[00:00:01] Speaker 03:
Page number 25-5091. Amen for Ray Solomon and individual not telling. Chris Terrace, community center. Ms. Jump for the appellant. Ms. Sabani for the appellate.

[00:00:17] Speaker 03:
Ms. Jump, good morning.

[00:00:19] UNKNOWN:
Good morning.

[00:00:22] Speaker 02:
Thank you. Excuse me. Thank you, Your Honors.

[00:00:25] Speaker 02:
May it please the court. My name is Christina Jump, and I am here today on behalf of appellant Amen Solomon. Mr. Solomon came to the United States to escape persecution as a journalist in Egypt and was granted asylum years ago and still retains that status. Nonetheless, due to problems that arose both during his travel and employment contexts, he believes himself to be on a government watch list. So he utilized the Freedom of Information Act and sought records from two government agencies.

[00:00:55] Speaker 02:
Only one responded.

[00:00:58] Speaker 02:
He made another request to the unresponsive agency, the TSC, and again heard nothing. Not until litigation began did the government claim that the FBI's responses to the request that it received directly also doubled as responses on behalf of the TSC.

[00:01:17] Speaker 02:
The freedom of information... Ms.

[00:01:19] Speaker 03:
Jones, we have a rule against reading, so you need to just tell us about your case.

[00:01:24] Speaker 02:
Yes, Your Honor.

[00:01:25] Speaker 02:
The Freedom of Information Act requires transparency, and Congress mandated that it follow that transparency.

[00:01:32] Speaker 05:
Each one of your requests cites not FOIA, but the Privacy Act. Why is that?

[00:01:45] Speaker 05:
552A is the Privacy Act, and that's the request.

[00:01:50] Speaker 05:
Why are you citing the Privacy Act rather than FOIA?

[00:01:57] Speaker 02:
I believe that both three of them Your Honor I can confirm that but I apologize if that was cited in error there is a reference to the agency's design as defined in section 551 and then 552 referring to let's take a look at J37 for instance

[00:02:30] Speaker 05:
J 76. Maybe your time is limited. So go on you can check it. I'm just curious about why the citation is to the wrong statute.

[00:02:50] Speaker 02:
Your Honor, I do apologize if that's incorrect. I'd be glad to speak to that in more depth when I come back up on rebuttal and confirm that. Mr. Solomon did, however, properly issue requests under the Freedom of Information Act, and the FBI responded regarding the Freedom of Information Act to the requests that were sent directly to it.

[00:03:13] Speaker 05:
By the time the second or the third request was denied, is that in July, I think, of 2022?

[00:03:21] Speaker 02:
Your Honor, for the timeline, the... It was in July.

[00:03:28] Speaker 05:
I mean, I... Right. The initial request... He was then under arrest, correct?

[00:03:37] Speaker 02:
In July of 2024, yes.

[00:03:40] Speaker 02:
He's never actually been arrested. He was detained by ICE.

[00:03:44] Speaker 05:
And his asylum was revoked.

[00:03:46] Speaker 02:
And then reinstated.

[00:03:48] Speaker 05:
And then he won a case where he was released from prison and his asylum status was restored.

[00:04:01] Speaker 02:
Reinstated, correct, Your Honor. Fully reinstated.

[00:04:02] Speaker 05:
Did the government appeal that ruling?

[00:04:05] Speaker 02:
No, Your Honor, the government did that.

[00:04:07] Speaker 02:
There was not a court-mandated reinstatement. The government dropped its claims against Mr. Solomon in that context and reinstated his asylum.

[00:04:16] Speaker 05:
Okay, so there's no pending litigation involving him now?

[00:04:20] Speaker 02:
Not as to his asylum status, correct. All right.

[00:04:26] Speaker 05:
One more question before you go on.

[00:04:29] Speaker 05:
For each one of the FOIA requests that you made, you received a response. Is that right, from the FBI?

[00:04:40] Speaker 02:
There is a separate set of requests made to the FBI, and the FBI responded to the requests that were made to the FBI.

[00:04:45] Speaker 05:
What about the third one? Did you get a response other than the one that says it's denied?

[00:04:51] Speaker 02:
So, Your Honor, we made the initial two responses, two requests simultaneously, one to the FBI, one to the TSC. The FBI responded, no response from the TSC.

[00:05:02] Speaker 02:
Mr. Solomon appealed the request that was made to the FBI and got a response to that, made a second request to the TSC. The FBI then stated that it was reopening its investigation.

[00:05:19] Speaker 05:
I understand.

