[00:00:00] Speaker 00: Based on the 24th of June 1991, sad being colleged to balance versus Fadla Ghandi, Attorney General of the United States, U.S. [00:00:09] Speaker 00: Department of Justice, and her official capacity to only add up. [00:00:12] Speaker 00: Mr. Abbas, ready to balance, Mr. O'Rourke, ready to police. [00:00:17] Speaker 02: Good morning, Your Honor. [00:00:18] Speaker 02: May it please the court? [00:00:21] Speaker 02: The district court aired when it conflated the watch list orders with the no-fly list orders, concluding mistakenly that one was inescapably intertwined with the other. [00:00:36] Speaker 02: But that's not the case, Your Honor. [00:00:39] Speaker 02: These watch lists, although they are one part of a single database, [00:00:46] Speaker 02: There are separately applied standards. [00:00:49] Speaker 02: There's a secret undisclosed standard that the government has never acknowledged what it is regarding the selectee list. [00:00:58] Speaker 02: There's what the government calls a reasonable suspicion standard that governs the inclusion of the terrorism screening database. [00:01:09] Speaker 02: And then there's another standard that governs the inclusion on the no-fly list. [00:01:14] Speaker 02: All three of those standards are applied in the first instance, not by the TSA administrator, but they're applied in the first instance by the terrorism screening center. [00:01:26] Speaker 02: And you can be on one and not the other. [00:01:28] Speaker 02: And for that reason, the court made an error in conflating all three. [00:01:36] Speaker 02: But beyond that, the watch list consequences show that the ramifications of being on these secret lists goes far beyond the airport. [00:01:50] Speaker 02: It goes far beyond commercial air travel. [00:01:54] Speaker 02: It includes things like how you're treated at the border. [00:01:59] Speaker 02: For example, [00:02:00] Speaker 02: If you're on the watch list and you're you show up at the border, whether it's by plane, by foot, by car, your electronic devices are subject automatically to search. [00:02:11] Speaker 02: They assume because of your status that they can take your device, look through it as they please. [00:02:18] Speaker 02: That's not the approach that they take to other travelers that are not on the list. [00:02:24] Speaker 02: That's a consequence that doesn't involve the Transportation Security Administration at all in any kind of way. [00:02:32] Speaker 02: It's the terrorism screening center on one hand making the listing decision. [00:02:36] Speaker 02: It's the terrorism screening center making the list available to border patrol agents who then use that list to decide how to treat people at the border. [00:02:47] Speaker 02: Not only is the, so that's an example of a watch list consequence that is created by the terrorism screening center putting somebody on the watch list, sending them to CBP. [00:03:02] Speaker 02: They send it everywhere else in the federal government too, and that creates all sorts of consequences. [00:03:07] Speaker 02: Another specific consequence arising from the watch lists dissemination to the USCIS is the processing [00:03:17] Speaker 02: Of this, I've been college wife's immigration papers point to any cases, which. [00:03:25] Speaker 05: Essentially a person is placed on the no fly list and that's not ever send it and then yet you get to go have your entire case litigated in the court. [00:03:34] Speaker 02: Your honor, but these cases are being litigated in district court all the time. [00:03:38] Speaker 02: There's a district of Maryland case where they're starting correct. [00:03:42] Speaker 02: Well, your honor, this 46 110 argument, if that's what you're getting to is failing all across the country and district courts everywhere. [00:03:51] Speaker 02: And I think your honor by failing the cases are being heard in the district courts having been remanded from the circuit court and not not. [00:04:04] Speaker 02: Yes, they're being heard in district court because the district courts for the most part, excepting the current kind of have the distinction. [00:04:13] Speaker 05: Are they initiated in court? [00:04:15] Speaker 02: They're initiated in district court, the government. [00:04:17] Speaker 05: And then there's not a final