Petition for Writ of Certiorari — Adis Kovac, et al., Petitioners v. Kash Patel, Director, Federal Bureau of Investigation, et al.

Supreme Court briefDec 19, 2024

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APPENDIX

APPENDIX TABLE OF CONTENTS

APPENDIX A: Revised Opinion, Kovac v. Wray,

109 F.4th 331 (5th Cir. 2024) ..........................

Page

APPENDIX B: Original Opinion, Kovac v. Wray,

109 F.4th 331 (5th Cir. 2024) .......................... 22a

APPENDIX C: Opinion And Order, Kovac v.

Wray, 660 F. Supp. 3d 555 (N.D. Tex. 2023) ... 44a

APPENDIX A

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT

[Filed July 22, 2024]

————

No. 23-10284

————

ADIS KOVAC; BASHAR ALJAME; ABRAHAM SBYTI;

SUHAIB ALLABABIDI; FADUMO WARSAME,

Plaintiffs-Appellants,

CHRISTOPHER WRAY, DIRECTOR OF THE FEDERAL

BUREAU OF INVESTIGATION, IN HIS OFFICIAL CAPACITY;

CHARLES H. KABLE, DIRECTOR OF THE TERRORIST

SCREENING CENTER, IN HIS OFFICIAL CAPACITY;

DEBORAH MOORE, DIRECTOR, TRANSPORTATION

SECURITY REDRESS (OTSR), IN HER OFFICIAL CAPACITY;

NICHOLAS RASMUSSEN, DIRECTOR OF THE NATIONAL

COUNTERTERRORISM CENTER, IN HIS OFFICIAL

CAPACITY; DAVID P. PEKOSKE, ADMINISTRATOR

TRANSPORTATION SECURITY ADMINISTRATION (TSA),

IN HIS OFFICIAL CAPACITY; KEVIN K. MCALEENAN,

ACTING COMMISSIONER UNITED STATES CUSTOMS

ND BORDER PROTECTION, IN HIS OFFICIAL CAPACITY,

Defendants-Appellees.

————

As revised July 25, 2024

————

OPINION

————

Leslie H. Southwick, Circuit Judge:

The Plaintiffs are a group of American citizens who

complain they are subject to enhanced screening

measures at airport security because they have been

placed on a “terrorist watchlist.” They sued the heads

of various federal agencies connected to the watchlist,

asserting numerous constitutional and statutory

claims. The sole issue on appeal is whether the

relevant agencies have statutory authority to create,

maintain, and administer the watchlist. At summary

judgment, the district court determined the agencies

have statutory authority. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

The Plaintiffs are five Muslims who are United

States citizens, four of whom reside in Dallas, Texas,

and the fifth resides in New Jersey. They allege they

have been put on what is officially called the Terrorist

Screening Dataset (“Watchlist”). The Watchlist contains

two sub-lists: (1) the No-Fly List, which automatically

excludes individuals from flying; and (2) the Selectee

List, which contains individuals who are subject to

“additional security screening” before they may be

permitted to board. Four of the Plaintiffs allege they

are on the Selectee List because they have been subject

to enhanced screening on multiple occasions, including

prolonged interrogations, border searches, and having

“SSSS” printed on their boarding passes.1 Plaintiff

Adis Kovac alleges he is on the No-Fly List because he

has been prevented from boarding a commercial flight

The “SSSS” designation indicates that enhanced screening is

required. This designation may appear on passengers’ boarding

passes because they are on the Selectee List, “random selection,”

or for “reasons unrelated to any status.” Ghedi v. Mayorkas, 16

F.4th 456, 460 (5th Cir. 2021).

and possibly the Selectee List because he is frequently

subject to enhanced screening.

Each Plaintiff utilized the Department of Homeland

Security’s (“DHS”) Traveler Redress Inquiry Program

(“TRIP”). This program allows individuals who believe

they have been improperly subjected to enhanced

screening or prohibited from flying to obtain additional

review of their status and to correct any errors or to

alter their status based on new information. See 49

C.F.R. §§ 1560.201, .205. Because of security concerns,

the Government’s policy is to neither confirm nor deny

a person’s Selectee List status; those on the No-Fly

List will be apprised of their status and may obtain

judicial review. 49 U.S.C. § 46110. As a result, the

Selectee List Plaintiffs received no-confirm-no-deny

letters from DHS. DHS confirmed, however, that

Plaintiff Kovac was on the No-Fly List.2

In January 2017, the Plaintiffs sued the heads of

various federal agencies that maintain or use the

Watchlist, in their official capacities (collectively,

“Government”).3 The Plaintiffs allege violations of

their Fifth Amendment procedural and substantive

due process and equal protection rights, unlawful

agency action under the Administrative Procedure Act

(“APA”), 5 U.S.C. § 706(2), and violations of the

nondelegation doctrine. On the Government’s motion

to dismiss, the district court dismissed all claims

against CBP for failure to prosecute, the substantive

When the Plaintiffs filed their complaint, DHS had yet to

respond to Kovac’s TRIP request. This confirmation came in April

2018.

The agencies include: the Federal Bureau of Investigation

(“FBI”), the Terrorist Screening Center (“TSC”), the Transportation

Security Administration (“TSA”), DHS, the National Counterterrorism

Center (“NCTC”), and the Customs and Border Protection (“CBP”).

and procedural due process claims in part, the equal

protection claims, and the nondelegation claims against

all Defendants. See Kovac v. Wray, 363 F. Supp. 3d 721,

747–48, 762–63 (N.D. Tex. 2019) (“Kovac I”). In July

2019, Plaintiff Kovac was notified that he was removed

from the No-Fly List, and the district court dismissed

his related claims as moot. Kovac v. Wray, 449 F. Supp.

3d 649, 654–56 (N.D. Tex. 2020) (“Kovac II”). In

November 2020, the district court dismissed the Plaintiffs’

remaining constitutional claims, leaving only the APA

claims. Kovac v. Wray, No. 3:18-CV-110, 2020 WL

6545913, at *5 (N.D. Tex. Nov. 6, 2020) (“Kovac III”).

None of those decisions are before us.

At summary judgment on the APA claims, the

Plaintiffs argued both that the major questions

doctrine applies in this case and that the Government

exceeded its authority because Congress never clearly

authorized the Watchlist. The Government’s actions

against the Plaintiffs, therefore, violated 5 U.S.C.

§ 706(2)(C). They also asserted their alleged placement

on the Selectee List was arbitrary and capricious.

§ 706(2)(A). Finally, they maintained the TRIP process

is arbitrary and capricious because it does not provide

a meaningful opportunity to correct erroneous information and distinguishes between the No-Fly and

Selectee Lists. Id.

The district court agreed that the major questions

doctrine applied because of the Watchlist’s “vast

political significance.” Kovac v. Wray, 660 F. Supp. 3d

555, 563–65 (N.D. Tex. 2023) (“Kovac IV”). Nevertheless,

the court concluded that Congress “clearly authorized”

the Watchlist by analyzing numerous factors, only

some of which pertained to the relevant statutes. Id.

at 565–69. The court further determined that, even if

the Plaintiffs had been placed on the Watchlist,4 the

TRIP procedures were not arbitrary and capricious. Id.

at 569–72. The Plaintiffs timely appealed.

DISCUSSION

We review the grant of summary judgment de novo,

“applying the same standard as the district court.”

Lamb v. Ashford Place Apartments LLC, 914 F.3d 940,

943 (5th Cir. 2019) (citation omitted). Summary judgment should be granted “if the movant shows that

there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “Issues of statutory interpretation

are also reviewed de novo.” United States v. Arrieta,

862 F.3d 512, 514 (5th Cir. 2017) (italics added). “This

[c]ourt may affirm on grounds other than those relied

upon by the district court” when supported by the

record. Lauren C. ex rel. Tracey K. v. Lewisville Indep.

Sch. Dist., 904 F.3d 363, 374 (5th Cir. 2018) (citation

omitted).

The sole issue on appeal is whether the Government

has statutory authority to create, maintain, and use

the Watchlist to screen passengers boarding commercial

aircraft. If we answer in the negative, then we must

“hold unlawful and set aside” the Government’s

actions regarding the Watchlist as they relate to the

Plaintiffs. 5 U.S.C. § 706(2)(C); see also Loper Bright

Enters. v. Raimondo, ––– U.S. ––––, 144 S. Ct. 2244,

2261, --- L.Ed.2d –––– (2024) (“In addition to

prescribing procedures for agency action, the APA

The district court emphasized that “[n]othing in this opinion

should be construed as confirming or denying the [Plaintiffs’]

status on or off the [W]atchlist.” Id. at 569 n.85. Similarly, our

opinion neither confirms nor denies the Plaintiffs’ status.

delineates the basic contours of judicial review of such

action.” (citing 5 U.S.C. § 706)).

I. Statutory interpretation and the major questions

doctrine

The district court started its analysis with the major

questions doctrine and concluded that the doctrine

applies because “the [W]atchlist has vast political

significance.” Kovac IV, 660 F. Supp. 3d at 565. As

support, the district court explained the Watchlist

“consists of over a million people,” the Government

may add “an unlimited number of people” to it, “liberty

intrusions ... flow from the [W]atchlist,” and the

Watchlist can be distributed between federal and state

agencies in numerous ways. Id. After applying its

understanding of the elements of the doctrine, the

district court determined that the Government acted

properly. Id. at 565–69.

We need not analyze whether the major questions

doctrine applies to creating, maintaining, and using

the Watchlist if the relevant statutes provide ‘‘clear

congressional authorization.’’ West Virginia v. EPA,

597 U.S. 697, 724, 142 S.Ct. 2587, ––– L.Ed.2d ––––

(2022) (citation omitted). Consequently, ‘‘our inquiry

begins with the statutory text, and ends there as well

if the text is unambiguous.’’ BedRoc Ltd. v. United

States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d

338 (2004).

II. Statutory text, structure, and history

Before exploring the dense statutory landscape of

this case, we identify what we are looking for. The

Plaintiffs’ principal statutory discussion pertains to

TSA’s authority under 49 U.S.C. §§ 114 and 44903.

They describe these statutes as “so vague as to barely

warrant discussion.” The Plaintiffs’ primary contention

is that TSA’s statutory obligation to protect airline

passengers is not specific enough to authorize use of

the Watchlist. Where the statute is more specific, they

argue it is still not enough because it does not mention

the word “watchlist.” See 49 U.S.C. § 114(h). Even if

TSA is authorized to use the Watchlist, the Plaintiffs

maintain “TSA does not create, administer, or maintain

the [W]atchlist,” and the entity that does, TSC, lacks

statutory authority to do so. As to the other agencies,

the Plaintiffs argue that statutes authorizing their

general law-enforcement duties do not confer

sufficient authority to create, maintain, and use the

Watchlist. See 28 U.S.C. § 533; 6 U.S.C. §§ 111, 202; 19

U.S.C. § 482 et seq.

Of course, statutes cannot be viewed in isolation,

and statutory interpretation requires considering the

context and structure of the overall statutory scheme.

West Virginia, 597 U.S. at 721, 142 S.Ct. 2587. Our

analysis, therefore, goes beyond the isolated statutes

the Plaintiffs identify. As we go, we will highlight

where the Plaintiffs’ arguments falter.

a. Aviation and Transportation Security Act

Immediately following the September 11, 2001,

terrorist attacks, Congress created TSA and included

in its duties the oversight of passenger screening operations at domestic airports. Aviation and Transportation

Security Act, Pub. L. No. 107-71, § 101, 115 Stat. 597

(2001) (codified at 49 U.S.C. § 114). Congress instructed

TSA to “enter into memoranda of understanding with

Federal agencies ... to share or otherwise cross-check

as necessary data on individuals identified on Federal

agency databases who may pose a risk to transportation

or national security.” § 101(h)(1) (codified at 49 U.S.C.

§ 114(h)(1)) (emphasis added). Congress mandated

TSA use information from government databases “to

identify individuals on passenger lists” that may pose

a threat and, if necessary, “prevent the individual from

boarding an aircraft.” § 101(h)(3) (codified at 49 U.S.C.

§ 114(h)(3)). Congress also required TSA to adopt

“enhanced security measures” to “aid in the screening

of passengers ... who are identified on any State or

Federal security-related data base” and to coordinate

amongst airport security forces. § 109(a)(5) (codified at

49 U.S.C. § 114 note (Enhanced Security Measures))

(emphasis added). TSA assesses security threats

“jointly” with the FBI. 49 U.S.C. § 44904(a).

Thus, the statutory authority for TSA to collect,

share, and screen identifying information about airline

passengers, and to use that information to prevent

certain passengers from boarding or to conduct enhanced

screening, is clear. They are not vague as the Plaintiffs

argue. The Plaintiffs protest, however, that Section 114

does not use the word “watchlist.” That word will come,

but it is worth noting the term “terrorist watchlist” is

only the common term for the Watchlist. Its official

name is the Terrorist Screening Dataset, and it was

previously named the Terrorist Screening Database.

Those words appear in Section 114(h) and its accompanying note, and similar variations of those words

are common in the overall scheme. We now return to

that discussion.

b. Homeland Security Act

In 2002, Congress recognized the need for “Federal,

State, and local entities [to] share homeland security

information to the maximum extent practicable.”

Homeland Security Act of 2002, Pub. L. No. 107-296,

§ 891(c), 116 Stat. 2135 (codified at 6 U.S.C. § 481(c)).

