[00:00:00] Speaker 00:
Case number 22-211-84, Ed Al.

[00:00:04] Speaker 00:
Fahmy Ahmed Moharam, petitioner, versus Transportation Security Administration, and David Epikowski in his official capacity as administrator of the Transportation Security Administration.

[00:00:15] Speaker 00:
Mr. Siegel for the petitioner, Mr. Wolfman for the respondents.

[00:00:20] Speaker 05:
Good morning, counsel.

[00:00:22] Speaker 06:
Mr. Siegel, please proceed when you're ready.

[00:00:23] Speaker 06:
Thank you, Your Honor.

[00:00:24] Speaker 06:
May it please the court, James Siegel, on behalf of Petitioner Fahmy Moharam, that there is three minutes of my time for rebuttal.

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This court should not permit the government to evade any meaningful scrutiny of its deprivation of Mr. Maharam's significant liberty interests.

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The administrative proceedings below, the government maintained that it could refuse to disclose any of the information on which it relied in placing Mr. Maharam on the no-fly list.

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Now before this court, the government insists that simply by removing Mr. Maharam from that list,

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but providing no guarantee whatsoever they won't be returned to the list and subjected to the same unconstitutional conduct.

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The government can moot this case by depriving this court of any power to afford him a remedy.

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The government is wrong on both counts.

[00:01:08] Speaker 01:
The government didn't say that.

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The government said that they would not put him back on the list based on the information that they have presently, right?

[00:01:17] Speaker 06:
That's right, your honor.

[00:01:18] Speaker 06:
That's exactly what the declaration in the FICRA case said.

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The U.S.

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Supreme Court just decided where it said that did not moot a similar challenge to the placement on the no-fly list.

[00:01:29] Speaker 01:
Well, it's not a similar challenge.

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That's 19...

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It's a constitutional case, and this is an APA case.

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You're right, Your Honor.

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You're not seeking declaratory relief, right?

[00:01:41] Speaker 06:
No, Your Honor, we're seeking the remedies available under 49 USC 46110C.

[00:01:47] Speaker 06:
And so that is the only distinction with the Fuqua case.

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And that distinction, I think the government does not dispute, goes only to this court's remedial authority and not to whether or not Mr. Maharam suffers any prospective injury here that could still

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preserve this court's jurisdiction.

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So the government doesn't deny that under FICRA there is at least some likelihood that Mr. Maharam will be returned to the no-fly list.

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It doesn't deny that it can't meet its formidable burden of showing that it's moot because he has no continuing interest in that sense.

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The government's sole distinction with FICRA is sort of a hyper-technical one based on this court's remedial authority.

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It says that this court can't set aside the TSA administrator's decision.

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And its basis for saying that this court can't set aside the TSA Administrator's decision is entirely based on the DHS TRIP letter sent to Mr. Maharam, which informed him that he had been removed from the no-fly list.

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And in that letter, DHS TRIP said that this letter supersedes the TSA Administrator's decision that Mr. Maharam is a challenge here from which this petition for review arises.

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But in that TSA Administrator's decision,

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The TSA administrator reached a number of different conclusions that are challenge here.

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One, of course, was that Mr. Maharam should be properly maintained on the no file list.

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Two was that the evidence was sufficient to support that placement.

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That's something that could continue to have an effect on Mr. Maharam going forward.

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And then three, that the government could, in fact, decide that without providing either Mr. Maharam or his security clerk counsel access to any of the evidence on which the government relied.

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And so nothing in the DHS TRIP letter could possibly supersede those other determinations, which again, the DHS TRIP letter simply told Mr. Maharam that he had been removed.

[00:03:24] Speaker 01:
If we disagree with you on that, whether it supersedes it, what's your best argument that this case has not moved?

[00:03:34] Speaker 06:
I think two arguments, Your Honor.

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First would be that the TSAV wall decision, which this court recently decided that was that involves TSA orders had expired.

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This court did not hesitate in saying that it nevertheless maintained jurisdiction to decide that case because there was a possibility of continued harm going forward.

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The government says that that turned instead on the fact that the petitioners there had sought permanent injunctive relief, but that could not have been the basis for this court's decision because 46110C does not provide for permanent injunctive relief.

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The actual remedial authority that the court had in that case had to be the same as this court has in this case.

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And even setting that aside, the capable of repetition yet abating review exception to mootness would apply.

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I think the best- But on the injunctive part of it,

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If the complaint in fact asks for injunctive relief, we wouldn't at the jurisdictional stage decide that the cause of action doesn't encompass injunctive relief.

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We give the plaintiff the benefit of the doubt on

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the scope of the cause of action, no?

[00:04:33] Speaker 06:
No, you're right, because I think that 46-110C is a jurisdictional statute, it speaks in terms of this court's jurisdiction, and so if this court does not have the jurisdiction to issue an injunction, then that would likewise preclude this court from holding the cases in moot and actually reaching the merits based on something it doesn't have the jurisdiction to do.

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And to the extent that the mere mention of some sort of relief like that in the petition for review would suffice, we similarly here ask for this court to hold unlawful the TSA Administrator's decision.

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So that, again, would really be a basis for distinguishing the TSA v. Wall decision.

[00:05:07] Speaker 06:
Go ahead.

[00:05:08] Speaker 02:
No, no, go ahead.

[00:05:10] Speaker 05:
What do you mean?

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Because you're asking for a set-aside of the TSA Administrator's decision.

[00:05:16] Speaker 05:
Yes, sir.

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And then the decision

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its operative force is to maintain the no-fly list, maintain the existence of a person on the no-fly list.

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So if the person is then just not on the no-fly list anymore, then hasn't the force of that decision already been undone because what the decision did was to maintain them on the no-fly list.

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They're not on the no-fly list, and therefore they're not obviously being maintained on the no-fly list because they're not on it anymore.

[00:05:45] Speaker 06:
Well, this didn't simply maintain him on the no-fly list.

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It said that he wasn't entitled to any of the evidence he sought in challenging his place on the no-fly list.

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So it has that sort of operative effect as well.

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But then again, so TSAV Wall was exactly the same.

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But the evidence only comes up because it's a challenge to maintaining him on the no-fly list.

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Yes, Your Honor.

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So again, the TSAV wall, just to turn to that, the orders had expired.

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These were masking directives that applied to transportation areas, and they had expired.

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This court nevertheless said it had the power to address those.

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The expiration of those orders didn't deprive this court of the remedial authority to determine whether or not those orders had in fact been proper.

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Where what was being sought was

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This court did not mention the fact that the petition referenced injunctive relief.

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Again, this court doesn't have jurisdiction under 46-110C to issue an injunction, so I don't believe that could have been the basis for this court's holding.

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And then again, as I mentioned, our petition review asked for this court to hold unlawful the TSA order.

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So to the extent there's a

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a basis for asking for relief that's not actually set forth in 46110C.

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We've effectively asked for a declaratory judgment, which I think the government concedes would likewise prevent this case from becoming moot.

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But even setting that aside, there's also the cable of repetition, evading review exception, which... Put that aside for one second.

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So in FIGRE, do you disagree with the proposition that what the parties agreed to was moot there was moot?

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I know we don't know.

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So if we had saw an injunction removing him from the no-file list, we agree that that would have been.

[00:07:23] Speaker 06:
Yes, Your Honor.

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So it's the fact that you're not just seeking the equivalent of an injunction that removes him from the no-file list.

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It's more that we're seeking the equivalent of a declaratory judgment.

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And that declaratory judgment would have effect if and when he is placed again on the no-file list.

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So for example, this court holds that

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in the TSA administrative proceedings that we're challenging here, in fact, did violate Mr. Maharam's procedural right to due process to not allow even his cleared counsel access to the classified information on which the government was relying.

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That would have a preclusive effect in the future TSA administrative decisions if and when Mr. Maharam, again, challenges his placement on a no-fly list.

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So in that respect, it's exactly like the sort of declaratory judgment that Mr. Fekras sawed.

[00:08:03] Speaker 02:
So if your petition just asks this court to,

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Hold the decision unlawful and set aside or revend it.

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Hold the decision, maintaining him on the no-file list unlawful.

[00:08:17] Speaker 06:
Yes, Your Honor.

[00:08:18] Speaker 06:
We asked for it to be held.

[00:08:21] Speaker 02:
Right.

[00:08:23] Speaker 02:
If, imagine this court were to address that question, we were to decide,

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even without looking at the class, and I know you have arguments against this, this is just a hypothesis.

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If this court were to say, wow, we've looked at even the unclassified record, the public stuff that's been released, and we've looked at the other stuff, but just on the face of itself, the public information itself, you have successfully argued that he should not be on the no-fly list.

[00:08:55] Speaker 02:
And nothing in the classified documents changes that.

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And so you have shown us that it's arbitrary, Capricious.

[00:09:00] Speaker 02:
And so we were to order them to take him off the no-fly list, right?

[00:09:07] Speaker 02:
How about that's in a world where they have not yet said he should take it off.

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So this is pre-their letter, their May letter.

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If you had one on your argument and one without needing access to classified information, would that have been full relief on the petition that you filed with us?

[00:09:26] Speaker 06:
Yes, because it not only would have removed him from the no-file list, but it would have made clear that he could not be placed on the no-file list again for the same sort of conduct, which again is not what the- But we wouldn't have any obligation then to proceed and address your due process arguments about access to classified information in that situation, correct?

[00:09:44] Speaker 06:
No, Your Honor, but that's in part because there wouldn't be the same risk that he'd be placed again on the no-file list.

[00:09:50] Speaker 06:
So the constitutional issue that arises due to his being deprived of all this evidence continues to be live because he might be again placed on a no-file list.

[00:09:58] Speaker 02:
Okay, so the point is we can recognize that you can obtain removal from the no-file list at a satisfactory, and this happens often in cases, without us having to address every procedural objection raised in the case.

