[00:00:00] Speaker 03: Face number 20-5202, Mohammed Jibril, individually and on behalf of their minor children, YJ and OJ et al, at balance, for Alejandro and Mayorkas in his official capacity as Secretary of the Department of Homeland Security et al. [00:00:17] Speaker 03: Jump for the balance, Mr. Waldman for the police. [00:00:21] Speaker 05: Ms. [00:00:21] Speaker 03: Jump, good morning. [00:00:23] Speaker 05: Good morning, Your Honors, and may it please the Court. [00:00:26] Speaker 05: My name is Christina Jump, and I am representing the Jibril [00:00:29] Speaker 05: family. [00:00:30] Speaker 05: They are a family of seven members who were separated, questioned, searched, detained, and suffered harm at the hands of the defendant Apales here. [00:00:40] Speaker 05: They were separated from their two-year-old and other minor children, all of whom were patted down and searched extensively with long delays over two incidences or two time periods which I've set forth in the complaint. [00:00:53] Speaker 05: They articulated clear and individualized harm, and they challenged their reasonable belief [00:00:58] Speaker 05: of their continued placement in the terrorist screening database run by the terrorist screening center. [00:01:04] Speaker 02: Do they challenge their inclusion? [00:01:06] Speaker 02: I'm sorry? [00:01:08] Speaker 02: Do they challenge their inclusion on the list or do they only challenge the trip process? [00:01:16] Speaker 02: I interpreted the complaint to challenge the trip process but not their actual inclusion on the list. [00:01:23] Speaker 02: Is that correct? [00:01:25] Speaker 05: Your honor, through the complaint, they are challenging the fact that because they reasonably believe that they remain on the watch list, they are challenging the procedures as they applied to them. [00:01:36] Speaker 05: And they're challenging the actions which took place both through the fourth amendment, fifth amendment, and then, um, APA claim. [00:01:42] Speaker 02: And when you say the procedures that apply to them, you mean that the TSA trip procedures? [00:01:47] Speaker 05: The trip redress is the only avenue that's available to them for seeking any kind of [00:01:53] Speaker 05: any redress, any kind of resolution on the matter, and to get any kind of, you know, post deprivation, essentially resolution or restoration. [00:02:05] Speaker 05: But, and so we are challenging those procedures and processes. [00:02:09] Speaker 05: We're also challenging the fact of what happened during the actual search, all of which is based on their presumption that they reasonably believe that they are on the watch list. [00:02:18] Speaker 02: Do they intend to travel in spite of [00:02:23] Speaker 02: their belief that they're on the Select T-List or are they saying we would travel were it not for our inclusion on the Select T-List? [00:02:39] Speaker 05: Your honor, what they are wanting to be clear just to the travel that they assert that they want to do in the future that's asserted in the complaint is to Saudi Arabia and to Jordan and involves religious trips for religious holiday for Hajj, which happens every year. [00:02:55] Speaker 05: What they state in the complaint is that they want to do this in the future, but they don't want to put the family through what they went through the last time. [00:03:06] Speaker 05: what happened in the incidents that are described in the complaint. [00:03:10] Speaker 05: And because of that, it's had a chilling effect and they are substantially less likely to even try it. [00:03:18] Speaker 05: They have not tried since the incidents that are described in the complaint, although for the intervening time period, COVID restrictions and others have certainly interfered and hampered any efforts for attempts. [00:03:31] Speaker 05: I would point out that at the current time, the Department of State lists Saudi Arabia, [00:03:37] Speaker 05: as a level four do not travel advisory due to COVID concerns and also list Jordan as a level three heavily encourage reconsidering travel due to COVID concerns. [00:03:48] Speaker 05: Just to give the current framework of what's available to them. [00:03:52] Speaker 05: But as they've stated in the complaint, they have family members who have been traumatized by the experiences which were [00:03:59] Speaker 05: more than mere inconveniences that are more than incidental. [00:04:02] Speaker 02: We're going well in Lujan. [00:04:04] Speaker 02: In Lujan, the court said no standing because the possible travel was not impending. [00:04:11] Speaker 02: And from what you've just said, it sounds like the Jibrils travel is not impending so long as they believe they're on the selectee list. [00:04:22] Speaker 05: They've identified specific reasons and time periods that they want to travel, that they intend to travel. [00:04:27] Speaker 05: For example, for Hajj, [00:04:29] Speaker 05: which they list in the complaint at- Even if they're on the selectee list. [00:04:35] Speaker 05: They want to and they intend to. [00:04:36] Speaker 05: They would like to be able to do so without having the entire family go through this again, without being separated from the minor children and without the substantial delays which occurred. [00:04:49] Speaker 02: I'm not trying to be difficult. [00:04:50] Speaker 02: I really am just trying to get some clarity and it's not meant from a hostile place. [00:04:55] Speaker 02: If COVID didn't exist, [00:04:59] Speaker 02: And if the selectee didn't list didn't exist, I take it from the complaint that within two or three years they would travel overseas. [00:05:07] Speaker 02: But the selectee list does exist. [00:05:09] Speaker 02: So take COVID out of the picture. [00:05:12] Speaker 02: So long as they believe they are on the selectee list, do they nevertheless intend to travel overseas within the next two or three years? [00:05:21] Speaker 05: Yes, they do, Your Honor. [00:05:24] Speaker 05: And I would also point out that in Lujan, that language applied to the mission for summary judgment stage. [00:05:29] Speaker 05: and not for the motion to dismiss stage where we are here. [00:05:32] Speaker 05: It's true as well of the Al-Hadi case, which the government's council has thought or had cited and relied on previously out of the fourth circuit. [00:05:42] Speaker 05: So those were both motion for summary judgment cases and not at the motion to dismiss stage, but here the plaintiff's due at the edge of real family does intend to travel again for the religious as well as family reasons which are identified in the complaint and would do so, you know, [00:05:58] Speaker 