The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 25-3179
HALIL DEMIR,
Plaintiff-Appellant,
v.
MARKWAYNE MULLIN, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 1:22-cv-07209 — John F. Kness, Judge.
____________________
ARGUED MAY 20, 2026 — DECIDED AUGUST 4, 2026
____________________
Before BRENNAN, Chief Judge, and SCUDDER, and JACKSON-
AKIWUMI, Circuit Judges.
PER CURIAM. Halil Demir, a naturalized United States citi-
zen, runs the Zakat Foundation of America, an international
aid organization. As Zakat’s Executive Director, he travels
regularly for work, philanthropic events, and speaking en-
gagements with government agencies and world leaders. The
federal government has even granted Demir security clear-
ances to participate in certain events.
2 No. 25-3179
Since 2016, the Transportation Security Administration
has subjected Demir to extended screening in airports, be-
yond the typical passenger experience. Demir suspected he
was wrongfully included on the FBI’s Terrorist Watchlist and
a sublist called the Selectee List. He took the only action avail-
able—to utilize the Department of Homeland Security’s Trav-
eler Redress Inquiry Program. Demir submitted five DHS
TRIP inquiries between 2016 and 2022. DHS closed his cases
and sent him a brief, boilerplate letter that did not confirm or
deny whether he is on a watchlist.
Frustrated and in the dark, Demir challenged his inclusion
on the Terrorist Watchlist and the subset Selectee List as vio-
lating his substantive and procedural due process rights, and
as arbitrary in violation of the Administrative Procedure Act.
He further alleged that the DHS TRIP program itself is proce-
durally deficient because it does not provide anyone who be-
lieves they are on the Selectee List a meaningful opportunity
to challenge incorrect information about themselves in the
government database. The black-box nature of DHS’s redress
program, Demir says, violates due process and produces ar-
bitrary watchlist decisions. The district court dismissed
Demir’s complaint for a lack of subject matter jurisdiction, in-
voking 49 U.S.C. § 46110, which channels challenges to “or-
der[s] issued by the … [TSA]” to a court of appeals at the out-
set.
We reverse in part. Section 46110 does not apply to
Demir’s challenges to his inclusion in the Terrorist Watchlist
and Selectee List because it only grants a court of appeals orig-
inal jurisdiction over TSA, which does not control either list.
We remand that claim to allow the district court to consider
its merits. But we affirm dismissal of Demir’s challenge to
No. 25-3179 3
DHS TRIP because the program is an “order” within the
meaning of § 46110. This means Demir must file that claim in
a court of appeals in the first instance.
I
When reviewing a dismissal under Rule 12(b)(1), we take
Demir’s allegations as true and may “look beyond the juris-
dictional allegations of the complaint” to determine whether
we have subject matter jurisdiction. St. John’s United Church of
Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007)
(cleaned up). Here, the public record contains a document
maintained on the FBI’s website that explains the FBI’s Ter-
rorist Watchlist and the DHS TRIP program as of April 2024.
In response to the attacks of September 11, 2001 and pur-
suant to a presidential directive, the Attorney General created
the Threat Screening Center, a multi-agency body adminis-
tered by the FBI, to “consolidate the Government’s approach
to terrorism screening.” Homeland Security Presidential Di-
rective-6—Directive on Integration and Use of Screening In-
formation to Protect Against Terrorism, 39 Weekly Comp.
Pres. Doc. 1234 (Sep. 16, 2003). The Threat Screening Center
merges terrorist watchlists maintained by federal agencies
into one database—the Terrorism Screening Dataset or, as it
is often called, the Terrorist Watchlist.
The Terrorist Watchlist contains biographic and biometric
information of known and suspected terrorists. It also has two
subcategories that trigger different travel restrictions. The Se-
lectee List identifies people who may be subject to additional
screening before being permitted to board flights on U.S. car-
riers or flights into, out of, over, or within U.S. airspace. See,
e.g., 49 C.F.R. § 1560.105(b)(2). The No Fly List contains people
4 No. 25-3179
who may not board such flights at all. Agencies use the Ter-
rorist Watchlist to determine how to engage with people they
encounter. By way of common example, TSA agents reference
the Terrorist Watchlist to determine whether to subject trav-
elers to additional screening or prohibit them from boarding
a flight. See 49 U.S.C. § 114(h).
Inclusion on the Terrorist Watchlist occurs through a nom-
ination and multi-step review process. First, a federal agency
nominates someone to the Terrorist Watchlist if they meet cer-
tain criteria. The nomination is then reviewed by the FBI or
National Counterterrorism Center, depending on whether the
nominee has a nexus to domestic or international terrorism.
Finally, the Threat Screening Center reviews the nominee and
decides whether to include them in the database and, if ap-
propriate, on either the Selectee or No Fly List.
