[00:00:00] Speaker 00:
Case number 20-1298, Ali Esmet Nekmeldin of Delatif et al.

[00:00:05] Speaker 00:
Petitioners versus United States Department of Homeland Security et al.

[00:00:09] Speaker 00:
Mr. Gerson for the petitioners, Mr. Waldman for the respondents.

[00:00:14] Speaker 01:
Good morning, counsel.

[00:00:15] Speaker 01:
Mr. Gerson, please proceed when you're ready.

[00:00:18] Speaker 04:
Good morning, Your Honors.

[00:00:20] Speaker 04:
May it please the court, I am Jay Garrison on behalf of Mr. Abdel Latif and his family.

[00:00:25] Speaker 04:
This petition for review was filed to allow the petitioners and this court an opportunity to evaluate whether the Department of Homeland Security and its components carried out the proper review of the records they have originated about Mr. Abdel Latif.

[00:00:41] Speaker 04:
Through their actions in this litigation, the Department of Homeland Security and its components have shown that they did not review their own records of origination and nomination, but instead substituted Mr. Abdel Latif's alleged inclusion in the third party database as the beginning and end of the redress process.

[00:00:59] Speaker 04:
For example, DHS has repeatedly attempted to dismiss this action under EG because of Mr. Abdul Latif's alleged inclusion in the TSDB, and DHS refused to provide the required certified index of record in its completion due to the alleged inclusion in that database.

[00:01:16] Speaker 04:
Only after the opening brief was filed did DHS provide a tailored index of the record, which they again tailored after the high brief was filed.

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DHS's production of the record after the opening brief

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was filed has turned the entire review process on its head in this case.

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The point of the petition for review is that there is a record.

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The petitioner reviews that record, the court gets to review that record, and the petitioner writes the opening brief based upon that record.

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DHS has made a mockery of that process by mangling and tailoring the record to suit their arguments.

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As a result, the authenticity and completeness of the record and case is now infirmed.

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Therefore, Mr. Abdel Latif and his family request that this court follow its decision in Norris Hirschberg B.S.S.C.

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and remand this case back to D.A.H.S.

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and its components with instructions to complete review and reevaluation of all records originated by them regarding Mr. Abdel Latif and his family.

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The injuries to Mr. Abdel Latif and his family in this case are numerous.

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Based upon Mr. Abdel Latif's nationality, religion, and exercise of free speech, DHS has created an ecosystem of derogatory information that is spread across a multitude of data systems managed by DHS.

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That derogatory information is shared by DHS with private and public

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national and international partners.

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Through its distribution, DHS represents this derogatory information as authentic and properly acquired.

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It is then used by DHS and its partners to deny and delay travel, financial and other benefits.

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This interference and denial of benefits is systematic, continuous and far reaching in the lives of Mr. Abdul Latif and his family.

[00:03:03] Speaker 03:
DHS- If I can ask you, it seems to me that what you're requesting in this case

[00:03:09] Speaker 03:
is a review of the records in the databases.

[00:03:13] Speaker 03:
But a review of the records in the databases has already taken place.

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I guess my question is, why do you think an additional review is going to be any different or yield any different result?

[00:03:26] Speaker 03:
And in fact, I believe several reviews have taken place because I think each time you file one of these trip requests, a review happens, and I think he's filed six of them.

[00:03:37] Speaker 04:
Yes, your honor.

[00:03:39] Speaker 04:
A review of an individual's identity and whether that identity matches the records is not the same as review of the conclusions as to whether or not that individual is a threat under the congressional.

[00:03:54] Speaker 03:
Can I ask you about that?

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Because my understanding of what happens is the first step of the review process is to see if there's a misidentification issue.

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And if there is not, if, in fact,

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the person who's asking for a review is in the database, then there's actually a substantive review as to whether that person belongs in the database.

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Why isn't that a reasonable way to go about this?

[00:04:21] Speaker 04:
It would be a reasonable way to go about it.

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However, DHS has provided absolutely no indication that they carried out any subsequent review after completing the initial check with the other databases to see whether or not... There are declarations in the record, two of them, which talk about how they do this.

[00:04:43] Speaker 03:
And you received a letter from the agency stating that we did a review and we made any changes that were appropriate.

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And it just seems to me that the record suggests that this is their process and it was followed in this case.