05: at those times again, once able to do so, and then we get in on the tangent of just three albums of right now. [00:06:05] Speaker 05: But they do say in the complaint that they needed to do so. [00:06:08] Speaker 01: Council, can I ask you, what are you? [00:06:13] Speaker 01: Maybe this is about the cause of action, but I'm trying to get a better handle on what's before us. [00:06:19] Speaker 01: You're not seeking [00:06:21] Speaker 01: nominal damages for whatever injury was done to them at the time that they took this last trip, as I understand it. [00:06:32] Speaker 01: So that's not before us. [00:06:35] Speaker 01: Your focus, I think, your focus seems to be on a request for injunctive relief going forward. [00:06:43] Speaker 01: So there's a question about, that's when my colleague asked, do we know that they're really going to travel again? [00:06:48] Speaker 01: But what is it that you mean to say about statutes or regulations that allow a person to be on the list? [00:06:58] Speaker 01: Is your underlying claim that you cannot have such statutes or regulations that unless they guarantee finding a probable cause before I'm stopped and searched or what? [00:07:12] Speaker 01: What is it that was wrong [00:07:16] Speaker 01: at the time of the search? [00:07:17] Speaker 01: Was it the search and the way it was done? [00:07:20] Speaker 01: Was it the regulations and statute that permitted the search? [00:07:25] Speaker 01: What are you saying? [00:07:26] Speaker 01: What's your argument? [00:07:28] Speaker 05: Yes, Your Honor, we're saying that the way that the search was done and the extent of the search without any reasonable suspicion, without anything that is set forth [00:07:37] Speaker 05: to give reason to target this family. [00:07:43] Speaker 01: If the statute, are you saying the statute and regs permit that? [00:07:47] Speaker 01: That the government has the right under the statute and regs to stop and search on someone in these terms without a showing of probable cause and therefore the statutes and regs are impermissible and unlawful? [00:07:59] Speaker 01: Is that what you're saying? [00:08:01] Speaker 05: We are saying that, Your Honor, and we are also saying that as it applied to these individuals, both that the regulations allow far too much leeway that we believe contravenes the law, particularly where they don't relate to reasonable suspicion. [00:08:14] Speaker 05: We are also saying that as it happened with these individuals, even that the officials went beyond even what is listed in those regulations. [00:08:24] Speaker 05: So both that as it happened with them specifically and what the regulations allow are both inappropriate. [00:08:30] Speaker 01: So you're saying there's a facial challenge to the regs in the statute that would allow the TSA or other agencies to stop someone in the airport for an extended search. [00:08:43] Speaker 01: You're saying that's facially invalid. [00:08:45] Speaker 01: Any such statute or regulations that allows that absent a showing a probable cause is unlawful. [00:08:51] Speaker 01: Is that what you're saying? [00:08:53] Speaker 05: I believe your honor that we actually say reasonable suspicion as well as probable cause. [00:08:57] Speaker 05: But what we're saying is that [00:09:00] Speaker 05: weighing the competing interests, what is written and how it is currently written exceeds what is reasonable and what the law permits. [00:09:08] Speaker 05: Not that no searches should occur as certainly they should, but that what occurred here is not a standard. [00:09:14] Speaker 05: What occurred here went far beyond what the average traveler adores. [00:09:19] Speaker 01: And that's what I'm struggling with. [00:09:21] Speaker 01: I hear what you're saying. [00:09:22] Speaker 01: And at some level, it's frustrating that we have to deal with things like this. [00:09:29] Speaker 01: there some would say for good reason we do but in any event I'm trying to understand whether you're saying look facially these regulations in this statute are simply impermissible because they allow government officials to do something that we don't allow as a constitutional matter or whatever else you're arguing is that what you're saying are you saying what happened to these people was as applied was impermissible because it was beyond what is what is permitted what are you saying [00:09:56] Speaker 05: We're saying Beltran. [00:09:58] Speaker 05: We're saying that as currently written the regulations that DHS has provided itself with far too much authority. [00:10:07] Speaker 05: That they have permitted themselves to have to be far too invasive and to have searches which are far more extensive. [00:10:15] Speaker 05: Again, we have the Fourth Amendment claim as well here and not just the Fifth Amendment claims and that they exceed the scope of what is lawful. [00:10:24] Speaker 05: particularly when we're looking at reasonable suspicion, which should be involved here and come into play. [00:10:30] Speaker 05: And then we are also saying that even with those expensive authority that the DHS regulations grant to the agencies, that they exceeded those. [00:10:40] Speaker 05: And that here, even if those are found to be lawful, that the treatment of this family and the treatment of separated and minor children. [00:10:48] Speaker 01: It's not any statute you're challenging. [00:10:51] Speaker 01: unconstitutional, but the regulatory regime. [00:10:54] Speaker 01: Is that what you're saying? [00:10:56] Speaker 05: Correct, Your Honor. [00:10:56] Speaker 05: We are challenging regulations. [00:10:58] Speaker 02: Specifically, what regulations? [00:10:59] Speaker 01: Yeah, that's my next question. [00:11:01] Speaker 01: What regulation is at issue? [00:11:04] Speaker 05: We are challenging the DHS, first of all, the DHS TRIP framework. [00:11:12] Speaker 01: No, wait, at least for me anyway. [00:11:16] Speaker 01: That's not going to be helpful because if [00:11:19] Speaker 01: I'm trying, as a judge, to figure out what are you resting on here? [00:11:23] Speaker 01: What's your legal challenge? [00:11:24] Speaker 01: And if it's not the statute and it is the regulation, then I, as a judge, want to know, well, what in the regulation do you say is impermissible? [00:11:33] Speaker 01: That's different from your as applied. [00:11:35] Speaker 01: I realize you have as applied. [00:11:37] Speaker 01: They did more than they're allowed to do. [00:11:40] Speaker 01: But I'm trying to figure out what is the facial challenge to the regulation, because I missed it, that you're making. [00:11:49] Speaker 05: What we are