UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 04-15736
JOHN GILMORE Plaintiff-Appellant JOHN ASHCROFT et at. Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case No. CV - 2-034440 Honorable Susan Illston , United States District Court Judge
Brief of Amici Curiae American Civil Liberties Union Foundation and American Civil Liberties Union of Washington in Support of PlaintiffAppellant, John Gilmore, Urging Reversal
Reginald T. Shuford Catherine Y. Kim 125 Broad St. 18th , Fl. New York, NY 10013 2500 (212) 249-
Michael E. Kipling Summt Law Grou 315 5thAve. S , lOt Fl. Seattle, WA 98104 7000 (206) 6767001 (206) 676Attorneysfor Curiae American Civil Liberties Union Foundation and Amici American Civil Liberties Union of Washington
Aaron Caplan 705 2nd Ave. Ste. 300 , Seattle, WA 98104 2184 (206) 6242190 (206) 624- (fax)
TABLE OF CONTENTS
Page
I.
II. III.
INTEREST OF AMICUS CURIAE................................................................. STATEMENT OF THE CASE....................................................................... ARGUMENT.... ..... ...... A.
B.
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There Is No Administrative "Order" Relating to the No-Fly List or CAPPS Program. ..........
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Even If An "Order" Existed, Jurisdiction in the Distrct Court Was Proper Because Mr. Gilmore Raises Constitutional Claims. ..... 11
C.
The Government's Interpretation of the Statute Would Hinder Litigants ' Ability to Prove Constitutional Violations and Burden the Courts of Appeals With the Unfamiliar Task of ........ 15 Supervising Discovery. ......
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IV. CONCLUSION .......
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TABLE OF AUTHORITIES
Page
Cases Crist v. Leippe 138 F.3d 801 (9thCir.
Duncan
v.
1998) ................................................... , 14
.........................................................
Kahanamoku 327 U.S. 304 (1946)
Gilbert v. Nat l Transp.
Safety Bd. F.3d 364 (9thCir. 1996) 80 ........................... 16 1993) .................................................. 16
1994)....................................................
Green v. Brantley, 981 F . d 514 (1IthCir. 2 Green v. TSA No. 04- 0763
(W. Wash., filed Apr. 6, 2004) D. ................................. 2
81 (1943)....................................................
Greenwood v. FAA 28 F.3d 971 (9th Cir. Hirabayashi v. United States 320 U. S. Johnson
v.
........................................................... Mace v. Skinner 34 F.3d 854 (9thCir. 1994)................................................... , 14 Merritt v. Shuttle, Inc. 245 F.3d 182(2dCir. 2001) .............................................
Morris
v.
Eisentrager
339 U.S. 763 (1950)
Helms 681 F.2d 1162(9th Cir.
v.
1982)................................................. , 10 1999)....................................
1989)............... 9 , 16
Proyecto San Pablo
INS 189 F.3d 1130(9th Cir.
v.
San Diego Air Sports Ctr., Inc.
FAA 887 F.2d 966 (9thCir.
Sierra Club v. Skinner 885 F.2d 591 (9th Cir.
Aerial Advertisers ' Ass Southern Calif
v.
1989) ...............................................
........
1989).
......
FAA 881 F.2d 672 (9thCir.
................ ....
......... ..... ........ ....
...........
......
..............
............
........
, 16
Statutes 49 U . S. . 46110 ............................................................................................passim C Other Authorities
2 Richard J. Pierce, Jr., 2 Administrative Law Treatise g
14.2 (2002) ...................
Pursuant to Federal Rule of Appellate Procedure Rule 29 amici curiae
American Civil Liberties Union Foundation and American Civil Liberties Union of
ACLU" ) file brief in support of Plaintiff-Appellant this Washington (together
, "
John Gilmore. This briefurges that the Court vacate the distrct court'
decision relating to Mr. Gilmore s challenge to the No-Fly List and jurisdictional
CAPPS passenger pre-screening program. All parties to this case have consented to the filing of this brief.