[00:10:10] Speaker 02:
That happens all the time.

[00:10:12] Speaker 06:
In theory, Your Honor, but I think just like in Ficre, the key is that he could again be placed on the no filis and be subjected to the same unconstitutional condom.

[00:10:20] Speaker 02:
We can talk about Ficre in a second, but just so if we imagine a hypothetical case.

[00:10:24] Speaker 02:
Yes, Your Honor.

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We would agree that you wouldn't have to go ahead and address these due process things.

[00:10:29] Speaker 04:
No, Your Honor.

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And then if the government were to, again, put him on the no filis, but they would have a new declaration

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say a classified one or a public one saying, and here's something else that he did recently that we're relying on that had not been in the prior case, that would be okay.

[00:10:51] Speaker 06:
I mean, if there were entirely different evidence that... A new piece of evidence, yes, something.

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An entirely different theory of why he should be on the no-fly list.

[00:10:58] Speaker 02:
Not entirely different theory, additional evidentiary record.

[00:11:01] Speaker 06:
Yes, Your Honor, but I think the same is true in a case like FICRA as well.

[00:11:04] Speaker 02:
Again, there's a lot of differences between the relief sought in FICRA and the claims asserted in FICRA than what's asserted here.

[00:11:10] Speaker 02:
But why then isn't the government statement that this current record, which is the record you're challenging, the record you're seeking to see, the public record and the classified information, this current record, we've concluded, is not a basis for him to be on the no-fly list.

[00:11:29] Speaker 02:
Why doesn't that mean that he couldn't be put back on unless there was a new piece of information

[00:11:39] Speaker 02:
That was different in a material way.

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We're not going to say he tied his shoes.

[00:11:43] Speaker 02:
There's some material piece of new information that would change their calculus, if that's how we understood their representation.

[00:11:51] Speaker 02:
why would that not be the same as a hypothetical I gave you?

[00:11:54] Speaker 06:
The issue is that he could do the exact same thing he did before and be returned to the no-fi list, and that's exactly what was the issue.

[00:11:59] Speaker 02:
That's what they say is that the current information, which is the same things he's done before, will not support... No, Your Honor, and that's again, that's the distinction the court drew in FICRA.

[00:12:08] Speaker 06:
They said the declaration was exactly the same.

[00:12:11] Speaker 06:
They said he will not be returned to the no-fi list based on currently available information.

[00:12:15] Speaker 02:
Right, but then, okay, if you want to talk about FICRA, we'll talk about that, but then they said

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And why did it matter in that case?

[00:12:20] Speaker 02:
The first thing they said is, well, he has argued, which isn't argued here, and he has sought declaratory judgment, injunction going forward, even once he's off the list, to stop the government from monitoring his attendance at mosques, threatening him to either turn over people or you'll be on the no-fly list.

[00:12:42] Speaker 02:
Those were the allegations in his complaint in that case.

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He had all manner of claims.

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religious discrimination claims, he had racial or national origin discrimination claims in that case, and he wanted forward-looking relief that would not only take him off the no-fly list, but also prevent the government from, you know, once again, again, these are allegations, I'm not saying what happened or not, but in his view of

[00:13:10] Speaker 02:
following him, monitoring his religious activities, and putting him in coercive situations.

[00:13:15] Speaker 02:
I think he wanted an injunction against me and sent off to another country for interrogation.

[00:13:19] Speaker 02:
All of that stuff, none of that was remotely addressed by taking him off the no-fly list.

[00:13:26] Speaker 02:
There were all these other things that could still be decided and redressed by a court.

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Maybe he'd win or lose, but they were all live issues still to be

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resolved.

[00:13:37] Speaker 02:
You don't have anything in this case.

[00:13:38] Speaker 02:
You just agreed that if we were to hold that based on this record, hypothetically, he shouldn't be on the no-fly list, that would be full relief and we wouldn't have to address your procedural arguments about access to classified material.

[00:14:00] Speaker 02:
And the same thing would lead, the government would be in the same position it is from a statement here.

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You haven't sought any other relief, no other form of relief.

[00:14:09] Speaker 02:
And there's nothing, they would have to have something new if they were to try to put him back on again.

[00:14:18] Speaker 06:
Sure, I think it's key to really distinguish the possible future injury from this court's remedial authority.

[00:14:25] Speaker 06:
So I think FICRA is directly on point with respect to the possibility of future injury.

[00:14:29] Speaker 02:
And so there, again, what the government said... But the possibility of future injury were completely different allegations than what we have here.

[00:14:35] Speaker 02:
The possibility of future injury... You're talking about, if he's back on the no-fly list, I might have the same procedural arguments.

[00:14:41] Speaker 02:
He thought... He saw... The future injury for him was, they're videoing me every time I go to the mosque, or they are coming to my house and knocking on my door saying, really need you to tell me about somebody else, what they're doing, otherwise we're going to keep following you, or...

[00:14:56] Speaker 02:
you know, harassment or whatever he wanted to characterize it as.

[00:14:59] Speaker 02:
Or I'm at risk of getting, if I travel abroad, some other country is going to grab me up and interrogate me.

[00:15:04] Speaker 06:
Yeah.

[00:15:04] Speaker 06:
I mean, we don't know why he's on the no-fly list.

[00:15:07] Speaker 06:
So we haven't been able to make this sort of specific substantive arguments.

[00:15:10] Speaker 02:
But your client didn't have the actions happen to him that happened to FICRA.

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And he hasn't claimed relief from the activities that happened to him that happened to Mr. FICRA.

[00:15:20] Speaker 02:
The only commonality is on or off the no-fly list.

[00:15:24] Speaker 02:
Well, if someone's off the no-fly list, we don't have to address whether they were procedurally put on in the first place.

[00:15:31] Speaker 02:
They're off.

[00:15:32] Speaker 06:
Well, Your Honor, so for example, one of the reasons that he could be on the no-fly list when he was attempting to guess at the reasons in the administrative proceedings was because he had attended a particular religious school in Yemen.

[00:15:43] Speaker 06:
And if in fact that is the basis for the government's determination, he's probably not an Ophiolist, then he would likely bring the same sort of religious discrimination.

[00:15:51] Speaker 02:
He could bring those and those could be litigated, but my only point is this petition does not assert any claims like that.

[00:15:58] Speaker 06:
Your Honor, we've asserted the government's decision to keep him on the Ophiolist was arbitrary and capricious, and we've asked this Court to

[00:16:06] Speaker 06:
not allow the government to file the entire record ex parte because that prevents Mr. Muharrem and his counsel from actually advancing any substantive arguments with respect to that.

[00:16:15] Speaker 02:
If we were to address the merits and rule for you in this case on just whether there was enough information here to warrant putting him on the no-fly list and you won.

[00:16:28] Speaker 02:
What relief would he get?

[00:16:29] Speaker 06:
He would be prevented from being put on the no-fly list if he again did the same thing that he did here.

[00:16:35] Speaker 02:
And if the government gets up and says, now this, maybe we're trying to figure out how to read the government's representation.

[00:16:43] Speaker 02:
If the government gets up and says, our statement means we cannot put him back on the no-fly list.

[00:16:53] Speaker 02:
based on this same information, something else would have to happen.

[00:16:58] Speaker 02:
And presumably nothing will happen.

[00:17:01] Speaker 02:
It won't happen.

[00:17:02] Speaker 02:
But something else would have to happen that's materially different, then there's no relief whatsoever we can provide to you.

[00:17:09] Speaker 06:
So respectfully, Your Honor, I think we're rejecting exactly that proposition.

[00:17:13] Speaker 06:
The government can't stand up and make

[00:17:14] Speaker 06:
that particular representation, because the speaker looked at the same declaration and said that that declaration does not provide any assurance that if he does the same thing again, he won't be placed back on the no file list.

[00:17:28] Speaker 02:
To appreciate why it's not enough, consider one aspect of his complaint.

[00:17:33] Speaker 02:
This is why just taking him off the no-fly list was not enough in that case.

[00:17:38] Speaker 02:
He contends the government placed him on an offense for constitutionally impermissible reasons, including his religious briefs.

[00:17:43] Speaker 02:
And then the whole paragraph is about threatening to keep him on the list unless he turned on people, monitoring hazard activities, sending him to foreign countries.

[00:17:54] Speaker 02:
Those could all be

[00:17:56] Speaker 02:
Real relief could happen if he got an injunction against monitoring his religious activities.

[00:18:05] Speaker 02:
If he got an injunction against threatening him to get him to turn on other congregants or other people.

[00:18:15] Speaker 02:
if he got an injunction against having him interrogated by other governments.

[00:18:19] Speaker 02:
The Supreme Court told us exactly what it was that kept his case alive, none of which your client has asserted in his petition for review.

[00:18:29] Speaker 06:
Well, Your Honor, I think that the direct parallel here would be if, for example, he's on the no-file list because he attended that particular religious school,

[00:18:35] Speaker 06:
And he's off the no philist now, but if he goes back to that same school and is placed back on the no philist for that exact reason.

[00:18:42] Speaker 02:
That's the question then about the government's concession in this case, whether they think that if we assume, just hypothesize, the reason he's on the list is he went to the school, which I think your client names publicly.

[00:18:56] Speaker 02:
in his declaration.

[00:18:57] Speaker 02:
Yeah, it's the school in Dimash, yes.

[00:18:59] Speaker 02:
Right, it goes to the school in Dimash, and I'm assuming for these purposes there's only one school in Dimash and there wouldn't be a second school in Dimash you could go to that would upset the government.

[00:19:06] Speaker 02:
So he goes to the school in Dimash.

[00:19:09] Speaker 02:
Okay?

[00:19:10] Speaker 02:
And if we are just assuming that that's the reason he's on the no-fly list.