challenging here is that we are challenging the fact that we are challenging the regulations. [00:11:56] Speaker 05: And again, they're not the policies and procedures, which we also reference that DHS has in place, which grants its authority. [00:12:05] Speaker 05: And I can get the specific expectations from the complaint momentarily or for rebuttal. [00:12:11] Speaker 05: But that DHS has given itself what we believe to be far too broad authority beyond what Congress intended. [00:12:18] Speaker 01: I could frame that, and I'm not trying to be cute. [00:12:21] Speaker 01: I could frame that to suggest that what you mean to say is the government has given itself the authority to make mistakes and to hold up people who should not be held up, and that's impermissible. [00:12:37] Speaker 01: Or what? [00:12:38] Speaker 01: or the government has given itself authority to stop anyone they want with or without evidence, I'm not sure what it is you're saying. [00:12:45] Speaker 05: I would say far closer to the second one, Your Honor. [00:12:47] Speaker 05: What we're saying is that the government has given itself authority, the agencies have given themselves the authority to stop with little to no reason. [00:12:56] Speaker 05: The standards that are referenced in what we believe to be improperly provided and relied upon declarations in this case, which were not available to the district court here, [00:13:06] Speaker 05: make reference to the standards and the standards for being placed on a watch list and being considered somebody to be stopped on a select T-list or enhanced select T-list are so subjective and not, you know, they're things that require a basically reasonable suspicion of a reasonable suspicion, if even that, which is circular language which does not identify. [00:13:29] Speaker 01: So in terms of relief, so for [00:13:34] Speaker 01: One way or another, you're saying that the act of stopping them was impermissible. [00:13:41] Speaker 01: And I guess that's under your category of declaratory relief. [00:13:45] Speaker 01: And then you're seeking injunctive relief, that is the going forward relief. [00:13:51] Speaker 01: What in particular are you putting under the category of declaratory relief? [00:13:57] Speaker 01: You're not seeking nominal damages. [00:14:00] Speaker 01: So whatever happened, happened. [00:14:01] Speaker 01: It's beyond us now. [00:14:03] Speaker 01: So are we simply into the category, because we've got to deal with the Supreme Court's most recent case, TransUnion or whatever, I think I have it right, distinguishing between declaratory requests for declaratory relief and injunctive relief. [00:14:19] Speaker 01: Because if it's strictly the injunctive relief, then you're very much stuck with the problem of how do you deal with the case law that says you have to show us that this is likely to happen again. [00:14:34] Speaker 05: And, Your Honor, what we're seeking is for the declaratory relief, we seek in the prayer of the complaint a declaration that the plaintiff's rights were violated in the Fourth Amendment and under the Fifth Amendment for lack of due process. [00:14:50] Speaker 05: And we are seeking a declaration that the regulation that the defendant's actions were arbitrary and capricious and violate the APA. [00:14:58] Speaker 05: So those are declarations which are available. [00:15:01] Speaker 05: And then as to [00:15:02] Speaker 05: And then seeking a declaration that the defendant's policies, practices and customs, including DHS TRIP, but not limited to just that, violate the APA and the Constitution and fail to allow for meaningful opportunity to be heard. [00:15:17] Speaker 05: And we are, what we seek would be in order that DHS TRIP be ordered to revise its policies to provide plaintiffs and persons like them with a meaningful opportunity to challenge their apparent inclusion in the [00:15:31] Speaker 05: terrorist screening database and any select T-list or watch list and to re-examine the plaintiff's inquiries and to have DHS TRIP revise its procedures to allow for that. [00:15:43] Speaker 01: Do you have to show a likelihood of future injury? [00:15:47] Speaker 05: Yes, and we believe that we do by stating that they do intend again to travel in the future as identified in the complaint. [00:15:55] Speaker 05: They have an extended history of traveling overseas. [00:15:58] Speaker 01: over that shown that they are on a list that will make them vulnerable. [00:16:04] Speaker 05: Correct. [00:16:04] Speaker 01: And the reason that what you have shown that I'm sorry, you have shown that they are on a list that will make them vulnerable. [00:16:13] Speaker 05: We believe that for the motion to dismiss stage that we have shown that there's a reasonable likelihood based on the treatment that they underwent and based on the letters, which the family received in response to their DHS trip complaints. [00:16:27] Speaker 05: which were not identical. [00:16:28] Speaker 05: At least some, we believe, remain on the watch list. [00:16:32] Speaker 05: We cannot get confirmation, because the government holds all the cards on that, on stating whether they're on the watch list or not, or allowing them an opportunity, meaningful opportunity, to challenge that placement. [00:16:43] Speaker 05: That's not at the Debril's [00:16:47] Speaker 05: It's not something they have an ability to access at this time. [00:16:50] Speaker 05: It's not something that they have the capability of confirming for sure. [00:16:56] Speaker 05: But we do know that the family received two different letters. [00:16:59] Speaker 05: Not every family member received identical letters as a result of the DHS trip complaints. [00:17:05] Speaker 05: And so they reasonably believe that they remain on a watch list. [00:17:10] Speaker 05: which watch lists we don't know, and we can't prove that at this point. [00:17:14] Speaker 05: That's why we would like the opportunity for discovery to go forward. [00:17:17] Speaker 05: And through discovery, we may find out that they're not. [00:17:20] Speaker 05: We may find out that their belief is mistaken, but right now we don't know that. [00:17:24] Speaker 05: And we may find out, we may be able to find out that they are. [00:17:27] Speaker 05: We may be able to have that proof to be able to confirm that. [00:17:31] Speaker 05: But all of that evidence is in the hands of the government. [00:17:34] Speaker 05: They used the only redress option available to them, which is DHS TRIP. [00:17:39] Speaker 05: and they didn't get anything from that. [00:17:41] Speaker 05: So they had a reasonable belief that based on what