Accordingly, Congress created DHS5 and provided the

President statutory authority to prescribe procedures

by which “all appropriate agencies ... shall ... share

“homeland security information” with appropriate

Federal and State agencies and personnel.6 § 892(b)(1)

(codified at 6 U.S.C. § 482(b)(1)). These procedures

applied to existing information-sharing systems and

new ones that may be created. § 892(b)(2), (4) (codified

at 6 U.S.C. § 482(b)(2), (4)). Congress also authorized

DHS to access “broad categories of material, ... electronic

databases, or both,” and to harmonize “relevant

information databases” across federal agencies.

§§ 201(d)(15)(A), 202(b)(1) (codified at 6 U.S.C.

§§ 121(d)(12)(A), 122(b)(1)) (emphasis added). This is

where the Plaintiffs’ argument that DHS lacks clear

statutory authority related to the Watchlist begins to

fall apart.

c. HSPD-6 and the IRTPA

Pursuant to the authority under the Acts discussed

above, President Bush in 2003 signed Homeland

Security Presidential Directive 6 (“HSPD-6”), which,

along with an inter-agency memorandum of understanding, instructed the Attorney General to create

the TSC under the administration of the FBI. HSPD-6

sought “to consolidate the Government’s approach to

terrorism screening” through the Terrorist Threat

In doing so, Congress transferred TSA from the Department

of Transportation to DHS. § 403(2) (codified at 6 U.S.C. § 203(2)).

“[H]omeland security information” is defined as “any

information possessed by a Federal, State, or local agency that —

(A) relates to the threat of terrorist activity; (B) relates to the

ability to prevent, interdict, or disrupt terrorist activity; (C) would

improve the identification or investigation of a suspected terrorist

or terrorist organization; or (D) would improve the response to a

terrorist act.” 6 U.S.C. § 482(f)(1).

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Integration Center (“TTIC”). President Bush later incorporated TTIC into the NCTC through an executive

order. Exec. Order No. 13,354, 69 Fed. Reg. 53,589

(Aug. 27, 2004). The executive order directed the

NCTC to create, integrate, disseminate, and ensure

intra-and inter-governmental access to data and

reports concerning terrorism information. Id.

In the Intelligence Reform and Terrorism Prevention

Act of 2004 (“IRTPA”), Pub. L. No. 108-458, sec. 1021,

§ 119, 118 Stat. 3638 (codified as amended at 50 U.S.C.

§ 3056), Congress codified the NCTC and its duties and

authority. Today, as then, one of the NCTC’s duties is

to “develop a strategy for combining terrorist travel

intelligence” and law enforcement efforts to “intercept ...

and constrain terrorist mobility.” Sec. 1021, § 119(f)(1)(F)

(codified as amended at 50 U.S.C. § 3056(f)(1)(F)). To

support the NCTC’s efforts, the IRTPA authorized DHS

to establish a program regarding terrorist travel,

“including the analysis, coordination, and dissemination of terrorist travel intelligence and operational

information” with relevant agencies, such as TSA and

CBP. IRTPA § 7215 (codified at 6 U.S.C. § 123) (emphasis

added); see also § 7201 (counterterrorist travel intelligence strategy). Congress further sought to enhance

the Government’s information-sharing structure by

creating an “information sharing environment.” § 1016

(codified at 6 U.S.C. § 485). This tool “facilitates the

means for sharing terrorism information” with relevant

governmental entities, “connects existing systems,”

“ensures direct and continuous online electronic access

to information,” and “builds upon existing systems

capabilities” used by the Government. § 1016(b)(2)

(codified at 6 U.S.C. § 485(b)(2)) (emphasis added).

The IRTPA also made significant changes to airport

passenger screenings. Congress charged DHS and TSA

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to implement “advanced passenger prescreening”

and specifically required the agencies “to assume the

performance of ... comparing passenger information to

the automatic selectee and no fly lists and utilize all

appropriate records in the consolidated and integrated

terrorist watchlist maintained by the Federal Government

in performing that function.” § 4012(a)(1) (codified

as amended at 49 U.S.C. § 44903(j)(2)(C)) (emphasis

added). While TSA has such authority for domestic

travel, CBP, as DHS’s designee, has essentially the

same authority for international arrivals. § 4012(a)(2)(B)

(codified as amended at 49 U.S.C. § 44909(c)(6)); see

also 72 Fed. Reg. 48,320 (Aug. 23, 2007) (final rule

required under 49 U.S.C. § 44909(c)(6)). The IRTPA

further required DHS to consult with TSC to establish

procedures “for the collection, removal, and updating

of data maintained, or to be maintained, in the no fly

and automatic selectee lists.” § 4012(a)(1) (codified as

amended at 49 U.S.C. § 44903(j)(2)(E)(iii)) (emphasis

added). Congress also instructed DHS to implement

appeal procedures for those identified as a threat. Id.

(codified as amended at 49 U.S.C. § 44903(j)(2)(G)).

Through the combined effects of HSPD-6 and the

IRTPA, the Government’s Watchlist authority begins

to take shape. Along with statutorily directed interagency memoranda of understanding, HSPD-6 and

the IRTPA created and codified, respectively, the TSC,

TTIC, and NCTC and their roles and powers in

creating, administering, and maintaining the Watchlist,

building off existing systems with the goal of disseminating the information with appropriate agencies for

more effective use. In doing so, Congress certainly

imagined, indeed required, that an agency like TSC

would do this work. Contrary to the Plaintiffs’ arguments, the agencies’ authority is not solely derived from

their general law enforcement statutes. We also see

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repeated invocation of the Plaintiffs’ magic words —

“watchlist” or “terrorist watchlist” — and specific

directions to screen airline passengers against the

“selectee and no fly lists.” 49 U.S.C. §§ 44903(j)(2)(C),

(E)(iii), 44909(c)(6). Although the Plaintiffs take issue

with these words not appearing in some provisions

that make up the statutory scheme, the provisions

that do use the term cannot be ignored. See Sturgeon

v. Frost, 577 U.S. 424, 438–39, 136 S.Ct. 1061, 194

L.Ed.2d 108 (2016). And there is still more to come.

d. 9/11 Commission Act

To further promote homeland security information

sharing Congress enacted the Implementing Recommendations of the 9/11 Commission Act of 2007,

Pub. L. No. 110-53, sec. 501, 121 Stat. 266 (codified in

scattered provisions of 6 U.S.C.). DHS was required to

develop a homeland security advisory system and

“integrate” and “standardize” terrorism and homeland

security information for greater dissemination and

access. Sec. 501, §§ 203, 204 (codified as amended at

6 U.S.C. §§ 124, 124a). DHS was further instructed to

establish “a comprehensive information technology

network architecture ... that connects the various

databases and related information technology assets”

to “promote internal information sharing.” Sec. 501,

§ 205 (codified as amended at 6 U.S.C. § 124b) (emphasis added). TSA was obligated to develop and distribute a “Transportation Security Information Sharing

Plan” to enhance interagency coordination. 9/11 Commission Act § 1203(a) (codified at 49 U.S.C. § 114(t)).

To provide a means for passengers to contend “they

were wrongly identified as a threat under the regimes

utilized” by TSA, CBP, or other DHS entities, Congress

codified more robust appeal and redress procedures

than what was included in the IRTPA. § 1606(a)

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(codified at 49 U.S.C. § 44926). It established the Office

of Appeals and Redress and regulated the records,

information, and handling of private information, such

as requiring encryption and other security protections.

Id. The Office of Appeals and Redress is required to

furnish necessary information to TSA, CBP, and other

DHS entities to “improv[e] their administration of the

advanced passenger prescreening system and reduce

the number of false positives.” Id. (codified at 49 U.S.C.

§ 44926(b)(3)(B)) (emphasis added).7

The import of this Act is that based on the collective

lessons learned from the September 11 terrorist

attacks, Congress determined more terrorism-related

information sharing between appropriate agencies

was necessary. Further, working from experience,

Congress recognized that many people may be mistakenly swept under the broad authority it was conferring,

so it provided more robust redress procedures for those

affected. This seriously, if not fatally, undermines the

Plaintiffs’ argument that Congress never intended

for relevant federal agencies to exercise such powers.

It clearly did. Congress’s more recent enactments

confirm as much.

e. Further enactments

The statutory scheme just described remains largely

unchanged since its enactment. When Congress

has modified parts of it, it has done so by reaffirming

the Government’s authority to maintain and use the

Watchlist. For example, in the FAA Reauthorization

Act of 2018, Pub. L. No. 115-254, § 1937, 132 Stat. 3186

(codified at 49 U.S.C. § 44919(j)), Congress codified

TSA’s PreCheck Program, which required participants

What resulted was DHS’s TRIP, which we previously mentioned

the Plaintiffs used.

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to submit to “recurrent checks against the terrorist

watchlist.” (emphasis added). In the same Act, Congress

took significant steps towards applying the aviation

passenger vetting scheme to railroad passengers, including “vetting passengers using terrorist watch lists

maintained by the Federal Government” or the TSA.

§ 1974(c)(1) (codified at 6 U.S.C. § 1164 note (Passenger

Rail Vetting)) (emphasis added). Congress also amended

the statute regulating grants to Amtrak so the corporation can “connect to the National Terrorism

Screening Center watchlist” for enhanced security.

§ 1973(b)(1) (amending 6 U.S.C. § 1164(a)(3)(D)) (emphasis added); see also § 1973(a)(3) (amending 6 U.S.C.

§ 1163(b)(7)). In its brief, the Government notes other

instances in which Congress directed agencies to

maintain, disseminate, or use the Watchlist for security

purposes, albeit not directly related to aviation passengers. 6 U.S.C. §§ 621(10), 622(d)(2), 488a(i)(2)(A), 1140,

1181(e)(2), 1162(e)(2); 49 U.S.C. §§ 44903(j)(2)(D),

44917(c)(2); 46 U.S.C. § 70105(a), (d).

“[G]uided to a degree by common sense,” it is implausible to conclude that Congress would expand use of

the Watchlist program if it truly believed it were

unauthorized. FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d

121 (2000). That Congress’s words became more

specific over time does not undermine the agencies’

prior authority, but rather confirms Congress intended

to build on what already exists. Id. at 137–39, 120 S.Ct.

1291.

* * *

The foregoing demonstrates the Government’s

Watchlist authority rests on far more than vague

authorizing statutes. Instead, the statutory scheme

is highly complex and exists today after years of

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congressional enactments, presidential actions, and

congressional ratifications and enhancements.

The Government suggests that another way to understand this array of statutory authorities is to view

them as a stacked Venn diagram, wherein broader

statutory authority encircle narrower ones. At its

broadest level, Congress has authorized agencies like

the FBI, DHS, and NCTC to collect, investigate, and

analyze terrorist-related intelligence. See 28 U.S.C.

§§ 533, 534(a), 538; 6 U.S.C. § 121(d)(1), (12); 50 U.S.C.

§ 3056(d)(1). At the next, more specific level, Congress

instructs these agencies, with direction from the

President, to share and coordinate such intelligence

with other federal agencies and state and local

officials. See 6 U.S.C. §§ 122, 123(c)(4), 124, 124a(a),

(c)(1), 124b, 126(a), 482(a)(1)(A), (b)(1), 485(b); 49 U.S.C.

§ 114(t). At the next, more specific level, Congress

directs various agencies, including TSA and CBP, to

screen persons against the shared and consolidated

intelligence (i.e., the Watchlist) in various situations.

See 6 U.S.C. §§ 622(d)(2), 1162(e)(2), 1181(e)(2); 49 U.S.C.

§§ 44903(j)(2), 44909(c)(6)(A), 44917(c)(2), 44919(j).

Finally, at the most specific level that directly applies

to this case, Congress requires TSA and CBP to

coordinate with the TSC and commercial airlines to

screen commercial airline passengers against the No

Fly and Selectee Lists. 49 U.S.C. §§ 114(h), 44903(j)(2),

44909(c)(6).

Certainly, the Government has broad and detailed

statutory authority to screen airline passengers. The

Plaintiffs’ arguments to the contrary therefore fail. We

next consider the Plaintiffs’ remaining arguments.

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III. Ratification

To overcome the Government’s clear statutory

authority, the Plaintiffs argue Congress cannot

authorize — or more properly perhaps, ratify — a

previously unauthorized agency action. That is both

factually and legally mistaken. It is factually mistaken

because the Government’s clear statutory authority

existed at least six years before any alleged injury to

the Plaintiffs, the earliest of which occurred in 2013.

“Agency actions must be assessed according to the

statutes and regulations in effect at the time of the

relevant activity.” Texas v. EPA, 829 F.3d 405, 430 (5th

Cir. 2016). It is legally mistaken because, even if the

initial creation of individual agencies’ lists prior to

2001 or 2004 were not authorized, Congress’s ratification of their creation, maintenance, and use would

“give the force of law to official action unauthorized

when taken.” Swayne & Hoyt v. United States, 300 U.S.

297, 301–02, 57 S.Ct. 478, 81 L.Ed. 659 (1937). This is

a long-settled principle.8

IV. Other Watchlist uses

The Plaintiffs’ final contention is that the relevant

statutes do not authorize the entirety of the Watchlist

program and its uses. Specifically, the Plaintiffs argue

Congress never authorized the Government to maintain

or administer the Watchlist for use in immigration

proceedings, traffic stops, permitting, licensing, and

firearm purchases. As a result, being on the Watchlist

“ensnar[es] [the Plaintiffs] in an invisible web of

See Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111,

116, 67 S.Ct. 1129, 91 L.Ed. 1375 (1947); Charlotte Harbor &

N. Ry. Co. v. Welles, 260 U.S. 8, 11–12, 43 S.Ct. 3, 67 L.Ed. 100

(1922); Mattingly v. District of Columbia, 97 U.S. 687, 690, 24

L.Ed. 1098 (1878).