The National Counterterrorism Center, FBI, nominating
agency, and Threat Screening Center periodically review the
Terrorist Watchlist for accuracy. The Threat Screening Center
removes records that no longer meet the criteria for inclusion
in the Terrorism Screening Dataset.
As another quality control measure, Congress directed the
TSA Administrator to “establish a procedure to enable airline
passengers, who are delayed or prohibited from boarding a
flight because the advanced passenger prescreening system
determined that they might pose a security threat, to appeal
such determination and correct information contained in the
system.” 49 U.S.C. § 44903(j)(2)(C)(iii)(I); see also id.
§§ 44903(j)(2)(G)(i), 44926(a), (b)(1).
In response, the TSA Administrator created the DHS Trav-
eler Redress Inquiry Program, commonly shorthanded as
No. 25-3179 5
DHS TRIP. See 49 C.F.R. §§ 1560.201–.207. If someone believes
they have been “improperly or unfairly delayed or prohibited
from boarding” a flight, they may file an inquiry through
DHS TRIP. Id. § 1560.205(a). TSA then coordinates with the
Threat Screening Center to “review all the documentation and
information requested from the individual” and “correct any
erroneous information.” Id. § 1560.205(d).
Administered by the FBI, the Threat Screening Center ul-
timately determines whether an individual should remain on
the Terrorist Watchlist and Selectee List. As of 2015, the TSA
Administrator makes final determinations about the No Fly
List. See Kashem v. Barr, 941 F.3d 358, 366 (9th Cir. 2019); Ab-
dellatif v. U.S. Dep’t of Homeland Sec., 109 F.4th 562, 568 (D.C.
Cir. 2024) (“While [the Threat Screening Center] has … trans-
ferr[ed] final decisionmaking authority over [the No Fly List]
to TSA, it has not done so for the Selectee List.”). As to No Fly
List inquiries, the Threat Screening Center only makes a rec-
ommendation to TSA and then implements its decision.
Finally, DHS TRIP regulations require TSA to “provide
the individual with a timely written response.” 49 C.F.R.
§ 1560.205(d). They do not dictate the contents of the re-
sponse. But the record before us indicates that federal policy
is to neither confirm nor deny a person’s watchlist status due
to security concerns (with some exceptions for U.S. persons
on the No Fly List).
II
Halil Demir believes he is on the Terrorist Watchlist and
Selectee List based on the screening measures he has endured,
the DHS TRIP letter he received, and a third-party hack of
copies of the Selectee List from a U.S.-based airline that
6 No. 25-3179
revealed his name on the list. After unsuccessful attempts to
resolve his travel issues through DHS TRIP, Demir invoked
the Administrative Procedure Act, 5 U.S.C. § 702, and brought
suit in federal court against the heads of DHS, DOJ, FBI,
Threat Screening Center, and TSA in their official capacities,
and unnamed Screening Center employees in their official
and individual capacities.
Demir’s complaint is two-pronged. He contends that his
ongoing and unexplained inclusion on the Terrorist Watchlist
and Selectee List violates the APA and the Fifth Amendment’s
Due Process Clause. Demir also challenges the DHS TRIP pro-
gram itself as procedurally deficient. Because TSA, in re-
sponse to DHS TRIP inquiries, does not tell a traveler whether
or why they are on a watchlist or subjected to extended
screening, the program allegedly provides no meaningful op-
portunity to be heard and produces arbitrary results in viola-
tion of the Fifth Amendment and APA. In the same way,
Demir alleges that DHS TRIP infringes on his substantive due
process rights to travel and pursue his chosen profession as
Executive Director of Zakat Foundation.
The district court dismissed the complaint for lack of sub-
ject matter jurisdiction, concluding that Demir brought his
claims in the wrong court. More specifically, the court pointed
to 49 U.S.C. § 46110, which channels challenges to TSA orders
to federal courts of appeals in the first instance, and deter-
mined that Demir should have sought relief in our court first.
In relevant part, § 46110(a) states:
[A] person disclosing a substantial interest in an
order issued by … the [TSA Administrator]
with respect to security duties and powers des-
ignated to be carried out by the [TSA
No. 25-3179 7
Administrator] … in whole or in part under
[Part A or B of this subsection or § 114(l) or (r)]
may apply for review of the order by filing a pe-
tition for review in the United States Court of
Appeals for the District of Columbia Circuit or
in the court of appeals of the United States for
the circuit in which the person resides or has its
principal place of business.
The district court framed Demir’s watchlist challenge as
contesting a TSA decision to keep him on a watchlist. It then
dismissed it because that decision, embodied in the DHS TRIP
final determination letter, is an “order” of the TSA Adminis-
trator within the meaning of § 46110.
The district court further interpreted “order” in § 46110 to
include regulations like DHS TRIP. Accordingly, it deter-
mined that Demir’s challenge to the DHS TRIP program too
should be channeled to a court of appeals through § 46110.