[00:05:22] Speaker 05:
For each communication you had from the FBI, you were told that if you had any questions, you could get on the FBI's and they gave you the Internet site to track your requests.

[00:05:38] Speaker 05:
And also, if you still had a problem, they gave you a telephone number to call.

[00:05:45] Speaker 05:
Did you or anyone on behalf of Mr. Solomon ever get on that Web site to track the request?

[00:05:52] Speaker 02:
Your Honor, yes, we did track the request as to the responses from the FBI, but the FBI never once said that it was responding to the request that was sent, either of the requests that were sent to the TSC.

[00:06:05] Speaker 05:
Is there any evidence regarding, did you file an affidavit that you checked the FBI website?

[00:06:12] Speaker 02:
There's an appeal made, and there is correspondence that is in the record, email correspondence that is in the record, that shows what was being checked as far as the progress of the FBI response to the request made to the FBI.

[00:06:29] Speaker 02:
There is nothing that the FBI ever communicated that it was at any time responding on behalf of the TSC or or to the request made to the TSC.

[00:06:40] Speaker 05:
If you were confused, if you didn't know what was happening, all you had to do was get on the Web site that the FBI provided. And if that didn't satisfy you, they gave you a telephone number to call.

[00:06:53] Speaker 02:
Your Honor, there was absolutely communication with the FBI's FOIA office, and that communication occurred throughout the...

[00:07:02] Speaker 02:
filing of the request to the FBI, the appeal from the FBI, and then when the FBI stated that it was reopening its previous investigation or its previous processing and used the same code number that it had used for its original response to the request sent to the FBI. There was no reason to know.

[00:07:21] Speaker 05:
The number changed on the third request, didn't it? It changed from 000 to 001. To 001.

[00:07:31] Speaker 02:
Yes, but it had the same control number and then dash 001, which appeared to be because it was reopened.

[00:07:39] Speaker 05:
It could also be because it was the same individual making the request.

[00:07:45] Speaker 02:
There was no communication at any point and no reason to even suspect that this was on behalf of the TSC regarding a completely separate one. That number had been in place since the original request made in 2021 by Mr. Solomon to the FBI and the simultaneous one made to the TSC. And then when in...

[00:08:12] Speaker 02:
subsequently, a year later, there was a request made that is at JA 76, the second TSC request.

[00:08:22] Speaker 02:
There was no new number issued.

[00:08:23] Speaker 05:
You cited CFR a number of times in your communication, didn't you?

[00:08:29] Speaker 02:
I believe so, Your Honor. Off the top of my head, I'm not positive.

[00:08:33] Speaker 05:
The CFR has a list for the Department of Justice of all the components that are responsible for responding to FOIA requests.

[00:08:48] Speaker 05:
It's at the end of Part 16.

[00:08:52] Speaker 02:
Your Honor, the definitive test is what... I believe that there is a list that is contained in there. I do not believe that that's the ultimate test.

[00:09:00] Speaker 05:
And TSC is not on that list.

[00:09:04] Speaker 05:
As a component that responds to FOIA requests.

[00:09:10] Speaker 05:
The FBI is. The FBI is considered a component.

[00:09:14] Speaker 02:
The FBI does respond to component lists. I mean, sorry, to the FBI does respond to FOIA requests. But the ultimate test under the statute and under the circuit's authority is whether the entity exercises substantial independent authority. And that's to be determined by the court.

[00:09:33] Speaker 02:
under FOIA, not because of a label that is given by a specific administration or because of any rulemaking by a particular agency. The test is whether there has been substantial independent authority exercised by the entity that receives the request.

[00:09:52] Speaker 05:
That's for determining whether they're an agency.

[00:09:55] Speaker 02:
In the context of FOIA, correct.

[00:09:57] Speaker 05:
The government has conceded that TSA or TSC is subject to FOIA.

[00:10:05] Speaker 05:
So the sushi case goes out the window because there's no dispute that TSC is subject to FOIA. The question is, which component are you entitled to get a response from?

[00:10:22] Speaker 05:
And Sushi doesn't deal with that at all.

[00:10:25] Speaker 02:
Your Honor, at a minimum, in the past, when an agency responds and states we have searched for another records or your request has been redirected to another entity which is responding for, that is plainly stated. That did not happen here. So as I mean, maybe what the solution is, is that if this is sent up back on remand and the or reopened and the government responds, the FBI might respond. We are responding on behalf of the TSC because that has been routed to us. Then we would directly dispute that if it was or they could list what was being specifically searched.