[00:19:15] Speaker 02:
And if the government comes up and says, when we say this current record does not support maintaining him on the no-fly risk, we've essentially taken out that decision by the administrator who tormented him, subbed in this new piece of paper that says this is not enough.

[00:19:32] Speaker 02:
If they say so, just going to Dimash, if nothing else changes materially, will not be enough in the future either.

[00:19:40] Speaker 02:
and any other public, going to visit his family in Yemen for a couple months, the things that are public record, that won't be enough, all by themselves.

[00:19:52] Speaker 02:
Then there's nothing more to give your client.

[00:19:54] Speaker 02:
Now of course the government can't say, we'll never put him on the no-file list again.

[00:19:57] Speaker 02:
Not your client, but if they said that for some other person in another case, that person then would have license to do anything they want and never get on the no-file list.

[00:20:05] Speaker 02:
So they have to always have room to say, if there's material new evidence,

[00:20:10] Speaker 02:
All bets are off.

[00:20:11] Speaker 02:
You would agree with that.

[00:20:13] Speaker 06:
Yes, Your Honor, and we're not contending that it has to say, we'll never put you on the no-file list again.

[00:20:17] Speaker 06:
What we're saying, and what the Supreme Court in Fuqua said, is that the government has to meet its formidable burden of showing that what happened here won't happen again.

[00:20:23] Speaker 02:
Right, and it couldn't do it there because of all the other problems that still needed to be addressed and could be redressed.

[00:20:29] Speaker 06:
It's not just that, Your Honor.

[00:20:30] Speaker 06:
It's that the particular wording of the declaration, and so this is the case at RC.

[00:20:34] Speaker 06:
But I do think the government, I'd be interested to see what the government says, because I don't think they can make that representation.

[00:20:39] Speaker 05:
Can I just try to clarify one thing?

[00:20:41] Speaker 05:
There's one distinction in that if there's a claim in a case like it was in FICRA that this is a piece of information that you just can't take into account, period.

[00:20:52] Speaker 05:
And let's say it's something that's happened twice.

[00:20:55] Speaker 05:
You go to a school and you've gone twice.

[00:20:57] Speaker 05:
And what the government thinks is we used to think that going twice was enough, but now we think actually you have to go three times.

[00:21:04] Speaker 05:
And so gone to school two times, and then the government says, well, based on the currently available information, we used to think that was enough, but actually we no longer think that's enough.

[00:21:13] Speaker 05:
So the currently available information is that you want twice.

[00:21:16] Speaker 05:
That's now we've come to reconceptualize what is enough.

[00:21:19] Speaker 05:
Two times is not enough.

[00:21:21] Speaker 05:
Based on the currently available information, you're no longer on the no-fly list.

[00:21:25] Speaker 05:
then there could still be a gap, because it could be that the claim would be you can never take that fact into account no matter how many times it is.

[00:21:33] Speaker 05:
And the government would say, well, we're not saying that.

[00:21:37] Speaker 05:
We're just saying that all we knew before was that you'd gone two times.

[00:21:41] Speaker 05:
We think you need three.

[00:21:43] Speaker 05:
And so then the person goes back a third time, and then the complaint would still have a problem, because going at all would be a problem.

[00:21:50] Speaker 05:
But from the government's perspective,

[00:21:52] Speaker 05:
on this currently available information, because there'd be new information in that you would have gone and done the same thing another time, and that would be enough.

[00:22:01] Speaker 05:
Do you see what I'm saying?

[00:22:02] Speaker 06:
Yes, Your Honor, but I think that favors our position, Your Honor, because if this court were to set aside that determination.

[00:22:07] Speaker 05:
So what I'm wondering is, in FICRA, the claim was made.

[00:22:12] Speaker 05:
And part of it, it wasn't a 46-110 case, right?

[00:22:17] Speaker 05:
And so the claim was made that you just can't take into account visiting, just to make the comparison, you just can't take into account visiting the school at all, period.

[00:22:26] Speaker 05:
You can't do it.

[00:22:30] Speaker 05:
That was part of the theory of the complaint, and that was part of the relief that was sought, was a declaration that that can never be taken into account, period.

[00:22:38] Speaker 05:
It just can't.

[00:22:39] Speaker 05:
It's not a cumulative, it's not two versus three, it's ever.

[00:22:43] Speaker 05:
And then there isn't that kind of claim here.

[00:22:47] Speaker 05:
As far as I know.

[00:22:48] Speaker 05:
I think the procedural due process claim could be characterized in that way, but to the extent you're saying that there's no... But the procedural one, I think for... Judge Malat's hypo is a good... I was struggling to come up with a hypothetical that actually retees that out, and that one does, because the procedural part of it drops out if you get the relief on the ground that the hypo... I don't think that's necessarily true, Your Honor, because again, so even say that the sub... It's exactly like Ficre.

[00:23:14] Speaker 06:
He goes back to the same school.

[00:23:15] Speaker 06:
Part of the constitutional problem here is it's not just that he's gone back to the same school and that might be constitutionally impermissible religious discrimination or something like that.

[00:23:24] Speaker 06:
It's that when he again attempts to challenge that determination, he won't even know why he's on the list.

[00:23:31] Speaker 06:
And so the same exact constitutional deprivation will happen again.

[00:23:34] Speaker 06:
And this court could prevent that constitutional deprivation from happening again.

[00:23:38] Speaker 06:
by setting aside the TSA administrator's decision.

[00:23:40] Speaker 06:
So in that respect, I don't really see any relevant difference with FICRA.

[00:23:44] Speaker 06:
But then even setting that aside, so even setting aside the procedural due process claim,

[00:23:48] Speaker 06:
The reason there's no comparable religious discrimination or other sort of claim here is because the government hasn't provided any information.

[00:23:56] Speaker 06:
That's sort of the central issue.

[00:23:58] Speaker 06:
And so, you know... Right.

[00:24:00] Speaker 05:
And if you got that kind of... I mean, in FICRA there happened to be that kind of information available, so the claim could be brought up.

[00:24:06] Speaker 06:
Yes, exactly, Your Honor.

[00:24:07] Speaker 06:
But so that information could be made available here.

[00:24:09] Speaker 06:
We've opposed the government's motion to file the entire administrative record, the meaningful portions of the administrative record ex parte,

[00:24:16] Speaker 05:
But I don't think it's the case that in a 46-110 proceeding that you're entitled to get a resolution that gives you enough information with which you can make sure that that kind of thing doesn't happen if you are getting the relief anyway.

[00:24:31] Speaker 06:
Well, Your Honor, I think it's more a question of whether there's a continuing live controversy, whether the government is established.

[00:24:37] Speaker 06:
It's the government's burden to establish that the case is moved.

[00:24:40] Speaker 06:
The government doesn't dispute that this case was jurisdictionally proper when it was first brought.

[00:24:43] Speaker 06:
government has to show that it's in fact removed any relevant controversy that this court has the authority to address.

[00:24:50] Speaker 06:
And so as I take the government's brief, it's not making the sort of argument that Judge Millett is suggesting, that it's removed any possibility of future injury that could be present here.

[00:25:03] Speaker 06:
Again, and I think that's because the government recognized that FICRA is controlling that issue.

[00:25:06] Speaker 06:
What the government is arguing is simply that there's no power in this court under 46-110C to set aside a TSA administrator's decision that's been superseded.

[00:25:16] Speaker 06:
That's essentially their sole argument.

[00:25:18] Speaker 06:
They don't deny that the procedural due process issue could arise again.

[00:25:21] Speaker 06:
They don't deny that Mr.

[00:25:23] Speaker 06:
could be placed on the no-file list again for essentially the same reasons.

[00:25:26] Speaker 06:
They don't deny that to the extent he has any sort of substantive challenge to his current placement on the no-file list, which again, he can't know because he doesn't have the evidence.

[00:25:34] Speaker 06:
They don't deny that that exact claim could arise again.

[00:25:36] Speaker 06:
They're saying only that this court can't set aside a decision that has been superseded by a letter sent by a different branch of an agency that simply informs Mr. Holm that he's no longer on the no-file list.

[00:25:50] Speaker 05:
Okay.

[00:25:50] Speaker 05:
Well, we'll definitely hear from the government on that.

[00:25:52] Speaker 02:
And, and I just, can I follow up on someone, uh, chief judge from your process question about, well, if they have information or reasonably, the three times meant you, you know, qualified as a certain relationship to, um, some of the, they suspected, but two time visits didn't, if we were to rule for you in this case and say, this record's not sufficient,

[00:26:16] Speaker 02:
That would only, and we're just hypothesizing things here.

[00:26:19] Speaker 02:
Just imagine the record says, originally they said two times he went to this place or talked to this person, and so we're gonna put it on the no-fly list for that reason, and then they come along in May and go, no, no, no, no.

[00:26:34] Speaker 02:
Two isn't enough.

[00:26:35] Speaker 02:
It has to be three.

[00:26:37] Speaker 02:
If we review this decision and rule for you, all we would hold is two's not enough.

[00:26:45] Speaker 02:
It could have helped you, but I don't see how.

[00:26:47] Speaker 02:
It would not address, and we couldn't decide.

[00:26:50] Speaker 02:
We don't get to do free-form, forward-looking declaratory judgments, or you haven't asked for one.

[00:26:57] Speaker 02:
Certainly in your petition, I think it's whether we can do that under 46-110 is a question, but you haven't asked for it, and so all we would do is say under this hypothesized record, two is not enough.

[00:27:09] Speaker 02:
Well, your honor, I think that just sort of... That wouldn't help you if there were a third, if that were the rationale.

[00:27:13] Speaker 06:
I think it would, your honor.

[00:27:14] Speaker 02:
And again, sort of the percussive effect of a judgment is... They have no legal judgment saying that whatever their rational... To be clear, the record is all made up.

[00:27:22] Speaker 02:
But if we would have no rationale whatsoever, presumably they would have an explanation for why three is material.

