Petition_for_Rehearing_final

UNITED STATESCOURT OF APPEALS FOR THE NINTH CIRCUIT NO. 04-17736 JOHNGILMORE, Plaintiff-Appellant, VS. et ALBERTOR. GONZALES, al. Defendants-Appellees _ District Court On Appeal from the United States for the Northern District of California CaseNo. CV-02-03444-SI District Court Judge HonorableSusanIllston, United States PETITION FOR PANEL REHEARING OR, ALTERNATIVELY, REHEARING EN BANC JAMES P. HARzuSON Attorney atLaw 980 9'nStreet SixteenthFloor CA Sac,ramento, 95814 WILLIAM M. SIMPICH Attorney atLaw 1736Franklin Street Tenth Floor Oakland,CA 94612 (e16) 4e2-e778 (fax) (e16)492-8762 (510) 444-0226 (fax) (s10)444-1704 Attorneysfor Appellant John Gilmore TABLE OF CONTENTS Page r. il. TNTRODUCTION ARGUMENT............. A. . . . . . . . . . . . . . . .I. . . . . ................3 The Court's Desireto Resolvethis Matter, at the Rights,Was Sacrificeof Gilmore'sDue Process ............'..3 of Not in the Interests Justice.......... to Interpreting Section46110 Deny Gilmorethe Evidence,Prior to Appellate Right to Present Court Review, to Supporthis Constitutional Is Challenges Contraryto This Court's Precedents and Resultedin a Deprivationof Gilmore's Due ................5 P r o c e sR i g h t s . s 1. 2. 3. 4. This Circuit's DistinctionBetween . . . . . . . . . . . . . ; . .5. . . . . . M a c e a n dT u r . This Court Misapplied Tur to Gilmore. The FacialVersusAs-Applied DistinctionIs Misleading. ................7 ... 10 B. of This Court'sMisapplication Tur 11 a Denies Gilmore Forumfor Redress................ C. Gilmore Could Have Remediedthe Deficiencies Identified by the Court's Opinion Had He Been .............12 Giventhe Opportunity..... 1s ....... il. CONCLUSION TABLE OF AUTHORITIES Page Cases Alaska Airlines Inc. v. Civil AeronauticsBoard, ) 5 4 sF . z d 1 9 4( D . C .C i r . 1 9 7 6 . . . .. . . . Anglo Canadian Shipping Co. v. United States, 1 1 238F.2d 8(9thCir. 956).............. Baeta v. Sonchik, 273F.3d126(gthCir.2001)............ r Califurnia Credit (JnionLeague v. City of Anaheim, 1 9 0F . 3 d9 9 7( g t h C i r .1 9 9 9 ) . . . . . . . . . . . . . . v. Castro-Cortez Ly'/.,S., 239F.3d 1037(9thCir. 2001)...... Coonleyv. Gibson, . . . . . . . . .1.3 . . . . . . . . . . . . .1 . . . .3 ................4 .............13 4, 12 ....... 3ss 4r(res7) u.s. s ...... ...............6 ......4 5, 13 ....12 . . . . .1 3 . Crist v. Leippe, 1 3 8F . 3 d8 0 1( 9 t hC i r . 1 9 9 8 ) . . . . . . . . . Cruz-Aguilera v. LN.S., ( 1 2 4 5 F . 3 d 0 7 0 9 t hC i r . 2 0 0 1 ) . . . . . . Foxman v. Davis, 3 7 1U . S .1 7 8( 1 9 6 2.). . . . . . Gallo-Alvarez v. Ashcroft, 2 6 6 F . 3 dr r 2 3 ( 9 t hC i r .2 0 0 1 ) . . . . . . Goeweyv. tJnited States, . 5 2 2 2 C t .C l . 1 0 4 , 6 r 2 F . 2 d 3 9( 1 9 7 9 ) . . . . . . v. International Brotherhood of Teamsters Department of Transportation, 1 9 3 2 F . 2 d 1 2 9 2 ( 9 t h C i r .9 9 1 ) . . . . . . Mace v. Skinner, 3 4 F . 3 d8 5 4( 9 t h C i r . 1 9 9 4 ) . . . . . . . . . . . . . . McCann v. United States, 1 2 c I . c t . 2 8 6( 1 e 8 7 ) . . . . . ......4 .........passim . . . . . . . . . . . . .1 . . . . .3 11 McNary v. Haitian RefugeeCenter,Inc., 4 9 8U . S .4 7 9( r 9 9 r ) . . . . . . . . . . . . . Mullaney v. Anderson, ..........7,9 3 4 2 . S4 r s( r e s 2 ) . . . . . . . . . . . . . U . Roclrwell v. Department of Transportation, 7 8 9F . z d9 0 8 ( 1 0 t hC i r . 1 9 8 6 ) . . . . . . Stateof Oregonv. Ashcroft, 192F. Supp.2d1077(D. Or. 2002), qff'd sub nom. Gonzalesv. Oregon, . . . . . . .1.3 . . . . . . .1 3 -- u.s. --,126 Ct.904 (2006).............. S. ..........8 ......passim Tur v. FAA, 104F.3d290(9thCir.1997).............. Statutes 2 1U . S . CS 8 7 7 . . . . . 2 8U . S . C$ 1 6 3 1 . . . . . . . . . . . . . . . 