[00:11:01] Speaker 02:
And then we would get into the merits of whether the search was sufficient because the FBI does not have the decision-making authority that the TSC does. And so we'd want to know if the FBI had searched the TSC's specific records, which is why there are two separate requests sent. That may happen on remand and that we may end up ultimately in the position that your honor is describing but we aren't there yet because there was no recognition given until litigation that any response by the fbi was to the requests sent to the tsc to either the first or the second

[00:11:38] Speaker 01:
A couple of questions I want to jump in here. When you're saying that the FBI is making a representation, you're talking about a representation that TSC is a component of the FBI, just generally as an agency, as opposed to a component of the FBI for purposes of FOIA.

[00:11:59] Speaker 02:
Yes, and I believe, Your Honor, we have recognized that the FBI describes it as a subcomponent. The language that is actually on the website for the TSC is that it is administered by the FBI, and we recognize the existence of that language. We do not find that to be definitive proof. For FOIA purposes.

[00:12:21] Speaker 01:
That's what I was getting at, that there's a distinction that even if a subcomponent or component and administered by the FBI, there's a distinction between doing so for FOIA purpose.

[00:12:31] Speaker 02:
Correct, Your Honor. There is definitely a distinction of doing so for FOIA purposes.

[00:12:36] Speaker 01:
And then you also indicate that the FBI, even if it responded on behalf of TSC, doesn't make that clear that it's doing so for on behalf of TSC.

[00:12:48] Speaker 02:
Correct, Your Honor. And specifically with the second request sent to the TSC, there's a different timing. It was a different, you know, it was sent substantially separately, but then the FBI just said it was reopening its original request. There's nothing that indicates that it was responding to a new request received by the TSC.

[00:13:07] Speaker 01:
Do we have anything out there on any of the websites, you know, when they're supposed to administratively tell you how to request something on FOIA that says how to do so for TSC?

[00:13:19] Speaker 02:
No, Your Honor.

[00:13:21] Speaker 01:
Okay.

[00:13:23] Speaker 01:
Even if the FBI responded on behalf of TSC, you have them not saying that they did so, but then you also don't know if, in fact, they are taking the position that this would be for TSC.

[00:13:38] Speaker 02:
Correct, Your Honor.

[00:13:39] Speaker 01:
TSC would accept the FBI's response as being on their behalf.

[00:13:45] Speaker 02:
Correct. Correct, Your Honor. And then subsequent to that would be the question of what records, what search was done, what records were searched, and whether they're sufficient. In fact, in the last response from the FBI, which was after it stated that it was reopening and did the dash 001, its response to—I'm sorry, its response on appeal— His response to the Mr. Solomon's appeal of the original response.

[00:14:16] Speaker 02:
for the FBI. So that is at JA69-70. It refers to an FBI rap sheet saying perhaps what you're really seeking is an FBI rap sheet. There's nothing in there referencing any search of TSC records, of watch listing records, which is the substance of what was being sought from the TSC.

[00:14:38] Speaker 01:
And are you aware of in any other cases whether the FBI has responded on behalf of TSC and then stated that it was doing so?

[00:14:46] Speaker 02:
I am not aware of any other cases where it has responded on behalf of the TSC, whether it has stated so or not.

[00:14:54] Speaker 01:
Okay. And then would you like to address footnote six in Judge Alicon's opinion? Yes, I would, Your Honor.

[00:15:04] Speaker 02:
If I could turn to...

[00:15:07] Speaker 02:
that yes your honor i would be glad to address that so what we referenced uh with the excerpts that we provided as attachments uh from that from that document were specifically listed as excerpts not the full document and then we also listed the full um citation the web citation where where the entire document could be found the entire documents over 100 pages so we did not we did not attach quite frankly, for the court's convenience, the entire document.

[00:15:39] Speaker 02:
We attached the pages to which we were citing and we were referencing. But again, we don't dispute that the language that the FBI uses, the language that is referenced or that is referenced on that page. And in fact, our briefing with the district court recognized that language and recognized the existence, as I said earlier in response to your Honor's question. We have recognized the language regarding the FBI calling it a subcomponent of the FBI and the language that is on the website that the TSC is administered by the FBI.

[00:16:15] Speaker 02:
We don't challenge that. There was no intentional omission. It specifically stated it was excerpts and not a complete exhibit and gave the web address for the complete exhibit.

[00:16:28] Speaker 05:
It seems to me that likely, maybe you can explain this, the customary practice of agencies, including the FBI, is to acknowledge receipt of a FOIA request.

