHS Traveler Redress Inquiry Program
(TRIP). 49 C.F.R. § 1560.205. The TSA, which is a
subcomponent of DHS, oversees the DHS TRIP. Id.
§ 1560.207.
Before 2015, the inquiry proceeded like this:
DHS TRIP would forward the complaint to
TSC, which would determine whether the
complainant was on the No Fly List and, if so,
whether the complainant’s continued inclusion
on the list was justified. After TSC made this
determination, DHS TRIP would advise the
complainant by letter that the review was
complete. These letters neither confirmed nor
denied the complainant’s status on the No Fly
List.
Kashem v. Barr, 941 F.3d 358, 366 (9th Cir. 2019). A
district court held this system violated due process, Latif v.
Holder, 28 F. Supp. 3d 1134, 1161 (D. Or. 2014), and, in 2015,
the government revised the DHS TRIP, Fikre v. Fed. Bureau
of Investigation, 35 F.4th 762, 773–74 (9th Cir. 2022).
The DHS TRIP now involves several additional stages of
review and greater information sharing with the affected
individual. The DHS TRIP program office first forwards all
inquiries to the TSC Redress Office to determine whether the
7
individual is on the No Fly List. This filters out false positives,
including any individual who shares a name with a listed
individual. The DHS TRIP then notifies the individual by letter
whether he is on the No Fly List. Upon receipt, the individual
may request additional information about his listing. “If they
do so, they will be provided with a letter identifying the specific
reason(s) for their listing, as well as an unclassified summary
of information supporting that listing.” Id. at 766. He may then
request further consideration of the listing and submit
information he believes relevant to the determination. At the
end of its review, the TSC may remove the individual from the
No Fly List. If the TSC instead believes the individual should
remain on the No Fly List, it forwards this recommendation to
the TSA Administrator.
The TSA Administrator then conducts an independent
review of any information submitted by the individual as part
of the DHS TRIP along with all information supporting his
listing. On this record, the Administrator determines whether
the individual meets the requirements for No Fly List
designation. His determination necessarily involves deciding
whether the baseline standard for Terrorist Watchlist
placement is met because it overlaps with the No Fly List
standard. For example, a suspected terrorist includes an
individual “reasonably suspected . . . to engage in conduct
constituting . . . terrorism,” J.A. 20–21, and one who poses “a
threat of engaging in or conducting a violent act of terrorism
and who is operationally capable of doing so” qualifies for the
No Fly List, J.A. 23. Ultimately, the TSA Administrator issues
a final order that either keeps the individual on the No Fly List,
removes him or remands the inquiry to the TSC for additional
information.
“[O]nce the redress process is complete—i.e., the TSA has
issued its final order—the TSC continues to independently
8
review the No Fly List as a matter of course.” Moharam, 134
F.4th at 604; see also Fikre, 35 F.4th at 767. And the TSC
maintains authority to remove an individual from the No Fly
List outside the TRIP process. Thus, a TSC decision to remove
an individual from the No Fly List would supersede the TSA
Administrator’s final order. Moharam, 134 F.4th at 604.
B. Judicial Review
A complainant who is unhappy with the TSA
Administrator’s decision may seek judicial review of his final
order under 49 U.S.C. § 46110. This provision grants the
circuit court “exclusive jurisdiction to affirm, amend, modify,
or set aside any part of” an order of the TSA Administrator. Id.
§ 46110(c). Under the pre-2015 redress system, we held that,
because “the TSA lacked authority to issue [No Fly List–
related] orders, . . . petitions challenging No Fly List
determinations presented no redressable injury because we did
not have the authority under 49 U.S.C. § 46110 to set those
orders aside.” Busic, 62 F.4th at 549. Now, however, “the TSA
Administrator . . . has the authority to issue No Fly List
determinations, [and] we have jurisdiction to review [a]
petition.” Id.
Section 46110 does not similarly grant the circuit court
exclusive jurisdiction of TSC actions and the TSC alone
possesses authority to modify the Terrorist Watchlist. The
circuit court’s jurisdiction of a No Fly List–related petition for
review is thus limited in scope to the TSA. See Abdellatif v.
U.S. Dep’t of Homeland Sec., 109 F.4th 562, 567–68 (D.C. Cir.
2024) (“[T]his court cannot order TSC to do anything in the
exercise of its § 46110(a) jurisdiction.”). This means that a
ruling ordering the removal of a petitioner from the No Fly List
does not automatically operate to void his predicate Terrorist
Watchlist placement. Accordingly, a challenge to a No Fly List
9
designation brought after pursuing the DHS TRIP must
proceed as a petition for review in circuit court, see, e.g., Busic,
62 F.4th at 550, but a challenge to a Terrorist Watchlist
placement must be brought in district court pursuant to general
federal question jurisdiction, 28 U.S.C. § 1331.
C. Factual and Procedural History
Khalid is a U.S. citizen of Pakistani descent.2 As a child,
he travelled to and from the United States to visit family
members resident here. From 2012 to 2021, he lived in
Pakistan. In 2022, the U.S. government granted Khalid
permission to fly to the United States for repatriation. He
moved to Ohio, where he lived at the time he began this
litigation. His wife and children remained in Pakistan. He
hopes to eventually move his family to the United States and
filed a visa application on his wife’s behalf in August 2019. In
May 2022, Khalid voluntarily left the United States.
Since 2012, whenever Khalid travelled to the United
States, he underwent additional screening measures. Airport
security personnel searched his belongings, inspected his cell
phone and required Khalid to undergo lengthy interviews. In
2019, Khalid was denied boarding an Emirates Airline flight
from Pakistan to the United States.
Following this incident, Khalid filed an application with
the DHS TRIP. The DHS TRIP responded by confirming that
he is on the No Fly List. Khalid then asked for additional
information. While awaiting response, Khalid filed this lawsuit
in federal district court, challenging his placement on both the
2
We accept as true all well-pleaded factual allegations in the
Amended Complaint. Liff v. Off. of Inspector Gen. for U.S. Dep’t of
Lab., 881 F.3d 912, 918 (D.C. Cir. 2018).
10
Terrorist Watchlist and No Fly List as violative of substantive
and procedural due process, the Administrative Procedure Act
and the Religious Freedom Restoration Act. The district court
stayed the case pending the outcome of Khalid’s DHS TRIP
inquiry. See Shearson v. Holder, 725 F.3d 588, 594 (6th Cir.
