A federal judge in Portland dismissed a lawsuit against the federal government that challenges the constitutionality of the "No-Fly List," saying she lacks the authority to hear the case.



U.S. District Judge Anna Brown said the challenge filed by the American Civil Liberties Union on behalf of a Portland imam and 14 other plaintiffs must be heard by an appeals court.



Congress has already mandated that orders by the Transportation Security Administration are reviewable only on the appellate level, she wrote. Although the TSA is not one of the three agencies named as a defendant, Brown found that the agency is in fact an "indispensable party without whose presence this action cannot proceed."



The decision is a blow to the ACLU, which had argued the TSA should not be a defendant. Ben Wizner, an attorney for the ACLU Foundation, said the agency lacks the power to add or take someone off the No Fly List -- the government's roster of individuals barred from flying because they are perceived as a terrorism threat.



Rather, the TSA only handles the mechanics of processing complaints from people who believe they may be on the list and seek removal. It is up to the Terrorist Screening Center to make the decision of whether to include or delist someone, he said.



Wizner said the ACLU will appeal Brown's decision. The lower court, which can receive evidence and develop a factual record, is the appropriate venue, he argued, instead of the appeals court, which is set up to review facts that have already been established.



"Our real disappointment is for the plaintiffs who have been unable to fly and have been given no reason or explanation," said Wizner.



A spokesman for the US Department of Justice declined to comment.



The lawsuit, originally filed in June 2010, alleges that 15 people -- all U.S. citizens or lawful permanent residents --have been unconstitutionally barred from air travel without warning and without an adequate way to contest their inclusion on a no-fly list. The actions violate their Fifth Amendment due process rights, the complaint contends.



Some of the plaintiffs, who include U.S. military veterans, did not know they were on the government's no-fly list until they were blocked from returning home from overseas trips, the complaint says. They have not been given reasons for why they were barred and don't know if they will be denied boarding in the future, the complaint states.



The plaintiffs include Mohamed Sheikh Abdirahman Kariye, the religious leader of the Portland area's largest mosque.



The lawsuit names the heads of the U.S. Justice Department, Terrorist Screening Center and Federal Bureau of Investigation as defendants.



-- Helen Jung

