Saad bin Khalid, a U.S. citizen of Pakistani descent, has been on the Transportation Security Administration's No Fly List since 2019, barring him from boarding commercial aircraft in U.S. airspace. After being prohibited from boarding a flight from Pakistan to the United States, Khalid utilized the Department of Homeland Security Traveler Redress Inquiry Program (DHS TRIP) to challenge his designation. The DHS TRIP process involves a multi-stage review where the TSA confirms the listing, provides an unclassified summary of the evidence, and allows the traveler to respond. Despite Khalid's submissions asserting his innocence and explaining his past interactions with the FBI, the TSA Administrator issued a final order in June 2022 maintaining his placement on the list, citing concerns about his association with a known terrorist organization and his candor during a 2012 interview. Khalid subsequently petitioned the D.C. Circuit for review, raising statutory and constitutional challenges to both his placement and the adequacy of the redress process.
Circuit Judge Pillard, writing for the panel, addressed four primary legal issues. First, regarding the claim under the Religious Freedom Restoration Act (RFRA), the court found Khalid lacked standing. The court explained that to show an injury in fact based on future harm, a petitioner must demonstrate that the threatened injury is 'certainly impending.' Because Khalid currently resides in Pakistan and offered no concrete plans to travel to Saudi Arabia via U.S. airspace, his claim of injury to his religious exercise was speculative. Second, the court rejected the substantive due process claim, noting that while Americans have a right to travel, this does not extend to a fundamental right to travel by airplane, as other modes of travel remain available. Third, on procedural due process, the court applied the Mathews v. Eldridge balancing test. It weighed Khalid's private interest against the government's interest and the risk of error. The court concluded that the DHS TRIP process, which includes an unclassified summary and an opportunity to respond, is constitutionally adequate given the 'compelling interest' in national security and the inability of alternatives to be 100 percent effective. The court also clarified that reputational harm alone does not constitute a 'liberty' interest without the loss of a recognized legal right. Fourth, the court addressed the arbitrary and capricious challenge. It held that judicial review of factual determinations in national security contexts is highly deferential. The court found the TSA Administrator's decision supported by substantial evidence, as it closely tracked the recommendations of the Threat Screening Center, the entity most competent to assess intelligence. The court also rejected the argument that the 'major questions doctrine' applied, finding that Congress had expressly authorized the TSA to prevent individuals posing a threat to aviation safety from boarding aircraft under 49 U.S.C. § 114(h)(3). Finally, the court granted the government's motion to maintain the non-public portion of the administrative record under seal, relying on the law enforcement privilege and the executive branch's control over classified information.
The petition for review is denied, and the TSA Administrator's order keeping Saad bin Khalid on the No Fly List remains in effect. The petitioner remains barred from boarding U.S. commercial aircraft pending any future administrative action by the TSA. The decision reinforces the high deference courts afford to the TSA and the Threat Screening Center in national security matters and clarifies the strict standing requirements for RFRA claims involving future travel plans. It leaves open the question of whether the DHS TRIP process provides sufficient process in cases where the underlying intelligence is entirely classified, but confirms that the current procedure meets constitutional minimums.
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