order at that time that then brings it up to circuit court. [00:04:22] Speaker 02: No, Your Honor, there's plenty of cases where there are TSA administrator orders and the cases are still being heard in the district court. [00:04:30] Speaker 02: The District of Maryland currently is here in a case where there's a TSA administrator order. [00:04:36] Speaker 05: And if they're still being heard, then that means that TSA has not appealed it and using the 46-110 exclusive jurisdiction. [00:04:43] Speaker 02: Well, that case is still ongoing, so I'm sure they'll appeal it at the end. [00:04:47] Speaker 02: But that's not the only time a district court has rejected the 461-10 arguments. [00:04:50] Speaker 05: Let me go in reverse then. [00:04:52] Speaker 05: For circuit courts, are you aware of cases that are in circuit court and then they get remanded to do what you're requesting? [00:04:58] Speaker 02: Yes, Your Honor. [00:04:58] Speaker 02: The Fourth Circuit, just in August, in September, just very recently, in Long, Sodak Long v. [00:05:09] Speaker 05: And then the 4th circuit remanded in the way that you're asking us to do well, the 4th circuit did not. [00:05:25] Speaker 02: And so, neither the 4 circuit didn't reach that conclusion and the district court also didn't reach that conclusion. [00:05:39] Speaker 02: So that that's one example, the 9th circuit and in Jonas Fickrey v. FBI. [00:05:45] Speaker 02: They also parsed through the application of 46110 and concluded they made a distinction. [00:05:54] Speaker 02: Are you challenging the redress procedures or are you challenging the initial placement? [00:06:00] Speaker 02: And Jonas Ficre, the FBI, made a distinction between the two and said the case before it was a challenge [00:06:08] Speaker 02: not to the TSA particulars, but to the underlying placement. [00:06:13] Speaker 02: The 4th Circuit, Your Honor, in that Sodak-Long case, they remanded with instructions to investigate whether the complaint in the first instance regarded the TSA Administrator's decision. [00:06:29] Speaker 02: But in that case, the 4th Circuit was very clear that [00:06:34] Speaker 02: the broad scope of the claims had nothing to do with the TSA Administrator's decision. [00:06:40] Speaker 02: And so that's an example, Your Honor, of the court understanding that there are some TSA Administrator issues mixed in and allowing the District Court to parse through them. [00:06:55] Speaker 02: That's not the approach, Your Honor, that the district court took in this case. [00:06:59] Speaker 02: The district court said instead that everything is too close to the no-fly list, and because of that, all of it is precluded by 46-110. [00:07:09] Speaker 02: That just proves too much, Your Honor. [00:07:11] Speaker 02: The no-fly list has nothing to do with what CVP does with [00:07:18] Speaker 02: with Sad bin Khalid's watch list status at the border. [00:07:22] Speaker 02: It has nothing to do with what USCIS does with Sad bin Khalid's watch list status in processing his wife's immigration papers. [00:07:31] Speaker 02: It will have nothing to do when the Department of State considers his passport or his children's passport in the future. [00:07:38] Speaker 02: That has nothing to do with the TSA administrator at all, either before or after. [00:07:44] Speaker 02: And with that, Your Honor, if there's no further questions, I'll sit down and balance it by time. [00:07:48] Speaker 00: All right. [00:08:03] Speaker 05: What what's your understanding of the long decision from the for sure. [00:08:07] Speaker 01: The long decision, like the Ficker decision in the Ninth Circuit, dealt with a unique circumstance where the plaintiff was removed from the no-fly list. [00:08:16] Speaker 01: And therefore, there would be no conflict between a simultaneous adjudication by the district court of wash list or initial no-fly list status and the TSA's final order. [00:08:26] Speaker 01: So it's completely distinguishable. [00:08:27] Speaker 01: And I believe the district court addressed that circumstance in its opinion. [00:08:31] Speaker 01: So, the essence of what the district court was saying here is that if it were to review the watch list decision, and let me just step back and explain the relationship between the two. [00:08:42] Speaker 01: A person