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If that process had been properly followed in this case, then the record that was provided to us would indicate more than cursory system updates and would actually show that further action had been taken to do that review.

[00:05:24] Speaker 03:
But if that is what the record reflects, then you would agree that

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what you're requesting wouldn't redress anything.

[00:05:35] Speaker 04:
As long as they have fulfilled the specific requirements that Congress set forth to both address the misindication as well as correct any erroneous information contained in their database, including information that was acquired under improper pretense, then yes, I would agree with that.

[00:05:56] Speaker 03:
Thank you.

[00:05:58] Speaker 01:
Can I ask you, the order, so under the statute 46110, you bring a petition to review an order, and the order that you seek review of is the order that you received in response, your client received in response to the trip request?

[00:06:17] Speaker 01:
Yes.

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And so for that, part of your substantive claims is a Fourth Amendment claim about the kind of searches that

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your client undergoes in airport screening.

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And the order that you're challenging isn't that search.

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So how is it that the Fourth Amendment issue with respect to a search at the airport comes to us through the vehicle of a petition for review challenging an order that's a response to a trip request?

[00:06:56] Speaker 04:
The search at the airport is the initial harm that's continuing to be propagated as an injury to the individual that can be potentially remedied through modification of the DHS's databases.

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And in this instance, the mechanism to question that particular process is to file the trip request when a person has been delayed.

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And so the result of those delays is the trip request and the district courts have repeatedly found failure to file the trip request, robs a person of jurisdiction to challenge the delays.

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Resulting from in their travel because of inclusion in the database.

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So it's a part of the chain of events that's necessary for this case to even exist.

[00:07:52] Speaker 04:
Your honors, I see that I'm in.

[00:07:54] Speaker 01:
Can I just follow up on that so so.

[00:07:57] Speaker 01:
You have parallel district litigation going on right now in which you're challenging, as I understand it, and correct me if I'm wrong, in which you're also challenging searches.

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But that doesn't have anything to do with challenging an order that results from a trip request.

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You're just challenging the searches directly as either maybe you're saying that those themselves are agency action, the conduct of the searches themselves is agency action that you're challenging under the Fourth Amendment or something like that.

[00:08:22] Speaker 01:
It just seems like a bit of a, I'm wondering whether it's a mismatch

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to take that kind of challenge that's to the search as an agency action and then ask us to review an order that results from a trip request and use that as a vehicle to challenge under the Fourth Amendment a search.

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They seem like two different things.

[00:08:44] Speaker 04:
Well, first, the district court case has now been dismissed your honor, and that case was essentially dismissed due to.

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the conclusion of the court that a decision from a consular officer robs the individual of all jurisdiction to challenge pretty much anything that would be in the chain of the history of the case between DHS and the Department of State.

[00:09:14] Speaker 01:
But am I wrong in understanding that in that case there was a challenge to the searches as themselves action that violated the Fourth Amendment?

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that had been raised and the judge decided that that could not be reached because of the decision from the Department of State, Your Honor.

[00:09:33] Speaker 01:
It just seems like this the order here is the order in response to a trip request.

[00:09:38] Speaker 01:
It just it doesn't immediately strike me as appropriate to use an order that's a response to a trip request to challenge an underlying search.

[00:09:49] Speaker 04:
Well, the trip request is

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the harm and as part of the standing in the case, in order to make the trip request, you have to have the harm that the individual leaves that is occurring, which is the delays, the extended searches and everything else.

[00:10:09] Speaker 04:
And then that leads to the trip request, which then leads into this courtroom.

[00:10:16] Speaker 01:
It could be the injury.

[00:10:16] Speaker 01:
I mean, I understand that, but you

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are alleging is inappropriate information in the files begets injuries.

[00:10:27] Speaker 01:
But that seems like a different question than whether you can use a statute that provides for review of this kind of order as a vehicle for challenging under the Fourth Amendment, a search that results from what you think is problematic information in the databases.

[00:10:48] Speaker 04:
Well, Your Honor, I believe where we differ on this is not to say that you're differing in opinion.

[00:10:54] Speaker 01:
No, no, no.

[00:10:55] Speaker 01:
I'd like to know.

[00:10:56] Speaker 01:
Yeah, please help me.

[00:10:58] Speaker 04:
Where we differ is that our position is that the trip request is there, as stated by Congress, to correct erroneous information that has resulted in the misidentification of my clients as threats here.