2 8U . S . CS 2 3 4 7. . , 4 9 U . S . C$ 4 6 1 1 0 ( a ) . Rules 15........... Federal Ruleof CivilProcedure 2I Federal Ruleof CivilProcedure ........... .................9 3 , 4 ,1 2 . . . . . . . . . . .1 . . . . .2 .........5,7 ..........I2 13 ......... lll rehearingby John Gilmore ("Gilmore") respectfullyrequests the panel or the en banc Court, both to protectGilmore's due process rights deniedhim when the Court decidedthis matteron the merits without giving him any opportunityto amendhis pleading,and to prevent future caseconflicts createdby this Court's published Opinion. This Court's decisionconflictswith Mace v. Skinner,34 F.3d 854 (9th Cir. 1994)andTur v. FAA, 104F.3d 290 (9th Cir. in 1997),and it creates unworkablestandard this Circuit for review an this decisionwill result in denial of agencyactions. If not corrected, of the due processrights of other litigantspresentingconstitutional challenges agencyactions. to I. INTRODUCTIOI{ In the United States today, interstate travel is essentially impossiblewithout showingidentificationor being preparedto do so. A driver's licenseis requiredto drive. Most commoncarriers- air, train and ship - prohibit travel to thosewho refuseto show government-imposed restrictionson any one identification. Perhaps form of travel may not infringe a citizen'sright to travel. Cumulatively,however,a citizenwho refusesto presentidentification is effectively unableto freely travel from one part of this country to the another. When identificationis demanded. alternativeof a more extensivesearchis not uniformlv offeredto thosewho refuse;the right to travel is denied. if Theseare the factsGilmore would have established given the opportunity. According to this Court's analysisin its Opinion, these facts could have madea difference. DespiteGilmore's repeated requests, was not given an opportunityto amendhis pleadingor to he offer evidenceto supporthis claims. Instead,the Court resolvedthe caseon the basisof Gilmore'soriginal2002pleadingby converting that Complaintto a Petition for Review of an administrativeorder and summarily denyingthat Petition. Although unclear,Gilmore may be precludedfrom ever challengingthe securitydirective at issuehere. This Court erred,depriving Gilmore of his due processrights, when it convertedGilmore's Complaint into a Petition for Review and immediatelyresolvedthis matteron the merits. Gilmore shouldhave beengiven leaveto amendhis pleadingand correctits deficiencies. (SectionII.A., infra.) The Court also erredin concludingthat jurisdiction over this matter lies exclusivelyin the Court of Appeals. The distinction challenges agencyactionsis a to betweenfacial and as-applied and misapplication this Court'sprecedents, will resultin a of other cases. rights in this and countless deprivationof due process Litigants whoserights are violated due to agencyaction but cannot presentthoseclaimsto the agency- as occurredhere- must be permittedto presentthoseclaimsto a district court for the fact-finding (Section inherentin suchchallenges. II.B., infra.) that an executivebranchagency Finally, Gilmore contends that infringe the shouldnot be permittedto imposesecretregulations fundamentalright to travel, nor refusethosewho challengethe regulationsthe right to seeand test them. Gilmore shouldhavebeen permittedto amendto establish that many forms of travel - not just air travel - aredeniedto thosewho refuseto presentidentification,and that the TSA and commoncarriersare not, as the governmentclaims, always offering a more extensivesearchas an alternativeto presenting identification. Basedon this Court's Opinion, both factswould have in madea difference the Court's decision.(SectionII.C., infra.) il. ARGUMENT A. The CourtosDesire to Resolvethis Matter, at the Sacrifice of Gilmore's Due ProcessRights' Was Not in the Interests of Justice. This Court did not servejustice when it convertedGilmore's Complaint into a Petition for Review and resolvedthis matter on the merits without giving Gilmore an opportunityto amendhis pleading and submit evidenceto supportit.r The result is a skewedapplication affect which will adversely of 28 U.S.C.$ 1631("Section1631"), to this Circuit. Section1631was designed throughout othercases guarantee litigants a forum for their claim, in the eventthey inadvertentlyfile in the wrong court. It shouldnot have beenusedto of strike Gilmore's claims on a pleading,avoiding consideration the completerecord Gilmore would haveproduced. As this Court explained: purposeof section1631for the express enacted Congress "unnecessary that a litigant may find risk eliminating the of himself without a remedybecause a lawyer's error or a " technicalityof procedure. t In his Oppositionbelow, his Reply Brief in this Court and at leaveto amendhis pleading. oral argumentGilmore requested (Consolidated at20 (ER a2); Reply Brief at29; OraI Opposition Argumentat34:15.) v. International Brotherhood of Teamsters Department of "The purpose 1292,1297(9th Cir. l99I). Transportation,g32F.2d 'is of the transferstatute to aid litigantswho were confusedaboutthe