[00:00:00] Speaker 00: Case number 23-1157, the late petitioner versus Transportation Security Administration, and David Fokoboski, Administrator, Transportation Security Administration, acknowledged with capacity. [00:00:14] Speaker 00: Mr. Abbas for the petitioner, Mr. Waldman for the response. [00:00:18] Speaker 00: All right, Mr. Abbas, good morning. [00:00:20] Speaker 02: Good morning, Your Honor. [00:00:21] Speaker 02: May it please the Court? [00:00:23] Speaker 02: With the Court's permission, I'd like to reserve three minutes for rebuttal. [00:00:30] Speaker 02: This case belongs in district court. [00:00:32] Speaker 02: It belongs in district court for the exact same reasons that the Ninth Circuit found that similar claims belonged in district court. [00:00:41] Speaker 02: That's because this challenge is a challenge to what the Terrorism Screening Center did, not a challenge to what the Transportation Security Administration [00:00:51] Speaker 02: dead. [00:00:52] Speaker 02: It was the terrorism screening center that put Saddam Khalid on the no-fly list. [00:00:58] Speaker 02: It was the terrorism screening center that put him on the watch list. [00:01:03] Speaker 02: And it was the terrorism screening center that decided to use constitutionally inadequate procedures and processes and standards to place him there and keep him there and impose. [00:01:15] Speaker 03: But what entity was sued? [00:01:18] Speaker 02: The terrorism screening center, Your Honor, was sued. [00:01:21] Speaker 02: The Transportation and Security Administration was also sued, Your Honor, but the reason the Transportation and Security Administration was sued is because many agencies form the core of the federal government's government-wide watch listing system, and TSA is one of those agencies. [00:01:39] Speaker 02: and my colleague on the other side will confirm this, the Transportation Security Administration did not place Sad bin Khalid on the watch list. [00:01:47] Speaker 02: They did not place Sad bin Khalid on the no-fly list. [00:01:51] Speaker 02: And even after the TSA administrator made a decision to keep him on the list, look at their amended complaint, Appendix 18, Paragraph 56. [00:02:03] Speaker 02: Even outside of the DHS TRIP process, the terrorism screening center reviews its listings. [00:02:11] Speaker 02: It makes decisions to change those listings, to upgrade them, to modify them, or to remove them altogether. [00:02:18] Speaker 03: So let's back up a little bit and talk about the court's jurisdiction. [00:02:22] Speaker 03: Yes, Your Honor. [00:02:22] Speaker 03: We're here on a review of a final order. [00:02:25] Speaker 03: So we have exclusive jurisdiction of reviewing that final order. [00:02:28] Speaker 03: So with that in mind, that's a final order of TSA, correct? [00:02:33] Speaker 02: Your honor, we were transferred here. [00:02:36] Speaker 02: So that's why the petitioner of review is before the court because against our will, we were compelled to come. [00:02:44] Speaker 02: Yes. [00:02:44] Speaker 04: The judge asked is, is we have exclusive jurisdiction over the TSA's final order. [00:02:50] Speaker 04: Is that correct? [00:02:50] Speaker 04: And your answer to that is? [00:02:52] Speaker 02: Yes, Your Honor, we don't challenge it at all in any kind of way. [00:02:56] Speaker 02: We don't challenge the TSA Administrator's order, and the TSA Administrator's order does not get at the core of what we're challenging, because the TSA Administrator did not consider the constitutional sufficiency of the no-fly list inclusion standard when it was making its decision. [00:03:13] Speaker 03: But if we have jurisdiction over TSA's final order, you don't believe that that encompasses all of the things that you're mentioning? [00:03:22] Speaker 03: Do you think it only is the challenge of the no-fly list? [00:03:26] Speaker 02: Your Honor, it's not even only a challenge of the no-fly list. [00:03:30] Speaker 02: The limitation that the jurisdictional statute places on this court is to affirm, modify, or set aside the specific individual order. [00:03:40] Speaker 02: So, for example... Require other proceedings to be conducted. [00:03:43] Speaker 02: I'm sorry, Your Honor? [00:03:44] Speaker 03: Require other proceedings to be conducted, correct? [00:03:47] Speaker 02: Your Honor, whatever additional demands that the court makes of the government's record here, it's limited to just changing the order. [00:03:58] Speaker 02: So for example, the court finding a constitutional infirmity in the no-fly list inclusion standard, the government has to conduct further proceedings. [00:04:08] Speaker 03: It also says the court may grant animal relief by staying the order or taking other appropriate action when good cause for its action exists. [00:04:17] Speaker 02: Your honor, I think it's cabined and limited to just the order at issue. [00:04:21] Speaker 02: And here, the order at issue would be the TSA Administrator's single moment in time decision