I. INTEREST OF AN/C/ CUR/AS
The American Civil Liberties Union Foundation is a nationwide , non- profit nonpartisan organization with more than 400 000 members, dedicated to preserving the principles of libertyand equalityembodied in the Constitution, and the ACLU of Washington is one of its regional affiliates. For more than eight decades, the ACLU has steadfastly adhered to the position that our nation commtment to civil libertes is bothmost precious and most perilous in periods of national crisis. In support of that position, the ACLU has appeared before the
federal courts as direct counsel and as amicus curiae on numerous occasions. See
g., Johnson
v.
Eisentrager
Duncan 339 U.S. 763 (1950);
v.
v.
Kahanamoku , 327
Hirabayashi S. 304 (1946);
Among the United States 320 U. S. 81 (1943).
most fundamental of liberties is the right to challenge in court governent actions alleged to depriveindividuals of constitutional rights.
The present case raises many issues, but the ACLU' s brief is limited to a
jurisdictional question: namely,whether 49 U.
C.
46110 divests distrct courts
constitutional challenges to the No- Fly List or CAPPS to of jurisdiction adjudicate passenger pre-screening program. In additionto its general interest in ensuring
access to courts , the ACLU has a specific interest in the proper interpretation of
46110 in this context. In an ACLU case pending within this Circuit, the government has asserted that 46110 prevents distrct courts from reviewingthe
of constitutionality the government's current implementation of the No-Fly List, an
This issue ordinarily within their jurisdiction. Cour' s decision in the instant
matter may have a direct effect on the ACLU' s abilityto pursue this case and
similar cases.
In Green
v.
TSA No. 04-0763
the D. (W. Wash., filed Apr. 6, 2004), ACLU
and ACLU of Washington represent plaintiffs in a constitutionalchallenge to the manner in which the federal government operates its controversial "No- Fly List" or airline passengers as suspected terrorists without other watchlists used to identify
providing a means to clear one
s name.
The Government has argued in that case
to that the distrct court lacks jurisdiction take any action, and that the matter should instead be brought before a Court of Appeals. However , with no factual
development and no recordto review, the Court of Appeals would be ill-suited
act as a court of original jurisdiction.
Again , Congress did not intend this result
nor is it required by the language of 46110.
In cases like Green the governent'
jurisdictional argument
places an
unrealistic obstacle in the path of plaintiffs seeking to vindicate rights in district court. Congress not intend for 46110 to insulate unlawful actions from did constitutional challenge or public scrutiny. The proper resolution of the issue jurisdictional raised in this case is , therefore, a matter of critical to the ACLU and its members.
II.
importance
STATEMENT OF THE CASE
This case raises one of the most fundamental issues that a court can be asked of to decide- the authority the federal distrct courts to review allegedly unconstitutional actions commtted by a federal agency. On July 18, 2002, appellant John Gilmore filed in federal district court a constitutional challenge to the federal governent's requirement that passengers
show identification prior to boarding a flight. Mr. Gilmore further alleged that the
No- Fly List and CAPPS passenger pre-screening program were unlawful and in
violation of constitutionalguarantees. The No-Fly List is a list of passengers deemed to pose a threat to aviation securty and who are prohibited from boarding to aircrafts and/or subject heightened scrutinyat airports. The government directs airline personnelto match a passenger s name against a list of names contained in
a watchlist to determine whether the passenger wil be prohibited from boarding
subject heightened scrutiny or interrogation. to
The CAPPS program is the
Computer Assisted Passenger Pre-Screening System used to identify passengers who wil be subject heightened scrutiny at airports based on their travel profiles. to On November 13 2002 , appellees federal defendants (hereinafter
defendants
a ) filed motion to dismiss all ofMr. Gilmore
s claims. First, with
respect to the challenges to the No- Fly List and CAPPS program, defendants
argued that Mr. Gilmore lacked standing to raise those claims. Second , with respect to the challenge to the identification requirement, they posited that the district court lacked jurisdiction under 49 U. C. notably, the defendants did not argue that
46110 to review those claims;
46110 revokes
jurisdiction the over
challenges to the No-Fly List and CAPPS program.
