[00:00:00] Speaker 02:
Case number 23-5074.

[00:00:03] Speaker 02:
Mohamed Jibril, individually and on behalf of their minor children, AJ, Jen, OJ, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda, Adda,

[00:00:30] Speaker 01:
I am here once more on behalf of the seven members of the Jibril family.

[00:00:36] Speaker 01:
This court held that ex parte in-camera resolution of dispositive issues should be avoided whenever possible.

[00:00:44] Speaker 01:
That instruction was issued by this court in Ellsberg v. Mitchell and remains true today.

[00:00:50] Speaker 01:
In this case, resolution at the Rule 12 stage, based solely on ex parte in-camera submissions of a factual challenge,

[00:01:00] Speaker 01:
In particular, most certainly could have been avoided, but the district court failed to do so.

[00:01:06] Speaker 01:
Despite its express reservations and recognition that the government has not entirely explained why national security concerns exist in this particular case, particularly with respect to the minor plaintiffs.

[00:01:21] Speaker 01:
We represent that that was error and ask that this court reverse that holding and remand back to the district court.

[00:01:29] Speaker 01:
What did the department say about the minor plaintiff?

[00:01:33] Speaker 04:
I'm sorry?

[00:01:33] Speaker 04:
What did the department say in this recent letter about the minor plaintiff?

[00:01:39] Speaker 01:
The department, the government, what does the government say?

[00:01:42] Speaker 01:
Your Honor, honestly, I don't know.

[00:01:44] Speaker 01:
That's part of the problem.

[00:01:46] Speaker 01:
There's not much that we can say, that we can see that has been submitted this time that is not in camera.

[00:01:53] Speaker 01:
I will say that we are aware that minor OJ

[00:01:57] Speaker 01:
One of the youngest of the Gibraltar family members originally received a separate and distinctly different letter in response to the DHS trip complaint on behalf of him vended the other five members of the Gibraltar family that did receive letters as well.

[00:02:15] Speaker 01:
So far received the more standard can neither confirm nor deny letter and OJ received a different one with different wording.

[00:02:24] Speaker 01:
that also did not identify anything, but did diverge from the one that the other five received.

[00:02:31] Speaker 01:
And the seventh member of the family never received a letter from DHS TRIP.

[00:02:34] Speaker 01:
Based on that- I've seen the letter concerning the minor, correct?

[00:02:38] Speaker 01:
I've seen the letter that was issued by DHS TRIP, yes.

[00:02:41] Speaker 00:
And you still haven't told me what it says.

[00:02:43] Speaker 01:
Oh, I'm sorry, Your Honor.

[00:02:44] Speaker 01:
The letter issued by DHS TRIP

[00:02:50] Speaker 01:
The language that differs as to minor OJ is that it does not contain the language that DHS TRIP can neither confirm or deny any information about which you may, about you, which may be within the federal watch list or reveal any law enforcement sensitive information that is language that was in the other five was not in his.

[00:03:13] Speaker 01:
Instead, minor OJ's letter contains the information, contains the language that

[00:03:19] Speaker 01:
The US government has completed our review of your case.

[00:03:22] Speaker 01:
Your experience was most likely caused by a misidentification against a government record or by random selection.

[00:03:30] Speaker 01:
We regret any inconvenience you may have experienced and, where appropriate, have made updates to our records that may assist in avoiding future incidents of misidentification.

[00:03:43] Speaker 01:
Based on the fact that there is at least that distinction and the motion to dismiss at the district court level this round, as well as the district court's holding or the district court's decision, its order in this case, do not address that distinction, even following the hypothetical presented in the district court's opinion, which is all I can do.

[00:04:07] Speaker 01:
Following that hypothetical, even under that,

[00:04:11] Speaker 01:
that the hypothetical that if, hypothetically, one member of the family, say the father, were on the watch list, and other family members traveling with him then experienced the same issues, and then he were removed from the watch list, and hypothetically, they would not have any future problems, that does not explain the distinction between the letters that were received by the individuals.

[00:04:36] Speaker 01:
There were other minors, so the minor status does not explain that either.

[00:04:40] Speaker 01:
And it does not explain why the seventh member of the Jibril family did not get a letter from DHS Trip at any point.

[00:04:49] Speaker 01:
The district court opinion also fails to address, as does the motion for summary judgment, the fact that, as this court previously recognized, the Jibrils have an interest in religious travel and traveling internationally to Saudi Arabia for their sincerely held religious beliefs and

[00:05:09] Speaker 01:
The district court's decision does not address the facial challenge that we bring to the DHS trip redress process through the regulations at 49 CFR 1560.205.

[00:05:25] Speaker 01:
That was not addressed by the district court.