they did get, which is just the letters at the conclusion, which did not match, which are different as to different family members, that they reasonably believe that they continue to be on a watch list. [00:17:54] Speaker 05: Those other questions we believe would be more suitable for the motion for some reason. [00:17:58] Speaker 02: What do you think is the percent chance that they are on the selectee list? [00:18:03] Speaker 05: I would believe 90 or greater. [00:18:08] Speaker 05: I think based on what we've seen from this case and other, quite frankly, other clients that we handle, if it's a pattern, it appears that they are. [00:18:16] Speaker 05: The fact that they had previously traveled in prior years without issue does not mean that they aren't now. [00:18:24] Speaker 05: And we believe that they were put on the watch list after those prior clean travel experiences. [00:18:30] Speaker 05: They have not had a clean travel experience since the ones articulated in the complaint. [00:18:34] Speaker 05: So we believe it to be incredibly likely. [00:18:37] Speaker 05: And quite frankly, that is also based on the patterns that we've seen with other plaintiffs, other clients that we see it face the pattern. [00:18:46] Speaker 04: All right. [00:18:46] Speaker 04: So you think you have a 90% chance of being on a 2% chance of being on this watch list because your opponent has submitted evidence that 98% of the people who have requested [00:19:03] Speaker 04: information on whether they're on the list have mistakenly requested. [00:19:10] Speaker 04: In other words, they're misidentified. [00:19:12] Speaker 04: So that leaves 2%. [00:19:14] Speaker 04: And you think you have a 90% chance of being in that 2%. [00:19:17] Speaker 04: Is that correct? [00:19:19] Speaker 05: We do, Your Honor. [00:19:20] Speaker 05: We do believe that. [00:19:21] Speaker 04: All right. [00:19:21] Speaker 04: If there are no more questions, we'll hear from Mr. Waldman. [00:19:25] Speaker 04: But Ms. [00:19:26] Speaker 04: Jump, if you would, while he is speaking, if you would find for me [00:19:32] Speaker 04: the allegation and the complaint in which you expressly say that, but for this past treatment, your clients would travel again. [00:19:45] Speaker 04: Yes, Your Honor. [00:19:45] Speaker 04: All right. [00:19:45] Speaker 04: Mr. Waldman. [00:19:48] Speaker 00: Thank you, Your Honor, and may it please the court. [00:19:50] Speaker 00: Joshua Waldman from the Department of Justice for the Appellees. [00:19:55] Speaker 00: District Court correctly held that the plaintiffs have not met their burden to establish standing [00:20:01] Speaker 00: by showing a substantial likelihood of future harm. [00:20:05] Speaker 00: The plaintiff's complaint lacks any concrete or specific future travel plans and fails for that reason alone. [00:20:13] Speaker 00: But even if they had overcome that hurdle, the allegations about two trips three years ago do not and would not give rise to a plausible inference of a substantial risk that plaintiffs would be subject to the same types of security screening during any future travel. [00:20:31] Speaker 00: especially in light of their concession, that they've flown multiple times over many years without experiencing any such security screening. [00:20:40] Speaker 02: Mr. Waldman, do you have an answer to the question I asked Ms. [00:20:42] Speaker 02: Jomp? [00:20:43] Speaker 02: What do you think is the percentage chance that at least Mr. Jabril is on the selectee list? [00:20:50] Speaker 00: Well, just to be frank, I wouldn't put a percent number on that. [00:20:55] Speaker 00: And I'm not sure how anyone would do that except through speculation. [00:21:01] Speaker 02: Well, I mean, so here are some of the here's some of the facts that would inform that estimate. [00:21:06] Speaker 02: And I don't deny it's it's an estimate. [00:21:09] Speaker 02: But in his last overseas trip, he started at LAX and had to wait an hour and he received a lot of sporting passes and he had to wait two hours of security and a subsequent luggage check. [00:21:22] Speaker 02: That's not normal. [00:21:23] Speaker 02: When he got to Jordan, he was interrogated for two hours. [00:21:26] Speaker 02: Then on the return trip, starting at Jordan, he once again got quad S boarding passes. [00:21:31] Speaker 02: He was told American officials have an issue with him. [00:21:34] Speaker 02: He was required to go through pre-clearance before flying. [00:21:38] Speaker 02: His connecting flight at Abu Dhabi, he had to wait an extra 45 minutes with Abu Dhabi officials and then an extra four hours from American custom border patrol agents. [00:21:48] Speaker 02: And then when he arrived in LA, he had to wait an hour. [00:21:51] Speaker 02: Now that is not typical for someone who flies overseas. [00:21:56] Speaker 02: I'm not saying it guarantees that he's on the selectee list, but someone who's had that experience the last time that they've flown overseas, what do you think is the percent likelihood that that person's on the selectee list? [00:22:10] Speaker 00: Well, Your Honor, I'm not going to put a percent likelihood, but I will respond to those allegations by pointing out the following things. [00:22:19] Speaker 00: Number one, all of the lengthy delays occurred during an international flight. [00:22:24] Speaker 00: I think people routinely experience much longer delays during border crossings than they do during domestic travel. [00:22:31] Speaker 00: And the Supreme Court has said, for example, in the Montoya case, a couple of hours delays is to be expected for a border crossing. [00:22:39] Speaker 02: I appreciate that. [00:22:40] Speaker 02: Who gets the quad S boarding passes? [00:22:43] Speaker 00: Anyone selected for enhanced security screening, whether it's for random selection or for other reasons. [00:22:50] Speaker 00: So the fact that you get quad S does not indicate at all [00:22:53] Speaker 00: And in fact, I would point out, Your Honor, you pointed to the Jordan trip with a quad S and something that somebody said, some unknown person said about what Americans, but you'll notice in the complaint, nothing happened on that flight. [00:23:06] Speaker 00: There are zero allegations about the flight from Jordan to UAE. [00:23:09] Speaker 00: about delays or searches. [00:23:12] Speaker 02: Right, right. [00:23:13] Speaker 00: I appreciate that. [00:23:14] Speaker 02: So, I mean, probably all of us who have flown have sometimes, you know, you go through the metal detector or the little spinning X-ray thing and it goes beep and the TSA agent very politely says, nothing to