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And so our position is that the necessary steps to check for that erroneous information are baked into the trip request process itself.

[00:11:23] Speaker 04:
And because that is a part of its process that gives this court proper authority to review the information that we believe to be erroneous or to have been unconstitutionally acquired.

[00:11:38] Speaker 01:
Yeah, I think as to the information, I totally understand that part of it because that does go to

[00:11:44] Speaker 01:
The purpose of a trip request.

[00:11:46] Speaker 01:
I guess what I'm wondering about is a constitutional challenge to the underlying search.

[00:11:50] Speaker 01:
Using the trip request statute that order that allows for even order results from trip request as a means of assessing the constitutionality of the underlying search.

[00:12:00] Speaker 01:
But we can ask the government about that too.

[00:12:03] Speaker 01:
And we'll we will give you a little bit of time for rebuttal.

[00:12:06] Speaker 01:
Let me just make sure my colleagues don't have additional questions.

[00:12:08] Speaker 03:
Thank you.

[00:12:09] Speaker 03:
I think I have a question that's related to what the chief judge was asking, which is, if you were to get past standing, what would be your argument on the merits?

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Is this an APA claim that what happened was arbitrary and capricious, or is it a constitutional claim?

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And if it's a constitutional claim, I'm not sure how we review that because we don't have any actual findings or review that relate to that.

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So I'm just not sure how that works.

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What is your argument on the merits?

[00:12:37] Speaker 04:
Well, at the stage of this case, where it's with the process that we've been through to get to here today.

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I actually think that we don't need to actually get to the constitutional arguments so therefore.

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it would be an APA claim for failure to comply with the statute.

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And we see this way for two reasons.

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First, DHS did not comply with the statutory requirements as their focus on Mr. Alba Latif has been his identity and the match of his identity to a third-party database.

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rather than analyzing their own information that was originated within Department of Homeland Security and its components and has been used wrongfully identify Mr. Abdel Latif and his family as a threat, which Congress has clearly set out.

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DHS and its components need to analyze the data within their regimes to assess whether a person was wrongfully identified as a threat and to correct any erroneous information.

[00:13:41] Speaker 04:
Secondly, the record at this stage of the case, unfortunately, is infirm due to DHS not providing it before the filing of the opening brief.

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and then amending it in their response and amending it again after the reply brief.

[00:13:57] Speaker 04:
When the court does not have an effective record that it can depend on for the purposes of review, then it doesn't need to even reach the constitutional question here and instead can amend the case back to the agency per the decision in Norris-Hirschberger.

[00:14:16] Speaker 01:
Okay.

[00:14:16] Speaker 01:
Thank you, counsel.

[00:14:17] Speaker 01:
We'll give you a little bit of time for rebuttal from the government now.

[00:14:32] Speaker 01:
Mr. Waldman.

[00:14:34] Speaker 02:
Morning, Your Honors.

[00:14:36] Speaker 02:
Joshua Waldman from the Department of Justice for the Appalachians.

[00:14:41] Speaker 02:
There are a number of threshold issues in this case, which I would normally start with, but I'd like to just go directly to the merits first and return to those if I may.

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The core issue on the merits in this case is petitioners claim that the government, during the trip redress process,

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only identifies or only corrects misidentifications and does not engage in a substantive review of any underlying derogatory evidence, if indeed any exists in a particular case.

[00:15:13] Speaker 02:
Here, the government has published a public document, the watch list overview, which says that they correct erroneous information if it's appropriate.

[00:15:23] Speaker 02:
The responses to petitioners' trip redress request said if erroneous information needed correcting, that was done.

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There are sworn declarations from the agencies describing the redress process in exactly the way that Judge Penn

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referred to earlier as engaging in that process, the petitioner asked for.

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And of course, there's a presumption of regularity that the government is doing precisely what it says in its public documents and its sworn declarations in this case.

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And if there were any remaining doubt, you of course have the ex parte record before you.

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And if there are TSE records in this case, then you would be able to see what the government is doing as part of the redress process.

[00:16:08] Speaker 02:
And I understand Petitioner's Council to say that if the government is in fact engaging in that kind of process, that is sort of the beginning and the end of this case.

[00:16:17] Speaker 02:
So I would urge you to deny the petition on that basis.

