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Case number 17-1213, Nadia Pinkovic-Matar, Petitioner versus Transportation Security Administration.

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Mr. Zell, the petitioner.

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Mr. Hinchelwood, the respondent.

[00:00:29] Speaker 05:
Good morning, Your Honors.

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May it please the Court.

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My name is Mark Zell.

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My colleague, Noam Shriver, advocate, and I have come here from Jerusalem on behalf of petitioner Nadja Pinkovich Matar, an Israeli and Belgian dual national who's resided in Israel for several decades, together with her American husband David Matar and her six children and a bunch of grandchildren.

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Unfortunately, as much as she would have liked, Nadia Mathar cannot be here today because her name may or may not appear on a federal watch list, specifically the no-fly list.

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Your Honors, Congress authorized the executive branch through the Respondent Transportation Security Administration to create and administer an advanced passenger pre-screening system, and with it the no-fly list,

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to protect this country from terror and other national security threats.

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Ms.

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Mattar, and I have to emphasize this, has not and has never been a terrorist, nor is it even conceivable that she could be considered a national security threat.

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I've known her for 30-odd years.

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To be clear, neither this petition nor the TSA trip travel and address inquiry program that we're discussing here today

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has to determine whether Ms.

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Mattar is a terrorist or whether she was properly considered a national security threat.

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No, Ms.

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Mattar initiated this proceeding, Your Honors, for the sole purpose of learning whether her name is or ever was on a federal watch list.

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And, Your Honors, if so,

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just a simple explanation as to how that could have occurred.

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So that she might at some point decide whether or not

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she can take remedial action to correct what she would consider, and I would consider, a serious injustice.

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Now, Your Honor's Congress... Can I just start you on something that's a little more boring, unfortunately, which is the date on which the petition was filed?

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So there's a 60-day period.

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I think everybody understands there's a 60-day period.

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Correct.

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And everybody also understands that it was filed beyond 60 days.

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It was filed exactly two days beyond the 60 days, depending how you calculate the date that the 60-day period runs, Your Honor.

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And that's what we've discussed here.

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Judge Henderson wrote in her opinion in Navy Dynamics, I think the definitive

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interpretation of what the Section 46-110, what it says in terms of the beginning of this 60-day period, that period runs when the agency action has issued.

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Now, what does that mean?

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Does it mean, as the government apparently contends in this case, that it's the date that actually appeared on this letter that arrived in Israel on August 13th, or is it the date on which

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the petitioner received that, actually got notice of this proceeding on August 13th, or the date, as some have suggested, when the decision was mailed by the TSA.

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Now, I don't want to burden the Court today with an elaborate esoteric discussion about

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Actual notice and private communications.

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We've discussed that in our brief Let us assume for the sake of this discussion today that the appropriate standard is as the first and 11 circuits have suggested When that the 60-day period runs when the decision is sent that is mailed now we have a curious position by the TSA on this and

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That, by the way, the court can take judicial notice of the fact that the decision, the date of the decision, the date on the actual non-response, the issuer in this case, is 28 July 2017.

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That was a Friday.

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Now, Your Honors, the TSA has yet to provide us with any information, any clue

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as to when that decision was actually mailed.

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Because if it was mailed, for example, on the next work day, which I believe was a Monday, then the 60-day period would have run from that time.

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And you're honest, we would have been within the 60-day period when we filed our petition for review on September 28, 2017.

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Now, what is it?

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A postmark would have told us, right?

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Postmark would have told us.

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And what does the TSA tell us about this?

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Because we can't find the envelope, the client who received the document.

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By the way, it was never sent to me.

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You'll notice from the record that I was listed in, and it was very clear to the TSA that I was attorney of record in this case from the very beginning.

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I'm not even listed on any of the preliminary documents.

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And they never bothered to send the letter to me.

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So I could have preserved it at Postmark, which I normally would do in my office.

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But I'll tell you, what happened in this case is the petitioner discarded the envelope, and the government is saying, well, you don't have the envelope, you haven't met your burden to prove you met the 60-date rule.

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Well, I think that's a little bit backwards, Your Honors.

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I think the proper approach in this case is that where the party that has control of the information, I mean, they should know when they mail a decision.

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They should have a record in it, just like

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the Fourth Circuit case that they cite in their brief, the Skyline Drives case, where the FAA had an elaborate system of recording and entering exactly when their decisions were not only entered but mailed.

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And they even issued certificates to that effect.

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Now, I bet

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I bet anything that the TSA does have such a record.