[00:27:29] Speaker 02:
Uh, well, Your Honor, so, say, for example... If we have a rational for three, that would not have been covered by our prior decision.

[00:27:34] Speaker 02:
I don't understand how it helps you at all.

[00:27:36] Speaker 06:
If, if, if your, if this Court set aside the TSA Administrator's decision because, you know, attending the, the, this particular religious school twice was unconstitutional religious discrimination.

[00:27:49] Speaker 06:
For example, that would have preclusive effects in the future proceeding that the government a substantive constitutional argument.

[00:27:54] Speaker 02:
You've only argued that is in the arbitrary and capricious that it wasn't sufficient evidence.

[00:27:58] Speaker 06:
Well, again, you're on.

[00:27:59] Speaker 06:
That's because we haven't.

[00:28:00] Speaker 06:
We haven't seen the evidence.

[00:28:01] Speaker 06:
We don't even know what the basis is.

[00:28:02] Speaker 02:
So you're in a different position to be sure of them is for Mr. Ficre.

[00:28:04] Speaker 02:
But you're in a different position for Mr. Ficre in his case.

[00:28:08] Speaker 06:
Yes, sir.

[00:28:09] Speaker 06:
I guess I'd ask that to the extent this court thinks that the mootness inquiry turns on the actual substantive arguments we can make, that this court first resolve the pending motions to determine whether the administrative record should in fact be filed ex parte.

[00:28:20] Speaker 05:
I mean, I think it would help.

[00:28:21] Speaker 05:
I guess I think the two versus three would help if there were a claim that it can never be taken into account.

[00:28:29] Speaker 05:
as was the claim in Ficker.

[00:28:31] Speaker 06:
Yes, Your Honor, but I mean, we've argued it's arbitrary and capricious and contrary to law.

[00:28:35] Speaker 06:
And I think it would just depend on the court's rationale for why two is not enough would inform whether or not three might not be enough as well.

[00:28:42] Speaker 02:
And again, this is the sort of- You haven't been able to make, or even within the standards of Rule 11, plausibly allege that what the government did here substantively is unconstitutional.

[00:28:53] Speaker 06:
No, Your Honor, we haven't been able to make any claims about what the government substantively did.

[00:28:58] Speaker 06:
That's right, Your Honor.

[00:28:59] Speaker 06:
But it could be before you, because we've done the best we can to preserve that claim, and we've asked this Court to unseal the relevant information so that we can see it.

[00:29:10] Speaker 02:
I just have a practical question about how the no-fly list works.

[00:29:17] Speaker 02:
I don't know if you can answer.

[00:29:18] Speaker 02:
Obviously, you can't get on airplanes that are

[00:29:21] Speaker 02:
within leaving from or going over US airspace.

[00:29:27] Speaker 02:
Just because there's arguments about what the nature of the liberty interest is here.

[00:29:33] Speaker 02:
Are people able to travel to another country?

[00:29:40] Speaker 02:
bus, car, and fly from there?

[00:29:43] Speaker 06:
As a practical matter, no, Your Honor.

[00:29:46] Speaker 06:
This was addressed in the Lateef decision and sort of affirmed in Cash M, the Ninth Circuit's decision.

[00:29:51] Speaker 06:
And part of the issue is, for example, if he were to try to go to Canada and fly from Canada.

[00:29:56] Speaker 02:
I'm assuming maybe Canada and the U.S.

[00:29:58] Speaker 02:
share information like this, but say he went to

[00:30:00] Speaker 02:
somewhere in Central America.

[00:30:03] Speaker 02:
There's a claim from there to another country and then to Yemen.

[00:30:07] Speaker 06:
As you are identified, first there's the issue of sharing information.

[00:30:10] Speaker 06:
In fact, the no-files is widely shared, but then second... Widely shared with who?

[00:30:14] Speaker 06:
With a number of other countries.

[00:30:16] Speaker 02:
A number, but that's... I'm just trying to figure out, it's harder.

[00:30:20] Speaker 02:
There's no doubt that it's harder, but there are countries drivable from the United States that

[00:30:28] Speaker 02:
probably we aren't sharing a lot of information with.

[00:30:32] Speaker 02:
And they have international airports, too.

[00:30:35] Speaker 02:
They might not go all the way to Yemen, but they might go to another country that does go to Yemen.

[00:30:39] Speaker 02:
So did he ever investigate whether he could travel to Yemen?

[00:30:42] Speaker 02:
It would be harder, maybe a little more expensive.

[00:30:44] Speaker 06:
I don't believe it's in the record whether he investigated that.

[00:30:46] Speaker 06:
He said he was unable to fly and visit his family in Yemen.

[00:30:49] Speaker 02:
Well, from the United States.

[00:30:50] Speaker 06:
He said he was unable to do that.

[00:30:52] Speaker 06:
He hadn't traveled since he was placed on the No 5.

[00:30:54] Speaker 02:
He made an effort to try it from another country.

[00:30:57] Speaker 02:
And I just didn't know if that's

[00:30:59] Speaker 02:
somehow rendered internationally impossible in every country, which would be surprising to me, or it's simply, it's definitely more complicated.

[00:31:08] Speaker 06:
It's so significantly more complicated, I think it is effectively impossible, and that's what the court in Latif held and the Ninth Circuit affirmed.

[00:31:14] Speaker 06:
And I think part of the issue is not just whether there's information sharing, it's traveling over US airspace.

[00:31:18] Speaker 02:
I don't see them say it's effectively impossible.

[00:31:20] Speaker 02:
I think I've read Kashima saying it's a pain.

[00:31:23] Speaker 06:
But in defining a liberty interest.

[00:31:25] Speaker 06:
The Latif case that Keshem affirms or more directly goes into this and explains why this is such a substantial infringement on the liberty interest.

[00:31:34] Speaker 02:
But I didn't see a logistical explanation of how the no-fly list works and that is could one have gone to another country with which were

[00:31:40] Speaker 02:
less friendly or isn't so willing to trust our information and fly from there.

[00:31:45] Speaker 02:
Is that a yes or a no?

[00:31:47] Speaker 06:
It might be conceivably possible if you were to travel somewhere far enough that any flight wouldn't take him over U.S.

[00:31:52] Speaker 06:
airspace, but I don't know practically whether that is in fact possible, and certainly the government hasn't argued in this case that if he had... They haven't talked about it at all.

[00:32:05] Speaker 02:
I understand you got the Ninth Circuit decision, but I'm trying to understand

[00:32:09] Speaker 02:
the nature of the liberty interest here.

[00:32:10] Speaker 02:
He's not completely precluded from seeing his family.

[00:32:12] Speaker 06:
Take a boat.

[00:32:16] Speaker 06:
Yes, Your Honor.

[00:32:18] Speaker 06:
I'm not sure he would have been able to take a boat, because again, the information is shared with those sort of authorities as well.

[00:32:23] Speaker 06:
But then again, I think if there were any practical way for him to see his ailing mother, his wife, and his children in Yemen, he would have done so.

[00:32:28] Speaker 06:
And he did not.

[00:32:29] Speaker 06:
That was because he was on the no-far list.

[00:32:30] Speaker 02:
That's not in the record, that he tried every conceivable route.

[00:32:33] Speaker 06:
He said that he was unable to visit his family in Yemen.

[00:32:36] Speaker 02:
But there's no elaboration.

[00:32:37] Speaker 02:
OK.

[00:32:37] Speaker 02:
Thank you, Your Honor.

[00:32:40] Speaker 05:
Thank you, Council.

[00:32:40] Speaker 05:
We'll give you some time for rebuttal.

[00:32:49] Speaker 05:
Mr. Waldman.

[00:32:54] Speaker 03:
Good morning, Your Honors.

[00:32:55] Speaker 03:
Joshua Waldman from the Department of Justice, representing the respondent TSA in this case.

[00:33:00] Speaker 03:
Petitioner's no-fly list claims are moot because his asserted injury is no longer redressable by the only relief that he seeks, setting aside TSA's final decision maintaining him on the no-fly list.

[00:33:14] Speaker 03:
The government has removed him from the list.

[00:33:17] Speaker 03:
TSA's final decision is superseded, and TSC has provided a declaration saying he no longer satisfies the criteria for placement on the no-fly list.

[00:33:27] Speaker 03:
Petitioner has waived any request for declaratory or injunctive relief of any kind, including the kinds sought in FICRA or anything else.

[00:33:37] Speaker 03:
And as a consequence, there's nothing this court could do that would redress the injuries alleged in this case or create a judgment that would be binding going forward on TSA.

[00:33:49] Speaker 02:
What does superseded mean in this case?

[00:33:52] Speaker 03:
It means that the prior decision maintaining him on the no-fly list no longer has operative legal consequences or effect, meaning if he went on a plane now, he would not be barred

[00:34:05] Speaker 03:
by the no-fly list.

[00:34:06] Speaker 02:
Is that decision torn up and gone?

[00:34:08] Speaker 02:
I mean the judgment that the evidence at that time was sufficient is

[00:34:14] Speaker 02:
negated, overridden, disavowed by DHS?

[00:34:18] Speaker 03:
No, it does not mean that.

[00:34:19] Speaker 03:
It's not a judgment that at the time that he was put on the no-fly list that that judgment was correct or not.

[00:34:26] Speaker 03:
It does not mean, for example- How can that be?

[00:34:28] Speaker 02:
You said that on current information that it's not enough.

[00:34:31] Speaker 02:
You're saying that it's a dates thing that by the time May rolled around

[00:34:35] Speaker 02:
It was good enough then was not good enough in May.

[00:34:38] Speaker 03:
Yeah.

[00:34:39] Speaker 03:
Remember the allegation here is that he was put on the no fly list in 2017.

[00:34:43] Speaker 03:
So we're now seven years on and the no fly list, the order maintaining them on the no fly list was several years ago as well.