2013) (“There is very little guidance in any Circuit considering
administrative exhaustion as it pertains to [the DHS TRIP.]”);
Darby v. Cisneros, 509 U.S. 137, 145 (1993) (noting that
pursuit of an administrative appeal renders the underlying
action nonfinal). Eventually, the TSA Administrator issued a
Final Order maintaining Khalid on the No Fly List because “he
is an individual who represents a threat of engaging in or
conducting a violent act of terrorism and who is operationally
capable of doing so.” J.A. 115. Khalid then amended his
Complaint to include facts regarding the resolution of his DHS
TRIP inquiry.
The Government thereafter moved to dismiss for lack of
jurisdiction. The district court granted the motion as to the No
Fly List claims, concluding that Section 46110 divested it of
jurisdiction. Khalid v. Garland, No. 21-cv-2307, 2023 WL
2561943, at *3 (D.D.C. Mar. 16, 2023). Khalid then moved
the court to transfer his claims to this Court—styled as a
petition for review—which motion the district court granted.
Khalid v. Garland, No. 21-cv-2307, 2023 WL 8600506, at *4
(D.D.C. May 25, 2023). By separate opinion, we today dismiss
in part and deny in part that petition. Khalid, No. 23-1150
(D.C. Cir. April 14, 2026).
The district court retained general federal question
jurisdiction of the Terrorist Watchlist claims. 28 U.S.C.
§ 1331; see Airline Pilots Ass’n, Int’l v. Civ. Aeronautics Bd.,
750 F.2d 81, 84 (D.C. Cir. 1984) (“[I]f (as we have held) the
district court had no jurisdiction, then this Court could not
obtain jurisdiction on appeal.”). In ruling on the Government’s
11
dismissal motion, the district court also disposed of some of
Khalid’s Terrorist Watchlist claims on the merits but denied the
motion as to his due process and Administrative Procedure Act
claims. Khalid, 2023 WL 2561943, at *5–6. The Government
renewed its motion to dismiss as to the remaining claims and
the district court ultimately granted the motion. Khalid, 2024
WL 1299339, at *2, *6. Although it found the delay relating
to Khalid’s wife’s visa caused injury, it determined such injury
was not redressable without removing him from the No Fly
List, which it lacked jurisdiction to do. Id. at *3–5. Khalid
timely appealed. This Court has jurisdiction pursuant to 28
U.S.C. § 1291.
II. Analysis
The central issue in this appeal is whether Khalid may
challenge his placement on the Terrorist Watchlist in district
court while simultaneously challenging his placement on the
No Fly List here. Because the district court’s remedy of
removal from the Terrorist Watchlist would operate to “amend,
modify, or set aside” the TSA’s No Fly List Final Order in
contravention of the appellate court’s exclusive jurisdiction to
do so, 49 U.S.C. § 46110(c), we hold that he may not.
“We review a dismissal for lack of standing de novo.”
Renal Physicians Ass’n v. Dep’t of Health & Hum. Servs., 489
F.3d 1267, 1273 (D.C. Cir. 2007). The “irreducible
constitutional minimum of standing contains three elements”:
(1) injury-in-fact, (2) causation and (3) redressability. Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). “[F]or
purposes of determining standing, we must assume that [the
Appellant] will prevail on the merits of [his] argument.” Nat.
Res. Def. Council v. Wheeler, 955 F.3d 68, 77 (D.C. Cir. 2020).
Here, this means that Khalid would be taken off the Terrorist
Watchlist. But, as explained infra, this remedy is not available.
12
An injury-in-fact must be “concrete and particularized,”
and “actual or imminent, not conjectural or hypothetical.”
Lujan, 504 U.S. at 560 (citation modified). Khalid asserts his
Terrorist Watchlist status injures him with excessive burdens
when entering the United States and with delays in the
processing of his wife’s immigration visa. The district court
relied on the latter injury only.
As to burdens upon entry, the district court held “travel
delays and excessive airport screening are not sufficiently
likely to recur” because Khalid’s No Fly List status prohibits
him from flying into or out of the United States entirely.
Khalid, 2024 WL 1299339, at *4. We agree. See City of Los
Angeles v. Lyons, 461 U.S. 95, 106–07 (1983); cf. Jibril v.
Mayorkas, 20 F.4th 804, 814–15 (D.C. Cir. 2021) (finding
airport burdens can constitute an injury-in-fact for an
individual on the Selectee list, a different Terrorist Watchlist
sub-list which permits air travel).
The district court, however, did not discuss the alleged
travel burdens at land borders. J.A. 18–19, 23. Khalid cannot
travel by air into, over and out of the United States while he
remains on the No Fly List without an exemption, which the
government has indicated it is unlikely to grant. See J.A. 127–
28 (explaining the “TSA permitted return travel to the United
States [in March 2022] for this one instance.”); J.A. 107
(denying August 2022 exemption request). Khalid must seek
alternative means of entry to or egress from the United States.
See J.A. 39 (alleging Khalid may have to “drive across the
border” to an airport in another country). And he has a history
of international travel. Thus, screening burdens at land borders
are likely to recur. See Jibril, 20 F.4th at 814 (finding an
injury-in-fact because petitioners had a “history of traveling to
Jordan every two years to visit family” and a “professed desire
to continue that pattern”). Because Khalid’s alleged land
13
border burdens are likely to recur, they constitute an Article III
injury.
The alleged delay in the processing of Khalid’s wife’s visa
is a separate, sufficient injury-in-fact. “An injury is
particularized if it affects the party asserting standing ‘in a
personal and individual way.’” Defs. of Wildlife v. Perciasepe,
714 F.3d 1317, 1323 (D.C. Cir. 2013) (quoting N.Y. Reg’l
Interconnect v. FERC, 634 F.3d 581, 586 (D.C. Cir. 2011)).
Unreasonable processing delay of one’s own visa application
may constitute an injury. See 5 U.S.C. § 706(1). Here, Khalid
filed a visa application for his wife. The application, an I-130
Petition for Alien Relative, is submitted by “a U.S. citizen,
lawful permanent resident, or U.S. national (who is not a U.S.
citizen)” on behalf of his “eligible alien relative.” I-130,
Petition for Alien Relative, U.S. Citizenship & Immigr. Servs.