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And the fact that they haven't produced it in this case, information that they, because the repositories of that information did not preserve or not present in this court, I think there's an inference that they did not mail that decision on that Friday and may have mailed subsequent to that, in which case we're okay under the 60-day rule.

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But even if, and again, the time is limited, so with your permission, I'll move on to the merits of the case.

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Your Honors and Judge Edwards, in his opinion, two opinions really, one in Olivares and the other in Amerijet.

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made it very clear that under the Administrative Procedure Act, it is the solemn duty of a federal agency to articulate the grounds for their decision so that the recipient can understand the basis for the reasoning, if any, by the agency and take remedial action.

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Your honors have read the letter in this case, a standard form letter that the TSA routinely distributes to all applicants under the TRIP program.

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And that letter is a non-letter.

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It says absolutely nothing.

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Now, Your Honors, that does not comport with Section 555 of Title V under the Administrative Procedure Act.

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It doesn't constitute proper decision-making, in fact, arbitrary and capricious.

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under section 706?

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It's hard to say it says nothing because it at least tells you that, or your client, it at least tells the audience that the request was received and that to the extent that there had to have been actions taken necessary in response to it, that those actions were taken.

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I mean, it does tell you something.

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Now, I know you think that that's not much.

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Well, I think that's not much.

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I think that's nothing.

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Particularly, Your Honor, when you consider the considerable effort to which Congress went to emphasize the importance of

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Offering a system of redress for persons who agree to believe that they're agreed by this system by this watch list system It can you tell us what exactly so there's been a several kind of injuries that have been spelled out in the briefing

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What's the injury?

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I think the key issue, there are several, all of which would sustain standing under Article III for the petitioner in this case.

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But the key one is informational injury.

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Because these statutes, and there are four of them, no less than four under the various statutes at issue in this case in which Congress has mandated that the

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that the agency adopt a system for redress to allow persons who believe that they're injured to appeal.

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That's the language of the statutes, and it appears four times.

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Does it ever include anyone other than a U.S.

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citizen or a permanent legal resident?

[00:10:14] Speaker 05:
It does not, that's an excellent question because it doesn't distinguish at all between U.S.

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citizens or U.S.

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persons and foreign claimants, at all.

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Then Congress does know how to do that.

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I mean, we know, for example, under the Privacy Act, all right, that Congress made a very clear determination that individuals, only individuals who are U.S.

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persons can take advantage of that statute.

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But in this one, absolutely no determination, no distinction was made by Congress between foreign national travelers and U.S.

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person travelers.

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Now, TSA, in its inevitable wisdom, and this is important because in response to litigation that has been spawned around the country in the Ninth Circuit and the Sixth Circuit and the Fourth Circuit, the TSA changed its policy here and specifically authorized the release of the very information that Najib Mattar, in this case, is requesting.

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Is she on the list?

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Was she ever on the list?

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And a simple reason why.

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Which is the statutory language that actually entitles somebody to know that?

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Because there's statutory language that entitles, that at least creates a regime under which a person can appeal a determination and seek to have information corrected.

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But I guess I didn't see statutory language that actually gives somebody an entitlement to know whether they're on a list.

[00:11:51] Speaker 05:
Well, Your Honor, both in Section 44-903, twice, in Section 44-926, 44-909, the Congress said you've got to set up a system.

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Let's just look at what it says in 44-926.

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or 44903J2GI.

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Executive Salis-Salas, a timely and fair process for individuals identified as a threat to appeal to the TSA the determination to correct any erroneous information.

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Now, that's the language that we're relying on here.

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How does an ordinary traveler, US person or foreign national, make an appeal and ask for the rectification of an erroneous classification

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on one of these watch lists unless that person knows and is told that she's on the list and some reason why.

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And that's the reason why cases in other circuits, Your Honor, have ruled that the TSA must comply with this as a matter of due process and under the APA.

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Now, we suggest... With respect to non-citizens?

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They've only adjust the rule with respect to US persons.

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However, Your Honor, where does the TSA get the basis, the authorization, to distinguish between foreign and US travelers?

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It's not in the law.

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In fact, when you look at the legislative history in this case, and particularly a report that the

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DHS security privacy officer issued in response to a statutory mandate back in 2006, which is the predicate for what happened in the enactment of Section 44926A in 2007, that report stated unequivocally

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that without any distinction between US person travelers and foreign travelers, that the protection, I think I'm quoting now correctly, of a robust and effective appeal procedure is essential as a matter of fundamental due process.

