Background
Halil Demir, a naturalized U.S. citizen and executive director of the Zakat Foundation of America, alleged that the Transportation Security Administration had subjected him to unusually extensive airport screening since 2016. Believing that he had been placed on the FBI’s Terrorist Watchlist and its Selectee List subset, Demir submitted five inquiries through the Department of Homeland Security’s Traveler Redress Inquiry Program, known as DHS TRIP. The government closed the inquiries with boilerplate responses that neither confirmed nor denied his watchlist status.
Demir sued federal officials under the Fifth Amendment and Administrative Procedure Act. He challenged both his initial and continued inclusion on the Terrorist Watchlist and Selectee List and the adequacy of DHS TRIP itself. The district court dismissed the entire complaint for lack of subject-matter jurisdiction, concluding that 49 U.S.C. § 46110 required Demir to bring his claims directly in a federal court of appeals because they concerned TSA orders.
The Court’s Holding
The Seventh Circuit reversed the dismissal of Demir’s challenges to his inclusion on the Terrorist Watchlist and Selectee List. Section 46110 did not apply because the FBI-administered Threat Screening Center—not TSA—controls placement and continued inclusion on those lists. A court of appeals exercising direct review under § 46110 could review orders of TSA and other listed agencies but could not bind the Threat Screening Center or provide Demir’s requested remedy of removal from the lists. Those claims therefore could proceed initially in district court.
The court affirmed dismissal of Demir’s separate challenge to DHS TRIP. Applying circuit precedent construing “order” broadly to include agency actions reviewable on an administrative record, the court held that DHS TRIP qualifies as an order under § 46110. Demir therefore must challenge that program in a court of appeals in the first instance. In a concurrence joined by the full panel, Judge Scudder questioned whether precedent’s broad interpretation of “order” is consistent with the statutory text but agreed that stare decisis required the result.
Key Takeaways
- Challenges to placement or continued inclusion on the Terrorist Watchlist and Selectee List begin in district court because the Threat Screening Center, not TSA, controls those lists.
- A challenge to DHS TRIP itself must be filed directly in a court of appeals under 49 U.S.C. § 46110.
- Related watchlist and redress-program claims may have to proceed in separate courts even when they arise from the same facts.
Why It Matters
The decision clarifies the jurisdictional path for travelers contesting federal watchlisting practices in the Seventh Circuit. Litigants must identify which agency controls the challenged action: substantive challenges to Terrorist Watchlist or Selectee List status belong in district court, while programmatic challenges to TSA’s redress process belong initially in an appellate court.
The concurrence also highlights a potential issue for Supreme Court review: whether § 46110’s reference to an agency “order” should encompass generally applicable regulations and procedures such as DHS TRIP.