result the question before this court is whether mr tarhouni can cure the jurisdictional defect through an amendment below let me explain why the answer that question is yes both procedurally and substantively procedurally if the complaint can be saved by any amendment then this court can reverse and with instructions to grant leave two men below and we cited a number of cases for that jewel in the man's right case being two substantively the case is not moot if the district court can provide any effective relief and here there are three forms of effective relief that mr tarhouni can plead any of which would resolve the issue the first is that the district court could rule could order the government to remove mr tarhouni from the terrorism screening database or the t s d regime you've got to plead first and discover later you're saying he gets to discover and then draw and then draft a complaint with respect to move them your honor what i'm saying is that he asked for limited discovery in response to the court's decision to convert the motion to dismiss into a motion for summary judgment and that that discovery was broader and it would have uncovered for example the t s d b issue but it also would have allowed him to  enough information good faith and would you go to eleven alleged billings claim at this time i don't believe he does at this time which was why the district court dismissed it and required him to have good faith to allege again why should we permit you to discover your  some time ago was it not i mean he he had an opportunity if there were facts that he could plausibly alleged to him to reply that he did know yes your honor and the court required that he have a good faith basis for pleading that he didn't have that information at the time there is a little bit more information that's come to light since then so i certainly wouldn't want to preclude him at the district court level from being able to allege that but the  point was that with the discovery he'd be able to affirmatively allege that i realize that that's not that's totally counter to our law which says that you don't get to do that i realise it's just a form the damages are another form of of relief that mr original complaint even as a man asked solely for injunctive relief related to due process procedures for challenge being listed on the no fly list you're asking for a different form of an injunction than he has sought before that's all right that's correct your honor and that's because he didn't have any knowledge with respect to his place man on the when he was placed on the no fly list so my understanding this is in the record that you are seventy eight is how it works as an individual is nominated to the no fly list is also going to be included in the in the t s d b which is the consolidated watch list so the original unconstitutional nominee nomination resulted in both arm he would have had no way of knowing about the t s d b because he was on the no fly list and couldn't even get to a t s a screening point or the gate to board a plane and the impact of being within the t s d b is you are subject to heightened about that he had no way of knowing and so that has really come to light since the district court dismissed the case and has really become in light of other related litigation in the gut so your argument is that right your honor and there was no way at that point time for him to have asked for the relief that he is now seeking and the harm that he is now suffering because it wasn't apparent and to allow th dismissal and without leave to amend to continue the ministry when he really has no way of challenging the ongoing a fact of having been constitutionally placed on on both of those lists in the first instance and constitutionally placed on both of those lists as a matter of procedural due process not substantive due process both your honor but substantive due process in particular in that there was no justification for his no legitimate justification for him being placed on those lists  and what is your what is your cause of action for substantive due process which is which i'm very curious about particularly since i think i think the judge also found qualified immunity  through i think there are two questions the judge found qualified immunity with respect to the claims that are not before this panel and we have not appealed with respect to the bivins claim an agent brian's in the district court found that there wasn't enough information to connect him to the placement of mr tarhouni on the no fly list and with respect to the procedural due process claim and the substantive due process claim those did survive a motion to dismiss  were allowed to go forward as originally pled even though he he replied and submitted a new complaint and the substantive due process claim is the fundamental constitutional right that he has been deprived was the right to travel internationally now the ongoing harm of him being within the t s u b is not the same as the right to travel internationally but it's an ongoing effect of that same unconstitutional harm and for that i  are right so it's up on appeal what's on appeal here the substantive due process claim and what is that what is that what is the cause of action there on the completely you have now and what are you asking for it or you were asking for damages were you that was the bins claim and we're not talking about that like this is a plain due process claim the substantive due process claim is still the unconstitutional nomination to the no fly list the ongoing effect of that unconstitutional nation and that's that's a deprivation of the fundamental due process right to travel internationally the ongoing a fact that unconstitutional nomination you were and you think you were asking for damages for that substantive due process violation that was not in the third and then you're asking to amand asked for damages no we're asking to amend discussing this terrorism screening database issue we're asking to amend to allege that he was included in the terrorism screening database at the same time and that as an a matter of ongoing relieve the that i have the same concerns that silver does let me see if i can summarize what i understand yourself and have due process claim to be he alleges that the purpose of his foreign travel was as a medical mercenary if i can individuals who were who were i thought he supported it was a very poor that's what u s policy i get time right yes we like those guys right ok they were trying to depose a dictator and so his theory is my heart was pure when i made three different trips to the middle east all four medical assistance to these folks and therefore if that's the reason that i was put on the list then my substantive due process rights have been violated because it infringes on my right as a u s citizen to engage in travel is that your claim that's part of it your honor it's also there it's also that at the same time there were he believes  shocks the conscience or what it what are you saying there i don't understand it from the reading of the complaint or anything that i've read from you the fundamental right to travel internationally is a due process right and that has i don't have the cases that m thirteen ok that's five and that's what the district court found and why she permitted the complaint as a as amended the first time to continue and for him to proceed on the substantive due process claim there was no question before the district court