[00:16:23] Speaker 02:
That would be a merits resolution.

[00:16:25] Speaker 02:
That would be a merits resolution, yes.

[00:16:27] Speaker 02:
With respect to the Fourth Amendment claim as well, at least skipping first to the merits,

[00:16:34] Speaker 02:
This court's decision in epic, in agreement with every other court of appeals, says that searches at airports.

[00:16:41] Speaker 01:
So how do we get to that, the search at the airport?

[00:16:43] Speaker 01:
Because I'm not sure I understand how we're looking at the actual constitutionality of a search at the airport.

[00:16:50] Speaker 01:
When this proceeding, it's not a Bivens action challenging a search.

[00:16:53] Speaker 01:
Right.

[00:16:54] Speaker 01:
The agency action that's being challenged is the order that ensued from the trip redress request.

[00:17:02] Speaker 02:
Right.

[00:17:02] Speaker 02:
So I would say, just as a general matter, that airport searches conducted by TSA can be reviewed in the context of a 46-110 proceeding.

[00:17:16] Speaker 02:
And that's what this court did in Epic.

[00:17:19] Speaker 02:
But the difference between that case.

[00:17:21] Speaker 02:
I thought in Epic, we were looking at a policy.

[00:17:23] Speaker 02:
You were looking at, well, what the government was doing in that case was

[00:17:29] Speaker 02:
TSA was doing was conducting an airport search pursuant to its standard operating procedures, which is an order under 46 110.

[00:17:36] Speaker 02:
The order here is not that standard operating procedure.

[00:17:40] Speaker 02:
It's a different order.

[00:17:41] Speaker 02:
It's one coming from the redress proceeding.

[00:17:44] Speaker 02:
But I was trying to make just sort of a general point that that's why Fourth Amendment claims can be reviewed if you challenge the right order.

[00:17:54] Speaker 02:
And I think the point that you're making is maybe that could happen, but you challenge the wrong order.

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And I would say, I think that you're right on that.

[00:18:03] Speaker 02:
But that is a question, I think, of statutory subject matter jurisdiction and not necessarily Article III jurisdiction.

[00:18:11] Speaker 02:
So it's something that under this court's precedence, you could just sort of assume, let's assume that we could review it jurisdictionally and then proceed to the merits.

[00:18:18] Speaker 01:
Oh, I was wondering whether it's a merits resolution.

[00:18:20] Speaker 01:
Because it just seems like there's a mismatch here in terms of what you're challenging.

[00:18:27] Speaker 01:
There is no Fourth Amendment problem with the order that's being challenged.

[00:18:31] Speaker 01:
And the order that's being challenged just isn't an appropriate vehicle for looking at the underlying search.

[00:18:38] Speaker 01:
So any forthcoming claim just loses on the merits.

[00:18:41] Speaker 02:
I think that that's probably correct.

[00:18:44] Speaker 02:
I wouldn't resist winning on that grounds instead of reaching the ethics question.

[00:18:49] Speaker 02:
So we're happy to win in either way.

[00:18:53] Speaker 01:
But do you think that goes to subject matter jurisdiction, that theory?

[00:18:56] Speaker 01:
Or do you think that goes to the...

[00:19:00] Speaker 01:
I was conceiving of it as not having a cause of action to challenge the validity of the underlying search.

[00:19:05] Speaker 01:
And I think that the absence of a cause of action is a merits resolution rather than absence of subject managers.

[00:19:12] Speaker 02:
Yeah, I mean, 46 110 is a tricky statute because it doesn't separate out what's the cause of action, what's jurisdictional, what's the waiver of sovereign immunity and the way that sort of

[00:19:24] Speaker 02:
Well, I wouldn't say the APA does that super clearly, but this court's precedent has set that out clearly in Trudeau and other cases.

[00:19:31] Speaker 02:
So if I were sort of trying to construct that from scratch, I might say that the jurisdictional provision is in subsection B, which says that something that's properly in subsection A is the exclusive jurisdiction of this court, and that's a subject matter jurisdiction provision.

[00:19:53] Speaker 02:
And then the in A, where it says someone with a substantial interest may file a petition.

[00:19:59] Speaker 02:
that's a cause of action question and not necessarily a subject matter jurisdiction question.

[00:20:04] Speaker 02:
But to be honest, I haven't fully parsed that out.