' Mot. (Fed. Defs. to Dismiss , ) Thirdagain with
at 11; Reply in Support of Fed. Defs. ' Mot. to Dismiss at 4-
respect to the identification-requirement challenge, the defendants maintained that
Mr. Gilmore failed to state a claim upon which relief could be granted. Conflating the government's arguments the distrct court on March 23 ,
2004, granted defendants' motion to dismiss Mr. Gilmore s challenges to the NoFly List and CAPPS program based on two apparently alternate holdings: lack of It standing or lack of jursdiction. then granted the motion to dismiss his challenge
to the identification requirement for failure to state a claim and for lack of
jurisdiction.
It is the distrct court' s alternate holding on jurisdiction the No- Fly List over and CAPPS program to which the ACLU directs their attention. The distrct court
appears to have concluded that, even if Mr. Gilmore had established standing to
challenge the No-Fly List and CAPPS program, the court lacked jurisdiction under 46110 to review those programs. Having ruled on standing, the distrct court' ruling on the applicability 46110 to review the No-Fly List or CAPPS of
program , an issue not even briefed by the government, was entirely unnecessary.
Moreover , the court' s interpretation of
46110 was erroneous.
Contrar to the distrct court's conclusion, the text of
46110 and
accompanying case law preserve distrct court
jurisdiction constitutional over
challenges such as the ones against the No-Fly List and the CAPPS program. Were the distrct court' s holding permtted to stand, it would effectively insulate all
Administration (" ) TSA" conduct by the Transportation Security
judicial from
review. Sucha holding directly contravenescongressional intent and fundamental notions of due process. To the extent that the distrct court concluded that 46110
revokes distrct court jurisdiction constitutional challenges to agency action over the ACLU respectfully request that this Court vacate the judgment.
III. ARGUMENT
The federal defendants canot invoke 49 U. C.
46110 to immunize
themselves from accountability the district courts. That provision does not in
divest district courts of the power to review unconstitutional conduct by
government agencies such as the TSA. 49 U. C. 46110 permits direct review
by the Court of Appeals and precludes distrct court review over aviation agency decisions only in certain limited circumstances.1 Those circumstances are absent
49 U. C.
46110 provides, in relevant part:
and venue.
(a)Filing
Under Secretary of Transportation for Security. . or the Administrator of the Federal Aviation Administration ... ). . . may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. The petition must be filed not later than 60 days after the order is issued. The court may allow the petition to be filed after the 60th day only if there are reasonable grounds for not filing by the 60th day.
person disclosing a substantial . [A] interest in an order issued by the Secretary of Transportation (orthe
(b)Judicial procedures. When a petition is filed under subsection (a)of this section, the clerk of the court immediately shall send a copy
--
of the petition to the Secretary, Under Secretary, or Administrator, as appropriate. The Secretary, Under Secretary, or Administrator shall file with the court a record of any proceeding in which the order was issued. . . .
When the petition is sent to the Secretary, Under Secretar, or Administrator, the court has exclusive jurisdiction or to affirm amend modify, set aside any part of the order and may order the Secretary, Under Secretary, or Administrator to conduct fuher proceedings. After reasonable notice to the Secretar, Under , Secretary, or Administrator the cour may grant interim relief
(c)Authorityof court.
with respect to constitutional challenges to the No- Fly List and CAPPS program.
First , there is no administrative "order" at issue within the meaning of
46110
because (a)decisions relating to the No- Fly List or CAPPS program were not made pursuant to an agency proceeding; (b)even if there were an agency proceeding, there is no record of that proceeding with findings of the facts relied upon by the parties have no opportnity to agency in rendering the decision; and (c)aggreved
raise their claims at the agency level. The absence of an administrative proceeding
with a fully developed record on the issuesraised by a litigant deprivesthe Court
on of Appeals of the factual tools necessary to render judgment the litigant's there is no order with respect to the No- Fly List or CAPPS claims. Because
program , this Court has no occasion to determine the precise contours of
g 46110'
, even assuming there were an identified order in this case applicability. Second
46110 would not apply because it does not deprive district courts of jurisdiction
to decide constitutionalclaims.
staying the order or taking other appropriate action when good cause for its action exists. Findings of fact by the Secretary, Under Secretary, or Administrator , if supported by substantial evidence, are conclusive.
