[00:00:00] Speaker 00: 820-1480, Julian Eden Bucic, petitioner, versus Transportation Security Administration. [00:00:08] Speaker 00: Ms. [00:00:08] Speaker 00: Goudy for the petitioner, Mr. Waldman for the respondent. [00:00:14] Speaker 03: Ms. [00:00:14] Speaker 03: Goudy, please proceed whenever you're ready. [00:00:16] Speaker 02: Thank you. [00:00:19] Speaker 02: Good morning, Your Honors. [00:00:20] Speaker 02: My name is Charlize Gady on behalf of Petitioner Ms. [00:00:23] Speaker 02: Bucic. [00:00:25] Speaker 02: Petitioner is a 74-year-old Jewish citizen. [00:00:28] Speaker 02: She was denied a reasonable way to travel home because the TSA says she may pose a current threat to civil aviation. [00:00:37] Speaker 02: But the only evidence in the record that suggests she is a threat is a nearly 50-year-old conviction for which she was paroled in 1989 after a finding by the Parole Board that her release would not jeopardize public welfare. [00:00:53] Speaker 02: And the government's misrepresentation of the 2004 newspaper interview [00:00:57] Speaker 02: that was never disclosed to her in the administrative proceedings. [00:01:01] Speaker 03: It's not just any old conviction, right? [00:01:04] Speaker 03: It's a conviction of air piracy. [00:01:07] Speaker 03: And the underlying conduct includes placing a bomb in Grand Central, which murdered a police officer. [00:01:16] Speaker 02: Yes, Your Honor, Petitioner was convicted of hijacking an aircraft. [00:01:20] Speaker 02: But the order that says the TSA's assessment is that Petitioner poses a current threat. [00:01:28] Speaker 02: It provides no reasons and makes no rational assessment as to why a petitioner might pose a threat today. [00:01:33] Speaker 02: And we submit they can't solely rely on the fact of a prior conviction alone. [00:01:39] Speaker 02: It must assess the facts before it, including substantive evidence that she presented, showing she does not pose a threat today. [00:01:48] Speaker 00: This circuit has repeatedly said that we review decisions of the TSA about aviation safety with substantial deference. [00:02:00] Speaker 00: I'm wondering, do you agree that that is the standard here, our circuit standard, and even assuming that it is, how does the arbitrary and capricious standard, you know, succeed under that deferential standard? [00:02:18] Speaker 02: Sure. [00:02:20] Speaker 02: TSA allows all the humanitarian law projects to say that deference applies to the evaluation of facts. [00:02:27] Speaker 02: And our argument here is that there's been no evaluation of facts. [00:02:30] Speaker 02: So if the deference standard does apply, a mere resuscitation of the facts provided by petitioner would be insufficient. [00:02:40] Speaker 02: This court's held that a fair evaluation requires an agency to show it considered significant evidence [00:02:47] Speaker 02: on both sides of the question and explained its conclusions in light of those significant objections. [00:02:55] Speaker 02: So, in Onoverus, while the court noted that it does apply a highly differential standard to review TSA's judgment, their TSA's judgments include a comprehensive review of the threat petition of post, including background investigations, internal agency communications, an explanation of the grounds for its decisions, [00:03:16] Speaker 02: And the court found that it offered a clear and reasonable statement of the grounds on which it relied. [00:03:21] Speaker 02: And we would submit that there's been no such informed judgment chair that the court can defer to. [00:03:29] Speaker 00: Ms. [00:03:29] Speaker 00: Cote, so there, Ms. [00:03:32] Speaker 00: Busich claims violations of the due process clause. [00:03:36] Speaker 00: I'd like to understand more about what precisely the Liberty interest [00:03:41] Speaker 00: is here. [00:03:43] Speaker 00: So the Supreme Court has recognized a right to interstate travel, which is largely unqualified. [00:03:49] Speaker 00: But are you claiming some additional liberty interest here, liberty interest to international travel, to a liberty interest in commercial flight? [00:04:02] Speaker 00: What precisely is the liberty interest that's being claimed here? [00:04:05] Speaker 02: I would