to maintain him on the list. [00:04:30] Speaker 02: That decision did not reflect... To make it clear, the list you're talking about is the no-fly list. [00:04:34] Speaker 02: Is the no-fly list. [00:04:35] Speaker 02: And your honor, as your question implies, the TSA administrator has nothing at all of any kind to do with the watch list itself. [00:04:46] Speaker 02: And so at best, you're fracturing the case into two pieces. [00:04:50] Speaker 03: OK, well, let's cabinet to just the no-fly list portion and not all the other claims. [00:04:56] Speaker 03: What does that mean then for our review here? [00:04:59] Speaker 03: Because yes, TSA has the final order about the no-fly list, but of course, TSA, as you indicate, did not make the decision. [00:05:10] Speaker 03: TSC did. [00:05:12] Speaker 03: So then help us with what we're actually reviewing if we also know in that review that another agency participated in that process. [00:05:21] Speaker 02: Yeah, I think what we're asking for your honor in this case and its companion is to be sent back to the district court in its totality and for the court not to reach the merits of these issues. [00:05:34] Speaker 03: But I'm asking you, what are we reviewing? [00:05:36] Speaker 03: Yes. [00:05:38] Speaker 03: That is the process. [00:05:39] Speaker 03: The only agency process that gets you to that point of the no-fly list in the first place. [00:05:45] Speaker 02: It's not a multi-agency process, Your Honor. [00:05:47] Speaker 03: When I say multi-agency, that more than TSA might make the decision, but others could participate in the process of how it eventually gets there. [00:05:56] Speaker 02: We would assert, Your Honor, that the Court should focus on who has the authority to decide who's listed and who's not listed. [00:06:04] Speaker 02: And at all times, it's the Terrorism Screening Center that has the authority to do that. [00:06:08] Speaker 02: Now, one special— FBI? [00:06:10] Speaker 02: The terrorism screening center is just a department of the FBI has no independent corporate identity. [00:06:17] Speaker 02: It's just FBI employees that are running the terrorism screening center. [00:06:21] Speaker 02: And the terrorism training center is just not mentioned in 46 110. [00:06:25] Speaker 02: And so the decisions that we're challenging are non 46 110 agency decisions. [00:06:32] Speaker 02: And that's why your honor, the best response to this petition of review landing in this court is to send the whole thing back to the district court. [00:06:44] Speaker 03: But if we're reviewing other agency decisions, and when I say we, I'm talking about DC circuit, [00:06:51] Speaker 03: We can look at the antecedent legal determinations that bring you forward to that final decision. [00:06:58] Speaker 03: So do you not think that that's possible here? [00:07:01] Speaker 02: Certainly, Your Honor, it's relevant to the procedural due process claim, what the existing procedures are and how those existing [00:07:08] Speaker 02: procedures work and what the outcome of the TSA administrator was would reflect in somewhat, in some case, what that process was like. [00:07:20] Speaker 02: We think that a review of the process as it is cuts our way if you reach, Your Honor, the procedural due process claim itself. [00:07:29] Speaker 04: How can we, like, how could we review [00:07:34] Speaker 04: the terrorist watch list claims the process leading to placement, which does ultimately lead to the no-fly list, the presence of call this name on no-fly list. [00:07:50] Speaker 04: How can we review that though when our special statutory jurisdiction extends only to the TSA administrator and not to the [00:08:00] Speaker 04: Federal Bureau of Investigations. [00:08:02] Speaker 02: Exactly, Your Honor. [00:08:03] Speaker 02: It's unworkable. [00:08:03] Speaker 02: The reviewing, just a part of, an ins and beans-y part of Sabna Khaled's watchlist case makes no sense, and it would fracture the case into many pieces. [00:08:15] Speaker 02: It's just the case, Your Honor, that we're not challenging what the TSA administrator did. [00:08:19] Speaker 02: That's not the whole case at all. [00:08:21] Speaker 02: What we're challenging is what the terrorism screening center did. [00:08:24] Speaker 02: and the terrorism screening center did what it did years before the DHS trip ever. [00:08:30] Speaker 03: But even under your theory, if this was to go back to district court, how do you not implicate this decision, like the district court, somehow in all its review of all of your other claims, having to somewhat potentially undo what TSA did in terms of the no-fly list? [00:08:48] Speaker 02: Your honor, I think if you send this case back down, we're going to find a discovery that the only thing the TSA administrator did was a ministerial task of reproducing the terrorism screening center's decision to keep him on the no-fly list. [00:09:02] Speaker 02: And subsequent to the TSA administrator's decision, the terrorism screening