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And I'm talking about the Fifth Amendment here.

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I'm talking about basic values that are essential to our American democracy.

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So there's no basis, I maintain, at all,

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in the law under which TSA is operating and created the trip system to distinguish between foreign and U.S.

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travelers.

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None.

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And the decision by TSA to adopt such a distinction, in my view, is the height of arbitrariness.

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This case, Your Honors, will be the first time

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that a court will specifically be asked to address the issue that I'm putting before you today, that Ms.

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Mattar is putting before you today.

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And we ask, Your Honors, that this circuit adopt a rule that makes it clear that TSA, what's good for the U.S.

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traveler and the U.S.

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permanent resident traveler, is also good and appropriate for a foreign traveler, and there's nothing

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in the underlying legislation that requires any different conclusion.

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I see my time is up.

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I'll reserve what I remain over it, and I think I reserve a couple minutes for rebuttal.

[00:15:27] Speaker 00:
Thank you, Ron.

[00:15:36] Speaker 03:
Good morning, Your Honors, and may it please the Court, Brent Hinchwood on behalf of the TSA.

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I'd like to begin by addressing the threshold issues in this case, both timeliness and standing.

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Ms.

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Matar's standing allegations focus on her purported presence on the no-fly list and the fact that she believes that prevents her from flying to the United States.

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Those allegations, or that assertion, is speculative in at least three respects, and the combined effect of that, of the speculative nature of each of those steps

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leaves Ms.

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Matar without standing to press this petition.

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First, she contends that in 2013, she was advised that she was on a watch list by a Canadian official, and in response to that statement, and advised not to enter the United States, and in response to that statement, she canceled her ticket and went back to Israel.

[00:16:21] Speaker 03:
So on her own allegations, she's never been denied boarding on a flight.

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She's never been told she's on the no-fly list.

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even at that one incident in 2013.

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In the ensuing five years, she alleges no additional travel difficulties or other challenges that would suggest any injury or any presence on the no-fly list.

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And since that time, she's gone through the DHS TRIP redress procedure, and at the conclusion of that procedure, she was informed

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that DHS, TSA, and other federal agencies had taken appropriate steps to make any necessary corrections to federal records that were brought to light by her redress request, and she has not attempted to fly since that time.

[00:17:02] Speaker 02:
So if we put aside the five years and her

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petition to make use of the trip request.

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So if we just go back to 2013 and she brought her claim right after she got the advice from the Canadian official, you'd still be arguing that there's no standing.

[00:17:22] Speaker 03:
Yes, Your Honor, but the fact is that that alone isn't the issue here.

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And what would that be based on?

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Again, the fact around her that she's never been told that she's on the no-fly list and has never been denied boarding on a flight.

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But she was told by a Canadian official.

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That she was on a list, an unspecified list, and that she was advised not to enter the United States.

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And she's never alleged that she was actually denied boarding or that she was told she was on the no-fly list.

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And that alone, Your Honor, I think would underline a standard risk today.

[00:17:49] Speaker 02:
Well, is extra screening not enough?

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Suppose that that happened.

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Is extra screening not enough to create an injury?

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Your Honor, those are two different lists.

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There's a selectee list for individuals who are subject to additional screening, and then there's a no-fly list.

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And so if the injury, as she's repeatedly alleged, is their inability to fly to the United States, extra screening would not affect.

[00:18:06] Speaker 02:
But extra screening could be an injury.

[00:18:08] Speaker 03:
Your Honor, perhaps, but that's not presented here because there's no allegation that she's ever suffered heightened screening, and that would be a separate and distinct injury from the one she's actually claiming this petition, which is inability to fly to the United States.

[00:18:23] Speaker 04:
Well, I'm a little perplexed.

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You say that there is a redress procedure that's in place.

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And if a person has

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some fair indication from, even though it's Canadian, Canadian officials, you're on a no-fly list, and there is a redress procedure in place to assist people, whether it's five years later or not, how can that person not get an answer, at least, that you're not on any list?

[00:18:54] Speaker 03:
Well, your honor, I want to separate out two separate things.

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One is as to standing that suggestion goes only to whether or not this is a purely procedural harm, which we think it is the assertion that they go with my assumption.

[00:19:06] Speaker 04:
I think they're standing.

[00:19:07] Speaker 04:
Okay.

[00:19:08] Speaker 04:
So how does that person not have a right?

[00:19:12] Speaker 04:
Given the argument you're advancing, which seems to be kind of a ho-hum, what's the big deal here?