[00:16:45] Speaker 05:
And if the first two requests that you put forward, within a few days, you got an acknowledgement from the FBI, right?

[00:16:57] Speaker 05:
I don't see an acknowledgement letter with respect to the third request you made. And I'm wondering whether that's just an oversight in whoever prepared the appendix or whether such a document, such an acknowledgement exists. And it seems to me very, very odd that you would not get an acknowledgement from the FBI.

[00:17:21] Speaker 02:
Your Honor, you are correct. There was no acknowledgement received to either of the two requests sent directly to the TSC. Subsequent to the second request being sent to the TSC, the only communication from the FBI was that it was reopening its earlier response.

[00:17:38] Speaker 05:
That's a month later.

[00:17:40] Speaker 02:
Yes, Your Honor, that's correct. That's the only one. And that, again, it listed the same identification number, just 001, in stating that it was reopening it, the original one. Did not state this is in response to a new request. Nothing ever came to Mr. Solomon or his representatives communicating that. or that the FBI was responding to the request dated and the date of the second request as sent to the TSC and that it was redirected. Many times, the FBI and other government agencies will state, we have redirected your FOIA request to this department, to this agency.

[00:18:20] Speaker 02:
This is where the records are located. This is who's going to respond on behalf. Or the receiving agency, if it's going to be the one responding, may say, We respond. We have been this has been redirected to us. We have received this, which you originally sent wherever. And it's the acknowledgement that traces what it's acknowledging. There is no record that says that that specifically references the second request to the TSC or for that matter, the first request to the TSC.

[00:18:49] Speaker 01:
With respect to watch list claims, is there some general knowledge out there that that would go to the FBI? Or do you believe that that also can go to TSC?

[00:18:56] Speaker 02:
I believe that would go to TSC. I do not believe there is general knowledge or any general acceptance that it would go to the FBI. And this circuit in the Abdel Latif case recognized that the TSC is the sole entity that has the authority to remove a person's name from the watch list. The FBI does not have the authority to do that. The TSC does. I'm sorry?

[00:19:24] Speaker 05:
Where do you get that from?

[00:19:26] Speaker 02:
From the Abdullatif case and then also more recently in Mr. Solomon's case at the district court pending in front of Judge Amy Berman Jackson.

[00:19:34] Speaker 05:
What does it mean for the FBI to be the supervising agency?

[00:19:37] Speaker 02:
I don't know that it is a supervising agency specifically, Your Honor. So when the TSC was first created, it had representatives from multiple agencies with the agreement, the cooperative agreement, that the FBI would administer it.

[00:19:54] Speaker 05:
I don't believe that... What does administer mean?

[00:19:57] Speaker 02:
Good question, Your Honor. I haven't seen a formal definition of that by the government.

[00:20:03] Speaker 05:
You know, supervising their lists...

[00:20:07] Speaker 02:
There is no oversight by the, there is no final authority by the FBI of TSC decisions. The TSC is the sole decision maker as to the watch list, not the FBI. There's no trace, there's been no declaration, there's been no testimony in the record or authority provided stating that the FBI has a right to oversee, change, veto, reject a decision made by the TSC regarding the watch list.

[00:20:37] Speaker 05:
Okay, well, we'll ask the government about that.

[00:20:40] Speaker 02:
Thank you, Your Honor.

[00:20:42] Speaker 02:
I also would like to very briefly address the administrative exhaustion aspect and that when there is a failure to acknowledge or respond to a FOIA request submitted by an individual, then there is, that is considered, the individual is considered by the statute to have administratively exhausted. That is deemed to be administrative exhaustion. Can I

[00:21:08] Speaker 01:
Are you saying that on behalf of FBI and TSC?

[00:21:12] Speaker 02:
The FBI responded to the request sent directly to the FBI, Your Honor.

[00:21:16] Speaker 01:
So you're making that claim as to TSC?

[00:21:18] Speaker 02:
Regarding the two requests sent to the TSC, which is, yes, Your Honor. And so...

[00:21:25] Speaker 02:
Because there was no acknowledgement, there was no communication, there was no representation that any communication from the FBI was on behalf of the TSC or regarding the request sent to the TSC. There's no way for Mr. Solomon or his representatives to know that. There is no communication from the TSC or directly referencing either of his requests sent to the TSC. And therefore, there was nothing to appeal There is nowhere to appeal it.

[00:21:57] Speaker 02:
And that failure to provide a response on behalf of the TSC deems Mr. Solomon to have administratively exhausted his, to have exhausted his administrative, the requirement of the administrative remedies. Because the point of, the purpose of the exhaustion is to Prevent a premature intervention by the court of a fully developed administrative record. There was no administrative record because nobody ever responded.

