What do you do if you're on the no-fly list but you think you shouldn't be?
That's a fairly substantial question. Not for those of us off the list, obviously. But for those on it, it's huge. Imagine not being able to fly. At all. That's a big deal.
Congress has set up a procedure to deal with this problem. Basically, after you're denied boarding, you write a letter saying that you don't think you should be on the list. Then the FBI, through one of its many agencies, will check out your letter and the list and decide whether they feel like granting you relief.
If it's an obvious mistake, presumably, they'll correct the problem. But lots of times -- including with every one of the plaintiffs in this case -- they just send you a letter. A letter that says, essentially: "We are not going to tell you whether you're on the list or off the list. But we've done whatever we feel like doing. Have a nice day."
So plaintiffs here sue. Raising procedural challenges -- e.g.,"Come on, you've got to let us at least challenge our inclusion on the list, including at least telling us whether we're in fact on it or not" -- as well as (most likely) substantive ones (i.e., "Remove us from the list.").
The resulting fight in the Ninth Circuit largely revolves around procedural questions. First, did the plaintiffs make a substantive challenge? Footnote five of the opinion calls the complaint "far from a model pleading" on this point. But to get a true tenor of what the panel means by this, listen to the oral argument. To say that both sides -- especially the government -- get beat up by the panel is to radically understate the case. Whew. Glad that wasn't me. Brutal.
But the larger issue is whether, under the statute, the case belongs in the district court or must be brought directly in the Court of Appeals. The court below held the latter, thereby dismissing the case for want of jurisdiction, and the Ninth Circuit reverses.
The most interesting substantive portion of the Ninth Circuit's opinion is the first sentence of its final paragraph, in which the panel says: "At oral argument, the government was stymied by what we considered a relatively straightforward question: what should United States citizens and legal permanent residents do if they believe they have been wrongly included on the No-Fly List?" When I read this, I too was shocked by this preparatory oversight. How could the DOJ attorney not have a ready answer to such an obvious question?
But I got to tell you: I'm not sure this is a completely fair recitation of the oral argument. The DOJ attorney did indeed get beat up on a ton of points. Especially with respect to questions about the operative complaint. Ouch. On that, the DOJ lawyer was clearly fighting a losing battle, and not only did it show, but Judge Kozinski (in particular) wasn't shy about saying so in particularly unreserved language.
But as to the proper procedure, I thought that the DOJ lawyer did indeed answer the question, and did so in a straightforward fashion. He said: "Under the statute, you get your letter, and within 60 days you file an action in the Court of Appeal. Just like you do so to challenge many other administrative decisions."
That's an answer. Maybe it's right. Maybe it's wrong. But it's not symptomatic of being "stymied" by the question. Could the DOJ lawyer have perhaps gotten their a bit more clearly? Maybe. But truth be told, it came out pretty quickly and forthrightly. Especially since the procedural nature of this case doesn't really raise this precise issue.
Now, at oral argument, the panel did a pretty good job of identifying some of the problems with that answer. For example, what's the record, beyond the mere letter that (essentially) says nothing. The DOJ attorney (Joshua Waldman) doesn't have great answers to that question -- he says that maybe there will be in camera submissions or something like that -- and those answers aren't especially strong.
But the truth of the matter is, if he was honest, Mr. Waldman's most accurate response might well be: "I know you don't have witness boxes and the like, Judge Kozinski, so I'm sure it will be a hassle for you to have original jurisdiction, but that's what Congress wants. Even if its a stupid idea, Congress is entitled to pass stupid jurisdictional rules (and often does)." You could see why he might not want to make such a statement, however accurate. (Were I the DOJ lawyer, by the way, I would have something like said: "This is the same problem the United States Supreme Court faces in analogous cases in which Congress has granted them original jurisdiction. Maybe you appoint a special master, like they do. It's as workable in the Court of Appeals -- perhaps even more so -- than in the Supreme Court.").
Nonetheless, you see where the panel's coming from. We can all imagine ourselves, in a parallel universe, on the no-fly list. And it just doesn't seem like a tenable situation to have the United States say: "If you're on the list, even if we're wrong, there's nothing you can do about it. We're in charge."
Some people might effectively support such a position. But you can see why lawyers and judges, especially those concerned about individual liberties -- even in a time of (unending) war -- might perhaps find such an answer unconvincing.