[00:34:52] Speaker 03:
So the government continues to as it does in without speaking specifically about this case, but in general people are continue to have

[00:35:02] Speaker 03:
investigations, as we say in the record, the government audits citizens who are on the no-fly list biannually.

[00:35:10] Speaker 05:
TSC does it periodically anyway, right?

[00:35:12] Speaker 05:
Yes.

[00:35:13] Speaker 05:
So it could be that it's not superseded in the sense that everything the TSA administrator said is still being backed up by the government.

[00:35:27] Speaker 05:
No, there's nothing that happened that

[00:35:30] Speaker 05:
in any way disavows the reasoning that went into the TSA Administrator's decision at that time.

[00:35:36] Speaker 05:
That's correct.

[00:35:38] Speaker 05:
So it could be that TSC has come into possession of new information.

[00:35:44] Speaker 05:
that the TSA Administrator didn't have.

[00:35:47] Speaker 05:
And based on this new information, the government has withdrawn an individual from the no-flight list.

[00:35:55] Speaker 05:
That could be... That could be, yes.

[00:35:56] Speaker 05:
And then to say in that situation that, and then you would still go on and say, and therefore the TSA Administrator's decision is superseded.

[00:36:05] Speaker 05:
even though it's entirely based on completely new information that wasn't before the TSA administrator and the TSA administrator's rationale isn't disavowed at all, could still say it's been superseded in the sense that the TSA administrator decided that the person should be maintained on the no-fly list, but now, based on new information, the person's no longer on the no-fly list.

[00:36:25] Speaker 03:
Right, so I mean, I think that all comes back to the original statement, which is the TSA's final decision, which has had at the time legal consequences for the petitioner in terms of whether he could board a plane or not, no longer has operative legal effect.

[00:36:42] Speaker 05:
So I guess all I'm saying is, and I'm not saying this necessarily has legal consequence, but in describing the TSA administrator's decision under review as superseded,

[00:36:54] Speaker 05:
It there's actually nothing that superseded about it other than that the TSA administrator preserve somebody on the no-fly list and they're no longer on the no-fly list.

[00:37:03] Speaker 05:
So all that's being superseded is whether they're actually on the no-fly list any longer.

[00:37:07] Speaker 05:
Apart from that, everything about the TSA administrators decision is totally

[00:37:12] Speaker 05:
still in place.

[00:37:15] Speaker 03:
I would grant that, yes.

[00:37:16] Speaker 03:
The only thing that it changes is his current legal consequences and not a prior judgment about what the evidence was sufficient to do years ago.

[00:37:25] Speaker 02:
So just current legal consequences?

[00:37:27] Speaker 02:
I had read your letter as a judgment as well, that at least as of May 2024, the information that upheld a decision in June 2022

[00:37:38] Speaker 02:
As of May 2024 that information is not sufficient to put him on the no-fly list.

[00:37:44] Speaker 03:
Right, it's a timing issue.

[00:37:45] Speaker 03:
So it's not a, the removal of him from the no-fly list is not a judgment.

[00:37:49] Speaker 02:
Right, so it's more than just you're off the no-fly list.

[00:37:52] Speaker 02:
It is that this pile of information

[00:37:55] Speaker 02:
that existed in June 2022 is not as of May 2024 sufficient to sustain you on the no-file list.

[00:38:04] Speaker 03:
Yes, based on everything we know.

[00:38:05] Speaker 02:
It's informational as well as consequential.

[00:38:07] Speaker 02:
Yes, and time.

[00:38:07] Speaker 02:
When you had answered the question saying it's just a consequence, he's not on the list, but there's an informational judgment as well.

[00:38:13] Speaker 03:
Yes, that's a, yes, that's a. But how could there not be?

[00:38:15] Speaker 05:
I mean, of course there's information.

[00:38:17] Speaker 03:
Right, right.

[00:38:18] Speaker 03:
But I think what I just meant to say is TSA's, there's a difference here because there's TSA and TSC, and I was only trying to make a statement that TSC has analyzed the evidence and made that judgment.

[00:38:28] Speaker 03:
TSA's statement is only about the legal operative effect of its prior decision.

[00:38:32] Speaker 02:
And TSC can overrule the TSA administrator?

[00:38:35] Speaker 03:
I mean, it's not overruling in the sense of a judgment about whether TSA was wrong at the time that TSA issued a judgment.

[00:38:44] Speaker 03:
TSC can't do that.

[00:38:46] Speaker 02:
If they have the authority to supersede, they must have the authority to displace.

[00:38:50] Speaker 03:
Well, TSA said it superseded its own decision.

[00:38:54] Speaker 03:
So there's a division of authority here, and that's important to understand.

[00:38:58] Speaker 03:
The TSA administrator is not the person who, after making a final decision, then continues to look at the record and do the biannual audits and things of that nature.

[00:39:07] Speaker 03:
That's what TSC does.

[00:39:09] Speaker 03:
So when TSC has a new record before it and is doing one of its periodic audits, it may know something that TSA did not know at the time that it made its final decision.

[00:39:20] Speaker 05:
This might be just a technical point, but maybe not.

[00:39:24] Speaker 05:
Not only did TSC conclude that he's not on the no-file list any longer, but the TSA administrator decided that the TSA administrator's prior decision is superseded?

[00:39:38] Speaker 03:
I think the way I read the letter is the TSA is saying, we had an order that until today was in operative legal effect and had consequences for you, and we're superseding that.

[00:39:51] Speaker 05:
We being TSA?

[00:39:51] Speaker 03:
Yes.

[00:39:52] Speaker 03:
Yes, it's our it was TSA administrator is the one who made the final decision to maintain him on the no-fly list.

[00:39:58] Speaker 03:
That's the culmination of the redress process.

[00:40:00] Speaker 05:
The June 2022.

[00:40:01] Speaker 03:
Yes.

[00:40:01] Speaker 03:
And since that was TSA's final decision and that had legal consequences, it's TSA's role to supersede its own decision.

[00:40:10] Speaker 03:
But it's not making a judgment about whether the record was sufficient in the past.

[00:40:15] Speaker 03:
And it's not making the judgment that TSC is making at that point about what the current record is sufficient.

[00:40:22] Speaker 05:
But it is making a judgment, because I guess I wasn't, I didn't see anything concrete in the document that indicated that the TSA administrator was saying that the TSA administrator's previous decision is superseded.

[00:40:37] Speaker 05:
But if that's the way that you're representing, we ought to understand that.

[00:40:40] Speaker 03:
Well, that's in the letter the TSA sends to the petitioner saying you've been removed from the no-fly list.

[00:40:47] Speaker 03:
The TSA sent that letter.

[00:40:48] Speaker 03:
It also says this letter supersedes the prior final order.

[00:40:52] Speaker 05:
I can't get a complete track of who sent what, but that was a letter sent by the TSA?

[00:40:56] Speaker 03:
Yeah.

[00:40:57] Speaker 03:
There's two documents.

[00:40:59] Speaker 02:
It's signed by the DHS Traveler Redress Inquiry Program.

[00:41:02] Speaker 03:
Yes.

[00:41:02] Speaker 03:
Yes.

[00:41:03] Speaker 03:
And that's the one from May 2nd.

[00:41:05] Speaker 03:
It looks like this.

[00:41:06] Speaker 03:
It was attached to the motion.

[00:41:09] Speaker 03:
I think it was a suggestion of mootness or I forget how we titled it.

[00:41:12] Speaker 03:
It's a brief on mootness.

[00:41:13] Speaker 04:
Yes.

[00:41:13] Speaker 04:
Yeah.

[00:41:13] Speaker 03:
And so it says you have been removed from the no-fly list and will not be put back on the no-fly list based on the currently available information.

[00:41:23] Speaker 03:
And then the next sentence says, this letter supersedes the letter sent to you on June 9, 2022.

[00:41:28] Speaker 05:
That's the final decision that was part of... I guess what I wasn't understanding is that does say this letter supersedes, but it's a letter not from the TSA administrator.

[00:41:37] Speaker 03:
It's the letter from DHS TRIP, and I think that that's the same entity that sends the final decision, notifying you of the TSA Administrator's final decision.

[00:41:50] Speaker 05:
Oh, I see.

[00:41:51] Speaker 05:
They're the conveyance.

[00:41:52] Speaker 03:
Yes.

[00:41:52] Speaker 03:
Now remember, TSA is housed within DHS.

[00:41:56] Speaker 02:
Wait, sorry.

[00:41:57] Speaker 02:
I'm confused.

[00:41:58] Speaker 02:
The June 22 letter is signed by the Administrator.

[00:42:01] Speaker 03:
Not by DHS.

[00:42:02] Speaker 02:
Right.

[00:42:03] Speaker 03:
DHS TRIP is the redress program administered by TSA.

[00:42:08] Speaker 03:
It's called DHS TRIP because TSA is housed within DHS, but this is something that's administered by TSA, the redress procedures.

[00:42:16] Speaker 05:
So the way you think we should understand, we can try to unpack the niceties of it, but the way you think we should understand the 2024 letter from DHS TRIP,

[00:42:28] Speaker 05:
is that that's the TSA Administrator manifesting that the TSA Administrator's 2022 decision is superseded.

[00:42:36] Speaker 02:
Yes, so the 2022... Your authority for that, that is the DHS TRIP speaks for the TSA Administrator.

[00:42:45] Speaker 02:
Well, the... I don't know if it's a flow chart, if it's a bureaucratic chart or something.

[00:42:53] Speaker 03:
I mean, I don't have a flowchart for you, but I do know that DHS TRIP runs a redress program, and it is the one that issues the final decision to the petitioner.

[00:43:08] Speaker 02:
It's not the one that issued the final decision of the petitioner in this case.