[00:22:29] Speaker 05:
So if the response you did finally get in July of 2022 said that we have searched the TSC records and we find nothing that we can disclose to you, that would have satisfied you.

[00:22:46] Speaker 02:
We probably would have appealed, but we would have been on the right track, Your Honor, yes.

[00:22:49] Speaker 05:
Okay.

[00:22:50] Speaker 02:
All right. Thank you. Thank you, Your Honors.

[00:22:55] Speaker 00:
Good morning, Your Honors. May it please the Court. My name is AUSA Fatawi Burhane on behalf of the United States. Before today's panel is an appeal brought by Ayman Suleiman. And as we now know, more or less the sole basis of the appeal is his argument that the CSC despite being a subcomponent of the FBI, is an agency separate from the Bureau and therefore had an independent duty to process FOIA requests that he submitted.

[00:23:28] Speaker 01:
Okay, go back to the subcomponent of FBI. Is that generally, and then for purposes of FOIA, that's a whole different statement or definition?

[00:23:40] Speaker 00:
Well, so I was going to get to this, Your Honor, but even at the district court level, even as the district court acknowledged, even Suleiman's own submissions contained record evidence that the TSC is a division of the national security branch of the FBI.

[00:23:58] Speaker 01:
And if that's not disputed, is that a distinction with respect to FOIA?

[00:24:03] Speaker 00:
So in terms of where TSC lies under the FOIA, the government would say that the FOIA mandates that government agencies set out regulations for how to process various FOIA requests.

[00:24:20] Speaker 01:
And we don't have any for TSA, TSC requirements.

[00:24:24] Speaker 00:
Well, but TSC is a part of FBI and the pertinent regulations. For the purposes of FOIA.

[00:24:31] Speaker 01:
But where is that stated so that anybody who's actually asking for information from TSC would know how to appropriately address their FOIA request?

[00:24:42] Speaker 00:
Your Honor, I would say that this is a public record. I mean, the TSC.

[00:24:47] Speaker 01:
Where's the public record that says if you want something from TSC, go to FBI? That's what I'm trying to get at.

[00:24:54] Speaker 05:
It's in the appendix to Part 16 of CFR, of 28 CFR, Part 16, Appendix 1.

[00:25:05] Speaker 00:
That's correct, Your Honor.

[00:25:06] Speaker 01:
It's not on the FBI website or anything like that.

[00:25:10] Speaker 05:
Not that... It tells you, the appendix tells you which components you can file a FOIA request for. By process of elimination, the FBI is one of the components of the Department of Justice, even though they have a separate building. They're still part of the Department of Justice, and they're a component. And so if something is not on there, then you can't file, you're not supposed to file a FOIA request with them, you know, with a subcomponent.

[00:25:45] Speaker 05:
You file it with a component.

[00:25:49] Speaker 00:
And that's correct, Your Honor. Under CFR Section 16.3, the Department of Justice lays out that FOIA requests are processed by the components of the Department of Justice.

[00:26:00] Speaker 05:
And if it's filed in the wrong place, the regulations say that it's the responsibility of the component to redirect it.

[00:26:08] Speaker 00:
That's correct, Your Honor. And as you rightly noted under the appendix, it does lay out the various components of the Department of Justice. The TSC is not listed.

[00:26:17] Speaker 05:
I want to ask you a question before you get any further about the Seidel affidavit or declaration. It seems to me that there's something very, very critical that's missing. on that declaration. And tell me if I'm misreading it. The thing that's missing is that with all the Fandango and all this stuff about this is the way we process this and whatever, there's nothing in that affidavit that says the TSC records are part of the central record system of the FBI.

[00:26:57] Speaker 05:
There's nothing in there. And that's critical, it seems to me.

[00:27:03] Speaker 05:
Because if the FBI searches only the central records system, which is what Seidel says, and the central records system doesn't contain anything from the TSC, then the response is incomplete.

[00:27:26] Speaker 00:
Well, Your Honor, my response to that would be on, I guess, there are technically two declarations.

[00:27:32] Speaker 05:
Let's deal with the declaration. Is my reading of that correct?

[00:27:36] Speaker 00:
I would say, I would point you to paragraph 16 of the declaration. Okay, what page is it? There's actually technically two. There's a supplemental declaration as well, but I'm looking at the joint appendix point, page 28. Hold on, let me look.

[00:27:57] Speaker 05:
Yeah, I'm looking now.