III
A
We begin with Demir’s challenge to his inclusion on ter-
rorist watchlists. The district court relied on case law germane
to challenges to inclusion on the No Fly List. That was mis-
taken. By its terms, Demir’s complaint only addresses the Se-
lectee List and broader Terrorist Watchlist.
But Demir did challenge both his initial and continued in-
clusion on the Terrorist Watchlist and Selectee List subset. He
underscored this point in the district court, emphasizing in
his amended complaint and in response to the government’s
motion to dismiss that he has never engaged in terrorism and
requesting removal from the watchlists. See Pegram v.
8 No. 25-3179
Herdrich, 530 U.S. 211, 230 & n.10 (2000) (“[W]e may use [a
plaintiff’s] brief to clarify allegations in her complaint whose
meaning is unclear.”). These clarifications lead us to conclude
that § 46110 does not apply.
First, recall that TSA has no authority to place someone on
the Terrorist Watchlist or its sublists (the No Fly List and Se-
lectee List) in the first instance. The Threat Screening Center,
which is not part of TSA and instead is administered by the
FBI, makes that decision. A challenge to initial placement on
a watchlist is therefore a challenge to a Threat Screening Cen-
ter action, not to an order of the TSA Administrator within the
meaning of § 46110. The jurisdictional provision does not ap-
ply and the district court may hear this claim. See Khalid v.
Blanche, 172 F.4th 876, 887 (D.C. Cir. 2026) (“Challenges to
[Threat Screening Center] action fall outside the class of
claims that Section 46110 covers.”); Fikre v. Fed. Bureau of In-
vestigation, 35 F.4th 762, 774–75 (9th Cir. 2022) (similar).
Nor does § 46110 apply to Demir’s challenge to his contin-
ued inclusion on the Terrorist Watchlist and Selectee List. At
this point, Demir has a TSA order in hand—the final determi-
nation letter. But that letter simply informs him that the re-
view process undertaken in response to his DHS TRIP inquiry
has concluded. The remedy he seeks—removal from the lists—
can only come from the Threat Screening Center because it
alone controls the Terrorist Watchlist and Selectee List. Yet a
court of appeals cannot provide that relief on direct review,
as § 46110 only confers jurisdiction on a court of appeals to
“affirm, amend, modify, or set aside” orders of the TSA and
other listed agencies, excluding the Threat Screening Center
and its administrator, the FBI. See 49 U.S.C. § 46110(a), (c).
Demir’s challenge to continued inclusion on the Selectee List
No. 25-3179 9
and broader Terrorist Watchlist must go to a district court in
the first instance.
Every circuit to have considered these questions has
reached this conclusion in the same or analogous circum-
stances. See, e.g., Kashem, 941 F.3d at 390–91 (Ninth Circuit)
(explaining this logic as applied to a challenge to inclusion on
the No Fly List at a time when the Threat Screening Center,
not TSA, controlled the No Fly List); Ege v. U.S. Dep’t of Home-
land Sec., 784 F.3d 791, 793 (D.C. Cir. 2015) (dismissing peti-
tion for review of a challenge to inclusion on the No Fly List
when the Threat Screening Center controlled it “because we
have no jurisdiction under 49 U.S.C. § 46110 to issue an order
binding the [Threat Screening Center]”); Khalid, 172 F.4th at
879 (D.C. Circuit) (“[Section 46110] does not apply to Terrorist
Watchlist claims, however, because the Threat Screening Cen-
ter … alone oversees the broader list.”).
B
Separate and apart from his inclusion on the Terrorist
Watchlist and Selectee List, Demir challenges the DHS TRIP
program itself as procedurally deficient because it provides
no information about whether or why he is on either list that
would enable him to effectively challenge his status. The dis-
trict court determined that the DHS TRIP program is an “or-
der” of the TSA Administrator and § 46110 accordingly re-
quires Demir to file his challenge to DHS TRIP in a court of
appeals.
We agree. While our court has not interpreted the scope of
the term “order” in § 46110, we have interpreted “order” in
§ 46110’s nearly identical predecessor statute, 49 U.S.C.
§ 1486, to include “any agency action capable of review on the
10 No. 25-3179
basis of the administrative record,” including actions like
DHS TRIP best labeled as “regulations.” Sima Prods. Corp. v.
McLucas, 612 F.2d 309, 313 (7th Cir. 1980); see also, e.g., Blitz v.
Napolitano, 700 F.3d 733, 739–40 (4th Cir. 2012) (relying on
precedent interpreting § 1486 to interpret § 46110).
As a matter of statutory interpretation, especially under
today’s approach to interpreting jurisdictional provisions, it
may seem odd to interpret “order” in a direct review provi-
sion to include a regulation. After all, the APA, which guides
review of agency action, distinguishes orders on the one hand
and rules and regulations on the other. See 5 U.S.C. § 551(4),
(6) (defining “rule” as “an agency statement of general or par-
ticular applicability and future effect designed to implement,
interpret, or prescribe law or policy or describing the organi-
zation, procedure, or practice requirements of an agency” and
“order” as “a final disposition … of an agency in a matter
other than rule making but including licensing”).