In reviewing an order under (d)Requirement for prior objection. to this section, the court may consider an objection an order of the was Secretary, Under Secretary, or Administrator only if the objection
made in the proceeding conducted by the Secretary, Under Secretary, or Administrator or if there was a reasonable ground for not making in the objection the proceeding.
A.
There Is No Administrative " Order " Relating to the No-Fly List or CAPPS Program.
The plain text of 46110 demonstrates that this provision , relied upon by the distrct
court in finding that it lacked jurisdiction to " orders , applies only
issued by an aviation agency. Courts interpret the term "order" to be limited to agency decisions accompanied by an adequate administrative record reflecting an administrative proceeding and findings of fact. Morris
1163-64 (9th Cir.
v.
Helms 681 F.2d 1162
1982) predecessor statute to conclude that it precludes (analyzing
district court review only when there is a proper "order" within meaning of that
statute).
In its tral court briefs, the government failed to identify any "order" relating
to the No-Fly List or CAPPS program. Nonetheless , the district court appeared to assume the existence of such an order based on Mr. Gilmore s description certain orders and directives issued by the FAA and the Transportation Security Administration" in the course of his complaint. Gilmore v.
Ashcroft, 02-3444 , slip
D. In op. at 4 (N.Cal. Mar. 23, 2004). fact, Mr. Gilmore referred in his complaint
Directive 96-05. to only one order or directive , Security 37-38.)
(Compl. at
Directive 96-05 imposes a Asdescribed by Mr. Gilmore , Security
requirement that passengers show identification prior to boarding a flight. , does not establish the No-Fly List or CAPPS program much less the
(Id.
constitutionality those programs, and thus does not constitute an order that of
would preclude distrct court review over those programs. Although the term "order "
may encompass agency adjudications
, it administrative rules, or security directives does not follow that all agency
adjudications , or securitydirectives necessarily constitute "orders." , rules
Rather
to determne whether such action constitutes an order, courts must examine the procedures and record surrounding the decision. A decision constitutes an " order only if it results from an agency proceeding with a reviewable administrative record. Sierra Clubv. Skinner 885 F.2d 591, 592-93
a single case wherein
(9thCir. 1989).There is not
46110 was held to deprive the district courts of jurisdiction
to review an aviation agency decision in the absence of an adequate administrative record. Compare San Diego Air Sports Ctr., Inc.
v.
FAA 887 F. 2d 966, 969 (9th
Cir.
1989) predecessor statute to permt (applying
Court of Appealsreview of an
agency decision where the administrative record was sufficient to permt the Court to of Appeals to evaluatethe claims raised); Southern CalifAerial Advertisers
Cir. Ass 'n v. FAA 881 F.2d 672 (9th
1989) that (confirmng predecessor
to
46110
does not apply where the administrative record is insufficient to provide an adequate basis for the Court of Appeals to review plaintiffs '
claims). Moreover , an
agency decision constitutes an "order" precluding distrct court review only if an agency proceeding provided the affected part with an opportnityto present his
claims. Morris 681 F.2d at 1163-64. Thus, case law firmy establishes that
46110 precludes distrct cour
jurisdiction agency decisions only where the over
plaintiff had an opportnity to raisehis claims at the agency level , the agency considered those claims in an administrative proceeding, and the agency issued an order based on a fully developed record. Repeated references in the text of 46110 support this position and
demonstrate that Congress never intended for the provision to apply where there were neither findings of fact, nor administrative proceedings in which the
aggreved hadan opportnity to presenther claims. Subsection states part , in (b)
relevant part
, "
The Secretary, Under Secretary, or Administrator shall file with the
. ..
court a record of any proceeding in which the order was issued.
, "
Subsection
(c) statesFindings of fact by the Secretary, Under Secretary, or Administrator , if
supported by substantial evidence, are conclusive. Subsection (d)
, "
49 U. C.
46110(c).
