IN
THE UNITED STATES COURT OF APPEALS FOR THE NTNTH CIRCUIT
JOHN GILMORE
Plaintiff-Appe11ant,
at
No. JOHN D. et ASHCROFT, Attorney aI. General,
04-L5735
De f endant s -Appe I 1 ees .
APPELLEES' REPIJY IN SUPPORTOF THEIR MOTION TO FTLE MATERTAT,S A}iID OPPOSTNGBRIEF UNDER SEAL, FOR ItI AND .EX PARTE REVIEW In accordance with defendants/appellees their motion, brief filed with Fed. R. App. P. 27 and Circuit the following 2004, to seal, Reply file for \ parte review. INTRODUCTION In this directive securit.y that case, plaintiff by the alleges the existence of a security in Rule 27-I, of
submit
support
September 2, this Court
materials in
and an
opposing
under
camera and ex
issued
Federal
Government relating the air
to airline of a
procedures,
and he challenges to protect
constitutionality security,
directive. statute
In order
travel
federal
and accompanying regulations any such direct,ive f 's counsel . in
prohibit
defendants ,
from disclosing or to plaintif
open court,
to plaint.iff
S e e 4 9 U . S . C . S 1 l - 4( s ) ( 1 ) ( C ) ; 4 9 ( b ) ( 2 ) ( i ) , 1 s 2 0 .e ( a ) ( 1 ) ,
c . F . R . S S 1 s 2 0 .s ( b ) ( 1 ) ( i ) ,
1544.103 (b) (4) . regulations, september federalseal-, of 2,
rn light
of
this
statute forth in
and accompanying its motion court filed on
and for
reasons set
2004, the Government moved this to file materials
to permit brief under version
defendants in
and an opposing (with .
for
camera and ex parte
review
a redacted
the brief Plaintiff
to be served and filed filed an opposition
pubticly) t.o that
motion on September i, below, plaintif f 's
2 0 0 4 ( h e r e i n a f t . e r ' , p l . , s O p . , ,) . objections are not well taken.
As discussed
DISCUSSION 1. scope of Plaintiff 's first, n h - i a r , ti-n n f ^ o u r m o t i o n review pI.,s this is limit.ed is that the
t,his Court's
appellate court.
t.o the record That before
developed in argument
the district
Op. at
3-5.
incorrectly court one of in
assumes that the f irst
case was properly
t.he dist.rict That is
place. issues before this court. over for we
the principal
argued below that plaintiff's exclusive issued whether case is
the district
court
lacked
jurisdict.ion
craims under 49 u.s.c. court of appeals
s 46110, which provides over cerLain for ord.ers
jurisdiction of
by the under the alleged
secretary securj-ty is
Transportation at issue
securiLy.
directive
in praintiff,s now that See
such an "order" Court.
one of f
the primary
questions the
bef ore this question
Plaint,if
contend.s that of
answer to
turns
on the
existence
an administrative
record.
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Pl-. 's Opening Brief Government proposes Court might find
at to
45.
Because the materials are the to
t.hat the record, in this order
submit
administrat.ive
it. necessary
review
those materials question. motion. record should court is
to decide Lhis Court If to
t h e t -l r r o c h n ' l r l i , l r i s d i c t . i o n a l should qrant of the
Accordingly,
Government,s
the
exist.ence
an administrative this which Court this
immat.erialgrant our
the jurisdictional
question,
st.il1
motion. plaintiff's
Because the manner in case is
wirl of
resolve the least granL
unknown, and because review submission the would be proper case,
Government's one possible the
proposed way of
under at should are
resolving
thj-s court
Government,' s mot.ion so that. if they
the
relevant Court..
mat,erials
available
are needed by this of plaint.iff,s First., this
In disposing one of district plaint.if dismissal could hold three
case, this court over
Court could hord that of
follow the
options. lacked
could
court f 's of
jurisdiction
some or all
cl-aims, and could those claims the district could
simply
af f irm the district second, this ent.ertained
court,s court
on that
ground.
that
court, properly
jurisdiction, all
but
decide facts
the case on the meriLs to be Lrue security could (including directive)
assumj-nq the . Under
of plaint.iff's
alleged of
existence either
and content this
the
alleged
scenario, followed
Court.,s review
folLow namely,
t.he same disposing of
procedure
by t.he dist.rict
court,
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this
case without of
reviewing
the
sealed
materials
that
are the
subject
the Government,s motion. conceivabl-e alternative, did this Court could hotd over to
Under a third that, although
the district
court claims, for
not have jurisdiction Court has jurisdiction to 49 u.s.c. that it of
some or all entertain S 45110. treat
of plaintiff's a direct pet.ition Court
this
review pursuant conceivablv it hold
And, this
could
should the case
plaint.iff's
appeal as if court
had been a transfer
from the district of Alameda v. court
under 28 U.S.C. S 1G31.
See, €.cr., City 2OO2). If the
FAA, 295 F.3d 1143, ]-]-44(9th Cir. that approach as to some or all
were t.o take treating the
of plaintiff,s for claims
claims, review, and, in
plaintiff's
appeal as a direct the merits
petition of
Court. would be considerinq so, cou1d consider in its motion
those the
doing
t.he materials t,o file.
that
Government.proposes 411 U.S. to file
see camp v.
pitts,
138, 742-43 (1973) (expressly supplemental the rationale declarations for its is in
authorizing in order action) if this
the Government. Lo more fully . is
court
explain
administratlve right the that,
Thus, while treated
plaintiff
matter record
so1e1y as an appeal, is
district that this
courl
cannot be instead
expanded, there treat
a possibility of plaintiff's of a direct
Court wirl
some or alr the
claims
as properly for
before
it.
through
equivalent
pet.ition
review,
contemplat.edby 49 U.S.C. S 46110.