(Nov. 12, 2025), https://www.uscis.gov/i-130 [https://
perma.cc/W3G8-DG2W]. Because Khalid himself filed the I-
130 application, the alleged delay is sufficiently personal to
him to constitute a particularized injury.
The next question is whether the Terrorist Watchlist is the
source of his injuries. To satisfy causation, “there must be a
causal connection between the injury and the conduct
complained of—the injury has to be fairly traceable to the
challenged action of the defendant.” Lujan, 504 U.S. at 560
(citation modified). CBP conducts “advanced searches” of
electronic devices of individuals on “a government-operated
and government-vetted terrorist watch list,” which the Terrorist
Watchlist plainly is. CBP Directive No. 3340-049A ¶ 5.1.4, at
5 (2018), https://www.cbp.gov/sites/default/files/assets/
documents/2018-Jan/CBP-Directive-3340-049A-Border-
Search-of-Electronic-Media-Compliant.pdf [https://perma.cc/
6SYF-WEQ7]; accord J.A. 23, 58. And the State Department
consults the Terrorist Watchlist when processing visas. J.A.
14
58. Khalid’s Terrorist Watchlist status is a sufficient cause of
both his burden and delay injuries then.
Khalid’s No Fly List designation may compound these
harms. See Khalid, 2024 WL 1299339, at *5. The No Fly List
constitutes “a” government watchlist under CBP’s policy,
meaning Khalid’s inclusion on it could itself trigger the
additional search procedures. CBP Directive No. 3340-049A
¶ 5.1.4, at 5; Oral Arg. at 21:36–21:52. Also, Khalid alleges
his visa delays are “a result of his status on the [Terrorist
Watchlist] and No Fly List.” J.A. 38 ¶ 143 (emphasis added);
cf. J.A. 11 ¶ 7 (attributing this harm to the No Fly List only).
There is no reason to think that the State Department does not
consider a No Fly List designation, which “requires heightened
suspicion above the general criterion for inclusion in the
[Terrorist Watchlist],” J.A. 121, in making a visa decision.
That information is undoubtedly relevant to its “public
mission[].” J.A. 58; see About the U.S. Department of State,
U.S. Dep’t of State, https://www.state.gov/about/ [https://
perma.cc/8HPZ-JLH3] (last visited Dec. 3, 2025) (including
“[t]o protect and promote U.S. security” in mission statement).
The No Fly List is tied to the Terrorist Watchlist under the
current framework. Any harm stemming from the No Fly List
designation could not occur without the predicate Terrorist
Watchlist placement. Khalid’s Terrorist Watchlist inclusion is
therefore a but-for cause of harm traceable to the No Fly List
and sufficient for Article III purposes. See Honeywell Int’l,
Inc. v. Env’t Prot. Agency, 705 F.3d 470, 472 (D.C. Cir. 2013)
(finding causation met if injury would not have occurred “but
for” the conduct challenged).
Causation and redressability “are often ‘flip sides of the
same coin.’” Food & Drug Admin. v. All. for Hippocratic
Med., 602 U.S. 367, 380 (2024) (quoting Sprint Commc’ns Co.
15
v. APCC Servs., Inc., 554 U.S. 269, 288 (2008)). To satisfy
redressability, “the asserted injury must be capable of
resolution and likely to be redressed by judicial decision.” W.
Coal Traffic League v. Surface Transp. Bd., 998 F.3d 945, 950
(D.C. Cir. 2021) (citation modified). Ultimately, it is
redressability (or the lack thereof) that is fatal to Khalid’s
standing.
Khalid seeks removal from the Terrorist Watchlist.3 This
remedy would redress his alleged injuries in full, no matter the
precise listing that causes them, because it would
simultaneously remove him from the No Fly List. And the
district court has jurisdiction of the TSC which, because it is
solely responsible for Terrorist Watchlist inclusion/exclusion,
can effectuate this remedy. Nevertheless, “even where a
plaintiff requests relief that would redress h[is] claimed injury,
there is no redressability if a federal court lacks the power to
issue such relief.” M.S. v. Brown, 902 F.3d 1076, 1083 (9th
Cir. 2018); accord Seed v. Env’t Prot. Agency, 100 F.4th 257,
263 (D.C. Cir. 2024). And the district court lacks the requisite
power.
When the TSA Administrator conducts the final stage of a
DHS TRIP inquiry, he reviews the entirety of an individual’s
file to determine whether the evidence supports a No Fly List
designation.4 Critically, the No Fly List standard incorporates
3
Khalid also, indeed principally, seeks removal from the No Fly
List, J.A. 46–47; Appellant’s Br. 23, notwithstanding that is a
remedy the district court cannot grant here. See 49 U.S.C.
§ 46110(c).
4
In fact, an early stage of the DHS TRIP includes the TSC
Redress Office’s determination of “whether or not the identity in the
[Terrorist Watchlist] continues to satisfy the criteria for inclusion or
should be removed or have its status otherwise modified.” J.A. 61.
16
the Terrorist Watchlist standard.5 J.A. 121 n.1 (explaining the
No Fly List criteria are “in addition to” the Terrorist Watchlist
reasonable suspicion standard); J.A. 165–66 ¶ 11 (same);
Gov’t Accountability Off., Terrorist Watchlist: Nomination
and Redress Processes for U.S. Persons 2 (2025) (same). This
means one cannot be on the No Fly List without evidence also
supporting Terrorist Watchlist placement. Thus, in finding that
Khalid meets the standard for No Fly List designation, the TSA
Administrator also must be satisfied that he meets the
reasonable suspicion standard.6 And a TSA official noted that
Khalid is “on the No Fly List because he presents both the
threat required for inclusion in the [Terrorist Watchlist] as a
known or suspected terrorist and the threat meeting heightened
criteria for placement on the No Fly List.” J.A. 129.
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.
And when the TSA conducts its final review, it looks at the
“complete DHS TRIP file.” J.A. 67.
5
Khalid alleges that sub-lists, including No Fly List
designation, are “based on distinct criteria from [the Terrorist
Watchlist’s] overall inclusion standard.” J.A. 22 ¶ 43. Granted, an
individual must meet unique criteria for No Fly List designation
beyond what is required for the Terrorist Watchlist but he must
nonetheless meet both standards.