that there was a substantive due process  are you alleging that agent asked your client to become a confidential informant for the f b i when he was interviewed at the embassy in tunisia he did not ask during that interview the allegation is that that was the purpose and he would have if the interview had continued how can you make that accusation if you just never are but the allegation is based on other examples that have happened within the portland muslim community at the same time to other individuals  including mr figure which is another case that's within this is our information belief and the surrounding circumstances that he flew from portland to tunisia to interview him so it wasn't something having to do with his experience with  it was it was that age and that he asked him information about the portland muslim community when he was interviewing  we've not for example had a double vision of zoom that's right and the district court found that that was sufficient and if i could just point i realized my my time is running but if i could just point this court to to a case that i think is on point for the connection between of requiring mandatory testing for syphilis of government employees and this court found that there was still enough ongoing harm through the through the keeping of the records of those tests to allow the plaintiffs in that case to challenge the original honor but but she hasn't made any ruling she hasn't changed her mind about the substantive due process claim that it was sufficient to survive the motion to dismiss in the first instance there's been no indication that the district court doesn't believe that that's a valid claim and indeed she found it to be a valid severe but it does not necessarily mean and certainly doesn't mean of same manner of the you can't fly that's all that's the next question it's exactly right your honor and that's why i'm citing the norman blood severus as lawrence laboratory argument wasn't before the district court of the time she ruled on this because he'd never asked for there and it couldn't have been because he didn't know and so the going to dress the question yes and let's hear from the other side thank you and we've taken you over but you already seen that i'm a patsy we will give you a chance to take your  morning your honors may please the court my name is joshua walden i'm here from the u s department of justice representing the i probably the unlawful injury alleged actually alleged in the complaint was unlawful status on the no fly list and the injury alleged was the inability to board a plane that claim is moot the plaintiff is removed from the no fly list was told he will in a declaration from the government that he will not be placed back on the no fly list based on the currently are two unequivocal statement in the record there's no legally cognizable interest currently on the question presented in the complaint and that is why the district court correctly held that it was moot well why did the district court dismiss it  authority were for the limited purpose of changing and dismiss all with prejudice to without and also if the district judge had understood just muscle with prejudice was improper and that it had to be a dismissal without prejudice it seems to me that there's a perfectly appropriate motion to an amended complaint well your honor first of all i think what i understand they just were doing is we made a technical error in writing with that with instead of without because in the previous page he says if not new information comes to light and your recent jacket today is the courthouse door of course remains open to you which is another way of saying your dismissals without prejudice and then i think she made just a one wrote with instead of without and this was something that they're there to play that if but if but if if you're right and i think it was more than a tactical mistake that is to say the argument is the claim as clear with respect to the no fly list may now be moot and putting to one side capable of repetition innovating review may now be moot but that doesn't mean that no effective relief is available for what has happened here and i think it's a fairly good argument  that we should be allowed our replating with respect to the database well what's wrong with that well let me talk about the the t s d be our view is it when you say when the questioner mutinous about can there be any effect of relief that it has to be relief that addresses the unlawful conduct specified in the complaint and address but not you're not addressing that my question i'm saying why can't why is it not appropriate to have a motion to amend the complaint well your honor there were three amended complaints here and the district court did grant leave to amend and they filed a third amended complaint and there was no mention whatsoever of that was at a time i what i'm saying is the way the database works i think it's a helpful to understand this is all the ts d d has is information about it's not derogatory information it's not classified information it's your name your date of birth your photographs things that then information from the database is exported to other list such as the no fly list and those have consequences in the real world for people and how far i mean you might want to read my opinion and you bring him in which i described least in which we give unclassified summaries of the reasons why someone was on the no fly list the very thing that you and some of the other judges were asking us to do in ybor humans and other cases we now do that we have back and forth the government gives its reasons but here's a question really technical question why are you resisting a challenge that he now seeks to bring to be included on the date of terrorism database well i think there are it has a nasty name taken so let me give you a couple of reasons why i think it's harmful to do that at this point as opposed to allowing him to file a new complaint with the district court said he's perfectly willing to do number one is i think it's very unfair to the district court the district court adjudicate the decisions and a based on the complaint and the allegations before it and to reverse and remain and to say you you committed error because of something that was never litigated before you i think is tremendously unfair the it to the government i think it's unfair because we litigate what's presented before us and if we have to anticipate claims that aren't mentioned in the complaint and this is a fifty three paragraph seventeen page complaint he was free amendments to it if we have to  tell us exactly what if it were remanded and what do you think it's unfair for them not to be able to and what he hears what i think is the unfair consequence and i think the unfortunate consequence for this court to you is if we have to start saying anytime someone has a challenge to one list we have to defend every other list the new things distance whether it's in the complaint or not you're going to start seeing briefs that just go on tangents and we're always told by  religion precisely the same thing there's a couple additional reasons that i'd like to get to your honor if i can find that one thing and before i say it i have to say i'm going to refer to something that's not in the record so if you don't want me to do that please let me know where i don't know what it is where the planes b and the selectee list that she alleges occurred post dismissal and