cannot be on the no fly list without first meeting the lesser standard for being on the watch list. [00:08:49] Speaker 01: And then they must meet a higher standard on top of that to be on the no fly list. [00:08:53] Speaker 01: As a consequence of that relationship, you cannot remove a person from the watch list without also removing them from the no-fly list. [00:09:03] Speaker 01: And the district court reasoned, therefore, any relief that I might give you would necessarily affect the DC circuits or whatever court of appeals was handling the case, would necessarily affect their jurisdiction over that TSA final order that is exclusive in that court. [00:09:19] Speaker 04: That's just a strange [00:09:21] Speaker 04: I mean, effect, yes, but aren't there all kinds of situations in which proceeding in another court or another forum would affect a case pending elsewhere? [00:09:32] Speaker 04: And we don't see that as like a jurisdictional conflict so much as just the interplay of different legal determinations. [00:09:42] Speaker 04: Like if I were, you know, [00:09:45] Speaker 04: saying I was excluded from some program for medical doctors. [00:09:51] Speaker 04: And in a separate proceeding in another forum, my medical license were removed. [00:09:57] Speaker 04: And that would move my case that I was unlawfully excluded from some opportunity for medical doctor, but it wouldn't interfere with the jurisdiction [00:10:08] Speaker 04: of the court that was deciding my challenge to my exclusion. [00:10:14] Speaker 04: It just changes the underlying facts. [00:10:16] Speaker 04: And it seems like that happens all the time. [00:10:18] Speaker 04: Why is this not just the relationship between a district court challenge to placement on the watch list and a challenge to an order [00:10:29] Speaker 04: a TSA administrator order in the court of appeals. [00:10:32] Speaker 04: Why is that not a similar relationship? [00:10:35] Speaker 01: Well, I think because I don't know all the nuances of the situation you described, because I'm not familiar with the medical licenses regime. [00:10:43] Speaker 01: But I would imagine that a decision in one doesn't have any necessary consequences for another. [00:10:49] Speaker 04: But you are correct that we do not a doctor, then I'm not eligible for the doctor position, exclusion from which I was challenging in [00:10:58] Speaker 04: the case that is here like the 46-110. [00:11:02] Speaker 04: Right. [00:11:02] Speaker 01: But it might also be that there is not necessarily an exclusive jurisdiction regime for hearing one claim versus another. [00:11:10] Speaker 01: But there are instances where, in fact, courts do decline to entertain claims because of this particular conflict. [00:11:17] Speaker 01: And these are useful for analogy. [00:11:19] Speaker 01: Heck versus Humphreys is one that comes to mind, which is if you are [00:11:23] Speaker 01: 1983 challenge for malicious prosecution is necessarily going to affect the validity of the underlying conviction. [00:11:29] Speaker 04: Well, but that's a substantive requirement. [00:11:32] Speaker 04: It's not about one court's jurisdiction running into the other. [00:11:36] Speaker 04: It's that you're undoing something. [00:11:40] Speaker 04: But this doesn't seem like that. [00:11:41] Speaker 01: Well, it is by analogy and other analogies are like younger abstention where there'd be a state court proceeding and there it's more of an act of equitable discretion than of jurisdiction. [00:11:54] Speaker 01: But sometimes these things come up in jurisdictional ways like in track where somebody tries to go to district court in the face of an exclusive jurisdiction regime [00:12:07] Speaker 01: and claim, well, we're not really in the exclusive jurisdiction of the court of appeals because we don't actually have that final order. [00:12:14] Speaker 01: We've stopped and we've gone at an earlier stage. [00:12:17] Speaker 01: The courts say by implication, your claim belongs in the court of appeals because otherwise it would affect the exclusive jurisdiction of that court to order the kinds of relief that Congress has channeled to that court and not to the district court. [00:12:32] Speaker 04: But our jurisdiction was exclusive in track over something that we had jurisdiction over, whereas