[00:19:18] Speaker 04:
Well, the big deal is she was told by a government official, albeit a Canadian, that she's on a no-fly list, and then when she does get around to asking,

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And your whole answer is, no one has ever said she's on the list.

[00:19:30] Speaker 04:
Well, she asked, am I on the list?

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A government official says I was.

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The answer she gets is we're not telling you anything.

[00:19:36] Speaker 03:
But two answers, sir.

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One, I want to just be clear.

[00:19:39] Speaker 03:
She was not told or allegations or she was not told whether she was on the no fly list.

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She was just told she was on a list.

[00:19:44] Speaker 03:
Okay.

[00:19:45] Speaker 03:
So that bracket that list, which the Canadian officials said that you can't fly.

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said she was advised not to enter the United States, and whatever that means.

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Not to fly.

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We honor certainly ambiguous events.

[00:19:57] Speaker 04:
I think it's a very unreasonable position for the government to suggest what you're quibbling over nonsense.

[00:20:03] Speaker 04:
She was told, don't fly.

[00:20:05] Speaker 04:
These are average people who are looking to get somewhere, and they're told by an official, no, you can't do this.

[00:20:15] Speaker 04:
That means you can't fly.

[00:20:17] Speaker 04:
OK, forget the five years.

[00:20:19] Speaker 04:
Now she asks.

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She's being responsible.

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She's assumed she can't fly.

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Now she says, I just don't get this.

[00:20:27] Speaker 04:
And she asked, why are you so comfortable in saying it's OK for us, in light of the fact that Congress set up a redress system, it's OK for us to say, we're not telling you anything.

[00:20:39] Speaker 03:
Because, Your Honor, Congress also tasked TSA with protecting transportation security, specifically aviation security, and delegated authority for the agency to promulgate regulations addressing sensitive security information.

[00:20:50] Speaker 03:
TSA has done that here.

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It's designated a person's presence or absence on a watch list as being SSI.

[00:20:56] Speaker 04:
I hear you.

[00:20:58] Speaker 04:
and you give more to U.S.

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citizens, which suggests that U.S.

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citizens can be terrorists too.

[00:21:04] Speaker 04:
So you've got a little bit of a stumble there, but forget that for a minute.

[00:21:11] Speaker 04:
I don't know how that gets you to your comfort level on security as being the answer if you're talking about a person who's not on any list.

[00:21:21] Speaker 04:
How does it hurt U.S.

[00:21:22] Speaker 04:
security to say to a person who was told you can't fly

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who thinks I'm on a no-fly list because a government official said so.

[00:21:33] Speaker 04:
No, you're not.

[00:21:35] Speaker 04:
Now, how does that hurt government security?

[00:21:37] Speaker 04:
I mean, just for my edification.

[00:21:38] Speaker 03:
Your Honor, it's the same rationale that animates any sort of response to this nature, which is that if an organization, for example, a terrorist organization, were to submit redress requests on behalf of all of its members, they could ascertain which members are or are not on the list.

[00:21:52] Speaker 03:
And so confirming one way or the other necessarily reveals information about what the US government knows or does not know about a particular organization.

[00:22:00] Speaker 04:
It's solely a situation, hypothetically, where someone has been denied

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flight opportunity and is handicapped and wants to know, I don't know what's going on.

[00:22:12] Speaker 04:
It's not a terrorist organization sending in a list of 50 people.

[00:22:16] Speaker 04:
Can you run this one down?

[00:22:18] Speaker 04:
Tell us who is and is not on the list.

[00:22:20] Speaker 04:
it's an individual person who's been denied the right to fly, and there is a redress, and they say, I don't understand what's going on.

[00:22:28] Speaker 04:
If the answer is you're not on any list, I don't understand how that involves security concerns.

[00:22:35] Speaker 03:
Again, Your Honor, for the same reasons that any other response of that nature, that any other sort of Glomar type response operates.

[00:22:40] Speaker 04:
Well, then Congress would not have promulgated a redress system.

[00:22:44] Speaker 03:
I don't believe that's true, Your Honor.

[00:22:45] Speaker 04:
And we wouldn't have reached the decision we reached with respect to US

[00:22:50] Speaker 04:
citizens and residents that you've got to respond because the law requires a response.

[00:22:55] Speaker 04:
Two points, Your Honor.

[00:22:56] Speaker 03:
Both the APA and the Constitution.

[00:22:58] Speaker 03:
As to U.S.

[00:22:59] Speaker 03:
persons, the TSA and DHS promulgated new regulations to address those individuals to address concerns about due process and the Fifth Amendment rights those individuals have.