center has been making a decision every couple of months to keep him on the no-fly list. [00:09:11] Speaker 02: And so even if you look at, if you're looking at it technically and saying the TSA administrator did something, [00:09:17] Speaker 02: the terrorism screening center. [00:09:20] Speaker 02: They also made decisions to keep Saad bin Khalid on the list, as they do for all U.S. [00:09:25] Speaker 02: persons periodically. [00:09:27] Speaker 02: And Your Honor, I'll save the balance of my time for the question. [00:09:30] Speaker 04: But aren't you, isn't the claim challenging, not the evidence that was [00:09:36] Speaker 04: president that the screening center looked at in making the initial decision, you're looking at now the current state of the evidence and whether maintaining him on a list is unconstitutional. [00:09:51] Speaker 04: And the relief that you're seeking for your client is focused on taking him off the list. [00:09:56] Speaker 04: So why is that not [00:09:59] Speaker 04: in the hands of TSA and TSA administrators? [00:10:03] Speaker 02: TSA, so long as DHS TRIP is not invoked, TSA has no role in deciding who is or who is not on the no-fly list. [00:10:11] Speaker 02: They can't affirmatively take somebody who's not on the no-fly list and put him there. [00:10:16] Speaker 02: Outside of the DHS TRIP process, they can't themselves. [00:10:19] Speaker 04: Right, but the TRIP process was invoked, and I understand you have an argument that [00:10:23] Speaker 04: he had no interest in invoking it. [00:10:25] Speaker 04: He was kind of shepherded into it and through it by the district court and the defendant. [00:10:31] Speaker 02: But Your Honor, we have a very specific fact-based allegation here that the evidence that the government used is false. [00:10:39] Speaker 02: And so that's one part of it. [00:10:42] Speaker 02: But another part is that the inclusion standard, which TSA administrator has nothing to do with, they just [00:10:49] Speaker 02: taking it from the terrorism screening center and applying it to Saddam Khalid. [00:10:55] Speaker 02: The challenge is to that standard, too, your honor, and that has nothing to do with the TSA administrator's decision. [00:11:00] Speaker 02: In fact, the TSA administrator's decision doesn't even reflect that decision, that that kind of claim, that constitutional substantive procedural due process claim was considered in the first place, your honor. [00:11:13] Speaker 03: Yes? [00:11:13] Speaker 03: When there is a final order in place, [00:11:16] Speaker 03: I would think generally the circuit courts and I'm not talking about just ours would. [00:11:23] Speaker 03: Feel like they're the ones who have the exclusive jurisdiction and would not send something back would not remain. [00:11:29] Speaker 03: I'm just trying to think about a broader principle here. [00:11:32] Speaker 03: Are we creating something here, or are you just trying to be specific to your case? [00:11:36] Speaker 02: No, Your Honor. [00:11:37] Speaker 02: I think here you're dealing with just USC 46110. [00:11:40] Speaker 02: USC 46110 only applies to the FAA and the TSA. [00:11:45] Speaker 02: And so you're not casting a wide net. [00:11:48] Speaker 02: This is basically a statutory interpretation of 46110. [00:11:52] Speaker 02: And that statute, decades before the watch list ever came into existence and could not [00:11:58] Speaker 02: contemplate something like this arising, and with that, your own all. [00:12:04] Speaker 04: Mr. Buss, you mentioned this periodic and ongoing reassessment of the placement on [00:12:12] Speaker 04: I guess both of these lists, but the terrorist watch list and the no-fly list by the TSC. [00:12:21] Speaker 04: What's your support for that and do you raise that in your brief? [00:12:25] Speaker 02: Your honor, that's in the amended complaint. [00:12:27] Speaker 02: That's paragraph 56. [00:12:28] Speaker 02: I couldn't point you to a specific place in the briefs where [00:12:35] Speaker 02: We raised that issue, but we broadly discussed the authorities of the terrorism screening center as having at all times the authority to place, remove, modify a person's watch list status. [00:12:50] Speaker 02: And so I think here what you're getting from that fact is more TS, more non-46110 agency orders that encapsulate an appropriate target for the plaintiff's claims. [00:13:04] Speaker 02: Thank you, Your Honors. [00:13:05] Speaker 00: All right, we'll give you a couple of minutes to reply. [00:13:08] Speaker 00: Mr. Waldman. [00:13:26] Speaker 01: Good morning, your honors. [00:13:28] Speaker 01: Petitioners claims are foreclosed under this circuit's precedence. [00:13:32] Speaker 01: Under Bucic, this court has already held that exclusive review over petitioners challenges to TSA's final order maintaining him on the no-fly list belongs in the Court of Appeals, not in the District Court. [00:13:46] Speaker 03: And what does that mean? [00:13:47] Speaker 01: What are we reviewing? [00:13:49] Speaker 