6
The dissent notes that “[n]othing in the record establishes that
the TSA assesses Watchlist eligibility as a component of its No Fly
List review.” Dissenting Op. 12. If our colleague means there is no
explicit language in the record reflecting that “TSA assesses
Watchlist eligibility” in its No Fly List review, her notation is correct
but immaterial. The record as a whole necessarily implies that that
examination has to occur.
17
Thus, the remedy Khalid seeks would improperly usurp our
jurisdiction of the TSA Administrator’s Final Order, see City
of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979)
(noting special statutory review schemes are ordinarily meant
to be “the exclusive means of obtaining judicial review in those
cases to which [they] appl[y]”), and conflict with today’s
decision to uphold the Final Order affirming Khalid’s No Fly
List designation, Khalid, No. 23-1150 (D.C. Cir. April 14,
2026). Consequently, the district court lacks authority to
redress Khalid’s Terrorist Watchlist–related injuries while he
remains on the No Fly List pursuant to the TSA
Administrator’s Final Order.7 Because Khalid lacks an
essential element of standing, the district court does not have
subject-matter jurisdiction to hear his claims. Haase v.
Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987).
The district court—at Khalid’s insistence—reluctantly
contemplated a remedy that removes Khalid from the Terrorist
Watchlist while leaving the TSA Administrator’s No Fly List
decision intact. Khalid, 2024 WL 1299339, at *5. If the two
designations were truly separate, this might be enough to
satisfy redressability. See Cap. Power Corp. v. Fed. Energy
Regul. Comm’n, 156 F.4th 644, 650 (D.C. Cir. 2025) (“When
a litigant’s injury-in-fact stems from two independently
sufficient causes, it may separately challenge both of them,
7
The dissent argues this result “places our circuit in tension with
other courts interpreting section 46110.” Dissenting Op. 10.
However, the cases cited are distinguishable because neither
involved an active TSA final order. Mokdad dealt with the pre-2015
DHS TRIP in which TSA had no role in No Fly List decisions. 804
F.3d at 812. And the TSC officially notified the appellant in Fikre
that he had been removed from the No Fly List during litigation. 35
F.4th at 767. Our sister circuits therefore did not have occasion to
consider whether a Terrorist Watchlist challenge could proceed in
district court when a related TSA final order is in effect.
18
even though success in only one proceeding might not fully
redress its injury.”). That remedy is not possible here,
however, given the interrelated nature of the Terrorist
Watchlist and the No Fly List, along with their respective
inclusion standards, as described supra. Although the
government must at times revise its programs in response to
judicial rulings, as it did regarding the DHS TRIP in 2015, we
are without authority to prompt such a change here. The
district court’s inability to redress Khalid’s injuries at this time
does not allow for a forced decoupling of the No Fly List from
the Terrorist Watchlist.
The Government, relying on Telecommunications
Research and Action Center v. FCC (TRAC), 750 F.2d 70 (D.C.
Cir. 1984), asserts that the lack of redressability suggests this
court is the proper one for Khalid’s Terrorist Watchlist
challenge. Appellee’s Br. 21–22. But TRAC does not support
this position. In that case, we held that when the Congress vests
the appellate court with review of an agency action, it
“manifest[s] an intent that the appellate court exercise sole
jurisdiction over the class of claims covered by the statutory
grant of review power.” 750 F.2d at 77. This is intended to
“eliminate[] duplicative and potentially conflicting review.”
Id. at 78. Under that reasoning, the Government argues, we
could hear a challenge to the TSC’s placement of an individual
on the Terrorist Watchlist as part of our review of the TSA’s
decision to maintain that individual on the No Fly List. See
Appellee’s Br. 20–21. But such an exercise of jurisdiction by
the appellate court would go far beyond TRAC’s holding.
TRAC does not suggest our exclusive jurisdiction extends to an
agency or to an action other than those set forth in the
applicable statutory provision, in this case, 49 U.S.C. § 46110.
Under this provision, the exclusivity of our jurisdiction begins
and ends, as relevant, with the TSA. Challenges to TSC action
fall outside the class of claims that Section 46110 covers.
19
Consequently, we cannot exercise jurisdiction of the Terrorist
Watchlist claims as would be the case for challenges falling
under TRAC and its progeny.
The Government further reasons that Khalid’s challenges
to the Terrorist Watchlist are inextricably intertwined with the
No Fly List challenges that are reviewable by this Court.
Appellee’s Br. 20. Therefore, the Government argues, his
Terrorist Watchlist claims “cannot be heard in district court.”
Appellee’s Br. 27. But this fails for the same reason that
reliance on TRAC fails. This Court has never extended the
inextricable intertwinement doctrine to sweep in different
parties or agency actions. Ege, 784 F.3d at 796; see also
Mokdad v. Lynch, 804 F.3d 807, 814 (6th Cir. 2015) (calling
intertwinement of two agencies’ orders “an unprecedented
departure from the doctrine of inescapable intertwinement”).
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; if successful, he can seek removal
from the Terrorist Watchlist in district court. At that time, with
the TSA Final Order vacated, there would be no jurisdictional
barrier to the district court’s grant of a Terrorist Watchlist–
related remedy. And that remedy would fully redress any
remaining harms. It is not unprecedented for a jurisdictional
scheme to require “plaintiffs to file two actions in different
courts to obtain complete relief in connection with one set of
facts.” United States v. Tohono O’Odham Nation, 563 U.S.
307, 323 (2011) (Sotomayor, J., concurring in the judgment).
And the actions may have to “proceed sequentially rather than
simultaneously” to do so. Nat’l Insts. of Health v. Am. Pub.
Health Ass’n, 145 S. Ct. 2658, 2662 (2025) (mem.) (Barrett, J.,
concurring in the partial grant of the stay). This is precisely
what the jurisdictional scheme at issue here requires.
20
Although Khalid acknowledges this course of action, he
refuses to accept it. He argues that such a result “insulate[s]
the[] watchlist from challenge.” Appellant’s Br. 32. There is,
of course, a “presumption favoring judicial review of
administrative action.” Make the Rd. N.Y. v. Wolf, 962 F.3d
612, 623 (D.C. Cir. 2020) (quoting Guerrero-Lasprilla v. Barr,
589 U.S. 221, 229 (2020)). But review of his Terrorist
Watchlist–related claims is only temporarily unavailable rather
than completely precluded. Cf. 5 U.S.C. § 701(a) (recognizing
some agency actions are in fact unreviewable).