[00:23:11] Speaker 03:
And so the fact that TSA was sensitive to and took action

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to address concerns of that nature, says nothing about the type of process that's due to non-U.S.

[00:23:21] Speaker 03:
persons outside the United States who do not have Fifth Amendment rights.

[00:23:24] Speaker 03:
Now, and as to whether Congress would have provided for such a thing, the point is that any rights Ms.

[00:23:29] Speaker 03:
Matar has are congressionally conferred, and you have to read them in context of the entire statutory delegation to TSA

[00:23:35] Speaker 03:
and DHS to establish this procedure.

[00:23:38] Speaker 03:
The statutory text provides for no particular set of procedures that must be followed, and it also comes with the specific delegation to protect information relevant to transportation security, which TSA has done, and a regulation that is not challenged

[00:23:55] Speaker 04:
There is no specific delegation to do what you're doing.

[00:23:58] Speaker 04:
It's interesting, agencies always use this argument.

[00:24:00] Speaker 04:
We've seen it in the APA cases that are legion, an agency that is not specifically barred from doing something.

[00:24:07] Speaker 04:
Agencies assume that means we can do whatever we want to do as long as we're in the general area of concern.

[00:24:13] Speaker 04:
That really isn't the law.

[00:24:14] Speaker 04:
It's not statutory or constitutional.

[00:24:17] Speaker 03:
No, Your Honor, but section 114R allows TSA to promulgate regulations for protecting misinformation.

[00:24:22] Speaker 04:
What kind of regulations?

[00:24:23] Speaker 04:
Any regulations?

[00:24:25] Speaker 03:
Regulations to protect information relevant to... What kind?

[00:24:28] Speaker 04:
Are there any qualifications to the nature of the regulation?

[00:24:31] Speaker 04:
Would that be reasonable?

[00:24:32] Speaker 03:
Sure, but if there were a challenge to that actual regulation in this petition, then perhaps we could litigate that question and decide.

[00:24:43] Speaker 04:
I can't challenge the application if I have a regulation applied to me.

[00:24:49] Speaker 04:
I can't challenge it as applied.

[00:24:50] Speaker 03:
Your Honor, but that's not the type of challenge that was brought here.

[00:24:53] Speaker 03:
There's simply the question is whether, under the existing regulations, Ms.

[00:24:57] Speaker 03:
Matar has standing to pursue, timely filed a petition to pursue, and then has any sort of statutory right to necessarily receive not only the sensitive security information about whether or not she is or is not on a list, but also the classified information or potentially classified information that might underlie any determination if she were in fact on a list.

[00:25:18] Speaker 03:
And there's no case that holds that the government is required to disclose information of that sort in the course of sort of normal litigation of the APA.

[00:25:27] Speaker 04:
There's no case that's decided whether or not we're going to apply the same rules to non-citizens that we apply to citizens and residents.

[00:25:36] Speaker 04:
That's all you mean to say.

[00:25:38] Speaker 04:
There's no case that goes your way.

[00:25:41] Speaker 04:
And the only cases that have been decided

[00:25:44] Speaker 04:
go against you to the extent that we've thought about it at all.

[00:25:47] Speaker 04:
But we have not yet decided the non-resident case, the non-citizen case.

[00:25:51] Speaker 03:
So, Your Honor, all of those cases address US citizens or US persons.

[00:25:55] Speaker 03:
Right.

[00:25:55] Speaker 03:
And it's certainly not unreasonable for TSA to treat differently situated persons differently.

[00:26:00] Speaker 03:
People who have Fifth Amendment rights, TSA has taken steps following litigation to provide additional process to individuals.

[00:26:08] Speaker 04:
There are no constitutional rights to what you're saying.

[00:26:10] Speaker 04:
It's not in this circumstance.

[00:26:11] Speaker 04:
Correct.

[00:26:12] Speaker 04:
No.

[00:26:13] Speaker 04:
Wait.

[00:26:14] Speaker 04:
from these circumstances or none whatsoever for non-citizens?

[00:26:19] Speaker 03:
In this particular context, as to Ms.

[00:26:22] Speaker 03:
Matar and similarly situated individuals, no, there are no Fifth Amendment due process rights at stake here.

[00:26:27] Speaker 04:
So you're saying that non-citizens do have Fifth Amendment rights?

[00:26:32] Speaker 03:
No, no, as a general matter.

[00:26:34] Speaker 04:
None ever.