you're saying that Court of Appeals jurisdiction is exclusive to something over which we don't have. [00:12:41] Speaker 01: Well, it depends on which claim we're talking about. [00:12:44] Speaker 01: I think it's... The watchlist claim. [00:12:46] Speaker 01: Okay. [00:12:46] Speaker 01: I was talking about the claim for initial placement on the no-fly list, which is sort of one of the claims that they should have brought up. [00:12:54] Speaker 01: And that falls in the heart of track. [00:12:56] Speaker 01: which is if you start down the road of agency proceedings that are going to culminate in an order that this court has exclusive jurisdiction over, and you stop in the middle and then try to go to district court, that falls in the heart of track, which is even though you don't have the final agency order yet, you would at the end of the process and you can't stop in the middle and go to district court. [00:13:19] Speaker 01: Now, when it comes to the watch list- [00:13:22] Speaker 05: lower court cases or agency decisions that could undercut our jurisdiction, then sometimes can't we just issue stays to protect future jurisdiction? [00:13:31] Speaker 01: I think you could, but sometimes it depends on whether or not you view the problem as a statutory jurisdiction problem or as an Article III problem. [00:13:41] Speaker 01: Because if it's an Article III problem, I don't think you would stay. [00:13:44] Speaker 01: You would just say once there's no jurisdiction, [00:13:46] Speaker 01: you're done. [00:13:47] Speaker 01: And what my reading of what the district court did here is it said, to the extent that you're purporting to challenge TSE's initial no-fly list decision, that is essentially like a track type decision where you really need to bring that in the court of appeals. [00:14:05] Speaker 01: But with respect to the watch list decision, that that is a redressability problem. [00:14:11] Speaker 01: because there's no relief the court can grant that wouldn't effectively undermine this court's potential jurisdiction. [00:14:18] Speaker 01: When you say the court, you're talking about the district. [00:14:20] Speaker 01: Exactly. [00:14:21] Speaker 01: And one of the problems that it pointed to was the potential for conflicts of judgment. [00:14:26] Speaker 01: And although it didn't [00:14:28] Speaker 01: say this explicitly, it's important to realize that although here we're talking about the district court here in DC and the DC circuit, because of different venue rules that apply for a district court case under 1331, [00:14:43] Speaker 01: versus the venue rules that apply for a TSA order under 46-110, you could potentially have a case in California district court on the watch list and in DC on the TSA final order. [00:14:57] Speaker 01: And then you never even have any way of reconciling them because they're not even in the same jurisdiction. [00:15:02] Speaker 04: I guess I'm still not entirely understanding why, if I were erroneously on the terror watch list and it was affecting [00:15:13] Speaker 04: my ability to fly. [00:15:14] Speaker 04: If I chose, if I never chose, [00:15:18] Speaker 04: to use the administrative process, you don't dispute that I could bring a district court case to both. [00:15:26] Speaker 04: You can see that in your brief. [00:15:28] Speaker 01: Well, I think you might avoid some of the threshold jurisdictional problems, but you would run headlong into terrible problems on the merits. [00:15:37] Speaker 01: Because if you're bringing a due process claim that says, I don't get notice and an opportunity to respond, and the easy answer is, but there's a redress process available to get that, [00:15:46] Speaker 01: and you didn't avail yourself of it, you're just going to fail on the merits. [00:15:49] Speaker 01: So maybe you avoid these problems, but you just raise other ones. [00:15:52] Speaker 01: You're out of the frying pan with the fire. [00:15:54] Speaker 04: And your position is that the redress process in a suit against the TSA, a plaintiff can get redress for a baseless, erroneous placement [00:16:13] Speaker 04: initially on the watch list and on the no-fly list. [00:16:17] Speaker 01: I'm sorry, can you repeat that? [00:16:19] Speaker 04: On the watch list and the no-fly list through a challenge 