Khalid holds the key to free himself from his ostensible
legal limbo. On this point our dissenting colleague agrees. See
Dissenting Op. 13–14. He can seek reconsideration of his No
Fly List designation upon any future airport delay, denial of
boarding or additional burden at a border crossing. The TSC
would evaluate a future DHS TRIP inquiry anew, considering
a different factual record at a different point in time. That
inquiry may result in the No Fly List removal Khalid desires
and open the door to a related Terrorist Watchlist challenge.
The TSC will also continue to review periodically Khalid’s
Terrorist Watchlist inclusion under its standard operating
procedures. The dissent notes this practice ensures the
“window of circuit-court exclusivity is inevitably brief.”8
Dissenting Op. 13. If Khalid chooses not to again engage DHS
TRIP, he can “immediately,” Dissenting Op. 14, bring a new
challenge to the superseding TSC Terrorist Watchlist decision
that does not implicate the TSA Final Order at issue. That said,
we decline today to look beyond the Amended Complaint to
consider whether superseding agency action supports the
8
Of course, it was in that brief window that Khalid filed his
Amended Complaint. Compare J.A. 91 (showing TSA Final Order
was issued on June 9, 2022), with J.A. 4 (showing Amended
Complaint was filed on June 29, 2022).
21
district court’s jurisdiction. Accordingly, Khalid’s Terrorist
Watchlist claims are reviewable in district court only at a point
further down the correct procedural path.
* * *
For the foregoing reasons, the district court’s judgment of
dismissal is affirmed.
So ordered.
PILLARD, Circuit Judge, dissenting: Saad bin Khalid sued
to challenge the Threat Screening Center (the Center)’s
decision to place him on the terrorist watchlist. As the majority
explains, Khalid raises statutory and constitutional claims
ordinarily within the district court’s general federal-question
jurisdiction. Maj. Op. at 9 (citing 28 U.S.C. § 1331). No
statute divests the district court of jurisdiction over claims
challenging placements on the terrorist watchlist. And I agree
with the majority that Khalid alleges concrete injuries, Maj.
Op. at 12-13, for which the district court “can effectuate [a]
remedy” by ordering the Threat Screening Center to remove
him from the list, Maj. Op. at 15.
It follows from those premises that the district court may
review Khalid’s claims. The majority, however, disagrees.
Pointing to a statute that vests our court with exclusive
jurisdiction over direct appeals of certain orders of a different
federal agency—the Transportation Security Administration
(TSA)—the court holds that the district court lacks authority to
remedy Khalid’s injury. Maj. Op. at 16-17 (citing 49 U.S.C.
§ 46110(c)). It reasons that the district court cannot exercise
its own jurisdiction over Khalid’s claim regarding the Center’s
watchlist decision because doing so would interfere with this
court’s exclusive jurisdiction to review the TSA order retaining
Khalid on the No Fly List. But a district court order granting
Khalid relief from the watchlist would neither modify nor set
aside TSA’s order. It would instead set aside an order of the
Center. If, in doing so, the district court moots the TSA order,
that is a permissible consequence of the government’s
allocation of agency authority—not a reason to curtail the
jurisdiction of the only court that can review the Center’s
terrorist watchlisting order. Because I disagree that our
jurisdiction over final orders of TSA precludes district court
jurisdiction over the Center’s terrorist watchlist decisions, I
respectfully dissent.
2
I.
This case centers on an unusual relationship between two
federal agencies: the Threat Screening Center and TSA. I
begin with a brief recap of the relevant facts.
The Center is a multi-agency clearinghouse for foreign and
domestic federal intelligence information. To that end, the
Center maintains the terrorist watchlist—a centralized database
of known and suspected terrorists. The Center alone has
authority to add and remove names on the terrorist watchlist.
And the Center regularly audits the terrorist watchlist,
including biannually reviewing all listings of U.S. citizens.
Various authorized federal agencies and officials use the
database as a vetting and screening tool “for diplomatic,
military, intelligence, law enforcement, immigration,
transportation security, visa, and protective processes.” U.S.
Gov’t Watchlisting Process Overview at 5 (Sept. 2020) (J.A.
58). To assist them, the Center creates sub-lists of the terrorist
watchlist that serve specific purposes. One such sub-list is the
No Fly List, which the Center maintains for TSA. Again, the
Center alone has authority to add a person to the No Fly List.
The Center does so when a person on the terrorist watchlist
meets one of four additional criteria, such as posing a threat of
committing an act of terrorism involving an aircraft. See id. at
4 (J.A. 57). The Center also regularly audits the No Fly List,
removing individuals who no longer meet the selection criteria.
In one limited circumstance, TSA has concurrent power
with the Center to remove a person from the No Fly List.
Pursuant to a Department of Homeland Security rule, 49 C.F.R.
§ 1560.205, TSA oversees a redress process, DHS TRIP,
through which impeded air travelers may seek review of their
No Fly List status. Once a traveler initiates a query through
DHS TRIP, TSA asks the Center to confirm whether the
3
traveler is, indeed, on the No Fly List. The vast majority
(around 98%) of DHS TRIP inquiries are “found to be cleared
of any connection with terrorist watchlisted identities” in that
initial step because it turns out the traveler is not in fact a
positive match to an identity in the database, and in that case
his DHS TRIP process then ends. U.S. Gov’t Watchlisting
Process Overview at 8 (J.A. 61). For the rare query that results
in verification that the traveler is on the No Fly List, the Center
also confirms internally whether the traveler continues to
satisfy the terrorist watchlist and No Fly List criteria. If, after
all those steps, the Center determines that the traveler is
properly listed, it so notifies TSA. TSA then provides an
opportunity for the traveler to “request and receive additional
information regarding [his] status,” which may include the
general basis for inclusion on the No Fly List. U.S. Gov’t
Watchlisting Process Overview at 9 (J.A. 62).
If the traveler opts for the additional information, TSA
asks the Center to prepare an unclassified summary of the
materials underlying the traveler’s No Fly List designation.
TSA then shares the summary with the traveler. The traveler
may submit a response, which TSA forwards to the Center.