But interpreting “order” broadly, often to include a “reg-
ulation,” has been the prevailing view of every circuit to have
addressed § 1486 or § 46110 and hornbook administrative law
since at least the D.C. Circuit’s 1977 decision in Investment
Company Institute v. Board of Governors of Federal Reserve Sys-
tem, 551 F.2d 1270, 1278 (D.C. Cir. 1977). See, e.g., Magassa v.
Mayorkas, 52 F.4th 1156, 1165, 1170 (9th Cir. 2022); Nat'l Fed'n
of the Blind v. U.S. Dep't of Transp., 827 F.3d 51, 54–57 (D.C. Cir.
2016); Mokdad v. Lynch, 804 F.3d 807, 812 (6th Cir. 2015); Blitz,
700 F.3d at 740; Ligon v. LaHood, 614 F.3d 150, 154 (5th Cir.
2010); Nw. Airlines, Inc. v. Goldschmidt, 645 F.2d 1309, 1313–14
(8th Cir. 1981); Charles Alan Wright & Arthur R. Miller, 33
Federal Practice and Procedure § 8303 (2026 ed.); Charles H.
Koch & Richard Murphy, 3 Administrative Law & Practice
No. 25-3179 11
§ 8:20 (2026 ed.); see also Fla. Power & Light Co. v. Lorion, 470
U.S. 729, 745 (1985) (“Absent a firm indication that Congress
intended to locate initial APA review of agency action in the
district courts, we will not presume that Congress intended to
depart from the sound policy of placing initial APA review in
the courts of appeals.”).
Investment Co. reasoned that, so long as the agency record
is sufficient for review, going to a district court first “results
in unnecessary delay and expense.” 551 F.2d at 1276. It also
drew some support from United States v. Storer Broadcasting
Company, 351 U.S. 192 (1956), which allowed a party challeng-
ing an agency order amending a regulation to proceed in a
court of appeals under a direct review provision addressing
“final orders.” See id. at 1276; Storer, 351 U.S. at 195 n.2, 199–
200. Although Storer mainly discussed whether the petitioner
qualified as “aggrieved” under the direct review provision for
standing purposes, Investment Co. viewed it as at least degrad-
ing D.C. Circuit precedent holding that direct review statutes
providing for review of “orders” do not include regulations.
See generally Storer, 351 U.S. at 199–200; see also Inv. Co., 551
F.2d at 1276.
Further, Investment Co. has been in the Federal Reporter
for nearly 50 years, with neither the Supreme Court calling it
into question nor Congress amending § 46110 or its predeces-
sor § 1486 to channel orders to district courts in the first in-
stance. Indeed, Congress recodified § 1486 in § 46110 in 1994
without any significant change or otherwise signaling any de-
sire to alter its meaning. See Act of July 5, 1994, Pub. L. 103-
272, § 46110, 108 Stat. 745, 1230; S. Rep. No. 103-265, at 1–2
(1994) (“The purpose of H.R. 1758 is to restate in comprehen-
sive form, without substantive change, certain general and
12 No. 25-3179
permanent laws related to transportation and to enact those
laws as subtitles II, III, and V–X of title 49, United States Code,
and to make other technical improvements in the Code.”).
In the final analysis, then, and especially mindful of the
weight and consensus of the precedent, we see no compelling
reason to abandon Sima Products at this time. See Bethesda Lu-
theran Homes & Servs., Inc. v. Born, 238 F.3d 853, 858 (7th Cir.
2001) (recognizing that “a court will not reexamine a recent
decision … unless given a compelling reason to do so” such
as a change in legislation or applicable regulations, or a judi-
cial decision on a related or analogous issue); Kimble v. Marvel
Ent., LLC, 576 U.S. 446, 456 (2015) (“[S]tare decisis carries en-
hanced force when a decision … interprets a statute” because
“Congress can correct any mistake it sees.”).
Demir disagrees and urges us, at the very least, to carve an
exception out of § 46110 for challenges to TSA’s procedures
and practices, such as the DHS TRIP program, following
McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991).
McNary addressed the scope of a jurisdictional provision in
another statute, the Immigration Reform and Control Act of
1986, which barred judicial review of “a determination re-
specting an application” under a certain amnesty program. Id.
at 483–84, 491 (quoting 8 U.S.C. § 1160(e)(1)). Honing in on the
text of the provision, the Court interpreted “determination”
to refer to a “single act rather than … a practice or procedure
employed in making decisions,” and therefore to exclude
broader constitutional challenges to “practices and policies
used by the agency in processing applications.” Id. at 492.