[00:05:30] Speaker 01:
The plaintiffs remain subject to DHS trip, whether they're on the selectee list or not.

[00:05:35] Speaker 01:
Anytime that they travel, DHS trip process applies to all travelers

[00:05:39] Speaker 01:
not just those on the selectee list, as my colleague across the aisle made clear last time that we were here in 2021, that multiple individuals not on the selectee list may receive the QUAD-S designation and additional security screening, and their only redress as well is a DHS trip process.

[00:05:58] Speaker 01:
So the JABRILs remain subject to it, much like in the case of Inuit Navy chaplaincy, they're still subject to the same processes

[00:06:06] Speaker 01:
Um, and it is still relevant then to their proposed redress.

[00:06:12] Speaker 01:
What we, what we at this stage, your honor, what we request is rebound first of all, so that we can finally file that amended complaint and also that we may seek, um, which, which we have not had the opportunity yet to file despite having requested at the district court this time, um, with edits that will reflect what we believe, um, or at least suspect.

[00:06:34] Speaker 01:
to be the factual challenge presented at this time.

[00:06:37] Speaker 01:
And then we also would, for redress, would like to have either an unclassified summary presented to the Jibrils, which the government does in the context of no-fly situations.

[00:06:51] Speaker 01:
It could do here.

[00:06:53] Speaker 01:
Or the district court can provide the Jibrils with some information to allow them a meaningful opportunity in a meaningful way.

[00:07:02] Speaker 01:
to challenge whatever was presented to them that would be redacted, could be presented for attorney's eyes only.

[00:07:11] Speaker 01:
Courts have many avenues at their disposal other than simply making it all in camera.

[00:07:18] Speaker 01:
We do again challenge, we have the facial challenge to the DHS TRIP procedures and what we believe to be the lack of due process, of constitutional due process contained

[00:07:29] Speaker 01:
within those, and this case is a prime example of why.

[00:07:33] Speaker 01:
And we would like the opportunity to litigate that at the district court below.

[00:07:38] Speaker 01:
While there may be some limitations on what we can see, there may be some limitations.

[00:07:41] Speaker 01:
Well, that's what I'm trying to figure out.

[00:07:43] Speaker 00:
There are some limitations.

[00:07:44] Speaker 00:
There's sovereign immunity concerns with respect to whomever it is you're suing, at least the way the case sets up now.

[00:07:52] Speaker 00:
Are you talking about damages and based on what?

[00:07:55] Speaker 00:
What theory?

[00:07:56] Speaker 01:
I'm talking about two things.

[00:07:58] Speaker 00:
I'm trying to understand what it is that you're proposing.

[00:08:02] Speaker 01:
I'm talking about two things, Your Honor.

[00:08:04] Speaker 01:
First, that we would like to either have the opportunity for jurisdictional discovery, which we asked for in our briefing, in order to determine any individual agents who may be liable for the past harm or past damages that we can name individually.

[00:08:21] Speaker 01:
We just don't have that information yet.

[00:08:23] Speaker 01:
but did add in the- Whoever asked for that?

[00:08:27] Speaker 01:
We added, we haven't had an opportunity to request it.

[00:08:30] Speaker 01:
We did put in the proposed amended complaint.

[00:08:32] Speaker 01:
It requests phenomenal damages as relief.

[00:08:35] Speaker 01:
And we did say in our briefing here to this court that we would, and to the district court in footnotes in our response, that we wanted, we did request the opportunity to amend or to finalize the proposed amended complaint

[00:08:52] Speaker 01:
after having an opportunity to investigate further based on the factual challenge and our limitations of trying to go at it mostly blindly in order to address it.

[00:09:03] Speaker 01:
We may not be able to do that, but we want the opportunity.

[00:09:07] Speaker 00:
What do you perceive to be your basis for standing at this point as best you understand the case?

[00:09:12] Speaker 01:
As I understand the case, Your Honor, first of all, we would like to add nominal damages again as to individual agents in their individual capacity.

[00:09:21] Speaker 01:
to the extent that we are able to identify those reasonably or be allowed to have jurisdictional discovery to find that information.

[00:09:28] Speaker 00:
Retrospective or prospective relief?

[00:09:30] Speaker 01:
That part would be retrospective and then prospectively because the Jibrils all remain subject to the DHS trip process for future travel and they have shown as this court previously recognized that they will travel in the future, are reasonably likely to travel in the future for both family and religious needs.

[00:09:48] Speaker 01:
that they are still subject to that, so we are seeking, in that sense, a declaratory relief regarding the constitutionality that we believe is deficient of the DHS trip redress process as it currently exists.