[00:20:10] Speaker 02:
I think that would be a tricky question.

[00:20:14] Speaker 02:
But either way, if it's a merits question or it's a statutory subject matter jurisdiction, either way, you could just sort of assume that regardless of the answer under EPIC, the claim would fail.

[00:20:25] Speaker 02:
And I think you could just proceed directly to that either way.

[00:20:28] Speaker 02:
The only threshold question that I think is truly Article 3 jurisdiction is the EG question.

[00:20:35] Speaker 02:
And EG treated it as a redressability problem because the petitioner had not named TSC as a defendant.

[00:20:46] Speaker 02:
Although it's suggested in a footnote that had TSC been named, it would then be a question of statutory subject matter jurisdiction.

[00:20:53] Speaker 02:
But in this case, TSC was not named, so I think you

[00:20:55] Speaker 02:
have to reach that question first.

[00:20:59] Speaker 02:
But that would go only to the extent that the Fourth Amendment or Fifth Amendment or statutory claims were directed at a less select T-list status.

[00:21:11] Speaker 02:
But there's also allegations in this case that deal with TSA's risk-based rules.

[00:21:17] Speaker 01:
Open skies.

[00:21:19] Speaker 02:
And quiet skies.

[00:21:21] Speaker 02:
Quiet skies, OK.

[00:21:23] Speaker 02:
I'm sorry, I'm blanking on the name of the other one.

[00:21:25] Speaker 02:
The second one.

[00:21:25] Speaker 01:
Silent partner.

[00:21:27] Speaker 01:
As to those two, to the extent that there's a challenge based on those two, you don't have the same Article III issue as was presented in our prior case in Heger.

[00:21:37] Speaker 02:
Right.

[00:21:37] Speaker 02:
Or statutory subject matter jurisdiction question.

[00:21:40] Speaker 02:
It clearly is a TSA order that fits under 46 110 in our view.

[00:21:44] Speaker 02:
And to the extent that that's part of the challenge, there would be no jurisdictional

[00:21:50] Speaker 01:
So for that one, you just think that goes to the merits, to the extent that there's that kind of challenge.

[00:21:54] Speaker 01:
But of course, the government is of the view that the claim fails on the merits.

[00:21:57] Speaker 01:
But it's not one that gets bounced on jurisdiction.

[00:21:59] Speaker 02:
That's correct.

[00:22:00] Speaker 02:
Right.

[00:22:01] Speaker 02:
So you would have to reach sort of one of the other threshold issues or the merits question.

[00:22:05] Speaker 02:
Assuming that's part of the case, and I'm not 100% sure that it is.

[00:22:11] Speaker 02:
We put when we move to supplement the index of record, we asked to put in material relating to the risk based rules.

[00:22:21] Speaker 02:
because previously we did not understand that to be part of the case.

[00:22:25] Speaker 02:
And we understood that after the opening brief was filed.

[00:22:28] Speaker 02:
Petitioners are now sort of objecting to that and saying that some of those things aren't really about the case.

[00:22:34] Speaker 02:
So if risk-based rules are not really at issue, you have to ask them about that.

[00:22:38] Speaker 02:
But if they're not, then obviously that would just drop out.

[00:22:42] Speaker 01:
Got it.

[00:22:42] Speaker 01:
Can I ask you one question?

[00:22:45] Speaker 01:
I know that this is not central in the case, but I'm curious about the government's argument that there's a timeliness problem with the Fourth Amendment claim.

[00:22:52] Speaker 01:
Because the order that we've been talking about is the order that's ensued from the TRIP request.

[00:22:59] Speaker 01:
And that, the action was brought within 60 days of that.

[00:23:04] Speaker 01:
And even that order itself says, this is an order.

[00:23:07] Speaker 01:
You can bring an action within 60 days under force of 110.

[00:23:10] Speaker 01:
But then the governments made the argument that there's actually an untimeliness problem here

[00:23:14] Speaker 01:
The relevant order, I guess, to use the words of the statute, would be when the search occurred.

[00:23:20] Speaker 01:
Right.

[00:23:21] Speaker 01:
How could that be?

[00:23:22] Speaker 01:
Right.

[00:23:23] Speaker 02:
Well, it's a tricky problem.

[00:23:24] Speaker 02:
Technically, I think that the answer is the order is not search.