McNary further observed that Congress “could easily have
used broader statutory language” if it intended the provision
No. 25-3179 13
to encompass those sorts of programmatic challenges. Id. at
494.
In Demir’s view, we should similarly interpret “order” in
§ 46110 to exclude his due process challenge to the DHS TRIP
program. But that reading runs headlong into Sima Products’
broad interpretation of “order.” And McNary offers little sup-
port, as it interpreted a different jurisdictional provision that
did not even reference “orders.” See Mullin v. Doe, 146 S. Ct.
2121, 2134 (2026) (“[McNary] turned on the specific wording
of the provision at issue.”). McNary further interpreted the
provision to permit district court review of the plaintiffs’
claim in part to avoid “a total denial of judicial review of ge-
neric constitutional and statutory claims” that would other-
wise result. 498 U.S. at 497. That is not an animating concern
here. Demir can still challenge the DHS TRIP program, but in
a court of appeals. Cf. Blitz, 700 F.3d at 742 (distinguishing
McNary along similar lines and rejecting the position that
channeling a challenge to a TSA standard operating proce-
dure through § 46110 violates due process).
Finally, we recognize the procedural oddity our decision
creates: Demir’s challenge to his inclusion on federal watch-
lists will proceed in the district court while his challenge to
the DHS TRIP program will have to begin in a court of ap-
peals. But “[i]t 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.’” Khalid, 172 F.4th at 887 (quoting United States v. Tohono
O’Odham Nation, 563 U.S. 307, 323 (2011) (Sotomayor, J., con-
curring in the judgment)) (holding that challenges to inclu-
sion on the No Fly List and Terrorist Watchlist must proceed
separately in a court of appeals and district court,
14 No. 25-3179
respectively); see also Mokdad, 804 F.3d at 814–15 (concluding
that a challenge to a Threat Screening Center order placing
plaintiff on the No Fly List is not inescapably intertwined with
“TSA’s orders governing the redress process” and remanding
the challenge to the district court).
What remains to be seen is whether Demir’s challenge to
the DHS TRIP program is capable of review on the present
administrative record—a point hard to know the answer to
because no record has been filed with the district court.
Whether the record will prove adequate or need further de-
velopment in our court is a matter we will resolve if and when
the case comes to us.
***
For these reasons, we REVERSE IN PART the judgment of
the district court and REMAND for the district court to con-
sider Demir’s substantive challenges to his inclusion on the
Terrorist Watchlist and Selectee List. We AFFIRM the district
court’s dismissal of Demir’s procedural challenges to the DHS
TRIP program.
No. 25-3179 15
SCUDDER, Circuit Judge, with whom Chief Judge BRENNAN
and Circuit Judge JACKSON-AKIWUMI join, concurring. Today’s
decision resolves a question of federal subject matter jurisdic-
tion by adhering to precedent without revisiting whether that
precedent aligns with the statutory text it purports to inter-
pret. We are far from alone in construing the term “order”
within 49 U.S.C. § 46110 to include “regulations,” as every cir-
cuit to have considered the issue has reached this conclusion,
following the D.C. Circuit’s lead from nearly 50 years ago in
Investment Company Institute v. Board of Governors of Federal Re-
serve System, 551 F.2d 1270, 1276–78 (1977). So, if consistency
is the measuring stick, today’s decision gets an A+. But if
squaring the interpretation of “order” with the term’s plain
meaning, canons of construction, and Congress’s definition of
the same word in the Administrative Procedure Act is the
proper course, we hope that the law in this area undergoes a
course correction, whether in the Supreme Court or across the
circuits.
I
The Administrative Procedure Act supplies Halil Demir
with a cause of action and courts with standards for review-
ing agency action. See 5 U.S.C. §§ 702, 706; see also Nuclear
Regul. Comm’n v. Texas, 605 U.S. 665, 675 (2025). But “[w]hile
the APA says how to review agency actions, it says next-to-
nothing about where that review should take place (e.g., in
particular district courts or courts of appeals),” Loan Syndica-
tions & Trading Ass’n v. S.E.C., 818 F.3d 716, 719 (D.C. Cir.
2016), other than that it should occur in a court of competent
jurisdiction unless a statute provides another form of review,
see § 703.
16 No. 25-3179
The default rule is that a challenge to agency action begins
in federal district court pursuant to § 702 of the APA and 28
U.S.C. § 1331. See Loan Syndications & Trading Ass’n, 818 F.3d
at 719; Califano v. Sanders, 430 U.S. 99, 105 (1977). That path-
way applies unless a “special review statute” says otherwise.
See 5 U.S.C. § 703. Most special review statutes channel re-
view of agency action to courts of appeals in the first instance.
See 33 Charles Alan Wright & Arthur R. Miller, Federal Practice
& Procedure § 8314 (2026 ed.). We call these “direct review”
schemes. Id.