[00:27:58] Speaker 00:
Yeah, and there it does, and that's just one paragraph, but that paragraph does indicate that it does kind of describe what the CRS is and what it consists of and the fact that it consists of records maintained by the FBI.

[00:28:15] Speaker 05:
It doesn't say that the TSC records are part of the central record system. That's my thing.

[00:28:24] Speaker 05:
Seems to me a huge gap.

[00:28:27] Speaker 00:
But, I mean, would that not be implied? I think it would be implied, Your Honor, or understood, Your Honor, that if the FBI is maintaining its records within the CRS and the TSC is a part of FBI.

[00:28:41] Speaker 05:
If you're going to file a declaration in a case like this dealing with the TSC, then it seems to me that the first order of business is to establish that the central record system of the FBI contains TSC records. It doesn't establish that.

[00:29:02] Speaker 00:
I mean, well, I guess I can also refer to the joint appendix at page 24, paragraph 6, where it does state that the TSC is a subcomponent of the FBI, and therefore the request that Suleiman submitted was submitted to RIDS, the the division and the FBI that processes these FOIA requests. And of course, they processed the FOIA requests through searching the CRS.

[00:29:37] Speaker 00:
So I think, I guess, perhaps, Your Honor, if you mean that the declaration could be clearer on this point, but...

[00:29:46] Speaker 00:
The declaration does state that the TSC is a part of the FBI and that the CRS maintains certain categories of records, you know, subject to the FOIA housed within the FBI.

[00:29:59] Speaker 05:
Is there a document missing, as I asked this gentleman, acknowledging receipt of the third request?

[00:30:08] Speaker 00:
So I think I don't know. What's in the deferred appendix is ultimately...

[00:30:16] Speaker 00:
We have a couple of pleadings here, and the exhibits were actually included with the Seidel Declaration. So I don't think there was an acknowledgement letter that was included.

[00:30:26] Speaker 05:
It was the request and then denial.

[00:30:29] Speaker 00:
That's correct, Your Honor.

[00:30:30] Speaker 05:
Right. And the denial had a different number than the original. That's correct, Your Honor. And so if Ms. Jump was going to get on the FBI website to check the status, she wouldn't know that there's a new number because the FBI never sent an acknowledgment of the FOIA request.

[00:30:54] Speaker 00:
Your Honor, so about this, and I guess what we're getting to now is how Suleiman would have known that the letter that he received from the FBI was responsive to the request directed to the TSC.

[00:31:08] Speaker 00:
And I think what I would say, first of all, for example, there's the one request submitted in June of 2022.

[00:31:16] Speaker 00:
And I believe the response you're referring to, Your Honor, is the one that went out in July 2022. And that's located, I think, at Joint Appendix 80.

[00:31:27] Speaker 00:
And there's a couple of ways to look at that. First of all, what other requests would the FBI have been responding to besides the one that was submitted in June? There's no indication in the record that there was any other FOIA requests at issue. It says, in light of the new information you provided, it was... Oh, well, and that's correct, Your Honor, and the response does say that.

[00:31:53] Speaker 05:
And the only new information was a third FOIA request.

[00:31:58] Speaker 00:
And if and if Suleiman was dissatisfied with that response, the response did include instructions.

[00:32:07] Speaker 05:
It didn't contain any new information. All it did is contain more requests.

[00:32:13] Speaker 00:
And if Suleiman found that to be an inadequate response, there were instructions as to how Suleiman could have appealed, which Suleiman didn't. And my understanding of Suleiman's position is that he didn't feel he was required to appeal because, as far as he's concerned, TSC and FBI are separate entities, and he didn't get his response from TSC.

[00:32:36] Speaker 05:
We've spent so much time on this case and all the briefing and the appendices and everything else.

[00:32:43] Speaker 05:
I just don't understand why the Department of Justice, when they got the complaint, just said, fine, take a letter or have the TSC director sign a letter saying that the FBI checked our files.

[00:32:59] Speaker 00:
That would end it.

[00:33:05] Speaker 00:
Perhaps, Your Honor, I think...

[00:33:09] Speaker 00:
I mean, perhaps that might have been a more efficient way of doing it. But I think just given the fact that I mean, this is not classified information, the fact that TSC is a part of the FBI. So it's kind of hard to, I mean, I don't know.

[00:33:27] Speaker 01:
Again, why isn't that a distinction that for purposes of FOIA it's different? Because if the plaintiff has no information that you specifically say I'm responding on behalf of TSC, And there's no regulation out there that says you are responding on behalf of TSC for just a lay person to know that if you want something from TSC, you're going to address it to the FBI.