In provides reviewing an order under this section , the court may
consider an objection an order of the Secretary,Under Secretary, or to Administrator only if the objection made in the proceeding conducted by the was Secretary, Under Secretary, or Administrator or if there was a reasonable ground in for not making the objection the proceeding. 49 U. C.
46l10(d). These
statements demonstrate that Congress did not intend for 46110 to apply where
there is no administrative proceeding or record as in the instant case regarding the
No-Fly List and CAPPS program.
At no time during the course ofMr. Gilmore s litigation did defendants the identify existence of an administrative proceeding or record relating to the NoFly List or CAPPS program , much less file a record with the court as contemplated
under 4611 O(b).
, given Further the public s ignorance of any such order , if one
does in fact exist, Mr. Gilmore could not have had an opportnity to challenge it or develop a record at the agency level before the purported order was issued. In the absence of such a record or proceeding, any agency decision establishing the Noas Fly List or CAPPS program fails to qualify
order " an "
for the purpose of
precluding distrct court
jurisdiction under
neither this 46110. Consequently,
Court nor the Distrct Court has occasion to define the contours of
g 46110 , given
that it is not properly invoked in the present matter. This Court should vacate the
distrct court'
B.
judgment this ground. on
Even If An " Order " Existed, Jurisdiction in the District Court Was Proper BecauseMr. Gilmore RaisesConstitutional Claims. Even if federal defendants did, at this late date, produce the phantom order
establishing the No-Fly List or CAPPS program pursuant to an administrative proceeding with a complete factual record, such an order would not suffice to
preclude distrct court review of constitutional challenges to those programs.
Case law establishes that under g
46110 plaintiff may bring a claim ,a
against an agency in distrct court , even if the claim arguably stems from a properly entered administrative " order " where the litigant previously did not have the opportnity to raise those arguments in an agency proceeding. See, e.
Merritt
v.
that Shuttle, Inc. 245 F.3d 182, 189- 2 (2dCir. 2001) 9 (holding the
existence of an administrative order does not preclude district court review of negligence claim stemmng from the events implicated in the order because the to part aggreved didnot have the opportunity present the negligence claim in the
agency proceeding
below).As discussed earlier , Mr. Gilmore had no opportunity
to raise his constitutional challenges to the No-Fly List and CAPPS program before
the government issued any order relating to those programs.
The rationale for this rule is that, in the absence of agency consideration of the litigant' s claim, there is no administrative record on the issue for the Court of Appeals to review. Crist
v.
Leippe 138 F.3d 801, 804-05 (9th Cir.
1998) (holding
s that when an agency order did not address a part' claims, review by the district This court is proper because additional record development may be necessary). interpretations of provisions conferrng position is consistent with judicial in exclusive jurisdiction courts of appeal in other contexts. For example, in the
2 As discussed above, some courts hold that if the litigant did not previously have
her the opportity to present claims, then the agency decision does not constitute an "order" within the meaning of 46110 at all.
, immgration context this Court has held that when a limited Court of Appeals review scheme would not produce an adequate administrative record to allow
over review over a litigant's claims , distrct court jurisdiction meaningful judicial
such claims must be preserved. See Proyecto San Pablo
1137 (9th Cir.
v.
INS 189 F.3d 1130
1999).
and Both the FAA and the TSA lack the statutory authority expertise to constitutional challenges. adjudicate
See, e.
, Mace
v.
Skinner 34 F. 3d 854, 859
that (reasoning issues regarding institutional competence dictate (9thCir. 1994) that the distrct court , rather than the agency, is the appropriate forum to review
2 constitutional claims); Richard J. Pierce , Jr., 2 Administrative Law Treatise
g 14. (2002) An agency has the power to resolve a dispute or an issue only if ("
to Congress has conferred on the agency statutory jurisdiction do so. Consequently, the government cannot argue that either of those agencies previously evaluated the litigant' s constitutional claims.