Direct review schemes vary in formulation. Some channel
review of agency action broadly by applying to a “rule, regu-
lation, or order.” 15 U.S.C. § 766(c) (Federal Energy Admin-
istration). Others singularly address agency “rules” or “or-
ders.” 15 U.S.C. § 78y(a)(1), (b)(1) (Securities and Exchange
Commission). And still others speak to certain kinds of
agency action. See, e.g., Nat’l Ass’n of Mfrs. v. Dep’t of Def., 583
U.S. 109, 117–18 (2018) (interpreting direct review provision
channeling review of the EPA Administrator’s “action[s]” in
“promulgating” certain “standard[s],” “limitation[s],” and
“issuing or denying” certain “permit[s]” under 33 U.S.C.
§ 1369(b)). Congress’s varied formulations have spawned
decades of debate about the proper scope of direct review
statutes. See Joseph W. Mead & Nicholas A. Fromherz, Choos-
ing a Court to Review the Executive, 67 Admin. L. Rev. 1, 10–22
(2015) (reviewing this history).
Two principles should guide our interpretation of a direct
review statute. First, Congress controls a federal court’s sub-
ject matter jurisdiction. See Nat’l Ass’n of Mfrs., 583 U.S. at 132
(“[J]urisdiction is ‘governed by the intent of Congress and not
by any views we may have about sound policy.’” (quoting Fla.
No. 25-3179 17
Power & Light Co. v. Lorion, 470 U.S. 729, 746 (1985))). So we
should interpret the scope of a direct review scheme by ap-
plying traditional methods of statutory interpretation to dis-
cern and give effect to Congress’s intent. See generally, e.g.,
id.; Salinas v. U.S. R.R. Ret. Bd., 592 U.S. 188 (2021). Second, Su-
preme Court precedent tells us that, if the scope of agency ac-
tion covered by a direct review provision is ambiguous, we
should assume review in a court of appeals. See Fla. Power,
470 U.S. at 745; 33 Wright & Miller, Federal Practice & Procedure
§ 8314. But the Florida Power presumption does not displace
an otherwise clear statement of jurisdiction. See 470 U.S. at
737, 745; Nat’l Ass’n of Mfrs., 583 U.S. at 131–32.
II
Our 1980 decision in Sima Products Corporation v. McLucas
does not align with these guideposts. The case presented a
question of statutory interpretation, yet we devoted little at-
tention to discerning the meaning of “order” in § 46110’s pre-
decessor, § 1486, and instead resolved the case primarily on
functional reasoning. See 612 F.2d 309, 312–14 (7th Cir. 1980).
Without asking whether or how an “order” differed from a
“regulation” or “rule,” we determined that an “order” in-
cluded “any agency action capable of review on the basis of
the administrative record.” Id. at 313. Put another way, if dis-
trict court factfinding seemed unnecessary, we saw the
agency action as an “order” and therefore required initial re-
view in the circuit court. See id. at 313.
We took our direction from the D.C. Circuit’s decision in
Investment Co., which itself interpreted a different direct re-
view scheme that similarly addressed agency “orders.” See
551 F.2d at 1272. Investment Co. adopted a policy-based ra-
tionale to conclude that an “order” includes “any agency
18 No. 25-3179
action capable of review on the basis of the administrative rec-
ord.” Id. at 1278. In so reasoning, it rejected the view that the
APA’s definition of “order” should inform, if not control, the
understanding of the same term in direct review statutes. See
id.
Anyone reading Sima Products today would see that our
approach through and through was pragmatic, focused on
the “nature of the claim raised on appeal,” 612 F.2d at 314,
regardless of whether the challenged agency action fit within
the ordinary and accepted meaning of the term “order.” Other
circuits have followed Investment Co.’s functional reasoning in
droves. See, e.g., Blitz v. Napolitano, 700 F.3d 733 (4th Cir.
2012); Ligon v. LaHood, 614 F.3d 150, 154 (5th Cir. 2010); Nw.
Airlines, Inc. v. Goldschmidt, 645 F.2d 1309, 1313–14 (8th Cir.
1981). Indeed, to my knowledge, no circuit has addressed the
question presented here—the meaning of the term “order”
within a direct review jurisdictional provision—by applying
principles of statutory interpretation in the first instance.
Despite the floodtide of support for Investment Co., the dis-
sonance between its atextual approach and the Supreme
Court’s current way of interpreting judicial review provisions
cries out for reexamination. See, e.g., Mullin v. Doe, 146 S. Ct.
2121, 2133–34 (2026) (employing statutory interpretation to
construe the scope of “determination” in a jurisdiction-strip-
ping provision in the INA); Patel v. Garland, 596 U.S. 328, 338–
39 (2022) (same to interpret “judgment” in a jurisdiction-strip-
ping provision in the INA); Salinas, 592 U.S. at 194–99 (same
to interpret “any final decision” in judicial review provision
in the Railroad Unemployment Insurance Act); Nat’l Ass’n of
Mfrs., 583 U.S. at 121–29 (same to interpret the scope of certain
EPA actions included in a direct review provision).