[00:33:52] Speaker 00:
Well, Your Honor, perhaps Suleiman could have been confused, but his FOIA request was submitted by his attorney, by appellate counsel.

[00:34:03] Speaker 01:
Both agencies, FBI and TSC, but nothing that directly came from FBI saying, I'm taking over the request for TSC.

[00:34:11] Speaker 00:
And, Your Honor, what I was going to get to is, I mean, just as an example, I've been able to identify one other case in the district for Constitutional Law Center for Muslims in America versus, again, terrorist screenings, the TSC.

[00:34:27] Speaker 00:
That's docket number 22-3178. And in that case, the same argument is more or less being advanced, that the TSC didn't respond to a request, even though the bureau responded, but the TSC should have. And as far as I know, appellate counsel is also the lead attorney on that case.

[00:34:51] Speaker 01:
And the FOIA request that's the subject of that case was submitted to the TSC in January of 2022, according to the- When you see there being the distinction that if you're only asking a FOIA of TSC and then the FBI happens to respond, then you would know clearly that it was a response on behalf of TSC. But when you're sending it to two separate entities, how do you know that the FBI is also responding on behalf of the other entity?

[00:35:16] Speaker 00:
And, Your Honor, I was going to get to that because in the case that I just mentioned, one of the allegations, if you look at the complaint, the allegation is that the complaint was submitted to the TSC. The FBI accepted it. Somebody signed off and accepted it from the FBI. And then the FBI, I think in the answer it says that they responded in February 14th, 2022.

[00:35:37] Speaker 00:
So at least the plaintiff in that case, an appellate counsel in that case, certainly knew that it was the FBI who accepted the FOIA request, and it was the FBI that processed the FOIA request.

[00:35:48] Speaker 05:
The FOIA request certified mail?

[00:35:51] Speaker 00:
In which case? In this case, I believe the TSC request was mailed to an FBI address. I don't know if it was certified mail off the top of my head, but I know it was sent to an FBI address.

[00:36:10] Speaker 01:
But you do concede that TSC is not listed in 16.3 CFR?

[00:36:15] Speaker 00:
TSC is not listed in that appendix.

[00:36:18] Speaker 01:
And then how do you construe the regulations requiring that it be public-facing about where to file your request for TSC?

[00:36:28] Speaker 00:
the mere fact that the regulation is published i mean i think is is public facing enough you you submit for a request specifically for tsc how is the lay person supposed to know that you uh how to how to file for a request for tsc um i mean So FOIA requests, so how do you submit a FOIA request to TSC?

[00:36:56] Speaker 01:
How is the layperson supposed to know where to send that and who's going to respond?

[00:37:00] Speaker 00:
I think the layperson, I think where I would start to the extent that I count as a layperson is identify what part of the government that the TSC is housed in. A quick Google search should be sufficient. And you figure out that TSC is a part of the FBI.

[00:37:19] Speaker 00:
the regulations say only to FBI, or at least DOJ components process FOIA requests. FBI is a component, and so you submit the FOIA requests to FBI.

[00:37:31] Speaker 01:
But what about if the website would say that TSC is a multi-agency center?

[00:37:41] Speaker 00:
How's that...

[00:37:44] Speaker 00:
I mean, so there's multiple agencies involved in certain of its activities, but it's a part of the FBI. I guess that's what you would find if you did a Google search. So...

[00:37:58] Speaker 00:
you would perhaps submit the FOIA request to the FBI, or perhaps if you want to be extra careful, you submit the FOIA request to the FBI and the other agencies, but you don't submit the FOIA request to the TSE, expecting the TSE to have some independent obligation to process your request, which is not consistent with applicable law or regulations.

[00:38:21] Speaker 05:
Before you sit down, Do you agree that the TSC is not subject to, has the sole authority to maintain the terrorist lists or whatever it does that the FBI does?

[00:38:37] Speaker 05:
Or the Attorney General, for that matter, cannot overrule them?

[00:38:41] Speaker 00:
I couldn't say. It would be strange if the TSC was not subject to any kind of oversight by its parent agency or by the Attorney General. I mean, it's in the DOJ.

[00:38:54] Speaker 00:
But I couldn't say much more about how... Is there any evidence or argument about that question? Not in this case, Your Honor.

[00:39:05] Speaker 05:
In the district court, I mean.

[00:39:07] Speaker 00:
Yeah, in summary judgment briefing. No, I don't recall that that was the subject of any dispute.