over In any case , g46110 does not preclude district court jurisdiction
constitutional challenges to agency decisions. In Mace 34 F. 3d at 859Ninth Circuit held that 46110 preserves distrct court
, the
jurisdictionreview to
, the constitutional claims. In response to alleged violations of safety regulations
FAA issued an emergency order revoking Mace s aircraft mechanic s certificate. Mace filed suit in distrct court alleging that the FAA' Id. at 856. Subsequently,
use of emergency orders violated his constitutional rights to due process and a jury trial. Id. This Court held that 46110 preserved distrct court
jurisdiction over
, Mace s constitutional challenges reasoning, "any examination of the of constitutionality the FAA' s revocation power should logically take place in the , distrct courts as such an examination is neither peculiarly within the agency special expertise nor an integral part of its institutional competence. Id. at 858-
omitted). (quotations
Similarly, in Crist after the FAA suspended Crist' s commercial pilot
certificate, Crist filed suit against the FAA in district court. 138 F.3d at 802-03. He claimed that widespread spoliation of evidence in investigations such as that conducted in his own case violates the constitutional rights of FAA certificateholders. Id. at 803. The Ninth Circuit posedthe relevant inquiry as follows: of Does the appeal broadly challenge the constitutionality the FAA' s actionis which case the district court could have jurisdiction--r the appeal ' inescapably
intertwined' with a review of the procedures and merits surrounding the FAA'
order?" Id. Concluding that Crist' s claim posed a broad constitutional challenge to the agency s procedural practices , the Court held 46110 to be inapplicable. Id.
at 804. Under Mace and Crist
46110 preserves distrct court
jurisdiction over
constitutional challenges to the No-Fly List and CAPPS program. Because
, Mr. Gilmoreraised broad constitutional claims and because those claims were not
considered when the government rendered any purported order involving the No-
Fly List and CAPPS program , g46110 did not apply to divest the distrct court of
urisdiction. C.
The Government' s Interpretation of the StatuteWould Hinder Litigants ' Ability to Prove Constitutional Violations and Burden the Courts of AppealsWith the Unfamiliar Task of Supervising Discovery .
in Not only would revocation of distrct courtjurisdictionthe present
circumstances contradict the text of 46110 and the case law interpreting that
provision , but it would also lead to impracticable results. Under the district court'
alleged interpretation, distrct courtswould play no role in adjudicating constitutional violations commtted by federal aviation agencies. The agency would be responsible for developing a factual record surrounding the alleged the violation and adjudicating dispute in the first instance. Neither the FAA nor the TSA, however , provides a mechanism for individuals to raise these facts that constitutional challenges. Litigants have no opportnity to develop would be critical to resolving such challenges, such as the harm they suffered as a
result of being identified on a government watchlist or the futilityof efforts to have
their names removed from the watchlists. As a result, the actual fact-finding necessaryto
constitutional adjudicate
claims againstthe FAA or the TSA wouldbe performed by the courts of appeal.
Courts of Appealwould become embroiled in factual disputes surrounding agency
procedures alleged to violate individuals ' constitutional rights.
In This is a position the Courts of Appeal have expressly rejected. the
absence of a fully developed administrative record, this Court likely will refuse to review any constitutional challenge to the TSA' s actions. In Greenwood v. FAA
Cir. 28 F.3d 971 978 (9th
1994), Court declined to review a constitutional the
challenge to the FAA' s decision because the administrative record was not
sufficiently developed. It stated:
equal protection claim] We do not address [plaintiffs because it is not properly developed for review by this to court. Our jurisdiction review agency orders under depends on the adequacy of the to [predecessor 46110] administrative record because the review must be sufficiently informed to permt a fair evaluation of the claim. . .. A sufficient administrative record is one that evaluation of the issues permts an informed judicial record may preclude review of raised. A limited agency substantive claims.
see omitted); also Southern Id. (quotations
CalifAerial Advertisers ' Ass '
v.
FAA
to 881 F.2d at 676 (declining review plaintiffs' claim because the administrative
Gilbert v. Nat record did not provide adequate basis to evaluate the claim);
Transp.
that Cir. 80 Safety Bd. F. 3d 364, 367 n. (9th 1996) (explaining Court of
Appeals review under 46110 is only proper if there is a sufficient administrative San record to permt an evaluation of the claims raised); Diego Sports Ctr. , Inc. 887 F.2d at 968-69; Green
v.
tþ Brantley, 981 F.2d 514, 519 (11 Cir.
