By Keith Laing - 07/26/12 10:00 PM EDT
But Circuit Court Judge Richard Tallman ruled on Thursday that TSA could not have been a plaintiff in the case.
"The district court dismissed the case, holding that TSA is a necessary party to the litigation because plaintiffs challenge the adequacy of TSA’s grievance procedures..but that TSA could not feasibly be joined in the district court due to 49 U.S.C. § 46110, which grants federal courts of appeals exclusive jurisdiction to review TSA’s final orders," he said.
The ACLU, which is based in New York, argued in its petition to the appeals court that "the government itself admitted that the Transportation Security Administration plays only a ministerial role, and it is the Terrorist Screening Center that makes the decision to put people on the No-Fly List or remove them."
Tallman agreed with the group's position Thursday.
"TSC develops and maintains the List," he wrote. "The National Counterterrorism Center and the FBI submit nominations of known and suspected terrorists, and TSC then decides who to include on the List based on classified intelligence. TSC subsequently provides the List—which contains only sensitive, unclassified identity information, not the underlying classified intelligence information—to TSA, which in turn implements the List at the airport."
The lawsuit that is being allowed to proceed was filed by a group of Muslims who are either U.S. citizens or have been granted permanent residency.
TSA says on its website that passengers who are prevented from boarding airplanes by its "Secure Flight" program can easily appeal their inclusion on the "no-fly" list.
"Any passenger who believes he/she has been delayed or denied boarding or delayed or denied entry into the United States at a port of entry may seek redress through the Department of Homeland Security (DHS) Traveler Redress Inquiry Program (TRIP) at www.dhs.gov/trip," the agency says on its website.
The ACLU lawsuit alleges that it is much harder to challenge a placement on the list.
The suit names Attorney General Eric Holder, FBI Director Robert Mueller and TSC Director Timothy Healy as defendants.
The case will now be decided by a three-judge panel.
The full ruling can be read here.