[00:23:29] Speaker 02:
The order is the standard operating procedure that, and that's an order.

[00:23:33] Speaker 01:
But even that, that's not what the, the relevant order here doesn't seem to be that.

[00:23:38] Speaker 01:
The relevant order here is,

[00:23:41] Speaker 02:
the one that resulted from the trip request right well now you have the mismatch of to get the 4th amendment claim in this court under 46 110 I think you would have had to challenge the standard operating procedure is the order and not the trip request.

[00:23:57] Speaker 02:
And had you done so, then the 60 day rule would apply to the application of that order.

[00:24:03] Speaker 01:
So I know the issue we started with.

[00:24:05] Speaker 01:
Yes.

[00:24:06] Speaker 01:
So you can actually challenge the underlying service through the vehicle.

[00:24:08] Speaker 01:
That's right.

[00:24:09] Speaker 02:
I do also want to emphasize that in ABA dynamics, this court held that the timeliness question under 46 110 is non-jurisdictional.

[00:24:16] Speaker 02:
So again, you could sort of just bypass that.

[00:24:19] Speaker 02:
Also, the statute has a good cause exception to the 60-day rule.

[00:24:24] Speaker 02:
So for those reasons, I really don't think that you would only need to address it if you got to the merits and you thought the government maybe didn't win, then you'd have to sort of reach all those threshold questions to see whether you could in fact get to that merits question.

[00:24:36] Speaker 02:
But if you just think that the government wins at the end of the day on the merits, then you don't need to address those.

[00:24:46] Speaker 03:
I'm sorry.

[00:24:47] Speaker 03:
On the constitutional claims, that was never raised before the agency.

[00:24:51] Speaker 03:
There was never a discussion of the Fourth Amendment or the Fifth Amendment or anything.

[00:24:55] Speaker 03:
So why are you entertaining those arguments before us?

[00:25:01] Speaker 02:
Well, I mean, I'm just arguing in the alternative.

[00:25:04] Speaker 02:
I don't necessarily think that they are.

[00:25:07] Speaker 03:
You conceded there was jurisdiction to consider constitutional claims, but they were just never raised before the agency.

[00:25:12] Speaker 03:
So normally, we wouldn't entertain them, right?

[00:25:16] Speaker 02:
Well, I think that I'm not sure that that's entirely correct.

[00:25:21] Speaker 02:
For example, the person doesn't know until they get to the end of the process that they're they're challenging the process itself as being like.

[00:25:33] Speaker 02:
not giving sufficient notice, for example, or not giving certain evidence.

[00:25:37] Speaker 02:
And so I think that they can raise that in this court.

[00:25:41] Speaker 03:
Raise the Fourth Amendment?

[00:25:42] Speaker 02:
Well, I think they could raise a Fourth Amendment question if they were challenging the correct order.

[00:25:50] Speaker 02:
So this is sort of the mismatch between orders.

[00:25:51] Speaker 03:
I'm just saying in this particular case.

[00:25:53] Speaker 02:
In this particular case.

[00:25:54] Speaker 03:
We're looking at an order in which there was never any mention of the Fourth Amendment

[00:25:59] Speaker 03:
whether by the petitioner who asked for a review or by the agency making the review.

[00:26:04] Speaker 03:
And then he comes before us and makes a Fourth Amendment arguments and claims.

[00:26:09] Speaker 03:
And you concede that we should consider them.

[00:26:12] Speaker 03:
And I'm just wondering why.

[00:26:13] Speaker 02:
Well, the only jurisdictional thing that I'm conceding is the one about the risk-based rules, which I'm not quite sure is in the case.

[00:26:20] Speaker 02:
And I don't think that they need to sort of say the words risk-based rule in their redress application.

[00:26:26] Speaker 03:
But they're- So you think risk-based rules equates to a Fourth Amendment violation?

[00:26:31] Speaker 02:
I think that that's the way that they're framing it.

[00:26:34] Speaker 02:
I think they say- But you're allowing them to.

[00:26:36] Speaker 03:
You're agreeing.

[00:26:37] Speaker 02:
You're not contesting it is, I guess, what I'm saying.

[00:26:39] Speaker 02:
What I'm saying is, to the extent that they're arguing that their enhanced security screening at an airport derives from the application of a risk-based rule, this court would have jurisdiction to entertain that claim.