46. [00:16:24] Speaker 04: 110 channel to court appeals can challenge both of those things before us. [00:16:31] Speaker 01: I think so. [00:16:33] Speaker 04: Intertwined. [00:16:34] Speaker 01: Yeah, I think there's sort of, I think you're essentially asking what is the plaintiff supposed to do in this situation if they want to challenge both simultaneously? [00:16:41] Speaker 01: And I, we think that the answer is if you in the [00:16:45] Speaker 01: Unusual circumstances of this case, where you are on both lists currently and you want to challenge them both simultaneously, that the TSA final order, I think, as the first case, definitely belongs here. [00:16:57] Speaker 01: And in that posture, all the other challenges are inextricably intertwined and could be brought in this court under 46-110. [00:17:05] Speaker 01: The other thing that you could do if you wanted to is just challenge the no-fly list order, TSA final order, in this court. [00:17:14] Speaker 01: And if you prevailed, then you could bring your other claim in district court if that's how you wanted to proceed. [00:17:22] Speaker 03: Do you do it the other way around? [00:17:24] Speaker 03: You want to bring a claim to the watch list only. [00:17:30] Speaker 04: You can't do that in district court and say there's no due process with respect to my placement on the watch list. [00:17:37] Speaker 01: Well, at that point, the only way you know you're on the watch list and get notice is if you go through the pre-dress process. [00:17:43] Speaker 04: Well, that's likely for you, but if I did know, if I intuited, my name is Ted Kennedy, and I know there's an IRA person whose name is Ted Kennedy, and I want to challenge that. [00:17:53] Speaker 04: So I'm just going to take a chance and say, I believe I'm on this list. [00:17:58] Speaker 04: I'm going to sue. [00:17:59] Speaker 04: You don't dispute that you could go into district court on that? [00:18:01] Speaker 01: I wouldn't say that, Your Honor, but I think it's a first of all, it's a different case than what we have now. [00:18:08] Speaker 01: And I don't necessarily think in this case, you need to map out all the different permutations and how you would do it. [00:18:13] Speaker 04: Every hypothetical is a different case. [00:18:14] Speaker 04: I'm trying to understand the basis. [00:18:15] Speaker 04: No, I understand. [00:18:16] Speaker 01: I think that part of it would be a question. [00:18:19] Speaker 01: I think the most relevant way to think about it is would this fall under the artful pleading rule? [00:18:24] Speaker 01: Are they really trying to get at the no-fly list decision by attacking the watch list? [00:18:29] Speaker 01: Is that really the heart of the case? [00:18:31] Speaker 01: And here, I think it is. [00:18:32] Speaker 01: This is what started as a no-fly list. [00:18:34] Speaker 01: It started with him in another country unable to fly back. [00:18:38] Speaker 01: And he went through the whole redress process. [00:18:40] Speaker 01: The complaint is up and down about the no fly list. [00:18:42] Speaker 01: And that's really what this is about. [00:18:44] Speaker 01: In your hypothetical, I think you'd have a question of, is that really what that kind of case is about or not? [00:18:50] Speaker 01: And so it would depend on the facts and the circumstances. [00:18:54] Speaker 01: And I'm hesitant to give a one size fits all answer for that. [00:18:58] Speaker 01: But one thing that I do want to point out is everything that we focus on in our brief and so far today has sort of focused on the question of, [00:19:05] Speaker 01: Was the district court correct to deal with it in the jurisdictional way that it did? [00:19:09] Speaker 01: But another way to look at this is sort of now this case is before this court and we just have this other case and you're going to go to conference after this and you're going to decide that case. [00:19:18] Speaker 01: And if you were to agree with the government and affirm the TSA's final order and maintain him on the no fly list, I think at that point, whatever the district court did, it follows from that, that there's no relief that they could be granted on the other claims that wouldn't necessarily undermine the judgment that you had just rendered keeping him on the no fly list. [00:19:40] Speaker 