suggest that [00:04:09] Speaker 02: We are claiming that she has an interest in international travel, purely because she, as a US citizen, has a right to return home to the United States. [00:04:20] Speaker 02: And the current ban on her boarding any commercial flight to, from, or over the US territory effectively deprives her of that opportunity to return home. [00:04:36] Speaker 01: So just to be clear, you're just referring to the no-fly, that she cannot fly to the U.S., not that she cannot enter into the U.S. [00:04:45] Speaker 02: Correct, John, yes. [00:04:48] Speaker 00: So in the Hague decision by the Supreme Court, right, I mean, says that this, you know, whatever right there might be to international travel can be outweighed by an interest in national security. [00:05:02] Speaker 02: But I would suggest that Hague says that that can be regulated within the bounds of due process. [00:05:08] Speaker 02: And we're saying that here, Petitioner was not afforded due process. [00:05:14] Speaker 02: Hague also dealt with the revocation of a former CIA agent's passport, who had publicly exposed CIA employees and sources. [00:05:24] Speaker 02: And within that context, the court found the right to hold a passport was subordinate to national security. [00:05:31] Speaker 02: But the court specifically stated that the revocation of that passport without a pre-suspension hearing was appropriate where there was a substantial likelihood of serious damage to national security, not just a mere reasonable suspicion that there may be a threat. [00:05:50] Speaker 01: And what is the point at which the redress for this placement on the no-fly list should occur? [00:05:56] Speaker 01: For example, if the agency has these concerns, [00:06:00] Speaker 01: about her not being on that list, it almost sounds like you're suggesting that she be able to fly and then this just kind of gets sorted out later. [00:06:09] Speaker 01: I mean, why wouldn't she at least be on some type of pending list, not able to fly and then it gets adjudicated if your concern is about her reputational harm. [00:06:19] Speaker 02: Your Honor, I think that there is alternate lists. [00:06:23] Speaker 02: There's the selectee list, which would allow her to fly, but [00:06:29] Speaker 02: Our suggestion is that the government's interests can be accomplished using those restrictive means. [00:06:36] Speaker 02: Indeed, it has been in the intervening years when she was paroled in 1989, up until she was denied boarding in 2009, petitioner flew freely. [00:06:48] Speaker 02: And the government had alternative procedures, extensive screening, which petitioner went through, arriving at the airport earlier. [00:06:57] Speaker 02: And we would suggest that [00:06:59] Speaker 02: If she was placed on an alternate list like a selectee list, she would be able to still travel, but subject to reasonable restrictions. [00:07:10] Speaker 01: You also indicated that you didn't have the sufficient record, but in this case, there was only certain portions that were redacted. [00:07:18] Speaker 01: So why do you need the unredacted administrative record? [00:07:21] Speaker 02: TSA has indicated that it's [00:07:29] Speaker 02: its decision is based on a prior criminal conviction, but predominantly on a prior criminal conviction. [00:07:36] Speaker 02: We don't know if there's any additional reasons or evidence in the record to suggest why a petitioner should be on that profile list. [00:07:44] Speaker 02: And that goes to the very issue of the process that petitioner was afforded in the situation. [00:07:49] Speaker 02: She cannot meet the... She cannot... [00:07:58] Speaker 02: provide evidence for the accusations against her because she doesn't necessarily know what those full accusations or evidence are. [00:08:15] Speaker 02: We would also suggest that TSA's order is arbitrary and precarious because the record is void of any evidence other than that prior criminal conviction. [00:08:24] Speaker 02: And the simple fact of committing a particular crime in the past cannot constitute probable cause that the person has committed crime in the future. [00:08:33] Speaker 02: Substantial evidence in the record actually shows the petitioner did not