The Center, upon reviewing the new information, can either
remove the traveler from the No Fly List or prepare “a
recommendation to the TSA Administrator” indicating that the
traveler “should remain on the No Fly List and [providing] the
reasons for that recommendation.” Mungaray Decl. ¶ 7 (J.A.
67). The Center forwards that recommendation to DHS TRIP,
which “provides the recommendation to the TSA
Administrator along with the person’s complete DHS TRIP
file.” Id. ¶ 8. The TSA Administrator then issues a final order
either (1) maintaining the traveler on the No Fly List,
(2) removing him from the No Fly List, or (3) “remand[ing] the
case back to [the Center] with a request for additional
4
information or clarification.” U.S. Gov’t Watchlisting Process
Overview at 9 (J.A. 62).
The existence of that third option underscores an important
caveat: The “complete DHS TRIP file” that TSA reviews
represents information collected by DHS TRIP, not the full
body of evidence available to the Center. Although the TSA
Administrator can make a “request for additional information
or clarification” from the Center, id., the government does not
contend—nor does the record in this case establish—that the
Center routinely gives TSA its entire file of information
bearing on the traveler’s placements. Instead, the TSA
Administrator issues his order using “information available to
[TSA],” see Letter from David P. Pekoske, TSA Administrator,
to Saad bin Khalid (June 9, 2022) (J.A. 112)—primarily,
information that the traveler submits through the DHS TRIP
process and recommendations passed along from the Center,
see U.S. Gov’t Watchlisting Process Overview at 9 n.5 (J.A.
62) (describing the DHS TRIP file as “the information the
traveler submits to DHS TRIP” plus “other available
information that is being relied upon to support the No Fly
listing”); Mungaray Decl. ¶¶ 7-8 (J.A. 67).
Notably, during the DHS TRIP process, the TSA
Administrator never purports to decide whether a traveler
belongs on the broader terrorist watchlist. Instead, TSA
forwards that question to the Center at the outset of a DHS
TRIP inquiry and relies on the Center’s response as a premise
of the rest of its review. The majority suggests that the Center’s
files regarding the traveler’s terrorist watchlist status become
part of the “complete DHS TRIP file” because the Center
confirms during the DHS TRIP process that the traveler is
properly watchlisted. Maj. Op. at 15-16 n.4. But the Center is
a separate entity from DHS TRIP, and government procedures
specify when information passes between the two. See U.S.
5
Gov’t Redress Implementation Plan for USPER No Fly
Individuals at 3-5 (TSA A.R. 225-227), Khalid v. Transp. Sec.
Admin., No. 23-1150 (D.C. Cir. April 14, 2026) (explaining
that DHS TRIP “refers [a] case” to the Center, the Center
works with the nominating agency “to assess the derogatory
information,” and the Center then “advise[s] DHS TRIP of
[any] change in status” resulting from the inquiry.) The Center
answers watchlist questions internally and returns answers—
not complete records of the underlying intelligence
information—back to DHS TRIP.
A final order issued through DHS TRIP reflects TSA’s
judgment of the propriety of a traveler’s No Fly listing at a
particular moment in time. After TSA issues a final TRIP
order, the Center remains free to follow its usual auditing
practices for both the No Fly List and terrorist watchlist,
including removing an individual whom TSA may have just
decided to retain on the No Fly List, see Moharam v. Transp.
Sec. Admin., 134 F.4th 598, 602-04 (D.C. Cir. 2025), or, as
Khalid suggests, re-adding an individual whom TSA ordered
removed, Compl. ¶ 57 (J.A. 25). A traveler may invoke the
DHS TRIP review process anew any time he experiences an air
travel impediment, and the TSA Administrator will re-evaluate
the propriety of his No Fly List placement at that point in time.
II.
This appeal concerns the Center’s decision to maintain
Khalid on the terrorist watchlist. As explained, the Center
bears primary responsibility for creating and auditing both the
terrorist watchlist and the No Fly List. The Center is thus the
natural object of a plaintiff’s concerns about his placement.
That default rule has one exception. In the rare case in which
TSA, because of DHS TRIP, issues an order concerning a No
Fly List placement, our court has “exclusive jurisdiction to
6
affirm, amend, modify, or set aside any part of” that order. 49
U.S.C. § 46110(c). We exercise that jurisdiction today to
review the TSA Final Order maintaining Khalid on the No Fly
List. Khalid v. Transp. Sec. Admin., No. 23-1150 (D.C. Cir.
April 14, 2026)). But our review of that TSA Final Order
makes no difference to the district court’s authority to review
the Center’s separate decision to keep Khalid on the terrorist
watchlist. To resolve Khalid’s watchlisting claim, the district
court would exercise authority over a distinct agency deciding
a discrete matter never before us in our review of the TSA No
Fly List order. I would accordingly reverse the district court’s
dismissal of Khalid’s terrorist watchlist claims and remand for
that court to decide them.
The majority reaches a different result. My colleagues
reason that a district court decision removing Khalid from the
terrorist watchlist would have the legal effect of “set[ting]
aside” the TSA Final Order—something that only our court
may do. Maj. Op. at 16. They also suggest that, if the district
court were to review Khalid’s terrorist watchlist status, it might
reach a decision that factually contradicts the one we make to
resolve Khalid’s section 46110 petition for No Fly List review.
But a district court order removing Khalid from the terrorist
watchlist would conflict neither legally nor factually with our
exercise of exclusive jurisdiction over the TSA Final Order
determining Khalid’s No Fly List status.
A.
Start with the supposed legal conflict. The majority
reasons that, because a district court order removing Khalid
from the terrorist watchlist would also remove Khalid from the
No Fly List, such an order would “violate the TSA Final Order”
and “improperly usurp” our exclusive jurisdiction. Maj. Op. at
16-17. I disagree. I also find the majority’s focus on
7
preserving the relevance of the TSA Final Order to be at odds
with the limited role of TSA and DHS TRIP in the watchlisting
process. The Center, after all, is the primary and continuous
keeper of both the terrorist watchlist and the No Fly List. It
makes no sense to foreclose review of the Center’s watchlisting
decision in order to safeguard TSA’s one-off DHS TRIP order.