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consequences imposed indefinitely and without recourse.”

This, they say, makes the entirety of the Watchlist

program beyond the scope of congressional authorization.

The fundamental reason the Plaintiffs’ argument

fails is they lack standing to raise it. The Plaintiffs

bear the burden of demonstrating they satisfy the

familiar Article III standing requirements of (1) an

injury in fact that is (2) fairly traceable to the

defendant’s challenged conduct and (3) will likely be

redressable by a favorable opinion. Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.

167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)

(citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61,

112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The alleged

injury in fact must be both “concrete,” meaning “it

must actually exist,” and “particularized,” meaning “it

must affect the plaintiff in a personal and individual

way.” Spokeo, Inc. v. Robins, 578 U.S. 330, 339–40, 136

S.Ct. 1540, 194 L.Ed.2d 635 (2016) (quotation marks

and citation omitted). Future injury may be sufficient

for Article III standing, but the “threatened injury

must be certainly impending”; “allegations of possible

future injury are not sufficient.” Clapper v. Amnesty

Int’l USA, 568 U.S. 398, 409, 133 S.Ct. 1138, 185

L.Ed.2d 264 (2013) (emphasis in original) (quotation

marks and citations omitted). Furthermore, “standing

is not dispensed in gross”; “the right to complain of one

administrative deficiency [does not] automatically

confer[ ] the right to complain of all administrative

deficiencies” from which the plaintiff has not been

injured. Lewis v. Casey, 518 U.S. 343, 358 n.6, 116 S.Ct.

2174, 135 L.Ed.2d 606 (1996) (emphasis in original).

Here, the Plaintiffs failed to show that they have

suffered any adverse consequence unrelated to airport

security resulting from their alleged placement on the

18a

Watchlist. The Plaintiffs are United States citizens,

and their alleged injury is being subject to enhanced

airport screenings because of their purported placement on the Watchlist. Any immigration consequences

of their alleged placement, therefore, do not personally

or concretely injure the Plaintiffs. See Spokeo, 578 U.S.

at 339–40, 136 S.Ct. 1540. Although it is possible the

Plaintiffs could be injured if their alleged placement

on the Watchlist adversely affects them during a traffic

stop, firearm purchase, or license application, they

have not demonstrated that such injuries have occurred

or are “certainly impending.” Clapper, 568 U.S. at 409,

133 S.Ct. 1138 (emphasis in original). Instead, the only

personal injury they allege is having to undergo TSA’s

enhanced screenings at airport security and, in Plaintiff

Kovac’s case, being prevented from boarding a flight.

To avoid this conclusion, the Plaintiffs argue that

“once an agency’s power is called into question by a

plaintiff who has suffered [an] Article III injury, courts

consider the full range of the agency’s asserted power,

even if the plaintiff has not been harmed by every

aspect of the agency’s congressionally unauthorized

actions.” As support for this broad proposition, the

Plaintiffs cite two Supreme Court cases involving

major questions. See Alabama Ass’n of Realtors v.

HHS, 594 U.S. 758, 141 S.Ct. 2485, 210 L.Ed.2d 856

(2021); Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 134

S.Ct. 2427, 189 L.Ed.2d 372 (2014). Neither case,

however, supports the Plaintiffs’ proposition.

In Alabama Association of Realtors, the Supreme

Court held the Center for Disease Control and

Prevention’s (“CDC”) eviction moratorium exceeded its

statutory authority. 594 U.S. at 759–60, 141 S.Ct. 2485.

Although the Plaintiffs here concede that the moratorium applied to the plaintiffs in that case, they argue

19a

it supports their proposition because the Court

discussed the penalties the CDC could impose on

violators even though none of the plaintiffs suffered

such a penalty. Id. at 764–65, 141 S.Ct. 2485. There,

the Court was discussing what the CDC itself said

would be the penalties for moratorium violators in the

order under review. Id. at 765, 141 S.Ct. 2485 (citing

86 Fed. Reg. 43,244, 43,252 (Aug. 6, 2021)). Because the

plaintiffs themselves would be subject to such

penalties if they violated the order, the “application of

the regulations by the Government [would] affect

them” in a personal and concrete way. Summers v.

Earth Island Inst., 555 U.S. 488, 493–94, 129 S.Ct.

1142, 173 L.Ed.2d 1 (2009) (emphasis in original).

Here, there is no indication that the Plaintiffs

themselves have been or are likely to be subject to the

Government’s maintenance and use of the Watchlist

apart from airport security.

In Utility Air Regulatory Group, the Supreme Court

held that the Environmental Protection Agency

(“EPA”) exceeded its statutory authority by treating

greenhouse gases as a “pollutant” under a statutory

regime regulating the permit needs of certain emission

sources. 573 U.S. at 325–26, 134 S.Ct. 2427. At one

point, the Court discussed the “numerous small

sources not previously regulated” under the Clean Air

Act, such as “large office and residential buildings,

hotels, large retail establishments, and similar

facilities,” that the EPA predicted could be regulated if

it chose to regulate greenhouse gases. Id. at 310, 134

S.Ct. 2427 (quoting 73 Fed. Reg. 44,354, 44,498–99

(July 30, 2008)). The Plaintiffs here use this discussion

to support their proposition because the Court “did

not pause to ask whether the challenged regulations’

20a

effect” on the previously unregulated entities “would

injure petitioner Utility Air Regulatory Group.”9

The Plaintiffs’ reliance on this case, however, is

misplaced. To start, the quoted discussion is the Court’s

review of the EPA’s prior concerns over possible

regulation of greenhouse gases articulated in an advanced

notice of proposed rulemaking. Id. at 310, 134 S.Ct.

2427. The discussion says nothing about the actual

effects of the final rules the petitioners challenged. See

id. at 311–13, 134 S.Ct. 2427 (describing the final

rules). More importantly, the Utility Air Regulatory

Group members were subject to the challenged final

rules because they were electric utilities. See 75 Fed.

Reg. 31,514, 31,514 (June 3, 2010); Brief for Petitioner

Utility Air Regulatory Group at x, Utility Air Regul.

Grp. v. EPA, 573 U.S. 302 (2014) (No. 12-1146), 2013

WL 6512952, at *x. Although the Supreme Court did

not address standing extensively, it concluded the

petitioners had standing because the rules essentially

imposed a new permitting regime for greenhouse

gases discharged above an administratively created

emissions threshold. See Utility Air Regul. Grp., 573

U.S. at 325, 134 S.Ct. 2427. This, the Court said, was

an impermissible “rewriting of the statutory thresholds”

that “went well beyond the bounds of [the EPA’s]

statutory authority.” Id. at 325–26, 134 S.Ct. 2427

(quotation marks and citation omitted).

Here, the Plaintiffs do not argue or suggest that they

have been or are likely to be imminently injured by use

of the Watchlist in situations unrelated to airport

The Plaintiffs overlook the fact that there were numerous

petitioners in that case, including several states. Id. at 313, 134

S.Ct. 2427. Only one of the petitioners had to demonstrate

standing to satisfy Article III. See Bowsher v. Synar, 478 U.S. 714,

721, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986).

21a

security. Accordingly, they lack standing to challenge

the Government’s use of the Watchlist in such

circumstances. See Summers, 555 U.S. at 493–94, 129

S.Ct. 1142. The cases they cite do not support the

sweeping proposition that they can challenge all uses

of the Watchlist because they are injured by only one

of them. Lewis, 518 U.S. at 358 n.6, 116 S.Ct. 2174.

Indeed, “[i]t would be quite strange to think that a

party experiences an Article III injury by not being

affected by an unlawful action ... or not being more

affected by such action.” Department of Educ. v. Brown,

600 U.S. 551, 564, 143 S.Ct. 2343, 216 L.Ed.2d 1116

(2023) (emphasis in original).

Our conclusion that the Plaintiffs have no standing

as to the Watchlist uses unrelated to airport security

should not be read as also implying a lack of statutory

authority. We simply have no constitutional authority

to review an issue for which no actual controversy is

presented.

* * *

The Government’s creation, maintenance, and use of

the Watchlist in screening passengers in commercial

air travel does not exceed its statutory authority in

violation of 5 U.S.C. § 706(2)(C). Because the Government’s statutory authority in this case is clearly

authorized by Congress, we do not reach the issue of

whether creating, maintaining, and using the Watchlist is a major question.

AFFIRMED.

22a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

————

No. 23-10284

————

ADIS KOVAC; BASHAR ALJAME; ABRAHAM SBYTI;

SUHAIB ALLABABIDI; FADUMO WARSAME,

Plaintiffs-Appellants,

versus

CHRISTOPHER WRAY, DIRECTOR OF THE FEDERAL

BUREAU OF INVESTIGATION, IN HIS OFFICIAL CAPACITY;

CHARLES H. KABLE, DIRECTOR OF THE TERRORIST

SCREENING CENTER, IN HIS OFFICIAL CAPACITY;

DEBORAH MOORE, DIRECTOR, TRANSPORTATION

SECURITY REDRESS (OTSR), IN HER OFFICIAL CAPACITY;

NICHOLAS RASMUSSEN, DIRECTOR OF THE NATIONAL

COUNTERTERRORISM CENTER, IN HIS OFFICIAL

CAPACITY; DAVID P. PEKOSKE, ADMINISTRATOR

TRANSPORTATION SECURITY ADMINISTRATION (TSA),

IN HIS OFFICIAL CAPACITY; KEVIN K. MCALEENAN,

ACTING COMMISSIONER UNITED STATES CUSTOMS AND

BORDER PROTECTION, IN HIS OFFICIAL CAPACITY,

Defendants-Appellees.

————

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:18-CV-110

————

23a

Before Barksdale, Southwick, and Graves, Circuit

Judges.

Leslie H. Southwick, Circuit Judge:

The Plaintiffs are a group of American citizens who

complain they are subject to enhanced screening

measures at airport security because they have been

placed on a “terrorist watchlist.” They sued the

heads of various federal agencies connected to the

watchlist, asserting numerous constitutional and

statutory claims. The sole issue on appeal is whether

the relevant agencies have statutory authority to

create, maintain, and administer the watch-list. At

summary judgment, the district court determined the

agencies have statutory authority. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

The Plaintiffs are five Muslims who are United

States citizens, four of whom reside in Dallas, Texas,

and the fifth resides in New Jersey. They allege they

have been put on what is officially called the Terrorist Screening Dataset (“Watchlist”). The Watchlist

contains two sub-lists: (1) the No-Fly List, which

automatically excludes individuals from flying; and

(2) the Selectee List, which contains individuals who

are subject to “additional security screening” before

they may be permitted to board. Four of the Plaintiffs

allege they are on the Selectee List because they have

been subject to enhanced screening on multiple

occasions, including prolonged interrogations, border

searches, and having “SSSS” printed on their boarding passes. 1 Plaintiff Adis Kovac alleges he is on

The “SSSS” designation indicates that enhanced screening

is required. This designation may appear on passengers’ boarding passes because they are on the Selectee List, “random selec1

24a

the No-Fly List because he has been prevented from

boarding a commercial flight and possibly the

Selectee List because he is frequently subject to

enhanced screening.

Each Plaintiff utilized the Department of Homeland

Security’s (“DHS”) Traveler Redress Inquiry Program

(“TRIP”). This program allows individuals who believe

they have been improperly subjected to enhanced

screening or prohibited from flying to obtain additional review of their status and to correct any errors

or to alter their status based on new information.

See 49 C.F.R. §§ 1560.201, .205. Because of security

concerns, the Government’s policy is to neither confirm nor deny a person’s Selectee List status; those

on the No-Fly List will be apprised of their status and

may obtain judicial review. 49 U.S.C. § 46110. As a

result, the Selectee List Plaintiffs received no-confirmno-deny letters from DHS. DHS confirmed, however,

that Plaintiff Kovac was on the No-Fly List. 2

In January 2017, the Plaintiffs sued the heads of

various federal agencies that maintain or use the

Watchlist, in their official capacities (collectively,

“Government”). 3 The Plaintiffs allege violations of

their Fifth Amendment procedural and substantive

due process and equal protection rights, unlawful

tion,” or for “reasons unrelated to any status.” Ghedi v.

Mayorkas, 16 F.4th 456, 460 (5th Cir. 2021).

When the Plaintiffs filed their complaint, DHS had yet to

respond to Kovac’s TRIP request. This confirmation came in

April 2018.

The agencies include: the Federal Bureau of Investigation

(“FBI”), the Terrorist Screening Center (“TSC”), the Transportation Security Administration (“TSA”), DHS, the National

Counterterrorism Center (“NCTC”), and the Customs and

Border Protection (“CBP”).

25a

agency action under the Administrative Procedure

Act (“APA”), 5 U.S.C. § 706(2), and violations of the

nondelegation doctrine. On the Government’s motion

to dismiss, the district court dismissed all claims

against CBP for failure to prosecute, the substantive

and procedural due process claims in part, the equal

protection claims, and the nondelegation claims

against all Defendants. See Kovac v. Wray, 363 F.

Supp. 3d 721, 747–48, 762–63 (N.D. Tex. 2019)

(“Kovac I”). In July 2019, Plaintiff Kovac was notified

that he was removed from the No-Fly List, and the

district court dismissed his related claims as moot.

Kovac v. Wray, 449 F. Supp. 3d 649, 654–56 (N.D.

Tex. 2020) (“Kovac II”). In November 2020, the

district court dismissed the Plaintiffs’ remaining

constitutional claims, leaving only the APA claims.