01: When you go through the redress process asking for relief from the no-fly list, ultimately at the end of the process comes a TSA final order maintaining you on the no-fly list. [00:14:01] Speaker 01: The petition for review challenges that order. [00:14:04] Speaker 03: And I understand that, but I'm asking specifically, what are we able to review to make a determination one way or the other as to whether or not TSA was correct? [00:14:14] Speaker 01: You can review the record which is filed in this court, including the ex parte record, and determine whether or not it met the substantive standard under, we think, a very highly deferential standard. [00:14:26] Speaker 01: And you can also review the procedures for compliance with the due process clause. [00:14:32] Speaker 01: Those are the claims that are presented here. [00:14:34] Speaker 04: Whose procedures? [00:14:36] Speaker 01: TSA's procedures, which include things, which is sort of the heart of the matter here, which is where the status on the no-fly list is given to the plaintiff, and a unclassified summary of reasons, and an opportunity to respond to those reasons, and then ultimately TSA makes the final decision. [00:14:58] Speaker 03: um before this court even so that's all the antecedent legal determinations the whole factual record everything that got to the factual yes the whole factual record can be reviewed by this court ex parte so what do you understand your opposing uh counsel [00:15:14] Speaker 03: um, meaning when he believes that this should go back to the district court, what could the district court do differently than we could? [00:15:20] Speaker 01: Well, I don't know that the district court had, it definitely does not have jurisdiction over the TSA final order. [00:15:27] Speaker 01: This court has already held that in Busick. [00:15:29] Speaker 01: What I understand him to mean is that what he wants to challenge or thinks that he's challenging [00:15:35] Speaker 01: is a TSC decision that he thinks occurred years ago to put him on the no-fly list in the first instance before he ever sought redress. [00:15:44] Speaker 03: So wanting discovery and... [00:15:47] Speaker 01: on the back. [00:15:48] Speaker 01: Precisely. [00:15:49] Speaker 01: Now, as you know, there's a second case in which the district court said all the remaining claims other than the challenge to the TSA order were dismissed for various reasons. [00:15:59] Speaker 01: And we can talk about the jurisdiction over that purported claim there. [00:16:05] Speaker 01: And I would like to sort of address the merits to the TSA order. [00:16:10] Speaker 01: But I will say [00:16:12] Speaker 01: Just briefly, that I think that number one, I don't think that claim exists. [00:16:19] Speaker 01: Certainly, he went through the redress process. [00:16:22] Speaker 01: And Judge Piller, I think just to clarify, he initiated the redress process on his own voluntarily before filing the complaint here. [00:16:31] Speaker 01: The shepherding that you referred to was he, in the middle of that process, after he had received notice of his status on the no-fly list, he ended that, he tried to end that process and then go directly to district court in the middle of the redress proceedings and bring a challenge there. [00:16:48] Speaker 01: And the district court just said, no, let's just finish the process and get a final order. [00:16:52] Speaker 01: And that's sort of all the district court did. [00:16:55] Speaker 01: And you are. [00:16:57] Speaker 04: Oh, go ahead. [00:16:57] Speaker 01: Oh, and then I was going to say, and then he amended his complaints to challenge that order. [00:17:02] Speaker 01: And under cases like Royal Cannon and Rockwell, the operative complaint is the amended complaint that the plaintiff voluntarily files that can either create or destroy jurisdiction. [00:17:13] Speaker 01: And in this case, it said what the challenge effectively became was to the TSA final order at the end of the redress process. [00:17:21] Speaker 04: So in your brief at page 24, you have an argument about why the [00:17:30] Speaker 04: challenge is about the TSA Administrator's Order and not about the Terrorist Screening Center's initial placement. [00:17:40] Speaker 04: And you basically argued that the initial placement decision has really been superseded in terms of legal effect by the TSA Administrator's Order. [00:17:52] Speaker 01: I think that's correct. [00:17:52] Speaker 01: Yes, Your Honor. [00:17:53] Speaker 04: And in fact, that the initial decision is not [00:17:57] Speaker 04: really final agency action because the most recent action that causes Mr. Khaled's remaining on the no-fly list, at least, is the TSA's order. [00:18:13] Speaker 01: That's right. [00:18:14] Speaker 01: And Darby speaks to this point, which is whether or not you are required to seek [00:18:20] Speaker 01: agency redress, if you voluntarily do, then any prior order becomes non-final. [00:18:26] Speaker 01: And what the final agency