worry about. [00:23:27] Speaker 02: You've been randomly selected. [00:23:28] Speaker 02: We're going to open your suitcase. [00:23:30] Speaker 02: When that happens, does that mean that I've gotten a quad S boarding pass? [00:23:35] Speaker 00: No, if you've got a quad as boarding pass, you'd see it on your boarding pass. [00:23:38] Speaker 00: But there's also people who go through what you might call regular screening and perhaps the metal detector is tripped and then you might get enhanced screening at that point or whatever the particular officer thought was appropriate in light of what was triggered. [00:23:52] Speaker 00: It could be you did something they thought was suspicious. [00:23:55] Speaker 00: But that's not the same thing. [00:23:58] Speaker 02: Who are these 98% people who go to the trouble of doing a trip inquiry but turn out not to be on the selectee list? [00:24:09] Speaker 02: Do you have a sense, are they just like people who had the experience I just described where I have to open my suitcase for a random screening and I think, wow, that must mean I'm on a list so I'm going to do a trip inquiry? [00:24:19] Speaker 00: It could be, Your Honor. [00:24:21] Speaker 00: I mean, as you pointed out, lots of people get enhanced screening because of random reasons or for reasons that have nothing to do with the watch list. [00:24:30] Speaker 00: The TRIP also covers, you can apply for redress if something happens to you at the border crossing. [00:24:35] Speaker 00: So there are people who maybe get a long delay and they're frustrated by that. [00:24:41] Speaker 02: And so they- Would it be fair? [00:24:43] Speaker 02: I appreciate that. [00:24:44] Speaker 02: I get it. [00:24:45] Speaker 02: Would it be fair to say that a lot of those 98% [00:24:50] Speaker 02: did not have as intrusive and time delaying a travel process as Mr. Jibril had. [00:25:00] Speaker 00: I just don't have the information in which to answer that question, Your Honor. [00:25:04] Speaker 02: I mean, that seems a little, I mean, I guess I can't not believe you, but it seems a little hard to believe that you're saying that all of those, you think there's a chance that all of those 98% had [00:25:18] Speaker 02: all of the inconveniences that I just described Mr. Chabril had before they filed a trip request. [00:25:26] Speaker 00: I just don't have any basis to answer that one way or the other. [00:25:29] Speaker 00: But I will say this, Your Honor, I do want to point out that when we're talking about injunctive relief or declaratory relief, any perspective relief, and we need to show a risk of future harm, it's important to look at the complaint very specifically and not lump all the allegations together. [00:25:45] Speaker 00: And what I mean by this is this. [00:25:47] Speaker 00: One of the Fourth Amendment complaints is that the pat downs violated the Fourth Amendment. [00:25:53] Speaker 00: There is only one instance of pat downs alleged in the complaint. [00:25:58] Speaker 00: She makes it seem like there's many of them, but there's actually only one, which was the departing trip from LA. [00:26:04] Speaker 00: There's another Fourth Amendment claim about cell phone searches. [00:26:07] Speaker 00: That occurred on one leg of the trip, not on all of them. [00:26:12] Speaker 00: There's an APA claim about the miners not being offered food [00:26:17] Speaker 00: or ask medical questions, that happened one time. [00:26:22] Speaker 00: And so when you're talking about one instance, I think it's very important to not to lump them all together and act as if everything is happening all of the time. [00:26:33] Speaker 02: I think that's strong, Mr. Waldman. [00:26:36] Speaker 02: The part of the complaint that I think [00:26:39] Speaker 02: has at least the greatest chance of standing, is the challenge to the trip process, the trip inquiry process. [00:26:48] Speaker 02: And so let me ask you this, assume two things that I know you don't agree with, but assume them for the sake of this question. [00:26:54] Speaker 02: I will. [00:26:55] Speaker 02: Assume I think that the Gibraltar's future travel is imminent, and assume I think they're on the select T-list. [00:27:04] Speaker 02: Then do they have standing to challenge the trip inquiry? [00:27:08] Speaker 00: If you think that they have shown a substantial likelihood that they will travel in the future and a substantial likelihood that they remain on the list post the trip process, then yes, Your Honor. [00:27:20] Speaker 00: And in fact, I think it's important to point out, we don't contend that you can never have standing. [00:27:27] Speaker 00: And in fact, the most recent case, Al-Hadi case, if in the Fourth Circuit, we did not contest standing. [00:27:34] Speaker 00: in that case, because of the particular allegations there. [00:27:38] Speaker 00: But here, I think it's very important, and I'm not trying to fight the premise of your question, Your Honor, but I do want to point out that in this case, all of the allegations happened in 2018. [00:27:49] Speaker 00: And then afterwards, they filed a trip request for the very purpose of being removed from a list that they thought they were on and didn't think they belonged on it. [00:27:59] Speaker 00: And then after getting the response, they immediately rushed [00:28:03] Speaker 00: to federal court. [00:28:05] Speaker 00: They did not travel again. [00:28:06] Speaker 00: They have not attempted to travel again. [00:28:08] Speaker 00: And I think all, even if they get over all of the hurdles about allegations of future plans and that they can show that they were on the list, I don't think that there's in my mind, any plausible inference that they can draw based on the allegations of their complaint. [00:28:24] Speaker 02: What about inferring from the different response that the young child OJ received? [00:28:30] Speaker 02: Imagine I am asked six questions and for one of the six, I say like, no, I wasn't at the murder scene. [00:28:42] Speaker 02: And then for the other five questions, I say, no comment. [00:28:46] Speaker 02: Wouldn't you draw, imagine I was asked if I was at six different murder scenes. [00:28:50] Speaker 02: And so one of them, I say, no, I wasn't there. [00:28:53] Speaker 02: But for the other five murder scenes, I say, no comment. [00:28:57] Speaker 02: Wouldn't you draw an inference from that? [00:28:59] Speaker 00: I wouldn't, your honor, but because I read the OJ letter, it's differently worded, but as essentially a Glomar response just like the others. [00:29:09] Speaker 00: But at a maximum, I think the only reference you could draw then