Kovac v. Wray, No. 3:18-CV-110, 2020 WL 6545913,

at *5 (N.D. Tex. Nov. 6, 2020) (“Kovac III”). None of

those decisions are before us.

At summary judgment on the APA claims, the

Plaintiffs argued both that the major questions doctrine

applies in this case and that the Government exceeded

its authority because Congress never clearly authorized

the Watchlist. The Government’s actions against the

Plaintiffs, therefore, violated U.S.C. § 706(2)(C). They

also asserted their alleged placement on the Selectee

List was arbitrary and capricious. § 706(2)(A). Finally,

they maintained the TRIP process is arbitrary and

capricious because it does not provide a meaningful

opportunity to correct erroneous information and distinguishes between the No-Fly and Selectee Lists. Id.

The district court agreed that the major questions

doctrine applied because of the Watchlist’s “vast

political significance.” Kovac v. Wray, 660 F. Supp. 3d

555, 563–65 (N.D. Tex. 2023) (“Kovac IV”). Neverthe-

26a

less, the court concluded that Congress “clearly

authorized” the Watchlist by analyzing numerous

factors, only some of which pertained to the relevant

statutes. Id. at 565–69. The court further determined

that, even if the Plaintiffs had been placed on the

Watchlist, 4 the TRIP procedures were not arbitrary

and capricious. Id. at 569–72. The Plaintiffs timely

appealed.

DISCUSSION

We review the grant of summary judgment de

novo, “applying the same standard as the district

court.” Lamb v. Ashford Place Apartments LLC, 914

F.3d 940, 943 (5th Cir. 2019) (citation omitted).

Summary judgment should be granted “if the movant

shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). “Issues of

statutory interpretation are also reviewed de novo.”

United States v. Arrieta, 862 F.3d 512, 514 (5th Cir.

2017) (italics added). “This [c]ourt may affirm on

grounds other than those relied upon by the district

court” when supported by the record. Lauren C. ex

rel. Tracey K. v. Lewisville Indep. Sch. Dist., 904 F.3d

363, 374 (5th Cir. 2018) (citation omitted).

The sole issue on appeal is whether the Government

has statutory authority to create, maintain, and use

the Watchlist to screen passengers boarding commercial

aircraft. If we answer in the negative, then we must

“hold unlawful and set aside” the Government’s

actions regarding the Watchlist as they relate to the

The district court emphasized that “[n]othing in this opinion

should be construed as confirming or denying the [Plaintiffs’]

status on or off the [W]atchlist.” Id. at 569 n.85. Similarly, our

opinion neither confirms nor denies the Plaintiffs’ status.

27a

Plaintiffs. 5 U.S.C. § 706(2)(C); see also Loper Bright

Enters. v. Raimondo, 144 S. Ct. 2244, 2261 (2024)

(“In addition to prescribing procedures for agency

action, the APA delineates the basic contours of

judicial review of such action.” (citing 5 U.S.C. § 706)).

I. Statutory interpretation

questions doctrine

and

the

major

The district court started its analysis with the major

questions doctrine and concluded that the doctrine

applies because “the [W]atchlist has vast political

significance.” Kovac IV, 660 F. Supp. 3d at 565. As

support, the district court explained the Watchlist

“consists of over a million people,” the Government

may add “an unlimited number of people” to it,

“liberty intrusions . . . flow from the [W]atchlist,” and

the Watchlist can be distributed between federal and

state agencies in numerous ways. Id. After applying

its understanding of the elements of the doctrine, the

district court determined that the Government acted

properly. Id. at 565–69.

We conclude that the district court should have

started with the relevant statutory texts, not with

the doctrine about major questions. “[S]tatutory

interpretation must begin with, and ultimately heed,

what a statute actually says.” Groff v. DeJoy, 600

U.S. 447, 468 (2023) (quotation marks and citation

omitted). The analysis ends with the statutory text “if

the text is unambiguous.” BedRoc Ltd. v. United

States, 541 U.S. 176, 183 (2004). Only when there is

ambiguity should other analytical steps be taken.

See, e.g., Vitol, Inc. v. United States, 30 F.4th 248,

253 (5th Cir. 2022). Consequently, before proceeding

to the major questions doctrine, courts must first

examine the statutory text to discern if it is ambiguous as to the Government’s asserted authority. See

28a

West Virginia v. EPA, 597 U.S. 697, 722–23 (2022).

We now examine the statutory text.

II. Statutory text, structure, and history

Before exploring the dense statutory landscape of

this case, we identify what we are looking for. The

Plaintiffs’ principal statutory discussion pertains to

TSA’s authority under 49 U.S.C. §§ 114 and 44903.

They describe these statutes as “so vague as to barely

warrant discussion.” The Plaintiffs’ primary contention

is that TSA’s statutory obligation to protect airline

passengers is not specific enough to authorize use of

the Watchlist. Where the statute is more specific,

they argue it is still not enough because it does not

mention the word “watchlist.” See 49 U.S.C. § 114(h).

Even if TSA is authorized to use the Watchlist, the

Plaintiffs maintain “TSA does not create, administer,

or maintain the [W]atchlist,” and the entity that

does, TSC, lacks statutory authority to do so. As to

the other agencies, the Plaintiffs argue that statutes

authorizing their general law-enforcement duties do

not confer sufficient authority to create, maintain,

and use the Watchlist. See 28 U.S.C. § 533; 6 U.S.C.

§§ 111, 202; 19 U.S.C. § 482 et seq.

Of course, statutes cannot be viewed in isolation,

and statutory interpretation requires considering the

context and structure of the overall statutory scheme.

West Virginia, 597 U.S. at 721. Our analysis,

therefore, goes beyond the isolated statutes the

Plaintiffs identify. As we go, we will highlight where

the Plaintiffs’ arguments falter.

a. Aviation and Transportation Security Act

Immediately following the September 11, 2001,

terrorist attacks, Congress created TSA and included

in its duties the oversight of passenger screening

29a

operations at domestic airports. Aviation and Transportation Security Act, Pub. L. No. 107-71, § 101, 115

Stat. 597 (2001) (codified at 49 U.S.C. § 114). Congress

instructed TSA to “enter into memoranda of understanding with Federal agencies . . . to share or

otherwise cross-check as necessary data on individuals

identified on Federal agency databases who may pose

a risk to transportation or national security.” § 101(h)(1)

(codified at 49 U.S.C. § 114(h)(1)) (emphasis added).

Congress mandated TSA use information from government databases “to identify individuals on passenger

lists” that may pose a threat and, if necessary,

“prevent the individual from boarding an aircraft.”

§ 101(h)(3) (codified at 49 U.S.C. § 114(h)(3)). Congress

also required TSA to adopt “enhanced security

measures” to “aid in the screening of passengers . . .

who are identified on any State or Federal securityrelated data base” and to coordinate amongst airport

security forces. § 109(a)(5) (codified at 49 U.S.C. § 114

note (Enhanced Security Measures)) (emphasis added).

TSA assesses security threats “jointly” with the FBI.

49 U.S.C. § 44904(a).

Thus, the statutory authority for TSA to collect,

share, and screen identifying information about airline

passengers, and to use that information to prevent

certain passengers from boarding or to conduct

enhanced screening, is clear. They are not vague as

the Plaintiffs argue. The Plaintiffs protest, however,

that Section 114 does not use the word “watchlist.”

That word will come, but it is worth noting the term

“terrorist watchlist” is only the common term for the

Watchlist. Its official name is the Terrorist Screening

Dataset, and it was previously named the Terrorist

Screening Database. Those words appear in Section

114(h) and its accompanying note, and similar

30a

variations of those words are common in the overall

scheme. We now return to that discussion.

b. Homeland Security Act

In 2002, Congress recognized the need for “Federal,

State, and local entities [to] share homeland security

information to the maximum extent practicable.”

Homeland Security Act of 2002, Pub. L. No. 107-296,

§ 891(c), 116 Stat. 2135 (codified at 6 U.S.C. § 481(c)).

Accordingly, Congress created DHS 5 and provided

the President statutory authority to prescribe

procedures by which “all appropriate agencies . . .

shall . . . share “homeland security information” with

appropriate Federal and State agencies and personnel.6

§ 892(b)(1) (codified at 6 U.S.C. § 482(b)(1)). These

procedures applied to existing information-sharing

systems and new ones that may be created. §

892(b)(2), (4) (codified at 6 U.S.C. § 482(b)(2), (4)).

Congress

also authorized DHS to access “broad categories of

material, . . . electronic databases, or both,” and to

harmonize “relevant information databases” across

federal agencies. §§ 201(d)(15)(A), 202(b)(1) (codified

at 6 U.S.C. §§ 121(d)(12)(A), 122(b)(1)) (emphasis

added). This is where the Plaintiffs’ argument that

DHS lacks clear statutory authority related to the

Watchlist begins to fall apart.

In doing so, Congress transferred TSA from the Department

of Transportation to DHS. § 403(2) (codified at 6 U.S.C. § 203(2)).

“[H]omeland security information” is defined as “any

information possessed by a Federal, State, or local agency that

— (A) relates to the threat of terrorist activity; (B) relates to the

ability to prevent, interdict, or disrupt terrorist activity; (C)

would improve the identification or investigation of a suspected

terrorist or terrorist organization; or (D) would improve the

response to a terrorist act.” 6 U.S.C. § 482(f)(1).

31a

c. HSPD-6 and the IRTPA

Pursuant to the authority under the Acts discussed

above, President Bush in 2003 signed Homeland

Security Presidential Directive 6 (“HSPD6”), which,

along with an inter-agency memorandum of

understanding, instructed the Attorney General to

create the TSC under the administration of the FBI.

HSPD-6 sought “to consolidate the Government’s

approach to terrorism screening” through the

Terrorist Threat Integration Center (“TTIC”).

President Bush later incorporated TTIC into the

NCTC through an executive order. Exec. Order No.

13,354, 69 Fed. Reg. 53,589 (Aug. 27, 2004). The

executive order directed the NCTC to create,

integrate, disseminate, and ensure intra- and intergovernmental access to data and reports concerning

terrorism information. Id.

In the Intelligence Reform and Terrorism Prevention

Act of 2004 (“IRTPA”), Pub. L. No. 108-458, sec. 1021,

§ 119, 118 Stat. 3638 (codified as amended at 50

U.S.C. § 3056), Congress codified the NCTC and its

duties and authority. Today, as then, one of the

NCTC’s duties is to “develop a strategy for combining

terrorist travel intelligence” and law enforcement

efforts to “intercept . . . and constrain terrorist

mobility.” Sec. 1021, § 119(f)(1)(F) (codified as

amended at 50 U.S.C. § 3056(f)(1)(F)). To support the

NCTC’s efforts, the IRTPA authorized DHS to establish

a program regarding terrorist travel, “including the

analysis, coordination, and dissemination of terrorist

travel intelligence and operational information” with

relevant agencies, such as TSA and CBP. IRTPA

§ 7215 (codified at 6 U.S.C. § 123) (emphasis added);

see also § 7201 (counterterrorist travel intelligence

strategy). Congress further sought to enhance the

32a

Government’s information-sharing structure by creating

an “information sharing environment.” § 1016 (codified

at 6 U.S.C. § 485). This tool “facilitates the means for

sharing terrorism information” with relevant governmental entities, “connects existing systems,” “ensures

direct and continuous online electronic access to

information,” and “builds upon existing systems capabilities” used by the Government. § 1016(b)(2)

(codified at 6 U.S.C. § 485(b)(2)) (emphasis added).

The IRTPA also made significant changes to airport

passenger screenings. Congress charged DHS and

TSA to implement “advanced passenger prescreening” and specifically required the agencies “to assume

the performance of . . . comparing passenger

information to the automatic selectee and no fly lists

and utilize all appropriate records in the consolidated

and integrated terrorist watchlist maintained by the

Federal Government in performing that function.”

§ 4012(a)(1) (codified as amended at 49 U.S.C.

§ 44903(j)(2)(C)) (emphasis added). While TSA has

such authority for domestic travel, CBP, as DHS’s

designee, has essentially the same authority for

international arrivals. § 4012(a)(2)(B) (codified as

amended at 49 U.S.C. § 44909(c)(6)); see also 72 Fed.

Reg. 48,320 (Aug. 23, 2007) (final rule required under

49 U.S.C. § 44909(c)(6)). The IRTPA further required

DHS to consult with TSC to establish procedures “for

the collection, removal, and updating of data

maintained, or to be maintained, in the no fly and

automatic selectee lists.” § 4012(a)(1) (codified as

amended at 49 U.S.C. § 44903(j)(2)(E)(iii)) (emphasis

added). Congress also instructed DHS to implement

appeal procedures for those identified as a threat. Id.

(codified as amended at 49 U.S.C. § 44903(j)(2)(G)).

33a

Through the combined effects of HSPD-6 and the

IRTPA, the Government’s Watchlist authority begins

to take shape. Along with statutorily directed interagency memoranda of understanding, HSPD-6 and

the IRTPA created and codified, respectively, the

TSC, TTIC, and NCTC and their roles and powers in

creating, administering, and maintaining the Watchlist,

building off existing systems with the goal of disseminating the information with appropriate agencies for

more effective use. In doing so, Congress certainly

imagined, indeed required, that an agency like TSC

would do this work. Contrary to the Plaintiffs’

arguments, the agencies’ authority is not solely

derived from their general law enforcement statutes.