[00:43:12] Speaker 02:
The administrator did it, signed by him by name, whereas this letter is from

[00:43:17] Speaker 02:
an office, not from a person.

[00:43:19] Speaker 02:
The 2024 letter is from an office, not a person.

[00:43:21] Speaker 02:
The 2022 letter is from a person whose title is TSA administrator.

[00:43:28] Speaker 03:
Right.

[00:43:28] Speaker 03:
But the program is under the umbrella of TSA, and that's in our brief, Your Honor.

[00:43:35] Speaker 02:
Lots of things can be under umbrellas in our government, but they can come in different branches.

[00:43:41] Speaker 02:
Yeah.

[00:43:42] Speaker 03:
I just think that the

[00:43:44] Speaker 05:
That's how you can I can ask you on 2022 the TSA administrator writes and signs this letter.

[00:43:50] Speaker 05:
Yes, how who gave that letter to their address.

[00:43:56] Speaker 05:
Was it just put in the mail or did the TSA trip?

[00:44:01] Speaker 03:
I mean, I do think it's meant, is literally sent in the mail, but in addition, I believe that you email it to petitioner's council, his council of record has filed on a form with the redress program.

[00:44:14] Speaker 03:
And so that's, it's delivered both, I think, by paper mail and also by email.

[00:44:20] Speaker 05:
I mean, I assume from the way you understand it, there's no impediment to the government's getting the TSA administrator to say the thing that the DHS TRIP communication in 2024 said.

[00:44:32] Speaker 03:
I don't think that there's anything, any legal impediment.

[00:44:35] Speaker 03:
There's no real procedure for it.

[00:44:37] Speaker 03:
The redress procedures do very specifically call for the TSA administrator to make the final determination in the redress process, but it doesn't have a similar provision as far as I know for notifying someone who's removed from the no-fly list.

[00:44:51] Speaker 05:
Because one thing I noticed was in your brief, the supplemental brief on moodiness, there's many references to the TSA having informed

[00:45:01] Speaker 05:
Mr. Muharrem XYZ, and there just technically is nothing where the TSA has done that unless you just think that DHA's trip doing it is the TSA doing it.

[00:45:12] Speaker 03:
I mean, I do in the sense that DHS TRIP is a TSA-administered program.

[00:45:18] Speaker 03:
It just has the name DHS TRIP.

[00:45:20] Speaker 03:
So this is coming from TSA.

[00:45:22] Speaker 03:
But again, once the TSA, just so you understand, there's a division of authority here.

[00:45:27] Speaker 03:
When someone is a citizen and they're on the no-fly list and they seek redress,

[00:45:32] Speaker 03:
if they're going to be maintained on the no-fly list, the only person who's going to make that decision is the TSA administrator.

[00:45:38] Speaker 03:
But after that happens, and there's periodic audits, then TSC can do the removal.

[00:45:44] Speaker 03:
And there's nothing, as far as I know, in the procedures that then requires a notification from DHS TRIP that comes from the administrator himself as opposed to from the program.

[00:45:57] Speaker 05:
Oh, I think it's definitely true that once TSC decides that someone's not on the no-fly list,

[00:46:02] Speaker 05:
They're not on the no-fly list, regardless of what the TSA administrator may have once said.

[00:46:08] Speaker 05:
But I guess what I think we're trying to piece together is what does it mean for the DHS trip correspondence to say that the TSA administrator's determination that's under review has been superseded?

[00:46:22] Speaker 03:
Well, it's not, oh, that it's under review in this case, right?

[00:46:27] Speaker 03:
The way I understand it is what it effectively means is the TSA's final decision from 2022, the administrator's final decision, says you are properly on the no-fly list.

[00:46:38] Speaker 03:
And that was his determination.

[00:46:40] Speaker 03:
And as a result, he would not be able to fly on a U.S.

[00:46:43] Speaker 03:
carrier on or over U.S.

[00:46:45] Speaker 03:
airspace.

[00:46:45] Speaker 03:
And now I understand this letter.

[00:46:48] Speaker 03:
I mean, that no longer has operative legal effect.

[00:46:50] Speaker 03:
So if you try to board an airplane, TSA is not going to say, no, you can't board.

[00:46:55] Speaker 03:
And that's sort of effectively really the only thing that I think we're claiming is the effect of superseding, which is the same as being removed from the no-fly list.

[00:47:05] Speaker 03:
And I think our point in terms of bootness, just to bring it back to first principles, is

[00:47:10] Speaker 03:
If the only thing that you're seeking is to set aside that order because it prevents you from flying, but you're not on the list and TSA is saying the thing that kept you off of the plane no longer has operative legal effect, then really there's nothing left for this court to do in terms of redress.

[00:47:26] Speaker 02:
Does the DHS trip on the bureaucratic flowcharts answer to the administrator or directly to the DHS secretary?

[00:47:38] Speaker 03:
to TSA, is my understanding.

[00:47:40] Speaker 02:
TSA, which is the answer to the administrator of TSA.

[00:47:44] Speaker 02:
Yes.

[00:47:44] Speaker 03:
Well, of course, the TSA administrator answers to the secretary.

[00:47:48] Speaker 02:
Of course, right.

[00:47:48] Speaker 02:
But I'm just trying to figure out.

[00:47:50] Speaker 02:
So is the administrator notified of a decision by DHS TRIP before they notify the person?

[00:48:01] Speaker 03:
I don't know the answer to that question.

[00:48:04] Speaker 02:
Could the administrator, if it were notified, that person were notified, could she or he override DHS?

[00:48:09] Speaker 03:
No.

[00:48:11] Speaker 03:
No.

[00:48:11] Speaker 03:
The only role that the TSA administrator has is when a citizen files a redress complaint and the person is going to be maintained on the no-fly list.

[00:48:22] Speaker 03:
That's TSA administrator's final decision.

[00:48:24] Speaker 03:
But any removal after that fact based on whatever new information is available to the government is done by TSE, and the administrator doesn't have a role of saying, no, no, no, I'm keeping them on.

[00:48:36] Speaker 01:
Why not?

[00:48:37] Speaker 01:
I mean, the buck stops with the administrator.

[00:48:41] Speaker 01:
Why couldn't the administrator, if they get wind of this, say, no, no, no, I kept this person on the list for a reason?

[00:48:49] Speaker 01:
And I want to look at this.

[00:48:51] Speaker 03:
I mean, I think that that we could have a program that worked that way.

[00:48:54] Speaker 03:
That's just not the way that the operation works.

[00:48:57] Speaker 03:
And I do understand that because there's a division of authority, there's a theoretical possibility that there's sort of tension or disagreement in the way that your honor suggests.

[00:49:06] Speaker 03:
I think as a practical matter, TSC and TSA work together collaboratively and in cooperation and are not.

[00:49:14] Speaker 02:
No, but I think the problem with the position is, as you said, then it means that

[00:49:19] Speaker 02:
TSA could on May 3, TSA administrator could have heard about this and said, that's nuts.

[00:49:33] Speaker 02:
put him back to his TSA people who originally put him on the no file list, put him back on today, and he'll challenge that, and the TSA administrator will make the exact same final decision based on the exact same information, and then TSE will go, no, we said no, and you could have this, and we don't have any way of knowing that the TSA administrator isn't of the view that if the exact same file of information came to, sorry, I don't know if it's a her or him, but came to,

[00:50:01] Speaker 03:
I think it's a male name on the letter.

[00:50:06] Speaker 02:
I don't know if that's still the person, David Bukowski.

[00:50:08] Speaker 02:
So let's say him.

[00:50:09] Speaker 02:
If it comes to him, he'd go, I don't know what's wrong with those crazy people over in the trip department.

[00:50:16] Speaker 02:
This is enough.

[00:50:18] Speaker 02:
And you could have this

[00:50:21] Speaker 02:
badminton game between these two offices.

[00:50:24] Speaker 02:
I mean, that could happen.

[00:50:25] Speaker 03:
Are you saying that could happen?

[00:50:26] Speaker 03:
No, I'm saying the opposite, Your Honor.

[00:50:28] Speaker 02:
So then that means that this office of Tripp can bind the administrator.

[00:50:33] Speaker 03:
No, it's TSC, not Tripp.

[00:50:37] Speaker 05:
That's the gap, because DHS Tripp, all DHS Tripp is doing is communicating TSC's decision.

[00:50:46] Speaker 03:
No, not really.

[00:50:50] Speaker 03:
In the world in which a citizen is on the no-fly list and files a redress complaint, TSC in that context makes a recommendation, but the TSA administrator makes the final determination.

[00:51:03] Speaker 03:
But outside that world, what happens afterwards

[00:51:06] Speaker 03:
The person where we are now is where we are now.

[00:51:09] Speaker 05:
Yeah, that's TSC exactly so so what that so TSC decided that mr. Maharam is not on the no-fly list any longer.

[00:51:17] Speaker 05:
Yes, and then there that got communicated

[00:51:21] Speaker 05:
through DHS TRIP, I think, right?

[00:51:23] Speaker 05:
Isn't that the document, the letter is from DHS TRIP?

[00:51:26] Speaker 03:
That's in our file?

[00:51:27] Speaker 03:
Yes, yes.

[00:51:28] Speaker 05:
So that's what I'm saying is, all DHS.

[00:51:29] Speaker 03:
Yes, I mean, yeah, the reason why that happens is that TSC doesn't have a publicly facing thing, so it's gotta be communicated some way.

[00:51:38] Speaker 03:
And the way that communication happens in the redress process is a petitioner, if he's represented by council, files a form that says, this is who my council is, and all communication should go through them.

[00:51:49] Speaker 03:
And so that's all we have.

[00:51:50] Speaker 05:
Right, because in other words, TSC did something that has an effect on this whole proceeding.

[00:51:57] Speaker 05:
That effect has to be communicated to the people involved in this proceeding.