would be as to OJ and not as to everyone else who on their face, their letter was a Glomar response. [00:29:21] Speaker 02: That is the point of the Glomar response. [00:29:23] Speaker 02: Why would OJ receive a letter that says you're not on, basically you're not on the list? [00:29:29] Speaker 00: Let me put it this way. [00:29:31] Speaker 00: There are a number of reasons and factors why the TSA sends out different letters under different circumstances. [00:29:38] Speaker 00: I can't, unfortunately, for the same security reasons that we don't disclose status, disclose those things. [00:29:44] Speaker 00: So I can't really get into that further. [00:29:47] Speaker 00: But I would say this. [00:29:47] Speaker 00: I think it is whatever inference you might want to draw as to that one letter. [00:29:53] Speaker 00: And I think that that's a glomer letter. [00:29:55] Speaker 00: The others very clearly [00:29:58] Speaker 00: There's no inference to be drawn about the others, which just say we don't confirm or deny. [00:30:03] Speaker 02: I appreciate it. [00:30:05] Speaker 04: Let me ask you. [00:30:06] Speaker 04: Go ahead, Judge Edwards. [00:30:09] Speaker 01: You say if they have shown or presented enough to survive motion dismissed, they will travel in the future and that they're on a select list. [00:30:18] Speaker 01: They should be allowed to proceed. [00:30:22] Speaker 01: I think that's accurate. [00:30:24] Speaker 01: I don't see your case on looking at the existing case law. [00:30:31] Speaker 01: I don't see your argument. [00:30:32] Speaker 01: I'm not compelled by your argument. [00:30:33] Speaker 01: That's why I'm raising with you on their failure to show that they will travel in the future. [00:30:37] Speaker 01: I think they're way beyond what Lujan and the other such cases required. [00:30:42] Speaker 01: And they've done all they have to do. [00:30:44] Speaker 01: They have consistency in what they've done in their travel. [00:30:47] Speaker 01: And they've said, there's nothing to suggest we won't. [00:30:49] Speaker 01: We're going to do it again. [00:30:50] Speaker 01: And I think Lujan suggests that that's plenty enough. [00:30:53] Speaker 01: What is it that you are saying with respect to whatever you think they have or have not said about being on the select list? [00:31:01] Speaker 00: Well, I'd say a couple of things. [00:31:03] Speaker 01: And what more could they do given what the government is willing to, they were on it. [00:31:08] Speaker 01: The government has not said they're off of it. [00:31:11] Speaker 01: What more are they supposed to do? [00:31:13] Speaker 00: Well, for example, in some of the other cases, Your Honor, that we've seen where we have not contested standing, like Al-Hadi, [00:31:19] Speaker 00: You had people who had travel post-dating their trip complaint and alleged that they continue to have the similar types of experiences. [00:31:28] Speaker 01: Well, surely that is an illegal requirement, is it? [00:31:31] Speaker 01: That's an onerous, that's a terrible requirement that if someone is now afraid, legitimately afraid, and they want to get this cured up, straightened out, so they want the court to give them some help, you're going to say, no, you have to go first try and travel again? [00:31:47] Speaker 01: That can't be the law. [00:31:48] Speaker 00: Well, I'm not saying that that is the law, your honor, or a requirement, but you asked what they what they could do. [00:31:53] Speaker 01: And I mean, let's assume that is the idea and it doesn't hurt their case in any way. [00:31:59] Speaker 01: So what else? [00:32:00] Speaker 00: So I'm not sure if you're asking about statements about intent of future travel or about showing that they're on a watch list. [00:32:08] Speaker 01: They've made the statements about intent for future travel. [00:32:10] Speaker 00: Okay. [00:32:11] Speaker 00: I do think it's important to realize too that some of the statements about it, like for example, the husband's statements in the complaint are different from the things that the rest of the family does. [00:32:20] Speaker 00: And so you might view that differently. [00:32:22] Speaker 00: In addition, as I was saying before, [00:32:26] Speaker 00: Take, for example, the APA claim about not asking questions about medical condition and not offering snacks to the minors. [00:32:33] Speaker 00: I think that happened one time. [00:32:35] Speaker 01: No, no, no. [00:32:36] Speaker 01: You get into the particulars of the claim. [00:32:39] Speaker 01: Yes. [00:32:40] Speaker 01: I'm focusing on how do they survive a motion to dismiss. [00:32:43] Speaker 01: You can find out the particulars in summary judgment or trial. [00:32:47] Speaker 01: You said they only need two things. [00:32:49] Speaker 01: They have to show that they're going to travel in the future, which deals with a standing issue. [00:32:53] Speaker 01: and that they're on a select D list. [00:32:55] Speaker 01: I don't know how they've failed that enough to avoid getting beyond motion to dismiss. [00:33:01] Speaker 01: I think it's, for me, it's an easy case that they've shown likelihood of traveling in the future. [00:33:08] Speaker 01: On the select D list, I'm not sure what you're saying. [00:33:11] Speaker 01: What else did they have to show that they didn't show? [00:33:16] Speaker 00: Well, I think that I take your point that they don't know, but of course, [00:33:21] Speaker 00: they still need to allege specific facts. [00:33:24] Speaker 00: It can be on information and belief. [00:33:25] Speaker 00: And that was the point of the Kareem case that we cited in our brief about the droning case, where the person did not know whether they were on a list, but this court did not presume that they were on a list. [00:33:35] Speaker 00: It said you have to allege facts in your, or make allegations in your complaint sufficient to make that plausible. [00:33:43] Speaker 00: And it's our view that the fact- Wait, you're on the list. [00:33:47] Speaker 01: You know you were on the list. [00:33:50] Speaker 01: You follow the government's procedure, challenging it. [00:33:55] Speaker 01: The government responds and does not say you're off the list. [00:33:59] Speaker 01: What more do I have to do? [00:34:04] Speaker 01: Well, I think it is. [00:34:06] Speaker 01: Let's assume that they've met their burden to show the intrusive procedure and anyone would be grossly offended by what happened. [00:34:13] Speaker 01: Let's assume that. [00:34:14] Speaker 01: So it's horrible. [00:34:15] Speaker 01: Let's assume that. [00:34:17] Speaker 01: Okay. [00:34:17] Speaker 01: So