F.3d 1261,1264 properforum for review...." Baetav. Sonchik,273 (9th Cir. 2001) (citation omitted). Thus,this Court hastransferred mattersunder Section1631to ensurethat petitionershave a forum that otherwisemight not be availabledue to, for example,limitations F.3d 1070, v. periods. E.g., id.; accordCruz-Aguilera 1.1/.S.,245 r074 (9th Cir. 2001). v. In transferring,this Court relied on Castro-Cortez L1/.5',239 (9th Cir. 2001). Op. at 1149. But the Courtin F.3d 1037,1046 Castro-Cortez arfiicipatedthe problemsthat have manifested here,concludingthat vestingdirectjurisdiction in this themselves recordexistedwould Court for a matter in which no administrative "[t]he raise gravedue processissues. The Court explainedthat notions of contentionthat this procedurecomportswith fundamental due processis difficult for us to comprehend."Id. at 1049-1050.The Court avoidedthe due processquestionthereby narrowly interpreting the applicablestatuteand protectingthe petitioner'srights. This Courtmay believethat Gilmore cannotprevail on the merits. But Gilmore's caseshouldnot havebeendecidedin this proceduralposture. Gilmore neverhad an opportunityto amend, "The requests do so. (Footnote1, supra.) to despitehis repeated that pleadingis a gameof skill in FederalRules rejectthe approach which one misstepby counselmay be decisiveto the outcomeand acceptthe principle that the purposeof pleadingis to facilitate a properdecisionon the merits." Foxmanv. Davis,371 U.S. I78, 182 that litigants are (1962) (citation omitted.) The strongpresumption entitled to amendtheir pleadingsif it is possiblethey can statea claim appliesequally to petitionsfor review, and shouldhave appliedhere. ofjustice (SectionII.C., infra.) This Court failedto act in the interests on theseimportantconstitutionalquestions the when it addressed of merits, on the bareallegations Gilmore's original pleading. B. Interpretins Section46110to Denv Gilmore the Right to to PresentEvitence, Prior to Appellate Court Review-' Is Sunnort his Constitutional Ch-allenees Contrary to This and Resultedin-a Deprivatiori of Court's Precedents Rights. Gilmore's Due Process when it held that the This Court misappliedCircuit precedent districtcourthad no jurisdictionover Gilmore'sclaims. Section to 46110shouldnot have beeninterpreted deny Gilmore the ability to introducqevidenceto supporthis claims. This Court's interpretation of Mace and Tur, and the analysisthat led the Court to apply the rule of Tur to this case,will result in a skewedapplicationof this jurisdictional rule in future litigation. 1. This Circuit's Distinction BetweenMace and Tur. Two decisionsshouldhave led the Court to a different result F.3d 854 (9th Cir. 1994)andTur v. FAA,104 Mace v. Skinner,34 arrivedat different F.3d 290 (gthCir.1997). Thesedecisions on casecharacteristics, whether basedon distinguishable conclusions, to a district court hasjurisdiction to entertainchallenges an ("Section461t0"). orderunder49 U.S.C.$ 46110(a) administrative In Mace, this Court concludedthat a district court can exercise agencydecision, federalquestionjurisdiction over an administrative "appears vestjurisdictionexclusivelyin to evenwhen Section46110 that courts." 34 F.3d at 856. The Court explained the appellate "although Mace's claims stemfrom the revocationof his certificate, to they constitutea broad challenge the allegedlyunconstitutional actionsof the FAA, NTSB, and DOT. Finally, ... his complaintis not basedon the merits of any particularrevocationorder." Id. at858. Mace held that the district court was the properplaceto resolve to the because agencywas not competent plaintiff s challenges, the address constitutionalclaims. Id. at 859. In Mace, the plaintiff policy by the agency- and whetherit was challengedan overarching constitutional- and he did not challengeany fact-finding by the agencyto which the court shoulddefer.2Id. at 859. on In contrast,Tur centered the FAA acting in its quasi-judicial capacity. Tur askedthe district court to review an order revoking Tur's airman certificate,which followed investigationby the FAA and a hearingbefore an AdministrativeLaw Judge("ALJ"). I04 F.3d at 291. Tur askedto "re-litigatethe merits of the previousadministrative proceedings"and an order settingasidethe findings and order of the ALJ. Id. This Court rejectedTur's request: would resultin new Tur's suit, if allowedto proceed, adjudicationover the evidenceand