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Given that is
these
different this point
options
currently
exist of
and there judges should
no way to know at assigned to
which one the panel fol1ow, air travel parte this
ultimately grant
to the case wilI fil-e sensitive in
Court
our motion under
security review. If t.hat
information panel
seal treats
for
camera/ex
eventually
some or all for review,
of plaintiff,s then judicial
claims review the
eVenf
pursuant
t.o a pet,ition
of
the
seal-ed material
f a n r r r r "n-rva a s errlra l l t a e y vv
woul-d plainly
nOted
rrvuvs
be appropriate
T f! f fu t hg r c nar1gl
Pqtlgf
under
inStead
IIIDuEqu
supreme
rral lw
abOVe
qvvvg.
gvglruuqr+/
pursues
either
of
the
first
two options,
it
would have no need to have been done,. the it panel must
examj-ne the merely review to
sealed
mdterial,
and no harm will now does not material-s if
grant.ing the
our motion sensitive
mean thaL it. finds
sealed But,
unnecessarv the course
do so.
denying
our motj-on now would foreclose this Court considers
described plaint.if is
above under which f 's clai-ms directly. our motion it
the merit.s of course, therefore, t.o it
The more prudent
t.o grant
now so Ehat the Court to follow. is that
has available
whatever 2. no legaI
opt,ion
decides
Plaintiff's authority"
second objection to support
"[d]efendants sought in Lhe
cite
the procedure 5.
Government's motion. because, Court to
Pl-.'s op. at w€ cited sealed, of v.
This statement. is
puzzlinq
the contrary, endorsed a variety fnc.
a slew of in
cases in which this
repeat,edly in
camera and ex parte See, €.e., Meridian
submissions, fnternat'1
contexts.
Loqist.ics.
United St.ates, 939 F.2d 740, 745
- 5
(9th Cir.
1991); rn re Grand Jurv proceedinqs, g1i F.2d 539, 540Sarkissian, ott, 841 F.2d 959,
4L (9th Ci-r. 1988); United States v. 965-66 (9th cir. 77 (9t.h Cir. Cir. 1983). in
1988); united states v.
927 F.2d 473, 476-
L987); Pollard v. fn fact, this
F B f, 7 0 5 F . 2 d 1 1 5 1 , 1 1 5 3 - 5 4 ( 9 t h approved of exactlv here. such same
Court has already submissions at
sealed, kind v. of
camera and ex parte security
for issue
the
sensitive
information
See Torbet
United Airlines, Plaintiff also
298 F.3d toBT, 1089 (9th Cir. cont,ends that his t,rue. we filed a motion plaintiff's were Lrue. the case. requested p1.,s
2oo2). will In
procedure
harm his actuality,
ability
to litigate is
Op. at 5.
the opposite the district
Before
court,
to dismiss, claims on the
which meant that assumption in turn, that
t.he parties his factual
litigated allegations
That meant, court it court,s
t,hat a1l- the parties assumed that a security claims
-, as wel-I as the directive it does, basis. existed
district,
simply requires review
and that
what plaintiff proceeded entirely
and the dist.rict
on that
Grant.ing our motion position federal rather in this litigation might
now can only
enhance plaintiff,s of the
because an j-ndependent panel an actual that is there security is
judiciary than
review
direct.ive
a mere assumption rndeed, that
one and whaL it asked the no
mighL provide. f or in his
precisery at
what plaintiff L2 '||1 z s (a11eging
complaint. is
see complaint unconstitut,ional
- 5
security
directive
because it.
"provides
way for
ordinary
people
or
reviewinq
courts
to
conclusively pl-. , s how any direr-t- irre
determine
w h a t - i c I a . r . a l ' /\ at 47 ("It could
(emphasis added) ,. see also remains impossible to or
Opening Brief Court
imagine securjtrz
of Appeal
review
any regulation about
. without directive issued Court that
knowledge mandated the
whet.her or noL a ser-rrri f r., to request. ID was actually possible for this
airlines
or noL.") to conduct
Thus, our motion makes it more searching if this judicial Court
review. were to deny our motion, matter as it did
We emphasize that., the Government stands the district alleged that claims might
r e a d ' y i - o I i f i c r a i -a t h i s
before
court: by plaintiff alleged
on the assumption that to exist security does exist,
the security and on the what
directive assumption plaintiff actually
the it
directive to
requires
does, without
disclosing
t.his Court what.
exj-st.
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7
CONCLUSION For the this Court reasons stated above and
n rrr 'i nqt !r r v n!r i t Yntit q rn a v l I m (nv lu-t vil l n n rr /
should
grant
t,he Government ' s m o t i o n t o f i l e Securitv Information
an
l-n
opposing brief
and Sensitive
under seal,
camera and ex parte.
Respectfully
DOUGLA
-/,t fu f)
\zvz l
submitted,
N. LETTER 514-3602
HUA WALDMAN
( 2 0 2 ) s 1 4- 0 2 3 6 Attornevs, Appellate Staff Civil Division. Room 7232 Department of ,Just.ice 950 Pennsylvania Avenue, NW Washinqton, D.C. 20530-0001 September 10, 2004
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