now and it's because they were on a select D list and they come in and say, look, what happened to us? [00:34:22] Speaker 01: All of us, the kids included. [00:34:24] Speaker 01: It was a disaster and no one denies that we were on a select D list. [00:34:28] Speaker 01: We complained to the government and the government has not said we're off that list. [00:34:33] Speaker 01: Now, what more are they supposed to do? [00:34:36] Speaker 01: Well, I think the words on information and belief, I think I'm still on it. [00:34:40] Speaker 01: That'll do it. [00:34:42] Speaker 00: No, your honor. [00:34:43] Speaker 00: But I do think that if you had [00:34:45] Speaker 00: Part of our argument is the relationship between what we think they haven't raised enough of an inference that they were on the list in the first place goes in tandem with even if they had shown that, they can't show that they were not removed from the list or that they would remain on the list in 2019, having sought that very relief. [00:35:05] Speaker 00: So we think if they had made allegations before 2018 that showed perhaps a series of trips over time in different times, they might raise [00:35:15] Speaker 00: a better inference that they were on the list to begin with. [00:35:18] Speaker 00: But we don't think that they've raised that inference here. [00:35:21] Speaker 00: But even if you disagree with us, and I take your point that maybe you don't, that's an argument that goes only to watch list and doesn't go at all to, I think, the Fourth Amendment and the APA claims, which were instances that happened that were about the manner in which a search was carried out. [00:35:41] Speaker 00: And there, where you're seeking adjunctive relief, [00:35:43] Speaker 00: It's my view that when something happened to you one time and only one time, that you can't show a substantial likelihood that it's going to recur again. [00:35:52] Speaker 02: That's got to be right. [00:35:58] Speaker 00: I think that's right. [00:35:58] Speaker 00: That's particularly when in the same trip, you alleged, say, a pat down going, but no pat down coming back. [00:36:06] Speaker 00: And yet your Fourth Amendment claim is, I was pat down. [00:36:10] Speaker 01: I think that's lions. [00:36:12] Speaker 01: The substantive issue was mooted out because the city took it off the table. [00:36:16] Speaker 01: We've changed the policy, they said. [00:36:19] Speaker 01: So the city is acknowledging the existence of the policy in lions. [00:36:23] Speaker 01: And they said, in that case, the plaintiffs can't show that they're going to be subject to and it's gone in any event. [00:36:29] Speaker 01: But that's not what's going on here. [00:36:31] Speaker 00: Yes. [00:36:31] Speaker 00: But I do think that the fact that you say there's an ongoing policy does not itself show a future risk. [00:36:37] Speaker 00: a likelihood of substantial risk of future harm, and that's Clapper. [00:36:41] Speaker 00: There's an ongoing policy there, but they can't show that there's a future risk of harm. [00:36:45] Speaker 00: You always have to show the substantial risk of future harm in order to get perspective relief, whether it's an ongoing policy or not. [00:36:54] Speaker 01: And I think we- I'm just curious to hear your answer. [00:36:57] Speaker 01: And the thing that's curious to me, it's perplexing. [00:37:00] Speaker 01: I can't figure out what it is if you're in a situation where there's no way my family and I want to face this again. [00:37:08] Speaker 01: This was really horrible. [00:37:10] Speaker 01: And I'm not going to go out to the airport right away and let's see if we can stir it up again. [00:37:15] Speaker 01: I want to get some relief. [00:37:17] Speaker 01: And it appears that if I have certain donations of designations on my ticket, I'm apparently on a list [00:37:25] Speaker 01: And apparently the government thinks they can do what they did to me if I'm on that list. [00:37:30] Speaker 01: How do I get at that? [00:37:32] Speaker 00: Yeah. [00:37:32] Speaker 00: I mean, your honor, I think I do come back to the idea that, and I understand you might not want to travel to Jordan again, do an international trip, but of course the selectee would apply from a trip from LA to San Francisco, anything domestic as well. [00:37:47] Speaker 00: You don't have to have your whole family necessarily travel with you and or buy a costly ticket. [00:37:53] Speaker 00: So I think these are things that can help. [00:37:56] Speaker 00: I think we would all agree that in an extreme case, if you had never been subjected to travel, any travel requirements, you wouldn't have standing. [00:38:05] Speaker 00: And the converse is true in an extreme case where you had a hundred trips. [00:38:10] Speaker 00: I don't think there'd really be any doubt about standing. [00:38:12] Speaker 00: And I think the question here is sort of a hard one about if there's really like one trip where the things that you complained of happened to you one time on various legs, whether that's enough. [00:38:23] Speaker 00: And it's our view that it's not sufficient to show either that they're likely to be on, that they were on the list in the first place, or that they would remain having sought redress specifically for that. [00:38:35] Speaker 00: And I think there's also a little bit of have their cake and eat it too aspect, which is to say, our allegations and complaints definitely show that we're going to do something in the future, yet at the same time, [00:38:48] Speaker 00: we're just not going to travel again because of what we fear might happen to us. [00:38:52] Speaker 00: I don't think that you can do both. [00:38:54] Speaker 00: I think you have to sort of pick which one you want to go with and go with it. [00:38:59] Speaker 00: And that's our view here, Your Honor. [00:39:03] Speaker 00: And I'm happy to answer any other questions. [00:39:05] Speaker 00: I see I'm [00:39:05] Speaker 04: I have a question and it has to do with redress. [00:39:11] Speaker 04: I believe Judge Lamberth did not, he ended his standing inquiry with injury. [00:39:20] Speaker 04: If this goes back, what type of redress considering all of the [00:39:32] Speaker 04: confidential, classified, secret, whatever information can they get at? [00:39:41] Speaker 04: I mean, I guess it's possible that you would say without saying that they were ever on the list, that they are not on the list, but how free are you to give them this type of information? [00:39:55] Speaker 00: Well, as we explained in our brief, all the information is privileged and we don't [00:40:00] Speaker 00: we would not