action would be is the determination by the agency at the end of that process, which here would be TSA's final order. [00:18:35] Speaker 04: The question I have, though, is [00:18:40] Speaker 04: that as I read the record, there is, in fact, a regular process of the screening center re-examining the individual's placement, a U.S. [00:18:57] Speaker 04: citizen's placement on the terror watch list and on the no-fly list. [00:19:03] Speaker 04: And given the amount of time that has elapsed since [00:19:06] Speaker 04: the TSA administrator's order, there have been successive determinations by the Bureau, by the FBI, that have confirmed Mr. Khaled's placement on these two lists. [00:19:23] Speaker 04: So why isn't the same reasoning that you rely on in your brief at page 24 about the [00:19:30] Speaker 04: TSA order being this sort of superseding and therefore operative and final determination. [00:19:38] Speaker 04: Why doesn't that also apply and make now the actions of the Terror Screening Center really the operative determinations? [00:19:49] Speaker 01: Oh, well, first of all, I think what Darby speaks to is when a plaintiff initiates that process, then it becomes non-final as to them because of their request for reconsideration. [00:20:01] Speaker 01: It doesn't speak to if an agency sort of decides to take a fresh look on its own that it sort of invalidates. [00:20:08] Speaker 04: Isn't that as a matter of real-world decision-making? [00:20:12] Speaker 04: You know, we know from the record that [00:20:18] Speaker 04: that the Terror Screening Center does, in fact, regularly review the TSDB listings and the no-fly listings. [00:20:30] Speaker 04: And I'm looking at JA-59, which talks about Terror Screening Center biannual review. [00:20:40] Speaker 04: And also J57 and in the deferred appendix, there are references at. [00:20:46] Speaker 01: Yeah, we don't we don't we don't dispute that point, but I think that as a practical matter, you have to have a court focusing on a on a certain fixed record in order to make a decision because if. [00:21:00] Speaker 01: The alternative would be every six months the record changes and the case goes back to square one. [00:21:06] Speaker 01: And obviously, that's not a practical situation. [00:21:08] Speaker 01: And so that's why we think that, first of all, redress is important to the process because it builds that record for the court to review. [00:21:15] Speaker 01: And you can only ever review one snapshot in time. [00:21:19] Speaker 01: And in fact, that's why there could be perspective relief in a case if you thought it was appropriate. [00:21:24] Speaker 01: But the court could never do something that said, [00:21:27] Speaker 01: We don't know what the record's going to be in the future, but we say you can't put him back on a list or he can't be on a list based on some future record. [00:21:34] Speaker 01: You can only take a snapshot in time. [00:21:38] Speaker 04: So I'm just trying to, I'm also looking at our decision in Muharram versus TSA and trying to sort of square that with what you're saying that, you know, once the redress process is complete and the TSA issues a final order, we said the TSA continues to independently review the no-fly list as a matter of course. [00:22:01] Speaker 04: the TSE's independent removal, in that case of Muharram from the no-fly list, supersedes any legal effect of the TSA administrator's prior final order. [00:22:13] Speaker 04: And so if the terror screening center changed, [00:22:21] Speaker 04: listing that would supersede, but it's only because it's maintaining that it doesn't? [00:22:26] Speaker 01: Essentially, yes. [00:22:28] Speaker 01: I mean, I think what happens is if this is, Muharram is a situation in which someone was on the no-fly list at the beginning of the litigation, litigation proceeded, and then he was removed from the no-fly list. [00:22:38] Speaker 01: And in that particular instance, the court held that it was moot. [00:22:41] Speaker 01: In other circumstances, courts have held it [00:22:43] Speaker 01: not moved. [00:22:44] Speaker 01: But I think it's important for the court to know if the actual decision changes. [00:22:50] Speaker 01: And TSA issued a letter saying that its decision was superseded by this removal. [00:22:59] Speaker 01: And then, so it's not just a review, a check of a static record or maybe even a changing record, but a 180 degree change in the decision making. [00:23:10] Speaker 01: So of course we needed to alert the court to that. [00:23:12] Speaker 01: And then it was really just a matter at that point of not whose decision are you reviewing? [00:23:18] Speaker 01: You're not reviewing any decision because [00:23:20] Speaker 01: The case had become moot and no one challenges their removal from the no-fly list. [00:23:26] Speaker 01: They challenge their maintenance on the no-fly list. [00:23:27] Speaker 04: But in a sense, the case has become moot here because there have been subsequent determinations. [00:23:33] Speaker 