We also see repeated invocation of the Plaintiffs’

magic words — “watchlist” or “terrorist watchlist” —

and specific directions to screen airline passengers

against the “selectee and no fly lists.” 49 U.S.C. §§

44903(j)(2)(C), (E)(iii), 44909(c)(6). Although the

Plaintiffs take issue with these words not appearing

in some provisions that make up the statutory

scheme, the provisions that do use the term cannot

be ignored. See Sturgeon v. Frost, 577 U.S. 424, 438–

39 (2016). And there is still more to come.

d. 9/11 Commission Act

To further promote homeland security information

sharing Congress enacted the Implementing Recommendations of the 9/11 Commission Act of 2007, Pub.

L. No. 110-53, sec. 501, 121 Stat. 266 (codified in

scattered provisions of 6 U.S.C.). DHS was required

to develop a homeland security advisory system and

“integrate” and “standardize” terrorism and homeland

security information for greater dissemination and

access. Sec. 501, §§ 203, 204 (codified as amended at

6 U.S.C. §§ 124, 124a). DHS was further instructed to

34a

establish “a comprehensive information technology

network architecture . . . that connects the various

databases and related information technology assets”

to “promote internal information sharing.” Sec. 501,

§ 205 (codified as amended at 6 U.S.C. § 124b)

(emphasis added). TSA was obligated to develop and

distribute a “Transportation Security Information

Sharing Plan” to enhance interagency coordination.

9/11 Commission Act § 1203(a) (codified at 49 U.S.C.

§ 114(t)).

To provide a means for passengers to contend “they

were wrongly identified as a threat under the regimes

utilized” by TSA, CBP, or other DHS entities, Congress

codified more robust appeal and redress procedures

than what was included in the IRTPA. § 1606(a)

(codified at 49 U.S.C. § 44926).

It established the Office of Appeals and Redress

and regulated the records, information, and handling

of private information, such as requiring encryption

and other security protections. Id. The Office of

Appeals and Redress is required to furnish necessary

information to TSA, CBP, and other DHS entities to

“improv[e] their administration of the advanced

passenger prescreening system and reduce the

number of false positives.” Id. (codified at 49 U.S.C.

§ 44926(b)(3)(B)) (emphasis added). 7

The import of this Act is that based on the

collective lessons learned from the September 11

terrorist attacks, Congress determined more terrorismrelated information sharing between appropriate

agencies was necessary. Further, working from experience, Congress recognized that many people may be

What resulted was DHS’s TRIP, which we previously

mentioned the Plaintiffs used.

35a

mistakenly swept under the broad authority it was

conferring, so it provided more robust redress

procedures for those affected. This seriously, if not

fatally, undermines the Plaintiffs’ argument that

Congress never intended for relevant federal agencies

to exercise such powers. It clearly did. Congress’s

more recent enactments confirm as much.

e. Further enactments

The statutory scheme just described remains largely

unchanged since its enactment. When Congress has

modified parts of it, it has done so by reaffirming the

Government’s authority to maintain and use the

Watchlist. For example, in the FAA Reauthorization

Act of 2018, Pub. L. No. 115-254, § 1937, 132 Stat.

3186 (codified at 49 U.S.C. § 44919(j)), Congress

codified TSA’s PreCheck Program, which required

participants to submit to “recurrent checks against

the terrorist watchlist.” (emphasis added). In the

same Act, Congress took significant steps towards

applying the aviation passenger vetting scheme to

railroad passengers, including “vetting passengers

using terrorist watch lists maintained by the Federal

Government” or the TSA. § 1974(c)(1) (codified at 6

U.S.C. § 1164 note (Passenger Rail Vetting)) (emphasis

added). Congress also amended the statute regulating

grants to Amtrak so the corporation can “connect to

the National Terrorism Screening Center watchlist”

for enhanced security. § 1973(b)(1) (amending 6 U.S.C.

§ 1164(a)(3)(D)) (emphasis added); see also § 1973(a)(3)

(amending 6 U.S.C. § 1163(b)(7)). In its brief, the

Government notes other instances in which Congress

directed agencies to maintain, disseminate, or use the

Watchlist for security purposes, albeit not directly

related to aviation passengers. 6 U.S.C. §§ 621(10),

622(d)(2), 488a(i)(2)(A), 1140, 1181(e)(2), 1162(e)(2);

36a

49 U.S.C. §§ 44903(j)(2)(D), 44917(c)(2); 46 U.S.C.

§ 70105(a), (d).

“[G]uided to a degree by common sense,” it is

implausible to conclude that Congress would expand

use of the Watchlist program if it truly believed it

were unauthorized. FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 133 (2000). That

Congress’s words became more specific over time does

not undermine the agencies’ prior authority, but

rather confirms Congress intended to build on what

already exists. Id. at 137–39.

* * *

The foregoing demonstrates the Government’s

Watchlist authority rests on far more than vague

authorizing statutes. Instead, the statutory scheme is

highly complex and exists today after years of

congressional enactments, presidential actions, and

congressional ratifications and enhancements.

The Government suggests that another way to

understand this array of statutory authorities is to

view them as a stacked Venn diagram, wherein broader

statutory authority encircle narrower ones. At its

broadest level, Congress has authorized agencies like

the FBI, DHS, and NCTC to collect, investigate, and

analyze terrorist-related intelligence. See 28 U.S.C.

§§ 533, 534(a), 538; 6 U.S.C. § 121(d)(1), (12); 50

U.S.C. § 3056(d)(1). At the next, more specific level,

Congress instructs these agencies, with direction from

the President, to share and coordinate such intelligence with other federal agencies and state and local

officials. See 6 U.S.C. §§ 122, 123(c)(4), 124, 124a(a),

(c)(1), 124b, 126(a), 482(a)(1)(A), (b)(1), 485(b); 49 U.S.C.

§ 114(t).

37a

At the next, more specific level, Congress directs

various agencies, including TSA and CBP, to screen

persons against the shared and consolidated intelligence (i.e., the Watchlist) in various situations. See 6

U.S.C. §§ 622(d)(2), 1162(e)(2), 1181(e)(2); 49 U.S.C.

§§ 44903(j)(2), 44909(c)(6)(A), 44917(c)(2), 44919(j).

Finally, at the most specific level that directly applies

to this case, Congress requires TSA and CBP to

coordinate with the TSC and commercial airlines to

screen commercial airline passengers against the

No Fly and Selectee Lists. 49 U.S.C. §§ 114(h),

44903(j)(2), 44909(c)(6).

Certainly, the Government has broad and detailed

statutory authority to screen airline passengers. The

Plaintiffs’ arguments to the contrary therefore fail.

We next consider the Plaintiffs’ remaining arguments.

III. Ratification

To overcome the Government’s clear statutory

authority, the Plaintiffs argue Congress cannot

authorize — or more properly perhaps, ratify — a

previously unauthorized agency action. That is both

factually and legally mistaken. It is factually

mistaken because the Government’s clear statutory

authority existed at least six years before any alleged

injury to the Plaintiffs, the earliest of which occurred

in 2013. “Agency actions must be assessed according

to the statutes and regulations in effect at the time of

the relevant activity.” Texas v. EPA, 829 F.3d 405,

430 (5th Cir. 2016). It is legally mistaken because,

even if the initial creation of individual agencies’ lists

prior to 2001 or 2004 were not authorized, Congress’s

ratification of their creation, maintenance, and use

would “give the force of law to official action

unauthorized when taken.” Swayne & Hoyt v. United

38a

States, 300 U.S. 297, 301–02 (1937). This is a longsettled principle. 8

IV. Other Watchlist uses

The Plaintiffs’ final contention is that the relevant

statutes do not authorize the entirety of the Watchlist

program and its uses. Specifically, the Plaintiffs

argue Congress never authorized the Government to

maintain or administer the Watchlist for use in

immigration proceedings, traffic stops, permitting,

licensing, and firearm purchases. As a result, being

on the Watchlist “ensnar[es] [the Plaintiffs] in an

invisible web of consequences imposed indefinitely

and without recourse.” This, they say, makes the

entirety of the Watchlist program beyond the scope of

congressional authorization.

The fundamental reason the Plaintiffs’ argument

fails is they lack standing to raise it. The Plaintiffs

bear the burden of demonstrating they satisfy the

familiar Article III standing requirements of (1) an

injury in fact that is (2) fairly traceable to the

defendant’s challenged conduct and (3) will likely be

redressable by a favorable opinion. Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528

U.S. 167, 180–81 (2000) (citing Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560–61 (1992)). The alleged

injury in fact must be both “concrete,” meaning “it

must actually exist,” and “particularized,” meaning

“it must affect the plaintiff in a personal and

individual way.” Spokeo, Inc. v. Robins, 578 U.S. 330,

339–40 (2016) (quotation marks and citation omitted).

See Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S.

111, 116 (1947); Charlotte Harbor & N. Ry. Co. v. Welles, 260

U.S. 8, 11–12 (1922); Mattingly v. District of Columbia, 97 U.S.

687, 690 (1878).

39a

Future injury may be sufficient for Article III standing,

but the “threatened injury must be certainly impending”; “allegations of possible future injury are not

sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S.

398, 409 (2013) (emphasis in original) (quotation

marks and citations omitted). Furthermore, “standing

is not dispensed in gross”; “the right to complain of

one administrative deficiency [does not] automatically

confer[] the right to complain of all administrative

deficiencies” from which the plaintiff has not been

injured. Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)

(emphasis in original).

Here, the Plaintiffs failed to show that they have

suffered any adverse consequence unrelated to airport

security resulting from their alleged placement on

the Watchlist. The Plaintiffs are United States

citizens, and their alleged injury is being subject to

enhanced airport screenings because of their purported

placement on the Watchlist. Any immigration consequences of their alleged placement, therefore, do not

personally or concretely injure the Plaintiffs. See

Spokeo, 578 U.S. at 339–40. Although it is possible

the Plaintiffs could be injured if their alleged

placement on the Watchlist adversely affects them

during a traffic stop, firearm purchase, or license

application, they have not demonstrated that such

injuries have occurred or are “certainly impending.”

Clapper, 568 U.S. at 409 (emphasis in original).

Instead, the only personal injury they allege is

having to undergo TSA’s enhanced screenings at

airport security and, in Plaintiff Kovac’s case, being

prevented from boarding a flight.

To avoid this conclusion, the Plaintiffs argue that

“once an agency’s power is called into question by a

plaintiff who has suffered [an] Article III injury,

40a

courts consider the full range of the agency’s asserted

power, even if the plaintiff has not been harmed by

every aspect of the agency’s congressionally unauthorized actions.” As support for this broad proposition,

the Plaintiffs cite two Supreme Court cases involving

major questions. See Alabama Ass’n of Realtors v.

HHS, 594 U.S. 758 (2021); Utility Air Regul. Grp. v.

EPA, 573 U.S. 302 (2014). Neither case, however,

supports the Plaintiffs’ proposition.

In Alabama Association of Realtors, the Supreme

Court held the Center for Disease Control and

Prevention’s (“CDC”) eviction moratorium exceeded

its statutory authority. 594 U.S. at 759–60. Although

the Plaintiffs here concede that the moratorium

applied to the plaintiffs in that case, they argue it

supports their proposition because the Court discussed

the penalties the CDC could impose on violators even

though none of the plaintiffs suffered such a penalty.

Id. at 764–65. There, the Court was discussing what

the CDC itself said would be the penalties for

moratorium violators in the order under review. Id.

at 765 (citing 86 Fed. Reg. 43,244, 43,252 (Aug. 6,

2021)). Because the plaintiffs themselves would be

subject to such penalties if they violated the order,

the “application of the regulations by the Government

[would] affect them” in a personal and concrete way.

Summers v. Earth Island Inst., 555 U.S. 488, 493–94

(2009) (emphasis in original). Here, there is no

indication that the Plaintiffs themselves have been or

are likely to be subject to the Government’s maintenance and use of the Watchlist apart from airport

security.

In Utility Air Regulatory Group, the Supreme

Court held that the Environmental Protection Agency

(“EPA”) exceeded its statutory authority by treating

41a

greenhouse gases as a “pollutant” under a statutory

regime regulating the permit needs of certain

emission sources. 573 U.S. at 325–26. At one point,

the Court discussed the “numerous small sources not

previously regulated” under the Clean Air Act, such

as “large office and residential buildings, hotels, large

retail establishments, and similar facilities,” that the

EPA predicted could be regulated if it chose to

regulate greenhouse gases. Id. at 310 (quoting 73

Fed. Reg. 44,354, 44,498–99 (July 30, 2008)). The

Plaintiffs here use this discussion to support their

proposition because the Court “did not pause to ask

whether the challenged regulations’ effect” on the

previously unregulated entities “would injure petitioner

Utility Air Regulatory Group.” 9

The Plaintiffs’ reliance on this case, however, is

misplaced. To start, the quoted discussion is the

Court’s review of the EPA’s prior concerns over

possible regulation of greenhouse gases articulated in

an advanced notice of proposed rulemaking. Id. at

310. The discussion says nothing about the actual

effects of the final rules the petitioners challenged.

See id. at 311–13 (describing the final rules). More

importantly, the Utility Air Regulatory Group members

were subject to the challenged final rules because

they were electric utilities. See 75 Fed. Reg. 31,514,

31,514 (June 3, 2010); Brief for Petitioner Utility Air

Regulatory Group at x, Utility Air Regul. Grp. v.

EPA, 573 U.S. 302 (2014) (No. 12-1146), 2013 WL

6512952, at *x. Although the Supreme Court did not

address standing extensively, it concluded the petitioners

The Plaintiffs overlook the fact that there were numerous

petitioners in that case, including several states. Id. at 313.