[00:26:35] Speaker 04:
Your Honor, there is no case in which- I'm not talking about the particular situation, which we haven't decided yet.

[00:26:41] Speaker 04:
What are you saying about non-citizens?

[00:26:43] Speaker 03:
They have no constitutional rights?

[00:26:45] Speaker 03:
Unless an individual has come within the territory of this country and established substantial connections, this Court's cases are clear, as the Supreme Court's cases are, that non-citizens do not have Fifth Amendment due process rights.

[00:26:56] Speaker 03:
So in this circumstance, Ms.

[00:26:58] Speaker 03:
Buttar does not need that test, and she does not have Fifth Amendment due process rights.

[00:27:01] Speaker 03:
And the fact that TSA has, in response to concerns raised about due process rights of US persons, taken steps to ameliorate those concerns, does not alter the fundamental statutory scheme under which the redress procedure operates.

[00:27:17] Speaker 03:
And that redress procedure operates not only in the context of a very general delegation from Congress about exactly what type of procedure to create, but also

[00:27:27] Speaker 03:
specific authorization to promulgate regulations that address sensitive security information that TSA has exercised, that authority, and regulation that, again, is not challenged in the circumstance.

[00:27:39] Speaker 03:
And under those circumstances, there's no reason to think that there's any particular concern, that there's any additional process required in this circumstance.

[00:27:49] Speaker 02:
Can I ask you about just about timeliness just to make sure that you have a chance to deal with that?

[00:27:56] Speaker 02:
So is it your understanding that timeliness is an issue that can be addressed regardless of standing on the theory that even though under steel company you traditionally address jurisdictional issues first that timeliness is a threshold question like foreign non-convenience that can be

[00:28:14] Speaker 02:
addressed before standing.

[00:28:17] Speaker 02:
So then if we have the authority to address standing then what about your opponent's submission that you have information within your disposal about when it was sent out and so it should be incumbent upon you to come up with proof that in fact the determination was sent out on the date of the letter.

[00:28:42] Speaker 03:
So we do not have any information about when precisely the letter was sent.

[00:28:47] Speaker 03:
We just do not have that.

[00:28:50] Speaker 03:
So, and there's nothing in the record, as the record reflects, we don't have that information.

[00:28:54] Speaker 03:
So the only question here is who bears the burden in these particular circumstances.

[00:28:58] Speaker 03:
And it's certainly the case here that Ms.

[00:29:01] Speaker 03:
Bitar had the relevant evidence in her possession at the time she received the letter.

[00:29:05] Speaker 03:
And then, not only that, but

[00:29:08] Speaker 03:
had, at the time when she received the letter, ample remaining time in the 60-day period in which to bring a petition, in fact, acted the next day, had her counsel contact TSA, and then did nothing for slightly over six weeks before filing a petition.

[00:29:23] Speaker 03:
So even if you had some concerns about sort of the time

[00:29:29] Speaker 03:
landscape here.

[00:29:31] Speaker 03:
There's no reason to think that there was any prejudice to Ms.

[00:29:33] Speaker 03:
Matar from the particular delay or from whatever limited delay took place here.

[00:29:39] Speaker 02:
Is it right that it was a Friday?

[00:29:40] Speaker 02:
I didn't look at the calendar to see whether it was a Friday.

[00:29:42] Speaker 02:
Was July 28th a Friday?

[00:29:43] Speaker 02:
I believe it was, Your Honor, yes.

[00:29:45] Speaker 02:
And then do postmarks happen on Saturdays?

[00:29:49] Speaker 03:
I mean, I know if I go to the post office, I don't know what the, I don't know, there's nothing in the, there's nothing in the record.

[00:29:55] Speaker 03:
I don't know what the answer is to that question, at least as it applies to TSA and the mailing of this particular notice.

[00:30:03] Speaker 00:
Can I ask you to turn to page JA 40?

[00:30:06] Speaker 00:
Yes, Your Honor.

[00:30:11] Speaker 03:
40.

[00:30:12] Speaker 00:
That's the letter.

[00:30:14] Speaker 00:
And if you go to paragraph 3, would the difference be, I just want to be sure I'm clear about this, would the difference in that response if she were an American citizen or a lawful permanent resident, would the difference have been

[00:30:36] Speaker 00:
Instead of saying DHS TRIP can neither confirm nor deny any information about you which may be within federal watch lists or reveal,

[00:30:46] Speaker 00:
any law enforcement sensitive information.

[00:30:49] Speaker 00:
If she had been a U.S.