Section 46110 grants us exclusive jurisdiction to review
the TSA Final Order, see Busic v. Transp. Sec. Admin., 62 F.4th
547, 549 (D.C. Cir. 2023), and so bars the district court from
reviewing that Order. An exclusive review provision may
make certain related matters reviewable in our court, and when
it does so, our jurisdiction over the related matters is also
exclusive. See Telecomm. Rsch. & Action Ctr. v. FCC (TRAC),
750 F.2d 70, 76-78 (1984). But my colleagues correctly reject
the government’s arguments that section 46110 brings the
Center’s terrorist watchlist decision within the ambit of our
review of TSA’s distinct No Fly List decision. Maj. Op. 18-19
(rejecting arguments based on “TRAC and its progeny” and the
“inextricably intertwined” doctrine). The government does not
contend that section 46110 otherwise affects the district court’s
general federal question jurisdiction.
We all agree that, in exercise of its federal question
jurisdiction of challenges to the terrorist watchlist, the district
court can issue relief that runs against the Center. See Maj. Op.
at 15. As relevant here, if the district court were persuaded by
the merits of Khalid’s challenge to his placement on the
terrorist watchlist, it could redress his injuries by ordering the
Center to remove Khalid from that list. Such relief would run
only against the Center, not TSA. To my mind, it is clear that
the district court could thus provide Khalid relief without
usurping our exclusive authority to review and modify TSA’s
final orders. We alone can consider Khalid’s challenge to
8
TSA’s determination, pursuant to DHS TRIP, that Khalid
belongs on the No Fly List.
To be sure, a district court order crediting Khalid’s claim
against the Center and redressing it by removing him from the
terrorist watchlist would have the practical effect of mooting
the TSA Final Order sustaining Khalid’s No Fly listing. We all
agree that, if Khalid is off the watchlist, he cannot be on the No
Fly List. Maj. Op. at 18. In my view, however, section 46110
provides no protection against ordinary chances of mootness.
That is just as true here as, for example, under the statute giving
our court exclusive jurisdiction to review a Federal
Communications Commission order placing conditions on a
merger, 47 U.S.C. § 402(b), see Competitive Enter. Inst. v. Fed.
Commc’ns Comm’n, 970 F.3d 372, 380 (D.C. Cir. 2020), which
surely has no bearing on the district court’s antitrust
jurisdiction to review the validity of the underlying merger, see
15 U.S.C. §§ 18, 25, even though the Federal Communications
Commission “duplicates the analysis of the Department of
Justice in its review of possible anticompetitive effects,” Comp.
Enter. Inst., 970 F.3d at 377. So too for the multitude of other
special statutory review provisions: I am aware of none that
bars the district court from reviewing a claim that might
incidentally moot a petition before our court. Indeed, in the
context of section 46110, our court has held that the Center
itself can moot a petition for review of a TSA Final Order by
removing the petitioner from the terrorist watchlist (and thus
the No Fly List). Moharam, 134 F.4th at 602-04 (D.C. Cir.
2025). It follows that the district court equally can order the
Center to take such action even if it thereby moots a petition
for review in our court.
Note that it is only because of the government’s voluntary
arrangements that such a district court order would moot any
further dispute about the TSA Final Order. The government
9
has set up the DHS TRIP process such that two distinct
agencies’ decisions must overlap to support a No Fly List
placement: the Center’s original and ongoing decision that the
person meets both the terrorist watchlist and the No Fly List
criteria, and TSA’s separate decision, pursuant to DHS TRIP,
that the person is correctly on the No Fly List. Section
46110(c) gives us sole jurisdiction to review TSA orders
resulting from DHS TRIP, whereas the district court has federal
question jurisdiction over the Center’s placement and retention
decisions. The government’s decision to condition the
practical effectiveness of a TSA Final Order on the traveler’s
remaining on the Center’s terrorist watchlist makes no
difference to that equation. 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.
The majority ultimately reads section 46110 to strip the
district court of more jurisdiction than it confers on this court.
That means that neither we nor the district court can review
Khalid’s claims that the Center improperly placed him on the
terrorist watchlist. Khalid faces more than an “ordering
problem”: My colleagues say that he must prevail on his No
Fly List claims before he can get review of the Center’s
upstream terrorist watchlisting decision. Maj. Op. at 19. The
government never makes that argument, and for good reason.
It runs contrary to the “well-settled” “presumption favoring
interpretations of statutes [to] allow judicial review of
administrative action.” Kucana v. Holder, 558 U.S. 233, 251-
52 (2010) (modification in original) (quoting Reno v. Catholic
Soc. Servs., Inc., 509 U.S. 43, 63-64 (1993)) The presumption
favoring judicial review “can be overcome only by ‘clear and
convincing evidence’ of congressional intent to preclude
judicial review.” Make the Rd. N.Y. v. Wolf, 962 F.3d 612, 624
(D.C. Cir. 2020) (quoting Kucana, 558 U.S. at 252). Yet
10
nothing about section 46110, a forum specification, suggests
that Congress intended to foreclose judicial review of any
otherwise-reviewable agency action. Indeed, the result that the
majority announces today places our circuit in tension with
other courts interpreting section 46110. See Mokdad v. Lynch,
804 F.3d 807, 812-15 (6th Cir. 2015); Fikre v. Fed. Bureau of
Investigation, 35 F.4th 762, 774-775 (9th Cir. 2022), aff’d on
other grounds, 601 U.S. 234 (2024).
Rendering the Center’s watchlist decision judicially
unreviewable to shield a decision of this court sustaining a TSA
Final Order is especially perverse because the Center, not TSA,
is the nerve center of the watchlisting operation. The Center
makes all watchlisting and No Fly listing decisions in the first
instance. It affords TSA a limited window into its work for
purposes of DHS TRIP. Congress never meant the circuit
court’s exclusive review—peering through that limited
window—to block the district court from opening the door to
scrutiny of the primary operation.
B.