Only one of the petitioners had to demonstrate standing to satisfy

Article III. See Bowsher v. Synar, 478 U.S. 714, 721 (1986).

42a

had standing because the rules essentially imposed a

new permitting regime for greenhouse gases discharged

above an administratively created emissions threshold.

See Utility Air Regul. Grp., 573 U.S. at 325. This, the

Court said, was an impermissible “rewriting of the

statutory thresholds” that “went well beyond the

bounds of [the EPA’s] statutory authority.” Id. at

325–26 (quotation marks and citation omitted).

Here, the Plaintiffs do not argue or suggest that

they have been or are likely to be imminently injured

by use of the Watchlist in situations unrelated to

airport security. Accordingly, they lack standing to

challenge the Government’s use of the Watchlist in

such circumstances. See Summers, 555 U.S. at 493–

94. The cases they cite do not support the sweeping

proposition that they can challenge all uses of the

Watchlist because they are injured by only one of

them. Lewis, 518 U.S. at 358 n.6. Indeed, “[i]t would

be quite strange to think that a party experiences an

Article III injury by not being affected by an unlawful

action . . . or not being more affected by such action.”

Department of Educ. v. Brown, 600 U.S. 551, 564

(2023) (emphasis in original).

Our conclusion that the Plaintiffs have no standing

as to the Watchlist uses unrelated to airport security

should not be read as also implying a lack of

statutory authority. We simply have no constitutional

authority to review an issue for which no actual

controversy is presented.

* * *

The Government’s creation, maintenance, and use

of the Watchlist in screening passengers in commercial

air travel does not exceed its statutory authority

in violation of 5 U.S.C. § 706(2)(C). Because the

43a

Government’s statutory authority in this case is

unambiguous, we do not reach the issue of whether

the major questions doctrine applies in this case.

AFFIRMED.

44a

APPENDIX C

UNITED STATES DISTRICT COURT, N.D. TEXAS,

DALLAS DIVISION

————

Civil Action No. 3:18-CV-0110-X

————

ADIS KOVAC, et al.,

Plaintiffs,

CHRISTOPHER WRAY, et al.,

————

Defendants.

Signed March 9, 2023

————

MEMORANDUM OPINION AND ORDER

BRANTLEY STARR, UNITED STATES DISTRICT

JUDGE

Adis Kovac, Bashar Al-Jame, Suhai Allababidi,

Abraham Sbyti, and Faduma Mohamed Warsame

(collectively, “the Passengers”) experienced rigorous

screening at airports. Convinced that they are on the

terrorist watchlist, the Passengers sued the leaders of

several agencies 1 (collectively, “the Government”). The

The Passengers sued, among others, Christopher Wray, the

Director of the Federal Bureau of Investigation (“FBI”); Charles

H. Kable, the Director of the Terrorist Screening Center (“TSC”);

Deborah Moore, the Director of the Transportation Security

Administration (“TSA”) and the Department of Homeland

Security (“DHS”); Nicholas J. Rasmussen, director of the National

Counterterrorism Center (“NCTC”).

45a

Government and the Passengers both move for summary judgment. [Doc. Nos. 90, 96]. For the reasons

explained below, the Court DENIES the Passengers’

motion for summary judgment and GRANTS the

Government’s motion for summary judgment.

I. Background, Issues, and Standard of Review

The Court describes (A) the watchlist, (B) redress

procedures for those potentially on the watchlist, (C)

the Passengers’ factual allegations, (D) this case’s procedural posture, and (E) the relevant standard of review.

A. The Watchlist

For years, the Government has sought to stymie

terrorists’ ambitions to harm the United States and its

people. An obvious initial step in thwarting terrorists

is to ascertain their identities and to keep an eye on

them. Accordingly, before 2003, “nine [United States]

agencies maintained twelve different terrorist watchlists”

to keep track of suspected terrorists. 2 But recognizing

the drawbacks of such a diffused approach in the wake

of 9/11, President George W. Bush issued an executive

order calling for the creation of the Terrorist Screening

Center (“TSC”), which he tasked with “consolidat[ing]”

the Government’s watchlists into a singular list of

“terrorist identity information.” 3 The FBI administers

the TSC “in coordination” with DHS. 4

Several agencies collaborate to create, maintain,

and enforce the watchlist. Initially, any United States

Doc. No. 91 at 17.

Id. at 8, 16. The Government calls that watchlist the Terrorist

Screening Dataset or “TSDS.” But given the deluge of acronyms

in this case, the Court declines to pile on another one and instead

refers to the TSDS simply as “the watchlist.”

Id. at 2.

46a

agency with “a reasonable suspicion that [an] individual

is a known or suspected terrorist” can send a nomination

to the National Counterterrorism Center (“NCTC”)

for that individual’s inclusion on the watchlist. 5 The

NCTC maintains a terrorist database and “serves

as the primary organization ... for analyzing and

integrating all intelligence ... pertaining to

terrorism.” 6 After the NCTC reviews a nomination, the

TSC also reviews the nomination. Once an individual

is on the watchlist, the Transportation Security

Administration (“TSA”)—an entity within DHS—

takes the reins. Specifically, the TSA sets up shop in

airports and “compar[es] passenger information to the

... terrorist watchlist.” 7 If a person is on the watchlist,

TSA agents may subject him to enhanced screening or

deny him admittance to the airport’s “sterile area”

altogether. 8

The watchlist has several subset lists, and placement on them is contingent on “heightened substantive

derogatory criteria.” 9 Two subsets are relevant here.

First, the Selectee List consists of individuals who may

receive heightened screening at airports. “[T]he criteria

for inclusion on the Selectee List are not public.” 10

Second, the No-Fly List consists of individuals who

may not board flights over United States airspace. The

criteria for inclusion on the No-Fly List are public.

Id. at 21.

Id.

49 U.S.C. § 44903(j)(2)(C)(ii).

Doc. No. 91 at 74. “Sterile” is only a term for security. Medically, airports are anything but sterile.

Doc. No. 90 at 12.

Doc. No. 91 at 23.

47a

B. Redress Procedures

A person who suspects he’s on the watchlist may file

a “Traveler Inquiry Form” with the TSC, describing his

“experience[ ]” and “provid[ing] any comments or

additional information that [he] deem[s] relevant to

the inquiry, including any exculpatory information.” 11

The TSC then reviews that information and “make[s]

a new determination as to whether the individual

continues to satisfy the standard for inclusion in the

[watchlist].” 12

But the TSC leaves the passenger in the dark.

Specifically, the TSC generally doesn’t divulge whether

a person is on the watchlist. Consequently, the TSC

concludes the redress process by providing the passenger with a cryptic statement that it “ha[s] made any

corrections to records that [its] inquiries determined

were necessary.”13 And a passenger can’t infer his placement on the watchlist from his enhanced screening by

the TSA because passengers may experience enhanced

screening for a variety of reasons, many of which have

nothing to do with the watchlist.

That secrecy largely vanishes for passengers on the

No-Fly List. In 2014, a court held that the government

has to provide individuals “with notice regarding

their status on the No-Fly List and the reasons for

placement on that List.”14 Accordingly, when a passenger

on the No-Fly List seeks redress, DHS now “inform[s]

the applicant of his or her status on the [No-Fly] list”

Id. at 63.

Id. at 64–65.

Doc. No. 96 at 15.

Latif v. Holder, 28 F. Supp. 3d 1134, 1162 (D. Or. 2014).

48a

and, “where possible,” provides “an unclassified summary

of information supporting” that status. 15

C. The Passengers

The Passengers are United States citizens who,

collectively, experienced four issues in their travels.

First, some had trouble obtaining boarding passes. For

instance, Allababidi and Warsame had trouble printing

their boarding passes at self-serve kiosks. Likewise,

Allababidi and Al-Jame, after some delays, each received

a boarding pass containing an SSSS designation. 16

Second, some alleged that they experienced enhanced

screening at TSA checkpoints. For instance, TSA

agents asked Al-Jame “to take off [his] shoes, [his]

belt, and empty everything” in his pockets. 17 Agents

then conducted a “full body search” on Al-Jame and

“swabbed [his] hands.” 18 Likewise, Allababidi asserts

that TSA agents spent an hour “going through every

single item” of his carry-on luggage. 19

Third, federal agents interrogated some of the

Passengers. For instance, when Al-Jame returned from

Jordan, two TSA officers “interrogated [him] about

Doc. No. 91 at 6.

The TSA instructs aircraft operators to put “SSSS” (short for

Secondary Security Screening Selection) on a person’s boarding

pass to indicate that the individual must undergo enhanced

screening.

Id. at 99.

Id.

Id. at 104; see also id. at 99 (contending that Al-Jame’s

“carry-on bag was searched extensively and swabbed”); id. at 128,

136 (contending that Sbyti and Warsame similarly received

“extra screening”).

49a

[his] trip [and] ... [his] life.”20 Similarly, when Allababidi

returned from Mexico, “agents asked [him] [a] bunch

of questions.” 21

Fourth, agents denied some of the Passengers

boarding altogether. For instance, on multiple occasions,

agents “barred [Kovac] from boarding the plane” or did

“not allow[ ] [him] to get a boarding pass.” 22 Although

the Government later confirmed that Kovac was on the

No-Fly List, it has since removed him from that list.

D. Procedural Posture

Initially, the Passengers brought claims under the

Due Process Clause, the Equal Protection Clause, the

Non-Delegation Doctrine, and the Administrative

Procedure Act (“APA”). But the Court has whittled the

case down.

First, the Court dismissed the Passengers’ equalprotection and non-delegation claims. 23 Further, the

Court dismissed the Passengers’ due-process claims

but only to the extent the Passengers alleged a

reputational liberty interest. 24 Second, upon learning

that the Government removed Kovac from the No-Fly

List, the Court dismissed Kovac’s due-process claims

to the extent he alleged a liberty interest in the right

to travel. 25 Third, the Court dismissed the Passengers’

due process claims to the extent the Passengers

Id. at 99.

Id. at 104.

Doc. No. 96 at 12 (cleaned up); see also Doc. No. 91 at 93

(contending that Al-Jame that he “was denied flight boarding”).

The Government eventually allowed Al-Jame to fly.

See Doc. No. 12 at 55–56 (hereinafter Kovac I).

Id. at 55.

See Doc. No. 43 at 10 (hereinafter Kovac II).

50a

alleged a “liberty interest in nonattainder,” there-by

terminating the Passengers’ sole remaining dueprocess theory. 26 Fourth, to resolve the remaining APA

claims, the Court allowed the Government to file

portions of the administrative record “under seal and

for ex parte, in camera review only.” 27

Consequently, only the APA claim remains. The

Passengers aver that the watchlist violates the APA in

three ways. First, under the major-questions doctrine,

they contend that Congress never authorized the

Government to create or maintain a watchlist. Second,

they argue that their supposed placement on the

watchlist is arbitrary and capricious because the government had no reasonable basis for that placement.

Third, they contend that the redress process is arbitrary and capricious because it deprives passengers of

a meaningful opportunity to correct erroneous

information.

E. Standard of Review

A court may set aside an agency action that is

“arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 28 “A decision is

arbitrary or capricious only when it is so implausible

that it could not be ascribed to a difference in view

or the product of agency expertise.” 29 “This narrow

standard of review does not seek the court’s independent judgment” but rather “asks only whether the

See Doc. No. 57 at 12 (hereinafter Kovac III).

Doc. No. 81 at 12 (hereinafter Kovac IV).

5 U.S.C. § 706(2)(A).

Yogi Metals Grp., Inc. v. Garland, 38 F.4th 455, 458 (5th Cir.

2022) (cleaned up).

51a

agency engaged in reasoned decision making based on

consideration of the relevant factors.” 30

APA claims may only seek equitable relief and get

tried to judges—not juries. The Court’s review is

limited to the administrative record, 31 rendering the

Court akin to an appellate tribunal over the agency. 32

What courts would consider to be fact issues in a nonAPA case they consider to be legal issues in an APA

case, so summary judgment is the appropriate mechanism

for a district court to resolve an APA claim. 33 Because

both sides moved for summary judgment, the Court

can resolve the remaining claim here.

II. Analysis

The Court considers the (A) major-questions doctrine

arguments and (B) APA arguments.

A. Major-Questions Doctrine

“Congress enacts laws that define and ... circumscribe the power of [executive agencies] to control the

Id.

5 U.S.C. § 706; see also Luminant Generation Co. v. E.P.A.,

714 F.3d 841, 850 (5th Cir. 2013) (recognizing that, in APA cases,

“the focal point for judicial review should be the administrative

record already in existence, not some new record made initially

in the reviewing court” (cleaned up)).

Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.

Cir. 2001) (“[W]hen a party seeks review of agency action under

the APA, the district judge sits as an appellate tribunal”).

See James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1096 (D.C.

Cir. 1996) (holding that issues that appellant argued were

disputes of fact precluding summary judgment were issues of law

in the context of agency review), cert. denied, 519 U.S. 1077, 117

S.Ct. 737, 136 L.Ed.2d 676 (1997).

52a

lives of the citizens.” Sometimes, however, agencies

“defy Congressional limits” and aggrandize powers to

themselves that Congress never granted. 35 Thankfully,

a judicial bulwark helps hobble administrative power

grabs: The major-questions doctrine recognizes that

there are “extraordinary cases ... in which the history

and the breadth of the authority that the agency has

asserted, and the economic and political significance

of that assertion, provide a reason to hesitate before

concluding that Congress meant to confer such

authority.” 36

In such cases, the current patchwork of applicable

caselaw obligates courts to employ a two-pronged

analysis. First, a court must determine whether the

agency asserted “the power to make decisions of vast

economic and political significance.” 37 Second, if the

asserted power has significance, a court treats the

power grab “with skepticism” and requires the agency

to “point to clear congressional authorization permitting its action.” 38 A bevy of non-exhaustive factors

Chamber of Com. of United States of Am. v. United States

Dep’t of Labor, 885 F.3d 360, 387 (5th Cir. 2018).