testimonyadducedin the October 1991hearing,the credibility determinations madeby the ALJ, and,ultimately,the findings madeby the ALJ. Similarly,in Crist v. Leippe, 138F.3d 801 (9th Cir. 1998),the Court held that the district court hadjurisdiction over the presented. constitutionalchallenge 2 6 Id. at 292. Mace by explainingthat Mace The Court rn Tur distinguished factsof a previous was not directedat the merits or adjudicated us proceeding. "Instead,the plaintiffs in Mace presented with a factal challengeto the constitutionalityof certainagencyactions." Id. an (citation omitted). The court explainedthat "Tur's suit presents to impermissiblecollateralchallenge the merits of his previous adjudication. Section 46110doesnot permit suchsuits." 1d 2. This Court Misapplied Tur to Gilmore. In its Opinion, the Court appliedMace and Tur as follows: "order" within the Although the SecurityDirective is an ' meaningof 49 U.S.C. 46110(a), districtcourt the $ maintainsjurisdiction to hear broad constitutional to challenges Defendants'actions. That is, the district court is divestedofjurisdiction only if the claims are "inescapablyintertwinedwith a review of the procedures the andmeritssulrounding ... order." Mece,34F.3dat is challenge vagueness 858. Gilmore's dueprocess "inescapablyintertwined" with a review of the order it because squarelyattacksthe ordersissuedby the TSA with respectto airport security. Moreover, Gilmore's to as challenges opposed other claims are as-applied broad facial challenges.Given that they ariseout of the with Southwest particular factsof Gilmore's encounter Airlines, theseclaims must be broughtbeforethe courts SeeTur v. FAA,104 F.3d 290,292(9th Cir. of appeals. to 1997)(distinguishingbetweena"facial challenge "specific individual claim"); Mace, agencyaction" anda 34 F.3dat 859. Op. at lI49 n.9. This makesno sense. In Mcl'{ary v. Haitian RefugeeCenter, lnc.,498 U.S. 479 (1991),on whichthis Courtreliedin Maceto hold that "broad constitutionalchallenges" may be presented the district to court, the SupremeCourt explainedwhy district courtsmust have jurisdiction to address challenges agencyactions: to would be in a [I]t is unlikely that a court of appeals position to provide meaningfulreview of the types of claimsraisedin this litigation.... Not only would a court of appeals. . . most likely not have an adequate record . . . but it also would lack the factfinding and recorddevelopingcapabilitiesof a federaldistrict court. . . . lSJtatutesthat provide for only a single level of judiciul review in the court of uppeals "ure lruditionally viewed as wuruantedonly in circumstanceswhere district court fucffinding would unnecessarilyduplicute an adequate udministrate record - circumstancesthat are not , present ... where district courtfactfinding is essentiul given the inadequate administrative record." Id. at 497 (citationsomitted; emphasis added). The questionhere shouldhavebeenwhetherthe TSA has considered mattersat issue- including the specificdeprivationof the constitutionalrights allegedby Gilmore - and rendereda decisionon thosematters. In other words,the focus shouldhave beenon whether Gilmore was collaterallyattackingan adverse decisionfrom the TSA abouthimself, or whether,as occurredin Mace, he was attackingthe TSA's applicationof an orderthat appliesto every person,which he contendsdeprivedhim of his constitutional rights. The Court's attentionmust be on the natureof the agencyorder at issue. Stateof Oregonv. Ashcroft, 192F. Supp.2d 1077 1986(D. , Or. 2002),aff'd sub nom. Gonzales Oregon,-- U.S. --, 126 S. Ct. v. 904 (2006) is illustrative. That court evaluated applicationof 2I jurisdictionto review Attorney U.S.C. $ 877,which vestsexclusive Generaldirectivesin the Courtsof Appeals: Section 877 appliesin situationswhere the Attorney that Generalmakesa quasi-judicialdetermination resolvesdisputedfactsin a specificcaseafter somelevel proceedings. . . Section877 may also, . of administrative at leasttheoretically,apply wherethe Attorney General formal rulemaking,which he did not do in undertakes "under this this case. Thosetypes of proceedings to produceadministrative recordssusceptible subchapter" review by an appellatecourt. (citations, footnoteomitted). The court distinguished Id. at 1085-1086 the facts of its case,however,in which the Attorney General, kept his own counsel,did not provide notice essentially or an opportunity