[00:26:54] Speaker 02:
So we're not contesting that part.

[00:26:56] Speaker 03:
But as a fourth amendment.

[00:26:58] Speaker 02:
Yeah, I mean, I can see the argument both ways.

[00:27:01] Speaker 02:
But in the redress complaint, they did say we were searched and we were subject to this type of search.

[00:27:05] Speaker 02:
And I think you could fairly say that that was intended to raise a fourth amendment claim.

[00:27:10] Speaker 02:
I could see why maybe you wouldn't.

[00:27:12] Speaker 02:
But I'm not sure that we want to necessarily hold people who file these claims to that type of lawyerly particulars when filing a redress claim.

[00:27:22] Speaker 03:
And I just want to make sure I understand

[00:27:24] Speaker 03:
Can you explain, if we think that because there have been extensive reviews done already and the relief requested is an extensive review and we think therefore perhaps it's not redressable because it doesn't show that if we grant the relief request, it's gonna address the injury.

[00:27:42] Speaker 03:
Do we need to go any further than that?

[00:27:43] Speaker 03:
Because it seemed to me that you were saying that there are some things that we would have to address on the merits even beyond that.

[00:27:49] Speaker 02:
No, I think that saying the review has already happened answers both the statutory claim on the merits and the due process claim, as I understand it, on the merits.

[00:28:00] Speaker 02:
You might have to say something separately for the Fourth Amendment claim, which is not about that issue.

[00:28:05] Speaker 02:
But I'm not.

[00:28:06] Speaker 01:
But you're saying on the merits.

[00:28:08] Speaker 01:
And so that's not it.

[00:28:09] Speaker 01:
If you say that the review is satisfied,

[00:28:12] Speaker 01:
is satisfactory because it actually goes beyond misidentification and encompasses whether information needs to be corrected.

[00:28:18] Speaker 01:
The way you conceive of it is not as a jurisdictional question by redressability.

[00:28:22] Speaker 01:
That's a resolution on the merits in the government's favor.

[00:28:25] Speaker 02:
Right.

[00:28:26] Speaker 02:
I mean, I think that would probably be because, like, imagine a hypothetical world in which the government did not engage in that process.

[00:28:33] Speaker 02:
You would be able to redress it by saying, in theory, the statute or due process requires you to do it.

[00:28:39] Speaker 02:
So the fact that we've done it here doesn't mean that you couldn't conceivably have an order to redress the posited injury.

[00:28:46] Speaker 02:
It would mean that we've actually, on the merits, done the very thing that the plaintiff.

[00:28:50] Speaker 02:
I understand why.

[00:28:52] Speaker 03:
I'm thinking about this a little bit differently, so this is helpful to me because I was thinking about it in terms of there needs to be evidence of standing at this stage of the proceedings.

[00:29:03] Speaker 03:
It can't just be allegations.

[00:29:05] Speaker 03:
And we're looking at evidence that there was a review and we're looking at a request for relief, do another review.

[00:29:12] Speaker 03:
And there's no evidence that another review is going to redress the injury.

[00:29:17] Speaker 03:
And so it's a standing issue to me, the fact that there was a review.

[00:29:21] Speaker 03:
And another review won't redress the injury would be a standing issue because there has to be evidence of standing where we stand here today.

[00:29:29] Speaker 02:
Right.

[00:29:30] Speaker 02:
I understand that point of view.

[00:29:31] Speaker 02:
That's not really the way that I was looking at it, but.

[00:29:34] Speaker 02:
I'm happy to win that way also or alternatively.

[00:29:39] Speaker 02:
But I would say, I mean, there's a question then of how much you look beyond the pleadings when deciding a jurisdictional question, which I think that you can.

[00:29:49] Speaker 03:
Wait a minute.

[00:29:49] Speaker 03:
We're at a stage where we're looking at evidence.

[00:29:51] Speaker 03:
There has to be evidence because we have case law that says when a case comes to us in this posture, it's like a summary judgment.

[00:30:03] Speaker 03:
standard, not a motion to dismiss type standard, because that's the way it comes straight to us from the agency.

[00:30:10] Speaker 03:
We have to find evidence of standing.

[00:30:12] Speaker 02:
Right.

[00:30:13] Speaker 02:
I mean, I understand that.