Next, consider the factual concern that appears to animate
the court’s holding: a worry that the district court’s review of
the Center’s terrorist watchlist decision could factually
duplicate (and potentially “conflict with,” Maj. Op. at 17) our
review of the TSA Final Order. My colleagues suggest that the
TSA Final Order, which all agree is subject to our review,
reflects a determination by TSA that Khalid belongs on the
terrorist watchlist—implying that our review of the No Fly
listing effectively addresses the propriety of the terrorist
watchlisting as well. To prevent the district court from
“usurp[ing]” our exclusive jurisdiction to adjudicate the facts
underlying the TSA order, Maj. Op. at 17, my colleagues read
section 46110 tacitly to strip the district court of jurisdiction to
11
hear Khalid’s challenge to his watchlist placement. But neither
of the reasons my colleagues offer to show that the district
court’s review would duplicate our own is supported by the
record.
First, the majority says that the TSA Administrator “must
be satisfied” that a person belongs on the terrorist watchlist as
a precondition of approving that traveler’s inclusion on the No
Fly List. Maj. Op. at 16. True, the No Fly List is limited to
people who are already on the broader terrorist watchlist. But
the Center alone is responsible for maintaining the accuracy of
the terrorist watchlist, and the record indicates that the TSA
Administrator treats a traveler’s terrorist watchlist status as a
premise of—rather than a threshold issue within—its own
review. In Khalid’s case, for instance, the TSA Final Order
identifies one of the four No Fly List criteria as the basis for
Khalid’s No Fly List placement, but it does not identify the
basis for his inclusion on the broader terrorist watchlist or even
mention the criteria for inclusion on that list. David P.
Pekoske, TSA Administrator, Notice of Final Order and
Decision of the TSA Administrator at 2 (June 9, 2022) (J.A.
114).
The government, for its part, has never represented that
TSA independently verifies travelers’ eligibility for the
terrorist watchlist. The majority implies otherwise by quoting
a TSA employee’s conclusory assertion, in a litigation
affidavit, that Khalid meets the criteria for the terrorist
watchlist. Maj. Op. at 16 (quoting Turner Decl. ¶ 30 (J.A.
129)). We know that TSA receives and considers the Center’s
recommendation to retain the traveler on the No Fly List, which
implicitly reflects the Center’s determination that the traveler
belongs on the terrorist watchlist. But the affiant does not say
that TSA examined the underlying information regarding
Khalid’s eligibility for the terrorist watchlist. To the contrary,
12
the affiant states that he relies on “information made available
to [him] in [his] professional capacity,” such as the list of
criteria that the Center uses to compile the terrorist watchlist.
Turner Decl. ¶ 1 (J.A. 120). Nothing in the record establishes
that TSA assesses watchlist eligibility as a component of its No
Fly List review. I see no basis for inferring that TSA
undertakes such an assessment, see Maj. Op. at 16 n.6, when
the record elsewhere spells out the Center’s exclusive authority
over the contents of the terrorist watchlist, see U.S. Gov’t
Watchlisting Process Overview at 6 (J.A. 59).
Second, taking an indirect approach, the majority asserts
that anyone who meets one of the four No Fly List criteria
“necessarily” meets the “baseline standard” for the terrorist
watchlist. Maj. Op. at 7. That, too, is a claim the government
has never advanced, and comparison of the two lists’ criteria
does not clearly support it. The terrorist watchlist criteria focus
on evidence of a person’s terroristic acts or intent, while the No
Fly List criteria focus on whether an individual poses a “threat”
of certain acts of terrorism, including because he is
“operationally capable” of carrying them out. U.S. Gov’t
Watchlisting Process Overview at 4 (J.A. 57). And even if the
No Fly List standard fully encompassed the terrorist watchlist
standard, we have no reason to treat the TSA Administrator’s
Final Order as validating the Center’s decision to place Khalid
on the terrorist watchlist. The “entirety of an individual’s file”
within DHS TRIP, Maj. Op. at 15, is not necessarily the same
as the entirety of the Center’s file supporting the watchlist
designation. As explained, the Center has access to a distinct
and larger body of evidence, some of which might undermine
inferences on which the TSA Administrator relied.
The Center’s decision to maintain Khalid on the terrorist
watchlist is factually distinct from the decision reflected in the
TSA Final Order. Accordingly, the district court may review
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the Center’s decision without re-ploughing ground this court
has covered. To the extent the government can show
otherwise, it is free to assert issue preclusion, which “generally
bars ‘successive litigation of an issue of fact or law actually
litigated and resolved in a valid court determination essential
to the prior judgment.’” Gulf Power Co. v. Fed. Commc’ns
Comm’n, 669 F.3d 320, 323 (D.C. Cir. 2012) (quoting New
Hampshire v. Maine, 532 U.S. 742, 748-49 (2001)). But even
if we sustained TSA’s No Fly List decision based on the DHS
TRIP record, the district court could consistently determine, in
view of the larger body of information before the Center, that
retention of the same individual on the watchlist was
insupportable.
III.
The effect of the majority’s error is more limited than
some of its language might suggest. The majority bars Khalid
from bringing terrorist watchlist claims in district court while a
final order of TSA governs Khalid’s placement on the No Fly
List. But that window of circuit-court exclusivity is inevitably
brief. Recall that the Center “conducts a biannual review for
all U.S. person[s]” on the terrorist watchlist and No Fly List.
U.S. Gov’t Watchlisting Process Overview at 6 (J.A. 59). Our
court has made clear that the Center’s updated decisions
supersede previous listing orders, including orders of the TSA
Administrator. Moharam, 134 F.4th at 604. That result makes
sense: Each time the Center makes a new decision, additional
evidence may have accumulated, and the passage of time may
have eroded the probative force of existing evidence.
Once the Center reviews Khalid’s placement, as it must,
the Center’s fresh decision becomes the current source of both
Khalid’s No Fly List placement and his terrorist watchlist
placement. Now that Khalid knows he is on both the watchlist
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and the No Fly list and that TSA sees no ground to afford him
relief through DHS TRIP, he has no practical need to reengage
that process. With no new TSA Final Order regarding his
current No Fly listing and no obligation to seek one, Khalid
may go to district court and bring a single suit against the
Center challenging both renewed placements consistently with
the majority’s view of the exclusive power of our court.
Indeed, he may do so immediately. The premise operative in
this case—that the TSA Administrator’s June 2022 Final Order
dictates Khalid’s presence on the No Fly List—has in fact long
been superseded. Khalid’s current listings are governed by the
most recent decision of the Center. Even under today’s
majority decision, a district court has jurisdiction to review
Khalid’s renewed challenges to placement on both lists unless
and until Khalid once again pursues DHS TRIP.