pose a threat. [00:08:37] Speaker 02: She was released on parole by the parole commission, who must have determined that she would not have jeopardized public welfare. [00:08:46] Speaker 02: And Judge Bartles, who tried petitioners' piracy conviction, specifically noted there was no question in his mind that she was not a terrorist in any sense of the word. [00:08:55] Speaker 02: But rather than meeting its burden to show a petitioner currently presents a threat, TSA concluded that the evidence she presented does not support her. [00:09:04] Speaker 02: TSA's recitation of the historical facts and evidence presented by petitioner is so conclusory that it does not constitute any real consideration or analysis. [00:09:16] Speaker 02: And this court has held that a failure to respond meaningfully to the evidence and conclusory remarks renders a decision arbitrary and precious. [00:09:24] Speaker 03: You're into your rebuttal time, Ms. [00:09:27] Speaker 03: Scootie, so thank you very much. [00:09:29] Speaker 02: Thank you. [00:09:39] Speaker 04: Mr. Weldon, good morning. [00:09:42] Speaker 05: Good morning, Your Honors. [00:09:43] Speaker 05: My name is Joshua Weldon from the Department of Justice, representing the Respondent Transportation Security Administration. [00:09:50] Speaker 05: After hijacking an airplane, [00:09:52] Speaker 05: Fischer was convicted of aircraft privacy and aircraft privacy resulting in the death of another person. [00:09:59] Speaker 05: Fischer does not dispute that. [00:10:01] Speaker 05: He did not dispute any of the relevant facts in the administrative proceedings below. [00:10:06] Speaker 05: Her conviction alone for a prime with a direct connection to aviation security is reasonable grounds for her inclusion on the no-flyway policy. [00:10:17] Speaker 05: That is particularly so given the deference to [00:10:20] Speaker 05: of the arbitrary and capricious standard, and all the more so given the deference due to the executive branch in making predictive judgments of harm in this national security context. [00:10:32] Speaker 05: And this court in Olivares affirmed the TSA's use of prior criminal conviction, or even the suspicion of criminal activity, even for events that occurred decades ago in making that kind of security assessment or evaluation about threat to aviation security. [00:10:51] Speaker 05: And that ought to answer entirely the petitioner's arbitrary and capricious camp. [00:10:57] Speaker 00: Mr. Wildman, can I ask you, so I take your point. [00:11:00] Speaker 00: Of course, the government has a very strong interest in aviation security, national security. [00:11:06] Speaker 00: Why does it take five years to simply notify a person? [00:11:11] Speaker 00: that they are on the no-fly list. [00:11:13] Speaker 00: I mean, the cases that the government cites to support this lengthy delay are all about it taking five years to render a final decision. [00:11:21] Speaker 00: I mean, notice is sort of the first part of due process. [00:11:25] Speaker 00: I mean, why does it take five years, and why is that type of delay reasonable in the government's view? [00:11:33] Speaker 05: Let me answer that in two parts, one as a matter of law and then one as a matter of fact in this case. [00:11:37] Speaker 05: As a matter of law, this court in Gill said, [00:11:40] Speaker 05: delay of any kind including a five-year delay which was an issue in in gil does not violate the due process clause unless the petitioner can show some harm the outcome of the proceedings caused by the delay and there's no allegation of that in this case but speaking directly to the fact of this case i will say the petitioner applied in 2015 which was very shortly after the government revised its redress proceedings for the first time and she was among the first [00:12:10] Speaker 05: asked for the benefit of the new redress process. [00:12:14] Speaker 05: And the government was still in the process, although it had notified the district court in the Lateef case that it was doing this process. [00:12:25] Speaker 05: It still needed to work through all of the details for the first time. [00:12:29] Speaker 05: In particular, for the 14 plaintiffs in the Lateef case who were the first