[00:30:15] Speaker 02:
Again, I'm not going to resist whether it's a victory on the merits or on standing.

[00:30:20] Speaker 02:
I think this type of claim is

[00:30:22] Speaker 02:
so unusual and rare that it's probably not going to have a large impact on other cases.

[00:30:26] Speaker 02:
And I'm not going to resist saying that it's a standing problem.

[00:30:31] Speaker 03:
No, I'm just trying to understand what's the right answer.

[00:30:34] Speaker 03:
I know you want to win, however we decide this.

[00:30:36] Speaker 02:
But I'm trying to decide what's the right answer.

[00:30:38] Speaker 02:
Yeah, I mean, I do think that, from my point of view, I think it's a merits question.

[00:30:42] Speaker 02:
But I understand, I mean, this is one of those areas where the question of standing and the question of the merits often bleeds together.

[00:30:49] Speaker 02:
It's hard to necessarily separate them.

[00:30:51] Speaker 02:
But I came at it from the point of view of, let's assume that the plaintiff was correct on the merits.

[00:30:59] Speaker 02:
Right.

[00:30:59] Speaker 02:
Right.

[00:31:00] Speaker 02:
So would they have standing if they were indeed correct and our evidence didn't exist or was all.

[00:31:05] Speaker 02:
But on the other hand, I also see, like, can you just sort of assume that's all correct in the face of just the government has all the evidence on the one side and there's nothing counterbalancing?

[00:31:13] Speaker 02:
And maybe that's a different type of situation.

[00:31:16] Speaker 02:
So I know that answer really didn't sort of help to resolve the standing versus the merits.

[00:31:21] Speaker 02:
But I do think that it, my instinct says that it's merits, but I confess that I haven't fully thought that out before this argument.

[00:31:33] Speaker 02:
If there are other questions, I'm happy to answer them.

[00:31:35] Speaker 02:
I'm sorry to go down in the rabbit hole on so many of these tricky threshold questions.

[00:31:40] Speaker 01:
We ask you questions and you try to answer them.

[00:31:42] Speaker 01:
We appreciate that.

[00:31:44] Speaker 01:
Make sure my colleagues don't have additional questions for you at this point.

[00:31:47] Speaker 01:
Thank you.

[00:31:47] Speaker 01:
Thank you, Mr. Walden.

[00:31:53] Speaker 01:
Mr. Gerson will give you two minutes for a rebuttal.

[00:31:56] Speaker 04:
Thank you, Your Honors.

[00:31:59] Speaker 04:
The government here shouldn't be entitled to the presumption of regularity due simply to the irregularity of how they provided the record in this case, which raises a substantial question to the regularity with regards to how they handled the case before the TRIP decision was ever issued.

[00:32:23] Speaker 04:
They started here with a very short by-part

[00:32:27] Speaker 04:
index of record that they wouldn't provide any of the documents to the petitioners from and they claim that to be under oath, a complete record.

[00:32:36] Speaker 04:
Then after the opening briefing is filed, they claim again that they provided the complete record and they add a lot more documents.

[00:32:44] Speaker 04:
And then after the reply brief is filed, they claim that again, that they suddenly have a few more records to provide and that it's now a complete record.

[00:32:54] Speaker 04:
So the presumption of regularity

[00:32:57] Speaker 04:
great frankly, has been defenestrated, thrown out the window, in this case, throughout the process.

[00:33:09] Speaker 04:
Where we go with this for us as the for the petitioners is that I want to just briefly just touch on that the naivety of a petitioner and how they formulate the question when they are filing their initial trip request that that process is designed in a manner where the individual

[00:33:30] Speaker 04:
puts it forward to the best of language and is really encouraged to be done by the individual, not by a lawyer.

[00:33:35] Speaker 04:
And so their naivety in formulating it and not putting forth all the evidence possible that would support a Fourth Amendment request or anything else, it shouldn't be held against them.

[00:33:44] Speaker 04:
In fact, where we end up in a position with is that the only opportunity to get that record to really have them have something to respond to is at the stage in this case, preferably prior to their opening brief.

[00:33:58] Speaker 04:
unless your honors have any further questions, then thank you very much for your time today.

[00:34:05] Speaker 01:
Thank you, counsel.

[00:34:06] Speaker 01:
Thank you to both counsel.

[00:34:07] Speaker 01:
We'll take this case under submission.