05: But you also indicated that we could look at the entire record, the antecedent, legal determination to do that. [00:19:48] Speaker 05: And you also indicated earlier that in doing so, if there was something that we found problematic, [00:19:55] Speaker 05: Even though TSC is not at the table, whatever order we issued that affects TSC's action, it still is against TSA, but in effect, deals with TSC. [00:20:11] Speaker 01: Yes, because any order, anything that the TSA does, on its own, if it had removed the person from the no-fly list during the redress process, that would be carried over to TSC. [00:20:23] Speaker 05: You don't consider TSC not having due process to be at the table for this? [00:20:29] Speaker 05: to be sufficient. [00:20:30] Speaker 05: I'm just thinking about the edgy EGE, I think, case. [00:20:33] Speaker 01: Yeah. [00:20:34] Speaker 01: So yes, that was a case that existed before the current procedures, where TSA was not issuing the final order. [00:20:42] Speaker 01: Now, after 2015, TSA issues the final order. [00:20:47] Speaker 01: And in fact, FUSCIC deals with this situation and says, EG is no longer operative in this context once TSA is issuing the final order. [00:20:55] Speaker 01: And so what I'm saying is here, if you were to affirm TSA's final order and he's going to remain on the no-fly list at the end of case number one here, at that point, all the harms that he alleges, at the border, unable to fly, all of those things that he says are going to come just as much from his status on the no-fly list, which you would have just affirmed, as it is from the watch list or the TSC initial decision. [00:21:20] Speaker 04: Why? [00:21:20] Speaker 04: The no-fly list doesn't deal with land borders. [00:21:22] Speaker 04: It doesn't deal with visa claims. [00:21:24] Speaker 01: Well, his complaint says, my visa is being delayed because I'm on both of these watch lists. [00:21:32] Speaker 01: And he would remain on the no-fly list. [00:21:35] Speaker 01: And number two, at the border, the policy about searching the cell phone searches that he's referring to says if you're on a watch list, [00:21:42] Speaker 01: which no fly list is a watch list. [00:21:46] Speaker 01: And I don't think anyone is disputing that. [00:21:48] Speaker 01: If you remained on that, you would be subject to the cell phone policy the same as if you were on just the other watch list. [00:21:55] Speaker 04: I'm having trouble following. [00:21:57] Speaker 04: And you've said this, I think, a few times and just quite clearly in response to Judge Chao's question. [00:22:02] Speaker 04: How can we review the challenge to the process by which [00:22:12] Speaker 04: the plaintiff got on the terror watch list when our special statutory jurisdiction under 46. [00:22:20] Speaker 04: on 10 extends only to the TSA administration. [00:22:23] Speaker 01: Well, the district court addressed this question, Your Honor, and I think the answer is like you couldn't because there's no standing, which is to say there's one process if you're a citizen who's on the no-fly list. [00:22:37] Speaker 01: If you're not on the no-fly list and you're only on the watch list, you get a different procedures. [00:22:42] Speaker 01: And what the district court said is, but you didn't get those other procedures because you are on the watch list. [00:22:48] Speaker 01: So you've got a different set of standards. [00:22:50] Speaker 01: So any challenge to the procedures you would get if you were exclusively on the watch list and not on the no-fly list is an academic question because that's not the procedure you got. [00:23:01] Speaker 04: You can't challenge the procedure. [00:23:03] Speaker 04: You can't challenge before us the procedure by which you were originally put on the underlying terror watch list. [00:23:10] Speaker 01: in a challenge to a TSA order? [00:23:16] Speaker 01: I would put it this way. [00:23:17] Speaker 01: In a situation where you did not get that type of procedure, you cannot challenge the adequacy of a procedure that wasn't applicable to you. [00:23:28] Speaker 01: That's what we're saying. [00:23:31] Speaker 01: And so if you want to just challenge the procedures you would get for someone who is solely on the watch list and not on the no-fly list, [00:23:40] Speaker 01: You could do it if you challenge your no-fly list status, get removed from that, and then say, I'm still on the watch list and I want to challenge that. [00:23:49] Speaker 01: You could, in theory, do that. [00:23:50] Speaker 01: I mean, part of the problem here is that he's trying to challenge everything at once when they're all intertwined. [00:23:56] Speaker 01: This has really never happened in a watch list case, as far as I'm aware, and I've been litigating this for 20 years. [00:24:02] Speaker 01: So it's a little bit sort of unusual for the posture. [00:24:07] Speaker 01: But the fact of the matter is, if you are only on the watch list and not on the no-fly list, you're not going to get notice of your status. [00:24:15] Speaker 01: You're not going to get an unclassified summary. [00:24:17] Speaker 01: And if he wants to challenge, is that procedure adequate? [00:24:20] Speaker 01: I think the district court's answer is, you can't do that because that's not the procedure that was applied to you. [00:24:25] Speaker 01: If that procedure is ever applied to you, you can then challenge it. [00:24:28] Speaker 01: But that's not what happened here. [00:24:30] Speaker 01: It's sort of an academic question. [00:24:32] Speaker 01: And it's one that, by the way, no court has addressed it as a due process matter, because five circuits have held. [00:24:38] Speaker 01: When you're only on the terrorist watch list and not on the no-fly list, you don't have a due process liberty interest at that stage. [00:24:46] Speaker 01: So no court has ever reached that question. [00:24:48] Speaker 01: And so I think you'd have some merits problems as well, aside from the jurisdictional ones that you encounter in this particular posture. [00:24:58] Speaker 01: All right. [00:24:58] Speaker 01: Thank you, Your Honor. [00:25:00] Speaker 03: Okay. [00:25:13] Speaker 02: Your honor, just like to begin with a bit of a hypothetical, let's say, for example, the inclusion standard for the no fly list was whether or not you had red socks. [00:25:23] Speaker 02: The risk of erroneous deprivation in applying this standard would be very low. [00:25:28] Speaker 02: It's easy to tell if somebody has red socks or not red socks. [00:25:32] Speaker 02: And if you got to DHS TRIP, the standard that DHS TRIP would have would be that they would be applying would be whether the person has or does not have red socks. [00:25:42] Speaker 02: We challenge, what we're challenging is not how TSA administered the standard that it inherited. [00:25:49] Speaker 02: We're challenging the actual inclusion standard. [00:25:52] Speaker 02: The one that the FBI, the Terrorism Screening Center initially used, again, Sodman College, to put them on the no-fly list and to put them on the watch list. [00:26:02] Speaker 02: And that's why you can locate the challenge itself, the target of the challenge, where we're aiming it. [00:26:08] Speaker 02: It's something that the terrorism screening center has and does and applies and not something that the TSA administrator does itself. [00:26:18] Speaker 02: But when you get to the merits, you can see that the interaction between some of these claims and 46-110 is yet another reason to send the case back. [00:26:31] Speaker 02: For example, the substantive due process claim. [00:26:34] Speaker 02: For the substantive due process, those rights, they can only be violated via the least restrictive means, no matter the process. [00:26:43] Speaker 02: The substantive due process is actually opposed to the process itself. [00:26:51] Speaker 02: But 46.110 says that if there's substantial evidence of a fact, [00:26:57] Speaker 02: it's conclusive. [00:26:59] Speaker 02: This court is to treat it as conclusive. [00:27:02] Speaker 02: That's the exact opposite of what you're supposed to do for a substantive due process right. [00:27:07] Speaker 02: So, for example, in this case, the allegations of the complaint are that the no-fly list is useless, that it does not enhance aviation security, and that it's [00:27:20] Speaker 02: If anything, it's certainly not the least restrictive means. [00:27:25] Speaker 02: And the best evidence that it's not the least restrictive means is this practice that the government has of allowing people on the no-fly list to fly in certain