No. 25-3179 19
A few other judges have recognized this same disconnect.
See, e.g., Magassa v. Mayorkas, 52 F.4th 1156, 1169–72 (9th Cir.
2022) (Nelson, J., concurring) (emphasizing the same point);
N.Y. Republican State Comm. v. S.E.C., 70 F. Supp. 3d 362, 371–
75 (D.D.C. 2014) (Howell, J., observing the interpretive diffi-
culties in Investment Co. but following circuit precedent), aff’d,
799 F.3d 1126 (D.C. Cir. 2015). Their point and the one animat-
ing this separate writing is straightforward: we should dis-
cern Congress’s intent by interpreting and applying the
words it used to define a jurisdictional provision and only
channel initial review to a court of appeals if the direct review
provision clearly directs that path or is otherwise ambiguous.
See Nat’l Ass’n of Mfrs., 583 U.S. at 131–32.
For what it is worth, I am also skeptical that the functional
approach we charted in Sima Products always yields efficien-
cies. Channeling judicial review of agency action to a court of
appeals places an unfamiliar burden on a court of review to
“make difficult factual determinations about when the ad-
ministrative record supports direct review.” Magassa, 52 F.4th
at 1171 (Nelson, J., concurring). And in the context of Demir’s
due process challenge to the DHS TRIP program, it is not clear
what the administrative record contains beyond the cursory
letters Demir received from DHS and perhaps the DHS TRIP
notice-and-comment record. We cannot tell from the parties’
briefing in our court or their submissions to the district court.
This information deficit may prove material. In undertak-
ing a Fifth Amendment procedural due process analysis,
courts commonly apply Mathews balancing. See, e.g., Kashem
v. Barr, 941 F.3d 358, 377–78 (9th Cir. 2019) (utilizing Mathews
v. Eldridge, 424 U.S. 319 (1976)). That in turn requires infor-
mation about the DHS TRIP process, policies, and the
20 No. 25-3179
government’s interest in maintaining elements of confidenti-
ality. It is far from clear that the administrative record appli-
cable to Demir’s DHS TRIP inquiry can answer this question.
That means additional fact development may need to occur in
our court—a rare event. Perhaps the government can submit
declarations and supporting documents elaborating on the
DHS TRIP policy, the government’s interest in maintaining
the confidentiality of particular information, and what tran-
spired in the processing of Demir’s inquiries. See, e.g., Abdel-
latif v. U.S. Dep’t of Homeland Sec., 109 F.4th 562, 569–70 (D.C.
Cir. 2024) (describing declarations submitted by TSA in the
court of appeals and used to aid its review of the petitioner’s
claim). Regardless, a district court is better positioned to de-
velop evidence as needed, including by holding a hearing and
asking the parties to supplement the record in particular
ways. See Burdue v. F.A.A., 774 F.3d 1076, 1085 (6th Cir. 2014)
(“Constitutional claims dependent upon factual development
should first be entertained by district courts.”).
In the end, it seems more sensible, predictable for litigants,
and faithful to the role of Congress, to anchor jurisdiction in
the type of action Congress says is reviewable rather than the
nature of the administrative record or a policy judgment.
III
Following that method here leads to the conclusion that
§ 46110 does not authorize direct review of rules or regula-
tions in a circuit court. The relevant text states that § 46110
provides for review of “an order issued by” the TSA Admin-
istrator “in whole or in part under this part, part B, or subsec-
tion (l) or (r) of section 114.” 49 U.S.C. § 46110(a).
No. 25-3179 21
“Statutory interpretation proceeds on the assumption that
those who draft and enact a provision generally intend its
terms to mean what they mean in ordinary usage” unless the
statute clearly signals another meaning. Mullin, 146 S. Ct. at
2135. Congress did not define “order” for the purposes of
§ 46110. But common definitions in place at the time § 46110
entered the U.S. Code indicate that the term can have broad
meaning. For instance, an “order” is “[a] mandate; precept;
command or direction authoritatively given; rule or regula-
tion.” Black’s Law Dictionary (6th ed. 1990). On that broad
meaning, it is possible to consider the DHS TRIP program an
“order”—an awkward interpretation, for sure, but a possible
one.
But any ambiguity subsides the moment we look to how
Congress used the term “order” within “the overall statutory
scheme, not just in a single subsection.” Mullin, 146 S. Ct. at
2136 (cleaned up). On that view, it is clear that Congress did
not use the term “order” as a catchall phrase to cover any and
all agency action, including administrative regulations.
Section 46110 resides in Title 49, which consistently distin-
guishes between “orders” on the one hand and “regulations”
on the other. See, e.g., § 40113 (providing the Secretary of
Transportation may “conduct[] investigations, prescribe[]
regulations, standards, and procedures, and issu[e] orders”);
§ 40114(a) (requiring records of “orders, decisions and regu-
lations”); § 46105(a) (specifying when “a regulation pre-
scribed or order issued” will take effect).