for comment,did not take any evidence,did not decidedisputedfacts,and more record. importantly,did not producean administrative Instead,the only recordwith respectto the Ashcroft directive is the one cuffently being createdin this court. Id. at 1086. Relying on McNary,the district court concludedthat it hadjurisdiction over the "broad statutory,procedural,and to constitutionalchallenges" the directive. Id. Otherwise,no record would be createdin any forum for the Court of Appealsto review. Tur appliesonly where an administrativeagencyhas performed with its investigation. The languageof that fact-finding in connection to decision,and its focus on deference the agencyin its fact finding the function, establishes limited applicationof the Tur rule. Id. at with collateralattackson agency 29L-292. The Court was concerned decisionsservingin their quasi-judicialcapacity. No suchissueis presented here. Mace shouldhave controlled. 3. The Facial Versus As-Applied Distinction Is Misleading. is challenges The distinctionbetweenfacial and as-applied factor the Court shouldhaverelied misleadingand not a determinative to of upon. The existence facts specificto Gilmore, necessary establishstanding,doesnot precludedistrict court review. This Court is lessthan an ideal place for fact-finding. Yet, the distinction,and its holding that facial Court's facial/as-applied to may be presented the district court while as-applied challenges to may only be presented the Court of Appeals,will result challenges in this Court either engagingin fact-finding itself or issuingdecisions without regardto the factsof the particularcase,resolving casesin a vacuum. The Court'sruling that Gilmore'sclaimsare "as-applied "they arise because to as challenges opposed broad facial challenges" with Southwest out of the particular factsof Gilmore's encounter Airlines" (Op. at lI49 n.9) would effectively gut Mqce's holding. In Mace, plaintiff had standingto bring his constitutionalchallenges of because implementation the order affectedhim - his claims also aroseout of the particularfactsof his case. 34 F.3d at 856. The test is not whetherplaintiff will offer somefactsuniqueto his case. Rather, the questionis whetherthe agencyalreadyhas resolvedthe challenge (and had authorityto do so). Gilmore's claims challenge presented the government'spolicy and practice,which infringed upon his right l0 ----l to travel, and which the TSA neverhas resolved.3They belong in the district court. The "particular facts" Gilmore pleadedregarding Southwestwere necessary establishstanding. Pleadingfacts to sufficient to establishstandingsimply is not the sameas pleadingthe sort of particular factsthat converta constitutionalchallengefrom facial into as-applied. 4. This Court's Misapplication of Tur Denies Gilmore a Forum for Redress. In holding that facial challenges a regulationbelong in the to district court, whereasas-applied challenges belong in the Court of Appeals,the Court is vestingitself with the fact-finding function that belongseither in an administrative district court proceeding. or profferedby Therefore,this Court shouldhave accepted evidence Gilmore to supporthis claims. If the result of imposingjurisdiction in the Court of Appealsis that petitionersare deprivedof the right to ' Although the TSA hasnot permitted Gilmore or the public to review the securitydirective or any applicablerecord generated the by TSA Gilmore feels confidentin declaringthat the recordmakesno mention of him. Thus, the recordcontainsno factsrelevantto Gilmore's claims,and it is impossible thoseclaimsto be for "inescapablyintertwinedwith a review of the procedures and merits surrounding . . . order." Op. at Il49 n.9, citing Mace,34 F .3d at the 858. Moreover,the Court acknowledged that Gilmore's claims "implicate the rights of millions of travelerswho are affectedby the policy." Op. at 1150. As such,Gilmore'sclaimsare facial in nature. tl introduceevidenceto supporttheir claims,the result is a skewedand unworkableapplicationof Tur andMace.a of This Court's interpretation Section46110deprivedGilmore of his due processrights. It is a basicprinciple of constitutionallaw of that the governmentmay not deprivesomeone his constitutional rights without affording him a hearingto challengethat deprivation. (1971). If Gilmorecan U.S. 371,377-378 Boddiev. Connecticut,4Ol his substantiate claim of the deprivationof a constitutionalright, he