[00:30:50] Speaker 00:
citizen or lawful, they would have told her either, yes, you're on the list, or no, you're not.

[00:30:56] Speaker 03:
No, Your Honor.

[00:30:57] Speaker 03:
It's actually somewhat more limited than that.

[00:30:59] Speaker 03:
The circumstances in which an individual is told are if an individual purchases an airline ticket, is denied boarding, files a redress request in response to the denied boarding, the redress review is completed, and the individual remains on the no-fly list at the conclusion of that review.

[00:31:16] Speaker 03:
Under those circumstances, a U.S.

[00:31:18] Speaker 03:
person would receive a letter telling them you are on the list.

[00:31:23] Speaker 03:
And that would be all it would say at that time.

[00:31:25] Speaker 03:
There would then be further back and forth and the opportunity to eventually receive some information about the reasons why.

[00:31:31] Speaker 03:
But at least as to the initial letter, no, it's not generally the case.

[00:31:39] Speaker 00:
Not generally the case.

[00:31:40] Speaker 00:
What do you mean?

[00:31:41] Speaker 00:
You have to be under the unclassified

[00:31:46] Speaker 00:
policy statement or whatever it is on page A14, she has to be denied boarding and then may be apprised of her status and may inform the applicant of his or her status on the list if she is on the list.

[00:32:12] Speaker 00:
If even a U.S.

[00:32:13] Speaker 00:
citizen has to be denied boarding before being told or being eligible to be told whether you're on a list or not, that's, I think, significant.

[00:32:24] Speaker 00:
But if you go on in this letter, notwithstanding she was

[00:32:29] Speaker 00:
not told whether she was on a list or not, she was told, we've made any corrections to records that our inquiries deemed were necessary without saying whether they've done it or not, including, as appropriate, notations that may assist in avoiding incidents of misidentification.

[00:32:49] Speaker 00:
Then they go on to say, and here's how, if you want to come into the US,

[00:32:58] Speaker 00:
you do it.

[00:32:58] Speaker 00:
First, when you use this redress control number when making your reservations.

[00:33:05] Speaker 00:
Now, I don't know if you know, and it's not in the record, whether airlines would take that redress number and stop it at that point or

[00:33:18] Speaker 00:
make her reservation for her.

[00:33:20] Speaker 00:
She's denied boarding or not denied boarding.

[00:33:22] Speaker 00:
But in any event, she's been told of steps she can take.

[00:33:28] Speaker 00:
And four years after that, she tried, I think, to get the waiver in 2017, the waiver from a non-immigrant.

[00:33:42] Speaker 00:
visa requirement, isn't that right?

[00:33:44] Speaker 03:
Your Honor, there's two separate issues.

[00:33:46] Speaker 03:
One is whether, as we pointed out in a separate letter, this injury is redressable based on her recent denial of a visa application.

[00:33:52] Speaker 00:
Well, that's the July 18th.

[00:33:53] Speaker 03:
That's correct, Your Honor.

[00:33:54] Speaker 03:
And then prior to that point, she alleges that in 2013, her access or her sort of ability to use the visa waiver program was revoked.

[00:34:03] Speaker 03:
But I'm not aware of any allegation that she's attempted to use the visa waiver program since 2013.

[00:34:08] Speaker 00:
OK, so it was the non-immigrant visa that she was denied this past July?

[00:34:16] Speaker 03:
Yes, Your Honor, a few months ago.

[00:34:18] Speaker 03:
OK.

[00:34:21] Speaker 03:
And if there are no further questions?

[00:34:22] Speaker 04:
What did you say, a few months ago?

[00:34:24] Speaker 03:
Yes, Your Honor, we submitted a letter addressing that.

[00:34:27] Speaker 03:
After our brief was filed, Ms.

[00:34:29] Speaker 03:
Matar applied for and was denied a B1, B2 visa to travel to the United States.

[00:34:34] Speaker 00:
And that?

[00:34:35] Speaker 00:
And that was based on the fact that there was not sufficient evidence that she would return to her home country.

[00:34:42] Speaker 03:
Correct, Your Honor.

[00:34:43] Speaker 03:
She couldn't overcome the presumption of immigrant status that an individual is required to overcome.

[00:34:48] Speaker 03:
And again, that decision is not reviewable under the Doctrine of Concern on Reviewability, but just for the court's information, it raises concerns about whether this injury could be redressed.

[00:34:56] Speaker 00:
OK.

[00:34:58] Speaker 00:
Thank you, Your Honor.