[00:52:01] Speaker 05:
TSC doesn't send a letter that says, oh, we know that you filed a

[00:52:05] Speaker 05:
trip request and then that resulted in 46 110 action and so we're just gonna let you know what the consequence of our decision is for that because TSC doesn't have a role in that right DHS trip that does that although I will just sort of add that the TSC does write a declaration which is also in the records and that is communicated through it as well and

[00:52:24] Speaker 03:
Sure, that could be.

[00:52:24] Speaker 03:
And I played a role in this, too, where I emailed these documents to counsel so they would be aware of it, and then we filed it officially in court.

[00:52:31] Speaker 05:
But you're just a transmission agent.

[00:52:33] Speaker 05:
Yes.

[00:52:33] Speaker 05:
At the end of the day, I guess now that I think I'm understanding the context to some extent.

[00:52:39] Speaker 05:
I'm sure there's some I don't understand.

[00:52:40] Speaker 05:
But because of your limited understanding of what superseding does, I'm not even sure it matters that the TSA administrator could

[00:52:53] Speaker 05:
The TSC administrator can't undo what TSC did.

[00:52:56] Speaker 05:
It just can't happen.

[00:52:57] Speaker 05:
TSC took the person off the no-fly list.

[00:53:01] Speaker 05:
There's nothing that the TSA administrator can do that can undo that, as I understand it.

[00:53:05] Speaker 03:
Right, the only way a TSA administrator can undo what TSC does is if TSC makes a recommendation, keep them on the no-fly list, and we're in the redress process, and the administrator says, no, they're off.

[00:53:17] Speaker 05:
Just put that aside for now, because I get that that's a hypothetical.

[00:53:19] Speaker 05:
But I'm just saying, based on the decision that was made by TSC that you think results in mootness,

[00:53:25] Speaker 05:
There's nothing that the TSA administrator can do at this point that undoes that decision.

[00:53:31] Speaker 03:
That's my understanding, yes.

[00:53:33] Speaker 02:
Right.

[00:53:33] Speaker 05:
It just can't happen.

[00:53:34] Speaker 02:
Yes.

[00:53:34] Speaker 02:
But can it practically undo it by the next day?

[00:53:38] Speaker 02:
putting him back on the list because say he gets a recommendation from Tripp knowing that those people are crazy, this is enough.

[00:53:45] Speaker 02:
Why not?

[00:53:46] Speaker 03:
The TSA's administrator's only role in that is in reviewing a redress application, which only happens if the person's on the no-fly list in the first place, which is done by TSA.

[00:53:56] Speaker 02:
So I understand it.

[00:53:57] Speaker 02:
Here's what happened, right?

[00:53:59] Speaker 02:
So the agent's Tripp makes a recommendation.

[00:54:02] Speaker 02:
I mean, there's a lot of things happening.

[00:54:03] Speaker 02:
But information was collected.

[00:54:05] Speaker 02:
Was DHA's trip the ones that initially communicated the initial decision to Mr. Maharam?

[00:54:14] Speaker 03:
From years ago?

[00:54:15] Speaker 02:
Yeah, 2017 or whatever.

[00:54:17] Speaker 02:
Yes.

[00:54:17] Speaker 02:
Right, okay.

[00:54:18] Speaker 02:
DHA's going to do that.

[00:54:19] Speaker 02:
It gets reviewed by the administrator.

[00:54:22] Speaker 02:
Boom, that's the final decision.

[00:54:23] Speaker 02:
That's like what we review.

[00:54:25] Speaker 02:
Once that final decision is locked in,

[00:54:28] Speaker 02:
then TSC sort of does these audits and checks in and decides whether it's still worthwhile.

[00:54:34] Speaker 02:
That's not reviewable by the administrator.

[00:54:37] Speaker 02:
So TSC's gone along, goes, nah, we've decided no.

[00:54:40] Speaker 02:
No good anymore.

[00:54:44] Speaker 02:
And so our decision now is no good anymore on this record, not going to be, on the record of current information, not gonna be on the list.

[00:54:55] Speaker 02:
But nothing about that decision stops

[00:54:59] Speaker 02:
DHS trip the very next day or the very next hour from going, what are you guys doing?

[00:55:04] Speaker 02:
We think this person should be on the list.

[00:55:08] Speaker 02:
We're gonna do another initial decision today to put him back on the list based on the same, what stops them from, I get that they wouldn't overrule the center.

[00:55:21] Speaker 02:
But they could just go, fine, we're going to take that same file of information.

[00:55:25] Speaker 02:
We're going to make a different decision, because that decision doesn't control the administrator's decision.

[00:55:30] Speaker 03:
Right.

[00:55:31] Speaker 03:
No, TSA, it doesn't operate that way.

[00:55:33] Speaker 03:
That's just, there's this.

[00:55:34] Speaker 05:
It doesn't, it doesn't do stuff.

[00:55:36] Speaker 05:
It's in response to a claim by somebody, right?

[00:55:39] Speaker 03:
Yeah, so it might be helpful to understand to go back in time to before 2015, the way our procedures used to work, and then explain how that changed.

[00:55:52] Speaker 03:
That might give you some context to understand.

[00:55:55] Speaker 02:
I'm happy to have you do that first.

[00:55:56] Speaker 02:
Sure.

[00:55:57] Speaker 02:
I'm not going to answer the question that that precludes them the next day from saying we disagree with the center.

[00:56:05] Speaker 02:
We're putting him back on.

[00:56:06] Speaker 02:
Is it going to answer that question.

[00:56:08] Speaker 03:
Yes.

[00:56:09] Speaker 03:
Okay.

[00:56:10] Speaker 03:
Yes.

[00:56:12] Speaker 03:
So before 2015 all decisions were made.

[00:56:15] Speaker 03:
by TSC.

[00:56:16] Speaker 03:
The TSA administrator had no role in reviewing the redress process under any circumstances.

[00:56:21] Speaker 03:
It was all final decisions by TSC.

[00:56:24] Speaker 03:
And that is why this court in EG and other courts said, no, this all belongs to the district court because these are TSC orders.

[00:56:31] Speaker 03:
So after 2015, when the procedures were revised, the revision really only did one thing.

[00:56:37] Speaker 03:
which is if you have a U.S.

[00:56:39] Speaker 03:
citizen and they are on the no-fly list when they submit a redress proceeding, then in that situation only, TSC makes a recommendation and the TSA administrator can say, the TSA administrator.

[00:56:57] Speaker 03:
This is all administered through the DHS TRIP program, but the TSA administrator makes the final decision in that situation.

[00:57:06] Speaker 03:
So outside of that situation where you have a U.S.

[00:57:10] Speaker 03:
citizen on the no-fly list filing a redress complaint, that's the only situation where the TSA administrator is making the decision on or off.

[00:57:19] Speaker 03:
In every other situation,

[00:57:21] Speaker 03:
It's TSC.

[00:57:22] Speaker 03:
And so that is why, after the TSA makes a determination, say on day one, in theory, if on day two, the TSC says, new information has come in, something different.

[00:57:36] Speaker 03:
It's not like TSA administrator then says, well, no, I'm overruling you on day three.

[00:57:41] Speaker 05:
But I think that the key thing is, sorry to cut you off, but I believe the key thing is that the TSA administrator's role

[00:57:51] Speaker 05:
is only triggered by the filing of a redress complaint.

[00:57:55] Speaker 05:
And the redress complaint is filed by the person who's on the no-fly list.

[00:57:59] Speaker 05:
So once the TSC makes a new decision that says this person's no longer on the no-fly list,

[00:58:05] Speaker 05:
The only way the TSA administrator gets involved in reviewing that is if the person files a redress complaint.

[00:58:13] Speaker 05:
Yes.

[00:58:13] Speaker 05:
And they're not going to file if they're not on the no-fly list, unless they disbelieve that they're not on the no-fly list.

[00:58:17] Speaker 03:
That's right.

[00:58:18] Speaker 03:
Yes.

[00:58:19] Speaker 03:
You're right about that.

[00:58:20] Speaker 03:
And so only if there's a redress complaint filed and TSC says,

[00:58:24] Speaker 03:
We recommend that they stay on.

[00:58:27] Speaker 03:
That's when the TSA administrator comes in.

[00:58:29] Speaker 03:
And if we're outside of that situation, the TSA administrator.

[00:58:34] Speaker 02:
I'm sorry.

[00:58:34] Speaker 02:
Go ahead.

[00:58:38] Speaker 02:
I'm not saying the administrator is going to overrule TSC after they've said someone comes off.

[00:58:47] Speaker 02:
What I'm saying is now it's Wednesday.

[00:58:50] Speaker 02:
And say that a new person started in the office at, whether it was TSC, I guess TSC again, and goes, hang on, what just happened here?

[00:59:06] Speaker 02:
Surely somebody just was missing some pages from the file.

[00:59:11] Speaker 02:
We need to get this guy back on.

[00:59:13] Speaker 02:
And they sent him the next day letter saying, whoops, never mind, we're now superseding that prior TSC decision

[00:59:20] Speaker 02:
With today's decision, it's the exact same information.

[00:59:23] Speaker 02:
Nothing new has come in.

[00:59:28] Speaker 02:
Whoops.

[00:59:30] Speaker 02:
We think you do still qualify based on the same information.

[00:59:35] Speaker 02:
And then he's gonna file a redress thing and it's gonna go up to the administrator.

[00:59:39] Speaker 02:
The administrator's gonna say, yeah, for all the reasons I said before, yeah, you should be on here.

[00:59:45] Speaker 02:
I mean, that's what I'm trying to wonder is what stops someone, whether it's personnel change or someone rereading the file and going, what were they thinking?

[00:59:56] Speaker 02:
What was my friend across the hall doing the audit thinking?

