In a decision likely to impact foreign nationals as well as airlines, airports, and related insurers, the 9th Circuit Court of Appeals recently affirmed a lower court ruling which held that a Malaysian citizen studying in the U.S. has legal standing to sue in U.S. courts to challenge the mistaken presence of her name on the No-Fly List.  Rahinah Ibrahim, a Malaysian national and university professor, had earned her Ph.D. studying at Stanford University from 2001 – 2005.  Following a Stanford-sponsored presentation she attended in Malaysia in early 2005, Ibrahim was prevented from re-entering the U.S. after being informed that her name appeared on the No-Fly List.  Unable to resolve the error with the TSA, she brought suit in U.S. Federal Court, seeking damages, and alleging her First and Fifth Amendment rights were violated.  She also sought injunctive relief to have her name immediately removed from the No-Fly List.

The Department of Homeland Security and other federal agencies named as defendants moved to dismiss, arguing that Ibrahim lacked standing under Article III of the Constitution, as well as in her ability to assert First and Fifth Amendment claims from abroad.  Applying the criteria for standing contained in the U.S. Supreme Court’s 2000 Friends of the Earth decision (528 U.S. 167 (2000)), the Ninth Circuit found that Ibrahim had standing to sue under Article III, as (a) being named on the No-Fly List was an injury, (b) a favorable judicial decision (i.e., a court order that her name be removed from the No-Fly List) would in fact redress those injuries, and (c) that her alleged injuries were not hypothetical just because she has no immediate plans to travel to the U.S.  As to the First and Fifth Amendment claims, the Court found that Ibrahim did not leave her constitutional rights “at the water’s edge” when she departed and had the right to assert the claims because of her “significant voluntary connection” to the U.S. established over four years studying at Stanford.  This was noteworthy considering her actual status as a foreign national who was no longer physically present in the U.S.

Of particular note for foreign nationals was the court’s recognition of the far reaching impact of appearing on the No-Fly List.  “The No-Fly List prevents her boarding any U.S. carrier, whether or not a flight departs from or lands in the United States.  It also prevents her from flying over U.S. airspace.”  Further, the court found evidence that the No-Fly and other government watchlists are shared by the U.S. with 22 foreign governments, making it reasonable to infer that Ibrahim “will suffer delays (or worse) when travelling abroad, even on foreign carriers, resulting from the presence of her name on the No-Fly List.”

Click here to read the decision.