Id.

W. Virginia v. E.P.A., ––– U.S. ––––, 142 S. Ct. 2587, 2608, 213

L.Ed.2d 896 (2022) (cleaned up).

Brown v. U.S. Dep’t of Educ., No. 4:22-CV-0908-P, 640

F.Supp.3d 644, 664 (N.D. Tex. Nov. 10, 2022) (Pittman, J.) (cleaned

up), cert. granted before judgment sub nom. Dep’t of Educ. v.

Brown, ––– U.S. ––––, 143 S. Ct. 541, 214 L.Ed.2d 310 (2022).

Brown, 640 F.Supp.3d at 665 (cleaned up); see also Alabama

Ass’n of Realtors v. Dep’t of Health & Human Servs., ––– U.S. ––––,

141 S. Ct. 2485, 2489, 210 L.Ed.2d 856 (2021). The Government

contends that the law-of-the-case doctrine bars the Passengers’

major-questions argument. Doc. No. 100 at 7–8. It doesn’t. In

rejecting the Passengers’ non-delegation argument, the Court

held that Congress had provided the agencies with “a general

53a

helps determine clear authorization, including whether

the agency (1) relies on a “cryptically delegated” power,

(2) “lack[s] the requisite expertise,” (3) “relies on an

unheralded power,” (4) receives a “transformative [power]

expansion,” (5) “fundamental[ly] revis[es]” the law, and

(6) regulates subject matter “with a unique political

history.” 39 The Court considers each prong in turn.

1. Vast Economic and Political Significance

“[T]he economic and political significance of [an]

assertion” of authority can “provide a reason to

hesitate before concluding that Congress ... confer[red]

such authority.” 40 It’s not clear why the Supreme Court

requires clear congressional authorization only for

major questions or significant assertions of authority.

It seems like the separation of legislative power in

Article I from executive power in Article II (subject to

checks and balances like the presidential veto) means

that agencies should always have clear congressional

authorization when they act to avoid “lord[ing] it over

the people without proper authority.” 41 Although some

questions are obviously major based on the number of

people who may feel the impact of the government

regulation, 42 in some cases, it’s unclear why the

policy” regarding the watchlist. Kovac I, at 54. But the Court

didn’t decide whether this is a major-questions case or whether

Congress clearly authorized the agency action at issue. Accordingly,

there’s no “rule of law enunciated by a federal court” that

necessarily dictates the Court’s major-questions analysis. Morrow

v. Dillard, 580 F.2d 1284, 1289 (5th Cir. 1978).

Josh Blackman, Gridlock, 130 Harv. L. Rev. 241, 266 (2016)

(cleaned up).

W. Virginia, 142 S. Ct. at 2608 (cleaned up).

Chamber of Com., 885 F.3d at 387.

See, e.g., N.F.I.B. v. O.S.H.A., 595 U.S. 109, 142 S. Ct. 661, 665,

662, 211 L.Ed.2d 448 (2022) (finding an agency’s vaccine mandate

54a

Supreme Court considered an agency power grab to be

particularly major or significant. 43 For instance, when

an agency asserted authority to regulate tariff rates,

the Supreme Court stressed that that authority had

“enormous importance.” 44 It seems like what should be

significant is not how many Americans the regulation

impacts but instead that the regulation was without

authorization from the people’s elected representatives. 45

In any event, the Court concludes that the watchlist

has vast political significance under the Supreme

Court’s current formulation of the major-questions

doctrine. The watchlist consists of over a million

people, and the Government could place an unlimited

number of people on it. 46 Further, the liberty intrusions that flow from the watchlist are significant.

To maintain the watchlist, the Government “collect[s]

a vast array of identifying information about an

was a politically “significant encroachment into the lives—and

health—of a vast number of employees” where it impacted

“roughly 84 million workers”); see also id. at 667 (Gorsuch, J.,

concurring) (“The agency claims the power to force 84 million

Americans to receive a vaccine or undergo regular testing. By any

measure, that is a claim of power to resolve a question of vast

national significance.”). The Passengers contend that a majorquestions case need not have economic significance—it can have

purely political significance. Doc. No. 101 at 7. The Court agrees.

Blackman, supra note 39, at 283 (“Why were the tariff rates

in MCI and refundable tax credits in King so significant? Without

any further explication, these seem like mundane attributes of

well-worn regulatory schemes.”).

MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218,

231, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994).

See generally Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004).

Doc. No. 91 at 41 n.9 (providing data from 2017).

55a

individual.” Further, in this case alone, TSA agents

executed a “full body search” on one Passenger and

swabbed his carry-on bag. 48 Government agents likewise interrogated many of the Passengers. The

Government can also “distribut[e] watch list information to thousands of other entities, and perhaps

even impos[e] adverse immigration consequences on

listees.” 49 Thus, the watchlist has vast political

significance. 50

2. Clear Congressional Authorization

Regardless, Congress clearly authorized the

watchlist. Each relevant consideration demonstrates

that authorization.

Cryptically Delegated: Congress “does not alter the

fundamental details of a regulatory scheme in vague

terms or ancillary provisions.” 51 For instance, when the

Food and Drug Administration (“FDA”) asserted the

“authority to regulate tobacco products” based on a

statutory provision allowing the FDA to ensure the

Doc. No. 101 at 8. The Passengers also assert that the

Government “den[ies] some access to commercial flights that

cross United States airspace altogether.” Id. But only Kovac

previously claimed he was on the No-Fly List, and, since the

Government removed him from that list, this Court has found

that “Kovac’s claims stemming from his presence on the No-Fly

List are moot.” Kovac II, at 9. Accordingly, the Court declines to

consider Kovac’s being barred from flights.

Doc. No. 91 at 104.

Doc. No. 101 at 8.

Even supposing that the watchlist doesn’t present a major

question, the Court would reach the same result because

Congress clearly authorized the watchlist.

Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468, 121

S.Ct. 903, 149 L.Ed.2d 1 (2001).

56a

“safety” of certain products, the Court concluded that

“Congress could not have intended to delegate a

decision of such ... significance to an agency in so

cryptic a fashion.” 52 In short, Congress doesn’t “hide

elephants in mouseholes.” 53

Here, Congress clearly authorized the Government

to create and maintain the watchlist. Specifically,

Congress authorized “[t]he Administrator of the [TSA]

and the Director of the [FBI] jointly [to] assess current

and potential threats to the domestic air transportation system,” including “individuals with the capability

and intent to carry out terrorist ... acts.” 54 And

Congress authorized the TSA Administrator and FBI

Director “jointly [to] decide on and carry out the most

effective method for continuous analysis and monitoring

of [those] security threats.” 55 In short, Congress

authorized the TSA and the FBI to identify potential

terrorists and pick a method for monitoring them.

There’s nothing cryptic about that command: Congress

gave clear statutory authorization for the creation and

maintenance of a list enumerating suspected terrorists. 56

F.D.A. v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

160, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000).

Whitman, 531 U.S. at 468, 121 S.Ct. 903.

49 U.S.C. § 44904(a).

Id.

The list of Congressional commands authorizing a watchlist

could go on. For instance, Congress charged the TSA with

“establish[ing] procedures for notifying ... airline security officers

of the identity of individuals known to pose, or suspected of

posing, a risk of air piracy or terrorism.” 49 U.S.C. § 114(h)(2).

Congress also tasked DHS with “[p]reventing the entry of terrorists and the instruments of terrorism into the United States.”

6 U.S.C. § 202(1).

57a

Further, Congress clearly authorized the TSA’s use

of the watchlist during airport screening. Specifically,

Congress authorized the TSA “to use information from

government agencies to identify individuals on passenger lists who may be a threat to civil aviation or

national security” and to “prevent [such] individual[s]

from boarding an aircraft[ ] or take other appropriate

action with respect to [those] individual[s].” 57 That’s

clear authorization for the TSA’s use of the watchlist

to screen airline passengers.

The Passengers disagree. First, they contend that

the Government can’t locate any specific language

authorizing the watchlist. But the Passengers only

come to that conclusion by ignoring the specific statutory language authorizing the watchlist. For instance,

the Passengers cite 49 U.S.C. § 44904(a), but they

omit its requirement that the TSA and FBI identify

“individuals with the capability and intent to carry out

terrorist ... acts.” 58

Second, the Passengers obliquely contend that

Congress didn’t “expressly authorize[ ]” the TSC or the

watchlist. 59 Presumably, the Passengers are peeved

that none of the statutes expressly says “watchlist” or

“Terrorist Screening Center.” But the test isn’t whether

the Government adopted Congress’s preferred nomenclature in labeling its terrorism apparatuses. The test

is whether Congress “authoriz[ed] an agency to exercise

[the] powers” at issue. 60 And Congress clearly—not

cryptically—authorized the watchlist.

49 U.S.C. § 114(h)(3)(A)–(B).

Doc. No. 96 at 21 (quoting 49 U.S.C. § 44904(a)).

Id. at 22 (emphasis added).

Alabama Ass’n, 141 S. Ct. at 2489 (cleaned up).

58a

Expertise: “When an agency has no comparative

expertise in making certain policy judgments, ...

Congress presumably would not task it with doing

so.” 61 For instance, when the Occupational Safety and

Health Administration (“OSHA”) “ordered 84 million

Americans to [ ] obtain a COVID-19 vaccine,” the

Supreme Court concluded that OSHA’s “sphere of

expertise” involves “hazards that employees face at

work”—not “public health more generally.” 62

Tellingly, the Passengers ignore this consideration.

The TSA’s sphere of expertise includes identifying

“individuals known to pose ... a risk of ... terrorism.” 63

DHS has expertise in “prevent[ing] terrorist attacks.” 64

And the FBI has expertise in “detect[ing] ... crimes

against the United States.” 65 Accordingly, the Government possesses the expertise necessary to create and

maintain a terrorist watchlist.

Unheralded Power: “When an agency claims to discover

in a long-extant statute an unheralded power ...,

[courts] typically greet its announcement with a

measure of skepticism.” 66 For instance, in striking

W. Virginia, 142 S. Ct. at 2612–13 (cleaned up).

N.F.I.B., 142 S. Ct. at 665.

49 U.S.C. § 114(h)(2); cf. Pellegrino v. United States of Am.

Transp. Sec. Admin., Div. of Dep’t of Homeland Sec., 937 F.3d 164,

170 (3d Cir. 2019) (recognizing that “TSOs ... perform the screening of all passengers and property[ ] to protect travelers from

hijackings, acts of terror, and other threats to public safety”

(cleaned up)).

6 U.S.C. § 111(b)(1)(A).

28 U.S.C. § 533(1).

Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 324, 134 S.Ct.

2427, 189 L.Ed.2d 372 (2014) (cleaned up). But see Griswold v.

Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 14 L.Ed.2d 510

(1965) (discovering a substantive right to privacy in the long66

59a

down OSHA’s vaccine mandate, several Justices found

it “telling that OSHA, in its half century of existence,

has never before adopted a broad public health

regulation of this kind.” 67 Similarly, when the Center

for Disease Control and Prevention (“CDC”) imposed

an eviction moratorium, the Court noted that “no

regulation premised on [the statutory provision at

issue] has even begun to approach the size or scope of

the eviction moratorium.” 68

Tellingly, the Passengers also ignore this consideration, likely because the TSC has maintained the

watchlist for nearly two decades. 69 Before that, “nine

[ ] agencies maintained twelve different [ ] watchlists.” 70

Accordingly, the authority to create and maintain a

extant Due Process Clause because “specific guarantees in the

Bill of Rights have penumbras, formed by emanations from those

guarantees”).

N.F.I.B., 142 S. Ct. at 666 (Gorsuch, J., concurring) (“Section

655(c)(1) was not adopted in response to the pandemic, but some

50 years ago at the time of OSHA’s creation. Since then, OSHA

has relied on it to issue only comparatively modest rules

addressing dangers uniquely prevalent inside the workplace, like

asbestos and rare chemicals.”); see also BST Holdings, L.L.C. v.

Occupational Safety & Health Admin., United States Dep’t of

Labor, 17 F.4th 604, 619 (5th Cir. 2021) (Duncan, J., concurring)

(“OSHA issued it under an emergency provision addressing

workplace ‘substances,’ ‘agents,’ or ‘hazards’ that it has used only

ten times in the last 50 years and never to mandate vaccines.”);

Texas v. Becerra, 575 F. Supp. 3d 701, 715–16 (N.D. Tex. 2021)

(Kacsmaryk, J.) (“CMS itself admits that said statutory

provisions have never been invoked or used to implement a

vaccine mandate.”), appeal dismissed, No. 22-10049, 2022 WL

2752370 (5th Cir. Jan. 24, 2022).

Alabama Ass’n, 141 S. Ct. at 2489.

Kovac I, at 3.

Doc. No. 91 at 17.

60a

watchlist is not premised on a novel reading of a longextant statute.