[00:34:59] Speaker 00:
All right.

[00:34:59] Speaker 00:
Does Mr. Zell have any time left?

[00:35:04] Speaker 05:
Why don't you take two minutes?

[00:35:13] Speaker 05:
There's a couple of points.

[00:35:15] Speaker 05:
That visa application really does demonstrate some serious problems with this case.

[00:35:21] Speaker 05:
She applied for a visa.

[00:35:23] Speaker 05:
She was turned down as Judge Henderson indicated because she couldn't, after 30 years living in Israel, establish that she was going to return to her children and grandchildren.

[00:35:33] Speaker 05:
All I can say is that's suspect.

[00:35:36] Speaker 05:
But that's not before the court today.

[00:35:39] Speaker 05:
It's not before the court.

[00:35:41] Speaker 05:
But what is before the court is pages 44 and 45 of the record.

[00:35:46] Speaker 05:
And there, in response to counsel's statement about speculative injuries,

[00:35:52] Speaker 05:
is a letter from another component of the Department of Homeland Security called the United States Customs and Border Protection in response to Ms.

[00:36:02] Speaker 05:
Matara's trip inquiry.

[00:36:05] Speaker 05:
And that letter says the ESTA – this is about ESTA.

[00:36:10] Speaker 05:
This is the System – Electronic System for Travel Authorization.

[00:36:16] Speaker 05:
ESTA is an automated system used to determine the eligibility of visitors to travel to the United States under the Visa Waiver Program.

[00:36:23] Speaker 05:
As I mentioned, Ms.

[00:36:24] Speaker 05:
Matar is a Belgian national, and therefore she's eligible for that.

[00:36:29] Speaker 05:
ESTA screens – this is important – ESTA screens all applications against security and law enforcement databases so that only those individuals who are found ineligible to travel to the United States

[00:36:41] Speaker 05:
or those who travel would pose a law enforcement or security risk or refused a travel authorization.

[00:36:49] Speaker 05:
In the next statement, next paragraph, she says, after a careful review of our records, we have determined that your ESTA application was denied as you do not meet program requirements.

[00:37:02] Speaker 05:
Now, if that isn't an injury, Your Honors, I don't know what is.

[00:37:07] Speaker 05:
Now, let me address this other point about security, sensitive security information, SSI, that Congress did talk about in Section 114R of Title 49.

[00:37:21] Speaker 05:
Ms.

[00:37:21] Speaker 05:
Mittar and I'll be asking, Your Honors, for the United States to disclose sensitive security information.

[00:37:30] Speaker 05:
If we took the TSA's position in this case, I think as Judge Edwards' inquiry or colloquy with counsel demonstrates,

[00:37:38] Speaker 05:
There would be no justification for the change, the serious change in procedure that the TSA adopted in response to the litigation in the District of Oregon, Latif versus Holder, Latif versus Sessions in related cases.

[00:37:55] Speaker 05:
They changed that, their rule, because the court told them that what they were doing with respect to US persons, at least, was inappropriate under the APA and under the Constitution.

[00:38:09] Speaker 05:
And the court said, on balance, the disclosure of this limited amount of information to applicants under the TRIP program is appropriate, an appropriate balance, Your Honors.

[00:38:19] Speaker 05:
I come from Israel.

[00:38:23] Speaker 05:
We know what terror is about.

[00:38:29] Speaker 05:
We know it every single day of our lives.

[00:38:34] Speaker 05:
But we also know what democracy is about, and this country

[00:38:38] Speaker 05:
had a lot to teach us about that.

[00:38:40] Speaker 05:
And democracy, Your Honors, requires that an appropriate balance be made.

[00:38:44] Speaker 05:
You just can't put people on some kind of a watch list because it's convenient for you and you call it security information.

[00:38:51] Speaker 05:
You've got to achieve a balance.

[00:38:55] Speaker 05:
And the balance is simply what the courts in the Ninth Circuit and the Fourth Circuit have told us.

[00:39:02] Speaker 05:
It's simply to tell them, are you on the list?

[00:39:04] Speaker 05:
Are you not on the list?

[00:39:06] Speaker 05:
And some simple unclassified reason as to why, so that an ordinary person like Ms.

[00:39:12] Speaker 05:
Mittar can make a determination that she was erroneously

[00:39:19] Speaker 05:
put on a list that stigmatizes her and prevents her from traveling internationally, not only to the United States, but around the world, and makes her a tainted person like a terrorist.

[00:39:34] Speaker 00:
Thank you, Your Honor.