[00:10:04] Speaker 00:
Taking the district court's hypothetical as using it as a question, if things are as the district court

[00:10:17] Speaker 00:
in the district court, if things are as the district court's hypothetical raise, what standing would you have based on the what?

[00:10:27] Speaker 00:
For going forward.

[00:10:28] Speaker 01:
Yes, for going forward, Your Honor, we believe that we do still have standing in that context in that using the parallel of the voluntary cessation standard and the language that was addressed in the Kovacs case, which is cited, as well as to the vote versus IRS.

[00:10:45] Speaker 01:
which is cited in our briefing, that the defendant's own choice to state, trust us, this won't happen again, is not sufficient.

[00:10:54] Speaker 01:
That is not a sufficient reason and belief and understanding to say there is no chance of this happening again regarding a procedure that every traveler is subject to using should any traveler have a complaint going forward.

[00:11:10] Speaker 01:
So we do not believe, we don't agree with the district court's holding,

[00:11:12] Speaker 01:
to the extent that we can see the reasoning for it.

[00:11:14] Speaker 00:
It doesn't matter whether any of the plaintiffs have ever been on a list.

[00:11:20] Speaker 01:
I believe it matters.

[00:11:21] Speaker 01:
I don't believe that it's purely dispositive.

[00:11:24] Speaker 01:
I believe that it is one indication.

[00:11:26] Speaker 01:
But again, as I indicated, they are also all still subject to the DHS trip process.

[00:11:32] Speaker 00:
That's a high amount of decline, isn't it?

[00:11:34] Speaker 00:
In light of the case law and in light of the statute, with respect to what the government is allowed to do.

[00:11:39] Speaker 00:
The government has a lot of... We're all subject to that.

[00:11:42] Speaker 01:
We are.

[00:11:43] Speaker 01:
And I believe that these bills have shown based on how they've been treated in the past and based on their demonstrated likelihood of repeat travel in the future.

[00:11:51] Speaker 01:
And the fact that neither the district court holding or the, from what I can see, the government's submitted factual challenge at the 12-1 stage, none of that addresses the distinctions that do exist.

[00:12:08] Speaker 01:
For example, with the letter to young OJ,

[00:12:10] Speaker 01:
and as well as the failure to even issue a letter to the seventh in Gibraltar family member.

[00:12:16] Speaker 01:
Those have not been identified.

[00:12:18] Speaker 01:
Those have not been fleshed out.

[00:12:20] Speaker 01:
So from what I see, I don't see a resolution to all of the questions.

[00:12:23] Speaker 01:
They may still be subject.

[00:12:26] Speaker 01:
And again, it is at the government's discretion to put them back on at any time.

[00:12:31] Speaker 01:
And if there is information that is so compelling and so dispositive that

[00:12:38] Speaker 01:
it could have prevented this lawsuit five years ago.

[00:12:40] Speaker 01:
At the very least, the Jabril should be able to see an unclassified summary of that information.

[00:12:47] Speaker 01:
It may be that we can't get past that.

[00:12:49] Speaker 01:
It may be that that kills our facial challenge.

[00:12:52] Speaker 01:
But we should have the opportunity and then deserve the right to a day in court to litigate that fully and brief it fully.

[00:13:00] Speaker 00:
Well, the district court in the hypothetical suggested that some of what you're

[00:13:07] Speaker 00:
raising now may depend upon whether any of the plaintiffs were on a list at the time the fight of the complaint was filed.

[00:13:16] Speaker 00:
I did see that it suggested that.

[00:13:18] Speaker 00:
That changes the analysis from standing.

[00:13:21] Speaker 00:
That changes the analysis that you want to raise about moon is to want about standing.

[00:13:25] Speaker 01:
Your honor, I do believe again, they did experience all seven of them experienced this treatment, regardless of however many may or may not have been on the watch list.

[00:13:36] Speaker 01:
At that time or at the time of filing the complaint all seven of them Are still subject to DHS trip as their only remedy and all seven of them have to have a demonstrated likelihood of Traveling again in the future and therefore potentially being subject to this harm I don't see anything from what I can see and I recognize my limitations here

[00:13:59] Speaker 01:
I don't see anything that addresses that as to all seven family members going forward and quite frankly, neither the district court as it recognized that the government had not shown in this particular case, and particularly as to the minor plaintiffs, that the national security justification rises to the level of the extraordinary circumstances and the closer inspection necessary to justify

[00:14:29] Speaker 01:
purely in-camera ex parte presentation, particularly of a factual challenge and at the 12.1 stage when all factual inferences should be resolved in favor of the plaintiffs.