disclose it and we would resist discovery on those grounds. [00:40:04] Speaker 00: But I think probably if we got past article three jurisdiction and there may be an issue of subject matter jurisdiction that was not addressed by the district court, assuming we got past all those jurisdictional questions and we were reaching the merits before we got to sort of what a remedy would be, every court of appeals who has addressed this question has rejected the due process challenge that's being raised here. [00:40:28] Speaker 00: So we never really get to that point. [00:40:30] Speaker 00: But if we did, we would say that it's privileged information, their status. [00:40:34] Speaker 00: And if any. [00:40:37] Speaker 04: How about the Fourth Circuit case you just talked about? [00:40:39] Speaker 00: Yes, that also rejected the due process challenge, al-Hadi. [00:40:45] Speaker 04: OK. [00:40:46] Speaker 00: Al-Hadi, the Tenth Circuit in a case called Abdi, and the Sixth Circuit in a case called Bedouin. [00:40:53] Speaker 00: I believe they're all cited in our brief. [00:40:54] Speaker 00: They all say, essentially, that there's no protected liberty interest [00:40:58] Speaker 00: that would implicate the due process clause with respect to the selectee list. [00:41:02] Speaker 04: OK, that's what I'm asking. [00:41:06] Speaker 04: As part of redress, can you find out if you were on the selectee list? [00:41:15] Speaker 00: No. [00:41:15] Speaker 04: Have the courts? [00:41:16] Speaker 04: OK, all right. [00:41:17] Speaker 00: Thank you. [00:41:18] Speaker 00: No, you can't. [00:41:19] Speaker 00: And the courts have effectively upheld that by rejecting the due process challenges seeking exactly that. [00:41:27] Speaker 00: I do want to point out, and this is a footnote in our brief, that the process is different for U.S. [00:41:33] Speaker 00: citizens and U.S. [00:41:35] Speaker 00: persons with the no-fly list. [00:41:36] Speaker 00: That's different from the selectee list, though. [00:41:38] Speaker 00: I just want to be clear about that. [00:41:39] Speaker 02: If we agree with you on everything, do you agree with Ms. [00:41:43] Speaker 02: Jump that this should have been dismissed without prejudice? [00:41:48] Speaker 00: Yes. [00:41:49] Speaker 00: A jurisdictional [00:41:50] Speaker 00: dismissal should be without prejudice. [00:41:52] Speaker 00: And I think that you could essentially affirm the district court with respect to its ruling on standing, but then say, send it back just to change the nature of the judgment from with to without prejudice. [00:42:05] Speaker 04: All right. [00:42:05] Speaker 04: Thank you. [00:42:06] Speaker 04: Ms. [00:42:06] Speaker 04: Jump, before you start, do you have that site to your complaint? [00:42:13] Speaker 05: Yes, Your Honor, I do. [00:42:15] Speaker 05: I would point out that in paragraph 144 of the complaint. [00:42:20] Speaker 04: 144. [00:42:20] Speaker 04: You don't need to read it. [00:42:22] Speaker 04: We're in a hurry here. [00:42:23] Speaker 04: So 144 anywhere else? [00:42:25] Speaker 05: Yeah, 144 we refer to chilling effects. [00:42:27] Speaker 05: And then I would say also that leading up to that in paragraphs 104 and 138 to 145 would discuss the intent. [00:42:34] Speaker 05: The plaintiffs do not say that they will not travel. [00:42:37] Speaker 05: They say that they refer to the chilling effects and the [00:42:40] Speaker 05: harm because of the lack of resolution because of the impact. [00:42:43] Speaker 04: All right. [00:42:44] Speaker 04: Okay. [00:42:44] Speaker 04: Those are the numbers. [00:42:46] Speaker 04: All right. [00:42:47] Speaker 04: Take just no more than two minutes. [00:42:50] Speaker 05: Yes, Your Honor. [00:42:51] Speaker 05: Thank you. [00:42:51] Speaker 05: I will say that to begin, as counsel stated actually in the rebuttal or in his in his arguments, he doesn't have the information. [00:43:01] Speaker 05: There is no magic number. [00:43:03] Speaker 05: And that's exactly the point. [00:43:05] Speaker 05: In the Al-Hadi case, there was discovery, which was permitted. [00:43:08] Speaker 05: There was discovery permitted as to the specific facts regarding those specific plaintiffs. [00:43:12] Speaker 05: The court in Al-Hadi, which council relies on and in the other section refer to the rule 56 rulings. [00:43:23] Speaker 05: They referred to motion for summary judgment, not add a motion to dismiss. [00:43:26] Speaker 05: It was allowed to go forward to see what could happen. [00:43:28] Speaker 05: And in fact, the Al-Hadi case specifically stated that had there been a fourth amendment claim [00:43:34] Speaker 05: that the result would have been different and here there is. [00:43:37] Speaker 05: Again, at this stage of the motion to dismiss stage, courts must take all reasonable inferences in favor of the plaintiffs. [00:43:43] Speaker 05: What we have instead is that the defendants, the appellees are effectively arguing, trust us on what these letters mean, trust us on what the different letters mean, and trust us on what they should have done, what they could have done, whether they're on the watch list, they refer in the appellate briefs, [00:44:01] Speaker 05: To the declarations which again we believe to be inappropriately provided here are improperly provided here, but they refer in there by saying. [00:44:08] Speaker 05: That means it's even less likely that they'll get stopped again so trust us on that process that's not a motion to dismiss argument, that is a substantive argument, that is an argument, not for jurisdiction, but that goes to the merits and. [00:44:21] Speaker 05: plaintiffs should at a minimum be able to go forward and see what they can get, what they can find out. [00:44:29] Speaker 05: At this point with what's in the complaint, do the plaintiffs know enough to be able to win on a summary judgment? [00:44:35] Speaker 05: Maybe not, but that's not the stage where we are right now. [00:44:39] Speaker 05: And I think the plaintiffs deserve the chance to move forward, try discovery and see if they can get there. [00:44:45] Speaker 05: And then again, I would state that [00:44:48] Speaker 05: They do say in the opening paragraph that they make these allegations on information and belief because that's all they can do because the government holds the answers and not the plaintiffs. [00:44:57] Speaker 05: And with that, thank you, Your Honor, unless there are any more questions, we would submit our case. [00:45:02] Speaker 05: All right. [00:45:03] Speaker 04: Thank you for your arguments, counsel. [00:45:06] Speaker 04: Madam Clerk, call the next case.