04: And it seems to me material in the sense that if his [00:23:40] Speaker 04: claim is A, there never was any information or B, the information is stale or C, the information that you had may be plausible has been disproved. [00:23:52] Speaker 04: There seems like the passage of time and the reevaluation [00:23:58] Speaker 01: matters. [00:23:59] Speaker 01: Well, I certainly don't think it makes it mood. [00:24:01] Speaker 01: I mean, he claims that he can't fly and he still can't fly. [00:24:07] Speaker 04: But it's not the final say on that matter. [00:24:12] Speaker 01: It's consistent with it, but it isn't actually the final decision. [00:24:17] Speaker 01: Again, Your Honor, if that's how you wanted to look at it, you would never have a final decision because there's always intelligence coming in and people are always, there's scheduled periodic reviews. [00:24:29] Speaker 01: And if new intelligence is developed in between those, you might reevaluate, it might bolster it, it might undercut it, but you'd [00:24:35] Speaker 01: You'd never have a decision to review. [00:24:37] Speaker 01: That's just the nature of intelligence types of decision making. [00:24:43] Speaker 01: But what courts do in these situations is they take a snapshot of time because you're challenging an order. [00:24:49] Speaker 01: And an order makes a determination based on the record that existed at that moment in time. [00:24:54] Speaker 01: And I just think you'd never get to review if you had to start again each time one new additional piece of information [00:25:06] Speaker 01: came across the intelligence community's desk. [00:25:09] Speaker 04: That makes sense. [00:25:10] Speaker 04: So what if Mr. Hall had filed a new case or amended the complaint and said, actually, now I'm challenging the intervening determination by the Terror Screening Center with all the information that comes to it. [00:25:29] Speaker 04: It's always throughout the government. [00:25:31] Speaker 04: That's the decision that I think is causally keeping me where I am. [00:25:36] Speaker 01: Yeah, I think our view would be what you really should do in this situation is you can always file every time you have an incident at the airport at the border. [00:25:44] Speaker 01: If you encounter some kind of problem, you could file a new redress claim. [00:25:47] Speaker 01: There's no limit to this. [00:25:49] Speaker 01: And you could you could start a new if you think that there's some new information and they should review it. [00:25:54] Speaker 01: Anytime you have an encounter and the same parts of the record you were pointing to before. [00:25:59] Speaker 01: say this, anytime you have an encounter as defined by the agencies, they re-review it at that point too, which is another reason why you have to have at some point a final decision that you're going to review. [00:26:11] Speaker 04: So I think you covered this with Judge Childs, but it's your position that even though TSA does not maintain the underlying database, if there were [00:26:26] Speaker 04: procedural or substantive due process or religious freedom, concerns or problems, defects in an individual's placement and or maintenance on the terror watch list, that those could be challenged through a suit against the TSA, [00:26:47] Speaker 01: Once you go through the redress process and have a final order, yes. [00:26:51] Speaker 01: We think that you would be able to review both the substance of the decision and the adequacy of the procedure in this court. [00:26:59] Speaker 01: And I think you could, the refer claim I think would fall under that as well. [00:27:04] Speaker 04: So I think- How could the individual get relief where the TSA doesn't have authority to undo [00:27:14] Speaker 04: what might be the source of the defect, the placement on the underlying car watch list. [00:27:20] Speaker 04: Oh, I think it does have authority. [00:27:21] Speaker 01: It does. [00:27:23] Speaker 01: Yes. [00:27:24] Speaker 01: The whole point of an order, if the order is to remove the person, it's effectively an order to TSE to then take them off, like uncheck the box for the no-fly list, so they're not on the no-fly list anymore. [00:27:35] Speaker 01: And TSE is going to follow [00:27:38] Speaker 01: what TSA's order. [00:27:39] Speaker 04: Not the underlying terror watch list. [00:27:42] Speaker 01: That's a different standard, right? [00:27:44] Speaker 01: And a different standard. [00:27:46] Speaker 04: And I'm saying if that's the source of the problem, if somebody was, you know, they thought Ted Kennedy, the Senator, was Ted Kennedy, the IRA, [00:27:57] Speaker 04: you know, member and Ted Kennedy goes through this and they're like, you know, no, you're the right person. [00:28:05] Speaker 04: Like then he brings a suit and says, it wasn't TSA that made the mistake. [00:28:11] Speaker 04: They just took the information from the underlying watch list. [00:28:17] Speaker 04: And how do you remedy that mistake? [00:28:21] Speaker 01: Well, the watch list is something different. [00:28:22] Speaker 01: I know. [00:28:23] Speaker 04: That's what I'm asking you about. [00:28:24] Speaker 04: Can a suit that's challenging a TSA administrator's order reach an error that was not made by TSA? [00:28:33] Speaker 01: Um, well, no, no. [00:28:36] Speaker 01: And how does that work? [00:28:39] Speaker 01: What suit and what court? [00:28:41] Speaker 01: Right. [00:28:41] Speaker 01: I mean, we're kind of getting into, like, the second case, which is about the Washington cases. [00:28:46] Speaker 01: I'm happy to do that if you want. [00:28:48] Speaker 01: But I did. [00:28:49] Speaker 01: I did want to actually address some of the merits of the no-file missile. [00:28:52] Speaker 01: Okay. [00:28:53] Speaker 01: I promise you, I will get to that in the second case. [00:28:56] Speaker 03: But I just wanted to ask real quick, the DSH trip. [00:29:00] Speaker 03: Did I hear you just say that you don't think exhaustion is required? [00:29:03] Speaker 01: Well, they don't think exhaustion is required. [00:29:06] Speaker 01: We think there's a Sixth Circuit case called Shearson, which has a prudential matter you should exhaust. [00:29:12] Speaker 01: I think that once you. [00:29:15] Speaker 01: Definitely once you start down the road, I think that you effectively have to exhaust because once you start that redress process, even if it's voluntary, the prior decisions are all now non-final. [00:29:27] Speaker 01: So once you, if you sort of give up in the middle, now you have no final order to challenge. [00:29:32] Speaker 01: So effectively you do have to. [00:29:33] Speaker 03: And I think- Isn't that why you all request the stay then? [00:29:38] Speaker 01: Yes. [00:29:39] Speaker 01: I mean, in part, yes. [00:29:41] Speaker 01: I mean, I just think once you start down that process, you're going to want to build a record. [00:29:45] Speaker 01: And that part of what you do in the readers process is if the person does not get relief, you have now have a record that the court can review. [00:29:52] Speaker 01: And so it's important for the court. [00:29:54] Speaker 01: It's important for the litigants. [00:29:55] Speaker 01: And also, you never know. [00:29:57] Speaker 01: Somebody may get relief. [00:29:59] Speaker 01: And I think it's important to play out that process. [00:30:01] Speaker 01: Um, here, I think that the, I just want to make the points real quick that, um, we think that as the nine circuit held in cash them, that the process complies with due process. [00:30:14] Speaker 01: This court has a long line of cases with Jeffrey, uh, people's Mahoja Dean, national councils of resistance of Iran. [00:30:21] Speaker 01: Bello, Zavayos, Jibril, you can go on and on that say the court can review a classified record ex parte that is part of the due process analysis. [00:30:34] Speaker 01: It's particularly complies with due process when you provide an unclassified summary. [00:30:39] Speaker 01: But even in some cases where you can't, like Jiffre, the court has still upheld that process. [00:30:44] Speaker 01: And we think that that line of precedent squarely applies here. [00:30:49] Speaker 01: Uh, and I, I do also want to just briefly address the refer claim if I could, um, uh, we think as we say in a brief, we think that there's no standing for that because there's no plans, no imminent plans to travel, uh, uh, [00:31:04] Speaker 01: I also just want to point out something that may not be immediately apparent in the record, which is that it's not clear what the obstacle is. [00:31:12] Speaker 01: It's implied that he can't fly from the U.S. [00:31:17] Speaker 01: to go on Hajj, but he's not actually does not currently reside in the United States. [00:31:21] Speaker 01: He resides in Pakistan. [00:31:24] Speaker 01: And his real claim seems to be that if he loses his passport, it will take him longer to get a replacement, which does not seem to me to be a substantial claim or that other countries might not want him to fly or admit them to the countries. [00:31:39] Speaker 01: But that's not there's no standing for that because those are third party decisions from other countries. [00:31:44] Speaker 01: We think just, and even if you address it on the merits, we think that BUSIC has already held that there are no less restrictive means for the government to further its compelling interests, that the no-fly list meets that standard. [00:31:59] Speaker 01: It didn't specifically do it in the riffer context, but it just sort of assumed if that standard applied, the no-fly list meets that standard. [00:32:08] Speaker 01: If there are any other questions on the TSA no-fly list order, I'm happy to answer it. [00:32:12] Speaker 00: All right, we'll hear from you in the next case. [00:32:15] Speaker 00: OK, thank you, Your Honor. [00:32:28] Speaker 02: Thank you. [00:32:30] Speaker 02: Just 3 quick points. [00:32:32] Speaker 02: 1 about the court's decision in a second about what. [00:32:37] Speaker 