Transformative Power Expansion: Courts distrust

an agency’s power grab if it “would bring about an

enormous and transformative expansion in [the

agency’s] regulatory authority.”71 Transformative expansions occur where an agency has “never before”

exercised such a “sweeping authority.” 72 For instance,

OSHA’s vaccine mandate constituted a transformative

expansion because it gave OSHA authority over the

medical decisions of “84 million Americans,” which was

“simply not part of what the agency was built for.” 73

The Passengers don’t attempt to argue that the

watchlist is a transformative power expansion, so

they’ve forfeited any such argument. On the arguments before it, the Court cannot conclude that the

watchlist is a transformative power expansion. The

watchlist existed for nearly two decades, and it drew

from “twelve [existing] terrorist watchlists.” 74

Fundamental Revision of the Law: Where a power

grab would constitute “a fundamental revision of the

statute” granting the agency power, courts conclude

that the asserted power “was not the idea Congress

Util. Air, 573 U.S. at 324, 134 S.Ct. 2427.

Florida v. Dep’t of Health & Human Servs., 19 F.4th 1271,

1303 (11th Cir. 2021) (Lagoa, J., dissenting); see also BST

Holdings, 17 F.4th at 619 (Duncan, J., concurring) (concluding

that OSHA lacked authority to impose a vaccine mandate where

“OSHA issued it under an emergency provision addressing

workplace ‘substances,’ ‘agents,’ or ‘hazards’ that it has used only

ten times in the last 50 years and never to mandate vaccines”).

N.F.I.B., 142 S. Ct. at 665 (cleaned up).

Doc. No. 91 at 17.

61a

enacted into law.” For instance, when the Department of

Education (“DOE”) authorized “$400 billion in student

loan forgiveness,” the Northern District of Texas

concluded that the DOE’s asserted authority would

effectively “rewrite title IV [ ] to provide for loan

forgiveness.” 76

The Passengers ignore this consideration, and for

good reason. Congress required the TSA and FBI to

identify individuals “with the capability and intent to

carry out terrorist ... acts” and to “carry out the most

effective method for continuous analysis and monitoring of” those individuals. 77 The watchlist implements

that grant of authority—it doesn’t revise it.

Unique Political History: Sometimes the subject

matter of an agency’s asserted authority has a “unique

political history” suggesting that Congress didn’t

grant the agency authority to regulate the matter in

question. 78 For instance, when the FDA regulated

tobacco products, the Court noted that Congress had

“created a distinct regulatory scheme for tobacco

products, squarely rejected proposals to give the FDA

jurisdiction over tobacco, and repeatedly acted to

preclude any agency from exercising significant

policymaking authority in the area.” 79

Predictably, the Passengers ignore this consideration. Congress didn’t create a regulatory system for

watchlists outside of the FBI, DHS, and TSA. And

instead of precluding those agencies’ involvement in

MCI Telecommunications, 512 U.S. at 231–32, 114 S.Ct. 2223.

Brown, 640 F.Supp.3d at 666 (cleaned up).

49 U.S.C. § 44904(a).

Brown & Williamson, 529 U.S. at 159, 120 S.Ct. 1291.

Id. at 159–60, 120 S.Ct. 1291.

62a

the watchlist, Congress has repeatedly ratified it. For

instance, Congress directed the TSA to “compar[e]

passenger information ... to the automatic selectee and

no fly lists.” 80 Likewise, Congress directed DHS, “in

consultation with the Terrorist Screening Center, [to]

design and review ... operating procedures for the

collection ... of data ... in the no fly and automatic

selectee lists.” 81 Accordingly, the political history

confirms that Congress authorized the watchlist.

In sum, while the watchlist’s political significance

makes it a major question, Congress clearly authorized the list and TSA’s use of it. Accordingly, the Court

rejects the Passengers’ major-questions argument.

B. Arbitrary and Capricious Review

The Court next analyzes the Passengers’ arguments

that (1) their alleged watchlist placement and (2) the

watchlist redress procedures are arbitrary and

capricious.

1. Alleged Watchlist Placement

The Passengers maintain that there’s no “reasonable basis for the Government to place them on the

watch list.” 82 Under arbitrary and capricious review,

agencies must “articulate a satisfactory explanation

for [their] action[s] including a rational connection

between the facts found and the choice made.” 83 The

Government has filed a classified supplement to its

briefing for the Court’s ex parte, in camera review,

49 U.S.C. § 44903(j)(2)(C)(i); see also id. § 44903(j)(2)(C)(v).

49 U.S.C. § 44903(j)(2)(E)(iii).

Doc. No. 96 at 24.

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)

(cleaned up).

63a

purportedly showing that, “to the extent that one or

more Plaintiffs was or is in the [watchlist] ..., any such

placements were supported by evidence.” 84

After carefully considering that classified information, the Court concludes that any challenged

Government action was neither arbitrary nor capricious. 85

And any agency making such a watchlist nomination

did not do so “solely based on race, ethnicity, national

origin, religious affiliation, or First Amendment

protected activities,” as the Passengers allege. 86

Accordingly, the Court GRANTS the Government’s

motion for summary judgment as to any placement on

the watchlist and DENIES the Passengers’ motion for

summary judgment as to any placement on the watchlist.

2. Redress Process

The Passengers complain that the redress process

for individuals who believe they are on the watchlist

does not provide such individuals “with any information about their apparent inclusion on the

[watchlist].” 87 Here’s why that could be relevant:

Congress requires the redress process to allow

passengers to “correct information contained in [a]

system” referred to as “the advanced passenger

prescreening system.” 88 Thus, the argument goes, an

Doc. No. 90 at 21. The classified information is securely kept

in a sensitive compartmented information facility—not in the

Court’s garage.

Nothing in this opinion should be construed as confirming or

denying the Passengers’ status on or off the watchlist.

Doc. No. 1 at 46.

Doc. No. 96 at 25 (emphasis omitted).

49 U.S.C. § 44903(j)(2)(C)(iii)(I); id. § 44903(j)(2)(C)(i)

(recognizing that the passenger prescreening system “allow[s] the

[DHS] to assume the performance of comparing passenger

64a

individual must know his watchlist status “in order for

an individual to correct erroneous information” in that

system. 89 The Government’s failure to provide the

Passengers’ watchlist status, they argue, is therefore

“arbitrary and capricious” in that it “entirely fail[s] to

consider an important aspect of the problem.” 90

But the Government has not failed to consider the

Passengers’ ability to correct information in the prescreening system. For instance, Passengers sometimes

experience enhanced screening when the Government

“misidentifie[s]” them because their “name is ... similar

to the name of a different individual who is included

in the” watchlist.91 Accordingly, the Government directs

individuals seeking redress to “produce ... at least one

piece of government-issued photo identification.” 92 In

such cases, photo identification allows the Government to

“prevent future misidentification by ... correcting

information in the traveler’s record.” 93

Further, the Government directs Passengers seeking

redress to provide any “exculpatory information.” 94

That too helps correct erroneous information, because

the “TSC reviews th[at] ... exculpatory information ...

to make a new determination as to whether the

information ... to the automatic selectee and no fly lists, utilizing

all appropriate records in the consolidated and integrated

terrorist watchlist maintained by the Federal Government”).

Doc. No. 96 at 25.

Motor Vehicle, 463 U.S. at 43, 103 S.Ct. 2856.

Doc. No. 91 at 64 (cleaned up).

Id. at 63.

Id. (emphasis added).

Id.

65a

individual continues to satisfy the standard for

inclusion in the [watchlist].” 95

But regardless, the Government declines to disclose

watchlist status for good reason. 96 Inclusion on the

watchlist hinges on “highly sensitive national security

and law enforcement information.” 97 Disclosure of that

information could provide terrorists “with valuable

insight into the specific ways in which the Government

goes about detecting and preventing terrorist attacks.” 98

Even “[c]onfirmation that an individual is not in the

[watchlist] would be of considerable value to terrorist

groups,” as it would allow them “to confirm which

individuals ... are more likely to evade detection and

escape scrutiny.” 99 Tellingly, courts have repeatedly

recognized the logic of that rationale. 100

Id. at 64–65.

Shrimpers & Fishermen of the RGV v. United States Army

Corps of Eng’rs, 56 F.4th 992, 996 (5th Cir. 2023) (recognizing that

an agency’s action is not arbitrary and capricious when the

agency “articulate[s] a satisfactory explanation for its action”

(cleaned up)).

Doc. No. 91 at 41.

Id.

Id. at 43.

See, e.g., Elhady v. Kable, 993 F.3d 208, 215 (4th Cir. 2021)

(“For example, if a terrorist group knew that some of its

operatives were not in the [watchlist], it could craft a plan sending

those operatives through an airport or border while helping other

members avoid detection.”); Gordon v. F.B.I., 388 F. Supp. 2d 1028,

1037 (N.D. Cal. 2005) (“Requiring the government to reveal

whether a particular person is on the watch lists would enable

criminal organizations to circumvent the purpose of the watch

lists by determining in advance which of their members may be

questioned.”); Wright v. Fed. Bureau of Investigation, No. 3:20-CV173-G-BN, 2020 WL 7345678, at *6 (N.D. Tex. Nov. 13, 2020)

(Horan, M.J.) (approving, in the context of a Freedom of

100

66a

In sum, the Government has implemented the

congressional mandate that passengers be able to

correct information in the prescreening system. But,

for good reason, it does so without divulging a

passenger’s watchlist status. The Passengers lodge

three main objections.

First, the Passengers attempt to shoot the moon,

maintaining that Congress’s information-correcting

requirement entitles them to even more information—

in particular, all “information [ ] in the [terrorist]

databases” concerning the Passengers. 101 But that

argument improperly conflates the prescreening

system with the Government’s terrorism database. The

prescreening system—the information of which the

Passengers are entitled to correct—is a system that

“compar[es] passenger information ... to the automatic

selectee and no fly lists, utilizing all appropriate

records in the ... terrorist watchlist.” 102 Because the

Government doesn’t import the entirety of the NCTC’s

terrorism database into the prescreening system,

Congress didn’t provide the Passengers free rein to

snoop through the terrorist databases.

Second, the Passengers cite Latif v. Holder, which

held that the Government’s redress procedure was

arbitrary and capricious as applied to individuals on

Information Act request, the FBI’s refusal to “confirm[ ] [ ]or

den[y] the existence of any watchlist information, because the

mere acknowledgment of the existence or non-existence of

responsive records would trigger harm”), report and

recommendation adopted, No. 3:20-CV-0173-G-BN, 2020 WL

7344707 (N.D. Tex. Dec. 14, 2020) (Fish, J.).

101

Doc. No. 96 at 25.

102

49 U.S.C. § 44903(j)(2)(C)(i).

67a

the “Mo–Fly [sic] List.” That case is inapposite. To

begin, Latif erroneously conflated the prescreening

system—which passengers are entitled to correct—

and the terrorism databases—which passengers have

no statutory right to correct. 104 Moreover, the court

didn’t mention any governmental explanation for its

nondisclosure of an individual’s No-Fly List status. In

contrast, the Government here provides swaths of

declarations explaining its rationale. Accordingly, the

Court declines to follow Latif.

103

Third, the Passengers note that the Government

informs passengers seeking redress of their No-Fly

List status. Because the congressional mandate for a

redress procedure is the same for individuals on the

No-Fly List and the Selectee List, the argument goes,

the Government’s disclosure to individuals on the

No-Fly List “highlights the illegality of its refusal to

provide other affected passengers with any information

at all.” 105

But the implied proposition in the Passengers’

argument is that an agency must afford every subset

of individuals the same level of redress procedures.

Tellingly, the Passengers provide no precedent demanding

such strict homogeneity. That’s probably because they

can’t. The APA only requires courts to confirm that

an agency has “a satisfactory explanation for its

103

28 F. Supp. 3d 1134, 1163 (D. Or. 2014).

Id. (requiring that a passenger be able “to correct erroneous

information in the government’s terrorism databases” (emphasis

added)).

104

105

Doc. No. 96 at 26.

68a

action.”

The Court declines to impose a one-way

ratchet on the Government.

106

Moreover, the Government has provided multiple

satisfactory explanations as to why it alerts individuals of their No-Fly List status. As courts have noted,

“[t]he No Fly List is the most restrictive category”

because individuals in that category may not board

“flights through U.S. airspace.”107 Thus, the Government

explains that the “enhanced procedures” for those on

the No-Fly List are “due to the substantially greater

imposition that placement on the No Fly List entails

for affected persons.” 108

Additionally, the Government notes that “a traveler

may receive heightened screening for multiple reasons,”

so heightened screening doesn’t effectively alert the

screened passenger that he is on a watchlist. 109 But

when the Government bars a person from boarding an

airplane altogether, the cat’s out of the bag. The barred

passenger all but knows he’s on the No-Fly List, so

there’s little point in the Government keeping up a

charade when the barred passenger seeks redress. In

contrast, “[t]he majority of passengers designated for

enhanced security screening are so designated for

reasons other than [watchlist] status,” so a person

subject to enhanced screening wouldn’t know whether

the Government suspects his involvement with

terrorist activities. 110

106

Shrimpers, 56 F.4th at 996 (cleaned up).

107

Elhady, 993 F.3d at 214.

108

Doc. No. 100 at 17.

109

Doc. No. 100 at 17.

110

Doc. No. 91 at 71.

69a

Because the Government’s redress procedure is not

arbitrary and capricious, the Court GRANTS the

Government’s motion for summary judgment as to the

Passengers’ APA claim concerning redress procedures

and DENIES the Passengers’ motion for summary

judgment as to the Passengers’ APA claim concerning

redress procedures.

III. Conclusion

The Court DENIES the Passengers’ motion for

summary judgment and GRANTS the Government’s

motion for summary judgment.

IT IS SO ORDERED this 9th day of March, 2023.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.