is that claim. Without correction entitledto a forum in which to assert by this Court, Gilmore may foreverbe denieda realisticopportunity to test on the merits his claim that the nation's identification-to-travelright to travel. policy, taken as a whole, violatesthe fundamental C. ldentified Gilmore Could Have Remediedthe Deficiencies by the CourtosOpinion Had He Been Given the Opportunity. that it hadjurisdiction under Even if this Court concludes shouldhavebeengiventhe Section46110,Gilmorenonetheless opportunityto amend. It is not unusualto permit aparty to amenda in petition for review in this Court, or to permit amendment conjunctionwith transferringa caseunder Section 1631. Indeed, a FederalRule of Civil Procedure15 establishes presumptionfavoring S 2347(b)authorizes transferof a matterto a district court to createa record if the agency did not createone. This Court shouldinvoke this rule where,as here, "genuine issuesof materialfact remain." Gallo-Alvarezv. Ashcroft, 266F.3d 1123,lI29-1130 (9th Cir.2001),citing Cqstro-Cortez,239 F . 3 d1 0 3 7 . o This Courthad alternatives. U.S.C. 28 T2 and leaveto amendmust be given if any chanceexists amendment, that Plaintiff will be ableto statea claim. Foxman,371U.S. at lB2. This samepresumptionappliesto petitionsfor the review of administrativeorders. SeeAnglo CqnadianShippingCo. v. United 18, States,238F.2d 19 (9th Cir. 1956)(Rules15 and2I applyequally to Court of Appeals); Califurnia Credit (JnionLeague v. City of can F.3d 997,999(9th Cir. 1999)(Courtof Appeals Anaheim,190 join partiesusingRule 2I); accordMullaneyv. Anderson,342rJ.S. 7 415, 417 (1952);Roch,uellv. Departmentof Transportation, 89 F .2d 908, 911 (1OthCir. 1986);AlaskaAirlinesInc. v. Civil Aeronautics Board, 545F.2d I94, 198(D.C. Cir. 1976). No prejudicewhatever would have resultedif Gilmore had beenpermittedto amendhis originalpleading. would amendment Nor doesit matterthat Gilmore's requested have beenin conjunctionwith a transferofjurisdiction. In McCann v. the UnitedStates,12Cl. Ct.286,289 (1987),for example, court orderedthat Plaintiff be allowedto amendits complainton retransfer of the caseto the District Court. The court found that it is in the "clear interestofjustice" to allow Plaintiff to amendhis complaint due processin and pursuehis claims for deprivationof administrative the proper court. Id. (quoting Goeweyv. UnitedStates,222Ct. CI. (1979)). 104,108,6r2F.2d 539,541 would not have beenfutile. Gilmore Gilmore's amendments in could have remediedthe two deficiencies his pleadingkey to this Court's analysis. First, the Court held that Gilmore failed to establish the his standingto challenge identificationrequirementinherentin allegedthat his other forms of travel because pleadinginadequately t3 Op. at II52,1154. by Gilmore had beenaffected suchrequirements. The Court held, therefore,that Gilmore had standingonly to challenge relatedto air travel. Id. Having the identificationrequirement narrowedGilmore's claims in that woy, the Court then held that infringed because Gilmore's right to travel was not unconstitutionally to he had otherforms of travel available him. Op. at 1155. Relying "burdenson a single the on Circuit precedent, Court explainedthat travel." do mode of transportation not implicatethe right to interstate I d. (citation omitted). This Court could not haverejectedGilmore's claims without to narrowing his challenge airline travel. Yet, the Court reachedthis conclusiononly by ignoring Gilmore's allegationthat other forms of to travel also requirepassengers provide identification(Op. at ll52), requestthat he be grantedleave and also ignoring Gilmore's repeated to amend(footnote l, supra). If permitted,Gilmore would have inheresin presented evidencethat the identificationrequirement travel and has affectedhis ability to travel. multiple forms of interstate rightsby This Court's decisiondeprivedGilmoreof his dueprocess precludinghim from presenting this argumentand evidence. Second,this Court permittedrestrictionson Gilmore's ability to the travel by air in part because Court found that a more extensive searchwas an alternativeofferedunder federalguidelines. Op. at 1 1155-1 156;seealso id. at 1158-1 59 & n.12. Yet, Gilmore's pleadingcontended that the airportsand airlinesdo not, as the governmentclaims,uniformly offer a more extensivesearchas an alternativeto providing identification. Reply Brief