beneficiaries of the new proceeding. [00:12:36] Speaker 05: But there was a lot of government just getting up to speed and figuring out how they were going to do, for example, what they were going to say in an unclassified summary, how the whole procedure would work. [00:12:46] Speaker 05: So there were delays at that time. [00:12:49] Speaker 05: And she was not the first in line, but she was among the first. [00:12:52] Speaker 05: There were delays that don't necessarily happen right now because the government has a fully fleshed out procedure. [00:12:59] Speaker 05: We'll also say in the middle of that, of those five years, with the longest federal shutdown [00:13:05] Speaker 05: in history in 2018, tail end of her proceedings coincided with the COVID pandemic. [00:13:13] Speaker 05: So there were a number of reasons for these delays, but we don't expect that that process is going to take that long in the future. [00:13:20] Speaker 00: So maybe there was some type of error, but you're suggesting it's harmless in her case. [00:13:25] Speaker 05: Well, I think I read Gail's to say that there's no error at all, but I would agree that if there was, it would be harmless because there's no showing [00:13:35] Speaker 05: there was any possible outcome to the outcome of the process by virtue of that delay, as there would be, for example, in a case where evidence was destroyed or lost because of the delay. [00:13:49] Speaker 05: This is essentially a case where the facts were entirely uncontested below. [00:13:55] Speaker 05: And so no, I don't think that there's any due process violation caused by the delay. [00:14:00] Speaker 05: And as for the other due process arguments, [00:14:03] Speaker 05: All of them were essentially rejected correctly by the Ninth Circuit in the Casham case. [00:14:09] Speaker 05: And in that case, the Ninth Circuit actually pointed to this court's precedent in Giffrey, Holy Land Foundation, and a whole number of other cases that say this court can properly examine as inherent authority the next party record to test PSAs or the government's national security determinations [00:14:31] Speaker 05: whether that information is classified or whether sensitive security information or law enforcement. [00:14:38] Speaker 05: I think that disposes mostly of petitioners due process. [00:14:44] Speaker 05: Hasham also rejected the act on the reasonable suspicion standard as well as the need for a live hearing, which was also rejected. [00:14:55] Speaker 05: I'd be happy to answer any other questions on the due process or on [00:15:00] Speaker 05: Thank you. [00:15:02] Speaker 05: Thank you. [00:15:07] Speaker 01: Thank you. [00:15:07] Speaker 01: Thank you. [00:15:09] Speaker 04: Thank you. [00:15:09] Speaker 04: Thank you. [00:15:18] Speaker 02: Thank you. [00:15:21] Speaker 02: Thank you. [00:15:22] Speaker 02: Thank you. [00:15:24] Speaker 02: Thank you. [00:15:26] Speaker 02: Thank you. [00:15:27] Speaker 02: Thank you. [00:15:28] Speaker 02: Thank you. [00:15:30] Speaker 02: that don't mandate timely agency action like TSA's mandate now. [00:15:37] Speaker 02: And I would suggest Petitioner has suffered harm as a result of this delay. [00:15:41] Speaker 02: She's been prevented from traveling home by any reasonable means since 2009. [00:15:46] Speaker 02: During that time her parents have passed away, she's been unable to attend important social and civil gatherings, and she's been deprived of her liberty interests and travel for that entire period of time. [00:15:58] Speaker 02: So there has been harm suffered by petitioner. [00:16:02] Speaker 02: As for Olivares, this case is distinguishable as well because TSA reached a conclusion there based on an informed judgment that again included a comprehensive review of the threat that petitioner posed, background investigations, internal agency communications, and explanations of the grounds that supported TSA's determination. [00:16:25] Speaker 02: Your honor, if there's no further questions, [00:16:30] Speaker 03: Judge Charles. [00:16:31] Speaker 02: Nothing further. [00:16:32] Speaker 02: Thank you. [00:16:33] Speaker 03: Okay. [00:16:33] Speaker 03: Thank you, Miss Goody. [00:16:35] Speaker 03: The case is submitted.