occasions. [00:27:37] Speaker 04: What are the advantages in these kinds of cases where the record is basically what the TSC considered [00:27:50] Speaker 04: in making its decisions, it's like an administrative record. [00:27:55] Speaker 04: What is the advantage to you of being in the district court? [00:27:59] Speaker 04: What would you be trying to discover? [00:28:02] Speaker 02: It is not the administrative record. [00:28:04] Speaker 02: These cases are not in district court. [00:28:07] Speaker 02: These cases are not being litigated almost to a case based on the administrative record. [00:28:12] Speaker 02: There was a case in the Eastern District of Virginia, Muhammad B. Holder. [00:28:17] Speaker 02: It's probably seven, eight motions to compel. [00:28:20] Speaker 02: maybe two and a half years or three years of discovery in the District of Maryland, many, many motions to compel, depositions, thousands of documents. [00:28:29] Speaker 02: What kinds of information? [00:28:31] Speaker 04: Give a flavor of what it is that you need to get and why on claims that you need to bring. [00:28:37] Speaker 02: So for example, there was the leaked copy of the watch list from 2019. [00:28:42] Speaker 02: We've assessed that list. [00:28:44] Speaker 02: We think that that list, this is an actual leaked copy of the watch leaked. [00:28:51] Speaker 02: What happened was a regional air carrier accidentally put the watch list and the no-fly list on the public internet. [00:28:57] Speaker 02: Somebody found it. [00:28:58] Speaker 02: shared it with folks that work on these issues. [00:29:01] Speaker 02: And we counted, for example, just the Mohammeds, Ahmeds, Mahmoods. [00:29:04] Speaker 02: It's like a third of all of 1.8 million entries. [00:29:08] Speaker 02: We estimate, just looking at a leaked copy of the list, there's more than 99, but the no-fly list, it's more than 99% Muslim. [00:29:15] Speaker 02: In discovery, we could show that. [00:29:17] Speaker 02: And a watch list, a no-fly list built on these kind of vulgar stereotypes, which is exactly what the allegations of the complaint are, would show that. [00:29:27] Speaker 02: It's also an efficacy thing. [00:29:29] Speaker 02: For example, the depositions in the District of Maryland watch list case showed that the no-fly list is not aimed at some particular security concern. [00:29:38] Speaker 02: It's a security concern that can be addressed by other things. [00:29:41] Speaker 02: It's a security concern that [00:29:42] Speaker 02: It is addressed by other things. [00:29:44] Speaker 02: It's never the case that the no-fly list is relied on to do anything exclusively. [00:29:49] Speaker 02: And so this is a procedural due process. [00:29:51] Speaker 02: This is Matthews v. Eldridge. [00:29:53] Speaker 02: Procedural due process is a fact-intensive inquiry. [00:29:56] Speaker 02: And it's especially fact-intensive here, where we have specific evidence that the things, the facts, the supposed facts that the government relied on here were false facts. [00:30:07] Speaker 02: False facts that they should have known were false, if there are no other questions here. [00:30:12] Speaker 05: a lot of the information will be classified, so you're just not going to know. [00:30:18] Speaker 05: So how do you reckon with that? [00:30:20] Speaker 02: Well, Your Honor, you'd be surprised by how much information that plaintiffs' lawyers have been able to get in all these cases. [00:30:28] Speaker 02: It's even the Northern District of California did a trial. [00:30:31] Speaker 02: They did a trial, and they found out the reason why the person was placed on the no-fly list. [00:30:37] Speaker 02: It was because the FBI agent accidentally checked the wrong box. [00:30:40] Speaker 02: And so it is. [00:30:42] Speaker 02: It is absolutely possible in the district court to get the underlying reasons, to get summaries of the underlying reasons, stipulations. [00:30:50] Speaker 02: We've got stipulations in the District of Maryland that help us work through these kinds of searching of electronic device claims. [00:30:58] Speaker 02: And so, Your Honor, this case does belong in district court. [00:31:01] Speaker 02: It's fact intensive. [00:31:02] Speaker 02: And if there are no further questions, I'll stop. [00:31:05] Speaker 02: Thank you.