at 4-5. Southwest he Airlines did not - Gilmore was turned away because refusedto T4 provide identification, and he was not offered the opportunity to submit to a more extensivesearch.Op. at II43. Gilmore is prepared Airlines is with Southwest to presentevidencethat his experience the common with airlinesacross countty,t The Court's relianceon order regulatingthe behaviorof secretevidence- an unpublished millions of passengers without giving Gilmore any ability to view and test the applicationof that order violated Gilmore's due process rights. This Court relied on the government'sclaim that a more extensivesearchalternativealways existsin reachingits decision. erredin its claimthat the If Op. at 1155,1158-1159. the government searchalternativeis availableto all travelers,as Gilmore would have the beenableto establish, premiseof the Court'sOpinion alsois wrong. III. CONCLUSION If this Court's Opinion is permittedto stand,it will unfairly and rights of Gilmore and all others destroythe due process unnecessarily the who would challenge applicationto them of an FAA or TSA order thev contendis unconstitutional.Gilmore, and otherslike him, must t This Court's Opinionacknowledges ignoresGilmore's but "PASSENGERS referenceto official signsin all airportsthat read MUST PRESENTIDENTIFICATION UPON INITIAL CHECK-IN,'' and completelyignoresthe TSA websitestatingthe same(discussed in Gilmore's pleading(ER 5 n23), reiteratedin the party's briefs, and now attachedin the Addendumto this Petition for Rehearing). 15 be given a forum to bring their constitutionalchallenges, where,as, to here,the challengecannotbe presented the relevantagency. that this Court withdraw Consequently, Gilmore respectfullyrequests its Opinion and issuean Opinion that protectsGilmore's rights in one of the following ways: 1. Remandthis matterto the district court, where Gilmore can amendhis pleadingto remedythe deficiencies identified by this Court and offer evidenceto substantiate his claims,underthe doctrineadoptedby this Court tn Mace; 2. Retainjurisdiction over this matter,but withdraw permit its OpinionrejectingGilmore'sclaims,and instead Gilmore to amendhis petition and presentall of his arguments and evidenceto substantiate claims (including, if necessary, his a remandto the district court for the limited purposeof creating a factualrecord for this Court to review); or, 3. Withdraw its order denyingthe pleadingthe Court had convertedfrom a Complaintinto a Petition for Review, and affirm the district court's decisiondismissingthe complaint,but without prejudice, on the groundsof lack ofjurisdiction and standing,to make clearthat Gilmore is entitledto pursuehis claims in anotherproceeding, after having remediedthe deficienciesidentified by this Court. l6 Alternatively, Gilmore respectfullyrequests that this matterbe heard by the Court en banc, to ensurethat the rule adoptedby the Court in this casedoesnot destroythe due processrights of Gilmore and other litigants, who otherwise are deprived of any forum in which to presenttheir challenges FAA or TSA action. to tnis RESPECTFULLY SUBMITTED &ay of Mar ch,2006. WILLIAM M. SIMPICH Attorneyat Law 1736 FranklinStreet, TenthFloor Oakland, CA 94612 JAMESP. HARzuSON Attorney atLaw Floor 9809th Street, Sixteenth CA Sacramento. 95814 (SBN 194979) P. James Harrison Attorneys for Appellant John Gilmore I7 CERTIFICATB OF COMPLIANCE I herebycertify that pursuantto Fed. R. App. 32(a)(7)(C)and petition is proportionally spaced, Ninth Circuit Rule 40-I, the attached has a typefaceof 14 points or more and contains4,199 words (which doesnot exceedthe applicable4,200word limit). DATED: March/o . ZOOO amesP. Harrison (SBN 194979) Attorney at Law 980 9'nStreet,SixteenthFloor CA Sacramento, 95814 Telephone: (916) 452-4905 62 Facsimile: (9 16) 492-87 Attorneysfor Appellant John Gilmore 18 CERTIFICATE OF SERVICE I certify that on March I0,2006, an original and fifty (50) copiesof Appellant John Gilmore's Petition for PanelRehearingor, En alternately,Rehearing Banc were hand deliveredto the Clerk of the United StatesCourt of Appealsfor the Ninth Circuit, 95 Seventh and two (2) copieswere Street,SanFrancisco,California 94110-3939, sent,via FederalExpressfor next day delivery,to: JoshuaWaldman Civil Division of U.S. Department Justice, Ave. N.W. 950 Pennsylvania Room 7232 D.C. 20530 Washington, Attorney for FederalDefendantsIAppellants 6 Telephon (202) 5 I 4-023 e: Fax: (202) 616-8470 Angela Dotson Piper Rudnick 1999Avenue of the Stars,Fourth Floor Los Angeles,CA 90067 Airlines Attorney for DefendantlAppelleeSouthwest (3 Telephone: 10) 595-3000 Fax:(310)595-3300 P. James Harison (SBN 194979) Attorneys for Appellant John Gilmore T9 ADDENDUM TABLE OF CONTENTS 1 Page Requirements rule: Access TSA's publiclyavailable "BoardingPass PhotoID Required Getto Your Gate" to and 1044.xtl gov/public/interapp/editorial/editorialhttp://www.tsa. 2 8U . S . C$ 1 6 3 1 . 