By way of another illustration, § 46105(b) provides that
“an order” “shall include the findings of fact … and shall be
served on the parties to the proceeding and the persons af-
fected by the order.” It does not mention regulations. And
22 No. 25-3179
those actions—factfinding and service to the parties—are
more germane to an adjudication aimed at resolving disputed
facts between adverse parties than a general regulation no-
ticed in the Federal Register. See 1 Admin. L. & Prac. § 4:46
(2026 ed.) (explaining that publication of a final rule in the
Federal Register satisfies the APA’s notice and publication re-
quirement).
The list and examples could go on but the takeaway is
clear: orders in Title 49 are not regulations. That distinction
applies to § 46110 absent evidence to the contrary. See Smith
v. Berryhill, 587 U.S. 471, 479 (2019) (observing “the normal
rule of statutory interpretation that identical words used in
different parts of the same statute are generally presumed to
have the same meaning” (cleaned up)).
An even broader point warrants emphasis. Recognize that
§ 46110 concerns challenges to agency action under the APA,
just like the one Demir brought here. The APA separates and
distinguishes between agency rulemaking, which produces
rules and regulations, and administrative adjudication, which
produces orders. See 5 U.S.C. § 551(5), (7) (APA provisions
defining “rule making” as the “agency process for formulat-
ing, amending, or repealing a rule” and “adjudication” as the
“agency process for the formulation of an order”); Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 216 (1988) (Scalia, J., con-
curring) (observing that the distinction between “rules” and
“orders” is the “dichotomy upon which the most significant
portions of the APA are based”).
Indeed, the APA, by its terms, defines a “rule” as “an
agency statement of general or particular applicability and fu-
ture effect designed to implement, interpret, or prescribe law
or policy or describing the organization, procedure, or
No. 25-3179 23
practice requirements of an agency.” Id. § 551(4). Congress
then defines an order as “a final disposition, whether affirm-
ative, negative, injunctive, or declaratory in form, of an
agency in a matter other than rule making but including licens-
ing.” Id. § 551(6) (emphasis added).
The APA ought to be a touchstone for the meaning of “or-
der” in administrative law. Accordingly, it should heavily in-
form our interpretation of a direct review provision like
§ 46110 that likewise differentiates between “orders” and
“regulations” in an APA action like Demir’s. It is even more
sensible to harmonize “order” in § 46110 with the APA defi-
nition since both statutes address the same overarching con-
tent: the APA provides for review of agency action subject to
special review statutes and § 46110 qualifies judicial review of
certain agencies’ actions. See Wachovia Bank v. Schmidt, 546
U.S. 303, 315–16 (2006) (“[U]nder the in pari materia canon of
statutory construction, statutes addressing the same subject
matter generally should be read as if they were one law.”
(cleaned up)); see also Berryhill, 587 U.S. at 474, 481 (using the
APA definition of “final” to inform the meaning of a judicial
review provision covering “any final decision … made after a
[Social Security Administration] hearing”).
Notice, too, that the APA’s distinction between “orders”
and “regulations” mirrors Title 49’s treatment of them. In var-
ious places, Title 49 designates certain agency actions as “or-
ders” reviewable under § 46110. See, e.g., § 40110 (adjudica-
tion of bid protests); § 41108 (dismissals of certain applica-
tions); § 41307 (decisions on transfer certificates);
§ 44710(d)(3) (orders revoking airman certificates). While
those examples are not exclusive, it is telling that they fit the
APA definition of “order.”
24 No. 25-3179
These distinctions apply here to show that the DHS TRIP
program is not an “order” within the meaning of § 46110. It
does not provide a final disposition on any particular DHS
TRIP inquiry. Rather, as a redress program, it is best seen as a
“statement of general … applicability and future effect de-
signed to implement … law.” 5 U.S.C. § 551(4). The program
effectuates Congress’s directive to DHS to create a redress
process for people experiencing air travel delays to appeal to
TSA and correct erroneous information that may have landed
them on a terrorist watchlist. See 49 U.S.C. § 44903
(j)(2)(C)(iii)(I), (G)(i). DHS TRIP also underwent the notice-
and-comment process and codification in the Code of Federal
Regulations. See 49 C.F.R. § 1560.201–.207; 73 Fed. Reg. 64061,
64065–66 (Oct. 28, 2008). The program therefore fits comfort-
ably into the rulemaking category and Demir’s challenge to it
should proceed in a district court.
***
For now, we follow Sima Products. But we would welcome
the Supreme Court considering a course correction that
would allow traditional principles of statutory interpretation
to guide our understanding of direct review provisions, and,
for that matter, all jurisdictional limitations that Congress pre-
scribes for federal courts.