after that we received a letter from her this was just a month ago when she followed the redress complaint against the t s d he and the selectee list through the da just trip process and another reason why i think it's not proper generally and specifically in this case to start reading these things is she's going through an administrative redress process as as we speak and that ought to be able to play out and then at the conclusion of that we'll have a full record database you can make that objection was wait for to play out ok i understand that's a perfectly sensible rational why is that any different from amending this complaint to file the complaint that you say that she's perfectly free to file well i mean i think it's a technical matter i  agree with you on that but i think it's i think you know you litigate these cases and there are consequences to the way that you litigate them for it for example in this case she you but i you know i can see where you're going with this answer but it doesn't seem to me responsible because as i'm hearing you say if she can do one of two things she can file a new complaint challenging inclusion on the database would you say as mine or she's going to be in this complaint precisely that complaint and you say that's not fine well what's the difference what the difference is also is in the way she proceeded below is she abandoned several claims including abandoning any claim for injunctive relief and seeking only declaratory relief and this is on page sixteen of the she never alleged before but she can then revive the very form of of relief that she abandoned not this council but a different counsel below and i think that's tremendously unfair to the government and to the district court now but if she filed a new complaint she would not be me she would not be the player would not be bound by that concession in a prior litigation so i think it's actually more unfair to them unless you were to say by virtue of getting to amend the complaint that the prior abandonment is gone in of there's really the case you just say p directed the district court to consider whether or not it might grant leave to a man with that be acceptable to the government i mean i think i think the best thing to do in these types of cases is to have a new complaint filed because but i do want to say one very specific thing unrelated to the t s d b if you went that course i think it's very important to emphasize that the bivins claims cannot be reinstated on or on any kind of there is a final judgment on it they were dismissed for failure to state a claim they were on that that ruling was on appeal it's a final judgment and if you were unconnected to any other claim there be no question that you couldn't possibly remand them and the fact that it's attached to at this point it's pretty in terms of yeah i mean i know i don't want to but discovery she basically doesn't have much to support it right and she didn't ask for discovery on the bivins plate she has for discovering the things that survived and that's just not accurate and first of all yes she didn't know whether she was on the t f t p she still doesn't know whether he doesn't know but he didn't know he was on when they were on the no fly list either and that didn't stop him from filing a complaint but when they got we got to the summary citizens and u s persons but is part of the summary judgment proceedings the judge said submit any additional material that you think is relevant to me and in volume to the joint appendix are all the materials that the plaintiff filed which are materials for going back to two thousand and fourteen and two thousand and fifteen which mention the t s t v so it wasn't as if this was some secret that she couldn't that they couldn't put in their complaint back from the beginning and i do think it's not just this case i heard the arguments before and every single one of them some was saying there was a waiver or someone didn't argue something and i think if you just permit enlists amendment for new things develop on appeal you turn this court from a quarter of review to a court of second chances and amending of complaints i just don't think that's proper especially when the courtroom door remains open and all we're saying is start a new case with a new clean record that's not muddied by all the litigation that happened before i think that's fair for the district or this is part of your argument but i am going to give you a chance to back away from it or you tell me that when she files her new complaint which is what you say she should do the prior thing that she abandoned she knew not going to hold her to that that is to say she abandoned her request or are you committing to that yet i don't think there's and there's two ways about it just because you waive something and one is the only the only difference would be if there was some argument and it's not before this court as to collateral estoppel because it was a claim that you could have brought and you might have it to your back in a way well of course you might i'm saying that that would be an argument open to it but that would have to be an affirmative defense that we would plead if we thought it was appropriate and it might depend your honor on exactly how she and i  not would depend on how it was played and what the what they asked for so all i'm saying is i'm not committing us to forfeiting collateral stop on some hypothetical future case that hasn't been fired i am not but if there are any other questions i'm happy to answer them your hon your honors i just briefly want to address why the government so desperately wants you to dismiss this case entirely and and ask mr tarhouni to file a new complaint and that's because there's going to be a statute of limitations  the system that that poses a threat of continuing harm to him in the event that he's listed again or some other improper use is made of that it does your honor but the underlying conduct the unconstitutional conduct for why he was placed on the list in the first place for the for the improper motives that relates back to the two thousand and twelve no fly lists nomination when he was in libya and so that's at the heart of it that's the conduct and so he needs he needs that to be able to continue to litigate this case and seek relief from the t s a what's your response to government counsel's argument that he knew as early as two thousand and fifteen of the existence of the u s he knew of the existence he didn't know if he was he was within it or on it and of course when the government said two things about that when the government said that it was removing him from the no fly list one would think that perhaps the government would recognize he never should have been on either list to begin with and would remove him from both but mr tony had no idea that the government was not going to remove him from all of the lists because he's has no connection to terrorism he's just a perfectly normal u s citizen and so when the government removed him from one and didn't tell him that he was going to stay on the other list he would have no way of knowing that and bringing that to the court's attention and then the other thing i want to mention just very very briefly is is  that is that this was first brought to mr tarhouni attention in his answer so it couldn't have been at legend the complaint at all so even though it's in the summary judgment record it wasn't there before before he filed his complaint ok and we