[01:00:02] Speaker 02:
This looks like the type of stuff that puts someone on

[01:00:05] Speaker 02:
the no-fly lists for the same reasons we thought in 2022, we don't see anything that's changed and start the process all over again.

[01:00:14] Speaker 02:
That's what I'm trying to ask.

[01:00:15] Speaker 02:
And it sounds like there's nothing that stops that.

[01:00:17] Speaker 03:
No, I just that's not something that's contemplated by the contemplated doesn't mean it couldn't happen.

[01:00:23] Speaker 03:
I mean, they have procedures and policies in place and memorandum of understanding about who does what role in the whole watchlist thing enterprise.

[01:00:32] Speaker 03:
So this is not something that the agencies haven't thought about.

[01:00:35] Speaker 05:
Does the TSA administrator supervise TSC?

[01:00:37] Speaker 03:
No.

[01:00:38] Speaker 05:
Right.

[01:00:38] Speaker 05:
It's not.

[01:00:39] Speaker 03:
I mean, only in the limited context of a redress application.

[01:00:44] Speaker 03:
And so, I mean, one of the things, I mean, in theory... TSC is multi-agency, right?

[01:00:49] Speaker 03:
Yes.

[01:00:49] Speaker 03:
And it's housed within the FBI.

[01:00:51] Speaker 03:
And so, I mean, in theory, I suppose a TSA administrator could get wind of something.

[01:00:55] Speaker 02:
Can TSC change its judgment?

[01:00:58] Speaker 02:
Yes.

[01:00:59] Speaker 03:
Oh, its own judgment?

[01:01:01] Speaker 02:
Yes.

[01:01:01] Speaker 03:
Yes, and that's the whole point of the biannual review.

[01:01:03] Speaker 02:
Right, but you can change it again.

[01:01:05] Speaker 02:
Yes.

[01:01:06] Speaker 02:
And what's to stop it from changing it based on this same file of information?

[01:01:10] Speaker 02:
Say there's new personnel come in.

[01:01:11] Speaker 03:
Right, a new person outcome.

[01:01:13] Speaker 03:
Well, there's two things.

[01:01:15] Speaker 03:
This whole removal decision and the declaration saying you no longer meet the criteria and all the explanation that you have in your ex parte record is all gonna be in front of someone in front of the TSE.

[01:01:27] Speaker 03:
So if tomorrow somebody said, you know what, zero has changed in the record since his removal.

[01:01:34] Speaker 03:
but let's just put them on again, even though there's not anything different at all.

[01:01:39] Speaker 03:
Like, someone's going to see all this information and go, well, I know why they were removed, and I know the circumstances, and I know the representation that we made in this declaration.

[01:01:47] Speaker 03:
All of that is available.

[01:01:49] Speaker 03:
And so that, with a presumption of regularity for the government, I think you would say it's just not a scenario that's going to happen.

[01:01:57] Speaker 01:
But there's, you know,

[01:01:59] Speaker 01:
What if there's in the change of administrations, there's going to be a new administration, regardless of the outcome of the election will be a different administration.

[01:02:10] Speaker 01:
Maybe the composition of TSC changes.

[01:02:14] Speaker 01:
And so three months from now to Judge Millett's point, the new newly composed TSC says we're going to look at all of these decisions.

[01:02:31] Speaker 01:
what's stopping them from saying, we're going to look at all these decisions that our predecessors made.

[01:02:36] Speaker 03:
Right.

[01:02:36] Speaker 03:
I don't think, I don't think there's anything necessarily stopping them, but I think our point, and I assume this is all going to the mootness question.

[01:02:42] Speaker 03:
Uh, our only point is if you were, if the relief sought in this case, and if it were granted by this court is to set aside the 2022 letter, nothing in that judgment would preclude that either.

[01:02:56] Speaker 05:
And I think that's our point on this court.

[01:02:58] Speaker 05:
Yeah.

[01:03:00] Speaker 05:
The,

[01:03:01] Speaker 05:
the arguably mooting event, was that the same thing as here, that the TSC decided that FIGRE was no longer on the no-fly list?

[01:03:11] Speaker 03:
Yes, that's my understanding.

[01:03:13] Speaker 05:
So if it was true that the TSC's ability to change its mind would be available enough,

[01:03:21] Speaker 05:
that then the TSC's taking somebody off the no-file list would not be a mooting event.

[01:03:28] Speaker 05:
And that would have been an easy opinion to write for the Supreme Court, because it would have never had to talk about the fact that the relief sought had to do with the kind of claim that could still come up as to which a declaratory judgment or injunction would provide relief.

[01:03:42] Speaker 05:
Because if it was just that the TSC could wake up tomorrow and change its mind again, then there would have never been an argument that that was a mooting event to begin with.

[01:03:51] Speaker 03:
Well, I think that what happened is that the TSC not only, I'm not crazy about the phrase change its mind because it's making a new judgment about what it currently knows, but leaving that to the side, it was a representation in the declaration that based on the currently available information, they're not going to be put back on the no funds.

[01:04:13] Speaker 05:
It's the same thing that happened here.

[01:04:16] Speaker 03:
That's correct.

[01:04:17] Speaker 05:
Is there any difference between the

[01:04:21] Speaker 05:
legal force of what TSC did in FIGRI and what TSC did in this case.

[01:04:28] Speaker 03:
No, I mean, there wasn't a supersede letter, but I don't think that that's a distinction that would have changed the result in figures I read that case.

[01:04:35] Speaker 03:
But again, I think our mootness argument here is not based on the absence of a future injury and the, you know, under the, whether it's likely to recur or voluntary cessation standard.

[01:04:46] Speaker 03:
It's about the relief that's sought by the public.

[01:04:49] Speaker 05:
So how can it not be based on voluntary cessation at all?

[01:04:52] Speaker 05:
Because let's just suppose, hypothetically, I'm not saying that

[01:04:57] Speaker 05:
I or anybody is definitely there.

[01:04:59] Speaker 05:
But let's just suppose that it's true that because of what TSC has now done, that the relief that is sought in the 46-110 proceeding can't be meaningfully granted anymore because it's effectively seeking the same thing, which is not to be on the no-fly list any longer.

[01:05:20] Speaker 05:
But if the government is just, if voluntary cessation principles

[01:05:26] Speaker 05:
are at stake in that the government's just doing this as a convenience, just to stop litigation.

[01:05:32] Speaker 05:
And then let's just, I don't mean to assume the worst, but just play out the hypothetical, right?

[01:05:36] Speaker 05:
And then the government is just gonna then tomorrow, once the case ends, put them right back on the no flight list.

[01:05:42] Speaker 05:
So there's got to be some way to deal with that.

[01:05:44] Speaker 05:
And usually it's because of voluntary cessation principles that are a backstop against that kind of thing happening, right?

[01:05:50] Speaker 05:
But is your argument that those principles just don't even apply in this case?

[01:05:53] Speaker 03:
No, but I think that it applies in conjunction, sort of in the background of all those cases, is the idea that then there's, because it could be repeated,

[01:06:04] Speaker 03:
there is relief that the court can grant to prevent that repetition.

[01:06:08] Speaker 03:
And those two things together are what keep an Article III case for controversy.

[01:06:14] Speaker 05:
So what's to stop that from happening then?

[01:06:15] Speaker 05:
If where you're going with that is, you have to have relief that can be granted.

[01:06:20] Speaker 05:
Here, relief that relief can't be granted, and therefore, voluntary cessation drops out of the picture.

[01:06:25] Speaker 05:
Suppose that's actually what's happening.

[01:06:27] Speaker 05:
What is there to stop that from happening?

[01:06:28] Speaker 03:
Well, I would phrase our argument differently.

[01:06:32] Speaker 03:
We're not arguing, and we've never argued, that that can't be, that relief can't be issued.

[01:06:37] Speaker 03:
What we've argued in our brief is they've waived any claim for that kind of remedy in declaratory injunctive relief.

[01:06:44] Speaker 05:
Could they get that kind of, could they ask for that kind of relief in a 46-110 action?

[01:06:47] Speaker 03:
I mean, I think they could ask for it.

[01:06:49] Speaker 03:
I don't know whether it's available or not.

[01:06:52] Speaker 03:
I think that there are arguments on both sides of that question.

[01:06:55] Speaker 05:
Would we assume, this kind of came up in a colloquy with opposing counsel, but in a case where that relief was asked for and it's 46-110 and 46-110 is jurisdictional, would we assume the plaintiff can get that relief in a 46-110 action in deciding the mootest question?

[01:07:13] Speaker 03:
I think you can, and I think what's important to understand is while it's a jurisdictional provision, not everything in 46-110 is jurisdictional.

[01:07:22] Speaker 03:
The 60-day rule, for example, this court has held is not jurisdictional.

[01:07:25] Speaker 03:
There's venue provisions that are obviously not jurisdictional, whether it's here or in the

[01:07:30] Speaker 03:
circuit in which you reside.

[01:07:32] Speaker 03:
I don't think that's a jurisdictional question.

[01:07:33] Speaker 03:
I think that's a venue question.

[01:07:34] Speaker 03:
The relief that this court can grant, I don't think that that's a jurisdictional question.

[01:07:40] Speaker 03:
There could be statutes where the relief and jurisdiction are tied together.

[01:07:45] Speaker 03:
For example,

[01:07:46] Speaker 03:
I can't remember the immigration statute that the Supreme Court recently ruled on, which said lower courts, of course, other than the Supreme Court, have no jurisdiction to enjoin certain actions.

[01:07:55] Speaker 03:
So you could do that.

[01:07:56] Speaker 03:
But I don't read that as being the case here, or at least arguably it is.

[01:08:03] Speaker 03:
But I think all that is sort of beside the point.

[01:08:05] Speaker 03:
They have waived any claim for that relief.

[01:08:08] Speaker 03:
And when I say waive, I mean in the true sense of an intentional knowing waiver, not a forfeiture through neglect.