02: Orders that court should look at and a final point about exhaustion. [00:32:43] Speaker 02: With regards to this court's recent decision in Busick, it just was a different claim that the court had there. [00:32:49] Speaker 02: In Busick, the court was dealing with a, quote, TSA redress procedure challenge. [00:32:58] Speaker 02: That's exactly what they were dealing with. [00:33:00] Speaker 02: The allegation was that Busick contends that the TSA's redress procedures violate due process. [00:33:07] Speaker 02: Whereas for us, our procedural due process claim works differently. [00:33:11] Speaker 02: The brunt of our claim is that the deprivation is then being listed and then it's the inclusion standard, it's the process of the listing itself that caused the illegal conduct. [00:33:25] Speaker 02: Second, Your Honor, the government's acknowledging that there's orders before the TSA Administrator's orders, and there's orders after the TSA Administrator's orders, and he just wants you to look at the one in the middle for some reason. [00:33:39] Speaker 02: But Your Honor, the important order is that first one. [00:33:43] Speaker 02: It's the one that placed them on the watch list and the no-fly list that resulted in his name [00:33:49] Speaker 02: being populated and all these databases across the federal government that your your honors you couldn't use 46 110 to order the expungement of those records or the amendment of those records after finding that his watch list placement was. [00:34:05] Speaker 04: Um, uh, uh, uh, illegal and finally saying, are you agreeing with what I took to be saying, which is you can use the challenge to the TSA. [00:34:18] Speaker 04: Administrators order to challenge. [00:34:21] Speaker 04: the defect in the initial placement? [00:34:24] Speaker 04: No, Your Honor. [00:34:25] Speaker 02: No, absolutely not. [00:34:26] Speaker 04: The extent that he's saying that, do you disagree? [00:34:29] Speaker 02: Yes, absolutely, Your Honor, because the TSA administrator is just adopting the standards and information that it's getting from others. [00:34:38] Speaker 02: He says we can look through that. [00:34:40] Speaker 02: look at the underlying record. [00:34:42] Speaker 02: Well, you can't. [00:34:43] Speaker 02: The TSA administrator did not consider the constitutional adequacy at the very least of the inclusion standard. [00:34:48] Speaker 02: And here we have a clean claim that the inclusion standard of the no-fly list fails strict scrutiny and is not the least restrictive means. [00:34:56] Speaker 02: And the best evidence of that is that people on the no-fly list are allowed to fly all the time. [00:35:01] Speaker 02: And the final point is just on exhaustion. [00:35:05] Speaker 02: Exhaustion is not an option. [00:35:07] Speaker 02: On the no-fly list are allowed to fly? [00:35:08] Speaker 02: Yes. [00:35:08] Speaker 02: all the time. [00:35:09] Speaker 02: Yes, your honor. [00:35:10] Speaker 02: There's a waiver process that the government uses and that waiver process arose because people would leave the country and they would find themselves on the no flowers because of where they traveled to and they'd be stranded abroad and the outrage and the court room reactions to that I think led to that process. [00:35:27] Speaker 02: being established. [00:35:28] Speaker 02: It shows that there is a way to allow this category of people to fly safely. [00:35:33] Speaker 02: And then finally, just on exhaustion, your honors, your hands are tied by Darby v. Cisneros. [00:35:39] Speaker 02: Darby v. Cisneros says explicitly that you can't require exhaustion unless specific conditions are met. [00:35:46] Speaker 02: Those conditions are not met here because A, [00:35:49] Speaker 02: There's no regulation in DHS TRIP that requires exhaustion, and the statute creating DHS TRIP itself also doesn't require exhaustion. [00:36:01] Speaker 02: And without those two conditions, you cannot require exhaustion prudentially or any other way because of what our visa system says. [00:36:11] Speaker 04: And the injuries that your client has pleaded that are unique to the watch list as distinct from the no-fly list are what? [00:36:19] Speaker 02: The application of his wife's immigration status, as well as because of his watch list status, any time he crosses the border, his electronic devices will be searched. [00:36:34] Speaker 02: And that's just a function of [00:36:37] Speaker 02: his watchful status and not anything that he's doing at the border. [00:36:41] Speaker 02: And the reason that Sixth Circuit case came out that way, Shearson, is because there wasn't an APA claim in there. [00:36:49] Speaker 02: Because the Sixth Circuit in Shearson was not dealing with an APA claim, it could apply prudential concerns. [00:36:55] Speaker 02: But here, in this case, we have the APA claim. [00:36:58] Speaker 02: Darby v. Cisneros means that there's a strict means, conditions that they have to apply for. [00:37:04] Speaker 02: Thank you, Your Honor.