, it 1993). Thus
is not at all clear that the Courts of Appeal would be willing to review the challenged action. In the absence of distrct
court jurisdiction may be no , there
forum in which a party could raise a constitutional challenge to the TSA' s actions. As a result, the TSA would be insulated completely from any judicial
either at the distrct court or the Court of Appeals level. accountability,
Where the plaintiff s case requires discovery and trial , it should commence in the distrct court. Then, if necessary, it can be reviewed by the Court of Appeals with the benefit of a well-developed record and factual findings.
IV. CONCLUSION
Were the district court' s conclusion permitted to stand, the federal government could effectively immunize the TSA's conduct from judicial
accountability. litigant challenging the constitutionality the No-Fly List or A of
CAPPS program, or any policy or procedure thereof, would have no adequate forum in which she could gather the facts necessaryto present her constitutional claims. There is no access to such a forum at the agency level; neither the TSA nor the FAA offers any mechanism whereby a part maychallenge the
constitutionality their programs. Under the government' s extraordinary theory, of
Courts of Appealwould then be forced into a position of reviewing a non-existent administrativeproceeding and relying on a non-existent administrativerecord with
no findings of fact. This was not Congress s intent in enacting 49 U. C. g
46110
and the federal government canot be permtted to insulate itself unilaterally from public accountability its actions. For these reasons, the ACLU respectfully for requests that this Cour vacate the distrct court'
judgment regarding its
jurisdiction hear constitutional challenges to the No-Fly List and CAPPS to
program. DATED: August 23 2004
Reginald T. Shuford Catherine Y. Kim 125 Broad Street, 18th Flr. New York , NY 10013 2500 (212) 249Aaron Caplan 705 Second Avenue, Ste 300 Seattle, WA 98104 2184 (206) 6242190 (206) 624- (fax)
By:
Summt Law Grou 315 5thAve. S, lOt Fl. Seattle, WA 98104 7000 (206) 6767001 (206) 676-
J)/ Lín
Attorneys for Amici CuriaeAmerican Civil Liberties Union Foundationand American Civil Liberties Unionof Washington
CERTIFICATE OF COMPLIANCE This brief complies with the tye-volume limitation of Fed. R. App. P. because: 32(a)(7)(B)
1.
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DATED: August 23, 2004
By:
Michael E. Kipling Summt Law Group 315 5thAve. S, 10thFl. Seattle, WA 98104 7000 (206) 6767001 (206) 676- (fax) Attorney for Amici Curiae American Civil Liberties Union Foundation and American Civil Liberties Union of Washington
CERTIFICATE OF SERVICE of Amici Curiae American Civil Liberties Union Foundation and American Civil Liberties Union of Washington in Support of Plaintiff-Appellant , John Gilmore Urging Reversal were sent , via First Class U.S. Mail, to the Clerk of the United States Court of Appeals for the Ninth Circuit, 95 Seventh Street, San Francisco California 94110-3939, and two (2)copies were sent , via First Class U. S. mail postage prepaid to: that I certify on August 23, 2004, an original and fifteen (15)copies of Brief
Joshua Waldman S. Departent of Justice, Civil Division 950 Pennsylvania Ave. N. , Room 7232 Washington , D. C. 20530 Attorney for Federal Defendants/Appellants 0236 Telephone: (202) 5148470 Fax: (202) 616Angela Dotson Piper Rudnick 1999 Avenue of the Stars, Fourth Floor Los Angeles , CA 90067 Attorney for Defendant!Appellee Southwest Airlines 3000 Telephone: (310) 5953300 Fax: (310) 595-
William M. Simpich Attorney at Law 1736 Franklin Street Tenth Floor Oakland, CA 94612 0226 (510) 4441704 (510) 444- (fax)
James P. Harrson Attorney at Law 980 9th Street Sixteenth Floor Sacramento, CA 95814 9778 (916) 4928762 (916) 492- (fax)
(.
Cou selfor mici Curiae Americ Civil Liberties Union Foundation and American Civil LibertiesUnion of Washington