28 U.S.C. 2347 S 4 9U . S . C$ 4 6 1 1 0 . 15 Rule of Civil Procedure Federal 1 Page 2 Pages 2 Pages 2 Pages 1. 2. a J. 4. 5 TSA I Transportation SecurityAdministration I AccessRequirements gov/public/interapp/editorial/editorial_1 044.xml hftp://www.tsa. ffiFffi Travelers& Consumers Travelers & Consumers -Air Travel r PrepareFor Takeoff r Prohibited Items r Transporting Special Items t SpecialConsiderations r GeneralAviation r Personswith Disabilities Medical & Conditions I Links to Related Sites I Passenger Rail r. PassengerVessels I HighwayTravel t MassTransit I TSA Partner Programs with Disabilities & ' Persons MedicalConditions .TSA Customer Service I Signup for Homeland Security Alerts I PassengerResources i Travel Tips I, Home I FAQs I Sitemap I Contact Us .,, W{W rftruotldltoryt4rel Industry Partners Law & Policy Security& Law Enforcement About TSA Briefing Room Employment Business Opportunities sitesearch l6fr-'ATravelers &Consumers Prepare For Takeoff g 6$p,intuur"v",,"ion Access Requirements Boarding Pass and Photo ID Required To Get to Your Gate passand ID are now required At most airports,a boarding to passthroughthe securitycheckpoint.TSA is passenger security consolidating screening the passenger to in to secu checkpoints an on-goingcommitment enhance and improvecustomer service.Ticketsand ticket (suchas a travel agentor airlineitineraries) confirmations will no longerbe accepted thesecheckpoints. at Proper Identification flight, passengers 18 and age If you have a paperticket for a domestic issuedby a localstate over must presentone form of photo identification ID), license/military or federalgovernment agency(e.9.: passport/drivers identification, of which must have been one or two forms of non-photo issuedby a state orfederalagency(e.9,: U.S.socialsecuritycard). For visa, or an international flight, you will needto presenta valid passpoft, Passengers withoutproperID may be any other required documentation. d e n i e db o a r d i n g . you will needto showyour photo identification e-ticket and For e-tickets, your boarding pass. receiptto receive pass: Thereare four ways to obtaina boarding o o o o ticket counterat the airport Go to your airline's Usecurbside check-in Useyour airline's self-service ticket kioskin the airportlobby passfrom your airline's website Printthe boarding medicalbusiness similarreasons or Note: Persons with parental, official, may be ableto access checkpoint, shouldcheckwith their airline the but for required documentation. Transportation SecurityAdministration U, 9, [l epartnrerri nf Hnrrreland 5 ecu:ity I of I ANI 317120069:52 TINITEDSTATESCODESERVICE (c)2006Matthew Inc., & Bender Company, Copyright (TM) companies oneof the LEXIS Publishing All rightsreserved *++ {<>F{. APPROVED 2/27106 P.L. TO9-175, THROUGH CURRFNT r<*r< t ** WITH A GAPOF 109_171 TITLE 28.JUDICIARYAND JUDICIAL PROCEDURE AND VENUE PART IV. JURISDICTION CHAPTER99. GENERALPROVISIONS GO TO CODE ARCHIVE DIRtrCTORY FOR THIS JURISDICTION 2 8U S C S 1 6 3 1 $ Transfer curewantofjurisdiction to $ 1631. in 610 a Whenever civil actionis filed in a courtasdefined section of thistitle f28 USCS$ 6101 action,is noticedfor or filed with includinga petitionfor reviewof administrative or an appeal, sucha court andthat courtfinds thatthereis a want ofjurisdiction,the courtshall,if it is in the to interest ofjustice, transfersuchactionor appeal anyothersuchcourtin which the actionor shall appeal couldhavebeenbroughtat the time it wasfiled or noticed,andthe actionor appeal on proceed if it hadbeenfiled in or noticedfor the courtto which it is transferred the date as uponwhich it wasactuallyfiled in or noticedfor the courtfrom which it is transferred. UNITED STATESCODESERVICE Inc., (c) Bender Company, & Copyright 2006Matthew (TM) companies oneof theLEXIS Publishing All rightsreserved >I,** *** 2127106 APPROVED P.L. IO9-175, THROUGH CURRFNT *+* t