[00:39:15] Speaker 04:
Thanks.

[00:39:17] Speaker 03:
Thank you.

[00:39:22] Speaker 02:
Thank you, Your Honors. And Judge Randolph, to answer your question, the requests that were made do contain the error with the A referencing the Privacy Act, but they also plainly state in the sentence and the text, under the Freedom of Information Act, that the request is being made under the Freedom of Information Act to verify how that was sent.

[00:39:43] Speaker 05:
The statute cited privacy.

[00:39:45] Speaker 02:
The statute citation has a typographical error in it, unfortunately, and I do thank you for bringing that to our attention. The text of the request states that it was being submitted under the Freedom of Information Act.

[00:40:00] Speaker 02:
I did want to address that. I will.

[00:40:03] Speaker 02:
I can distinguish, first of all, the case that my colleague across the aisle raised, which is a CLCMA reference. First of all, to clarify, that is my former employer. I'm no longer there. I am not the counsel in that case. So I can't speak as to the current status of that case.

[00:40:21] Speaker 02:
or recent briefing on that. I can say that I do know that the FBI in litigation, much like this, stated that it was responding on behalf of the TSC and not until litigation, but then during litigation, provided multiple responses and multiple document productions. They did occur during the course and after it stated that.

[00:40:47] Speaker 05:
When you received the July 26, 22 report, It's a letter from the FBI. It's a J-80.

[00:40:57] Speaker 05:
And it says, please be advised, your request was based on the additional information you provided.

[00:41:04] Speaker 03:
Yes, Your Honor.

[00:41:06] Speaker 05:
You didn't provide any additional information other than your new request to TSC.

[00:41:13] Speaker 02:
Correct, Your Honor.

[00:41:13] Speaker 05:
Is there anything else that you provided? No, Your Honor. So what did you make of that?

[00:41:19] Speaker 02:
Honestly, Your Honor, we presumed that the FBI had been simply reconsidering based on our prior appeal. There have been times before, though not with that length of a delay, where if we have made an administrative appeal, the request will subsequently become open later. We assumed it was that, and then ultimately that was closed with no further change. And since we had already done the administrative appeal on the request to the FBI, we saw no need to take any further action on the response from the FBI, that it was closing its reopening.

[00:41:56] Speaker 05:
When was the appeal denied?

[00:42:01] Speaker 05:
Let's see.

[00:42:05] Speaker 02:
Well, the letter closing it, I believe, was July 26, 22. And that is the JA-80...

[00:42:16] Speaker 02:
It's 81.

[00:42:18] Speaker 04:
That's not the appeal. That's not the appeal.

[00:42:22] Speaker 02:
Oh, the appeal. I'm so sorry, Your Honor. The appeal was May? That is JA 69 to 70, which, yes, I believe is May of 22. Actually, it was July 18th.

[00:42:40] Speaker 02:
July 18, OK. I apologize, John. I didn't bring the record back up with me for a rebuttal, but I could grab it if you prefer.

[00:42:50] Speaker 02:
As this court has recognized, the standard for whether an entity is considered an agency for FOIA purposes is a different analysis, and it requires a case-by-case evaluation, as this court has recognized previously.

[00:43:08] Speaker 02:
an entity may qualify as an agency under FOIA, even if it is housed in another agency, and that's the American Civil Liberties Union versus DOJ, which is cited in our briefs and is at 655F31.

[00:43:25] Speaker 02:
Under that authority that should have been clarified here, at a bare minimum, the TSC has failed to put forth that forward-facing information or to at any time communicate to Mr. Solomon or his representatives that its responses will be handled or routed to the FBI. And the FBI has not owned that. Both of the Seidel declarations lack any assertion that...

[00:43:51] Speaker 02:
TSC and launch listing records, and specifically the terrorist screening data set, formerly known as the terrorist screening database, is housed within the records that the FBI searched. There's no representation of that. There's no speaking to that, specifically to the database or data set. where Mr. Solomon's requested records would be. There has been no representation that that search occurred or that the FBI has access to it or that the FBI is anything more than a contributor to the TSC records.

[00:44:26] Speaker 02:
Therefore, for those reasons, we do ask that this court reverse and remand this case.

[00:44:33] Speaker 02:
And in addition, for the reasons stated on administrative exhaustion, we don't believe that they're We believe that Mr. Solomon did all that he could do when he did not receive a response at all, specifically on behalf of the TSC. And at a minimum, we'd ask that this be remanded so that the parties may provide briefing to the court and the court may make a specific consideration on that. I do thank you for your time today, Your Honors.