[00:14:44] Speaker 01:
Unless there are any other questions at this time, I will sit down and allow my colleague from across the aisle to speak and hopefully be back briefly for rebuttal.

[00:14:51] Speaker 03:
Thank you.

[00:14:53] Speaker 03:
Thank you.

[00:14:54] Speaker 03:
Thank you.

[00:14:55] Speaker 03:
Mr. Walden, before you began,

[00:15:01] Speaker 03:
All right, Mr. Waldman, come on up to the podium.

[00:15:08] Speaker 03:
Do you intend, in your argument, to use any information for which we need a closed session?

[00:15:15] Speaker 04:
Not in this public session, Your Honor, no.

[00:15:17] Speaker 04:
Would you like me to proceed, Your Honor?

[00:15:19] Speaker 03:
Yes.

[00:15:20] Speaker 04:
OK.

[00:15:20] Speaker 04:
Thank you.

[00:15:21] Speaker 04:
My name is Joshua Waldman from the Department of Justice for the Apple Ease.

[00:15:26] Speaker 04:
Did district court correctly held

[00:15:27] Speaker 04:
on the basis of the government's ex parte declaration.

[00:15:31] Speaker 04:
And it lacked Article III jurisdiction over plaintiff's claims.

[00:15:35] Speaker 04:
The district court may properly consider matters outside of the pleading in resolving a motion to dismiss for lack of jurisdiction.

[00:15:43] Speaker 04:
And this court has held that it may resolve a case on the basis of an ex parte evidence where, this year, relevant privilege is properly invoked.

[00:15:53] Speaker 04:
There is a compelling national security concern.

[00:15:55] Speaker 04:
And the government has disclosed

[00:15:57] Speaker 04:
as much as possible without compromising the privilege.

[00:16:01] Speaker 04:
District court did not abuse its discretion in denying a motion to amend the complaint because the plaintiffs did not identify any basis for waiving sovereign immunity that would permit them to add a claim for monetary damages.

[00:16:18] Speaker 04:
To begin with, a return to the jurisdictional point based on the ex parte declaration, the

[00:16:25] Speaker 04:
district court held that there was, quote, no conceivable way that the plaintiffs could demonstrate that they have standing or Article III jurisdiction, even with a full opportunity for adversarial testing of the government's position.

[00:16:40] Speaker 04:
We think that that should be conclusive of the Article III jurisdictional question in this case.

[00:16:49] Speaker 04:
If the court has any questions about the public record, I'd be happy to.

[00:16:54] Speaker 03:
We do have questions, but we need to close.

[00:16:57] Speaker 03:
Sure.

[00:16:57] Speaker 03:
OK.

[00:16:57] Speaker 01:
Your Honor, with the brief time that I have remaining to wrap up, I do want to point out in response to one thing that my colleague across the aisle said, there is a difference between considering evidence that is outside the record and considering only evidence that is outside the record presented ex parte and in camera.

[00:17:19] Speaker 01:
And doing so contradicts this court's holding in the cases that we've cited

[00:17:24] Speaker 01:
or already as well as a Boris could be Reagan from 1996, where this court stated that inside, we expect the district court on remand to be mindful of the tight boundaries set in malaria and of the overriding importance of during plaintiffs receipt of the most complete information and explanation permissible.

[00:17:52] Speaker 01:
It did not happen here as what we are requesting is that we have that opportunity on remand even with the proposed amended complaint which we specifically noted in our response to the district court in the footnotes.

[00:18:05] Speaker 01:
was not intended to be a final version or complete because we knew we have to figure out how to respond to what we did not know.

[00:18:12] Speaker 01:
But even with that, it is not like the situation in the Robinson case, which the government cites to where there were no new claims or no new relief added.

[00:18:22] Speaker 01:
We did, and we also want to add potentially new parties of the individual agents, as well as additional facts to address best as we can what we now know or

[00:18:34] Speaker 01:
believe from the hypothetical to be the factual challenge that has been asserted.

[00:18:40] Speaker 01:
Failure to remand for at least that right to amend and to allow full briefing on the viability of that eventual amended complaint, which we had not had the opportunity to create or file yet, would reward the defendant's actions that the district court described as an apparently sick sense of delight, as noted by the district court, in waiting years

[00:19:04] Speaker 01:
after having known this information that he believes to be central and still withhold again from the Jabril family.

[00:19:11] Speaker 01:
Courts can create and fashion alternative remedies to protect material, and that can happen here.

[00:19:18] Speaker 01:
It has not, and we ask this court to allow for that to happen.

[00:19:22] Speaker 01:
Thank you, Your Honors.

[00:19:26] Speaker 01:
Thank you.

[00:19:26] Speaker 03:
Thank you.