Or, they can sue. In April 2008 Erich Scherfen, a commercial pilot who converted to Islam, was told that his name appeared on a no-fly list. His company, Colgan Air, Inc. suspended Scherfen without pay the following month and told him that he’d be fired unless he cleared his name. Scherfen, a Gulf War veteran who served in the U.S. military for 13 years, called the American Civil Liberties Union, and the ACLU called Saul Ewing. The Philadelphia-based firm filed suit on behalf of Scherfen and his wife in August in federal court in Pennsylvania against the Department of Homeland Security and other agencies.
Amy Foerster was only in her second month as a Saul Ewing associate when she took Scherfen’s case. But coming from the Pennsylvania attorney general’s office, with a sister and brother currently serving in the U.S. military in Iraq and Afghanistan, she had courtroom skills and plenty of motivation to assist a veteran in need. After hearing dozens of stories about people wrongly included on the no-fly list, Foerster was surprised to learn how little litigation it had spawned. “Most people just suffer through it,” she says.
Colgan allowed Scherfen to return to work less than two weeks after Foerster filed her suit, but the litigation continues. The defendants, which include Homeland Security, asked the court to dismiss the suit on the grounds that it lacked jurisdiction and that no rights were violated because Scherfen kept his job.Foerster countered that Scherfen, who first learned that he was subject to added scrutiny in 2002, never received an explanation for his inclusion on the list, nor any assurance that he is no longer listed. She wants the court to allow her to engage in discovery, and she believes that Scherfen and his wife are entitled to a full hearing that would allow them to clear their names.
As of March 2009, the terrorism watch list included over 1 million names. “This case is not about challenging the existence of these lists, or the government’s right to scrutinize passengers,” says Foerster, who has spent more than 250 hours on the case (the firm has contributed 432 hours in total). “But there has to be an effective way for people to find out why they’re included.”
