first we have plaintiff's procedural and substandard due process no fly list challenge and second we have plenty of fourth amendment constitutional violation claim the two issues are sufficiency of the pleading and we know the claims should not be dismissed unless it can be proved beyond doubt that in this you can unless they can be proved beyond doubt that plenty of can prove no facts to support their claim facts are presumed to be true but the issue is not whether plenty of openly prevail but whether he's entitled to an opportunity to present evidence to support his claims plaintiffs no fly list claims are not moot because the government has not carried this heavy burden to show that mr figure will never again be placed on the no fly list based on information that previously he was removed my question is did the government ever tell him why he should know what my next question is has the government ever said that it was incorrect that he should he should not have been on the list for certain period of time no is our record that we're dealing with them when we look at when we consider voluntary cessation isn't limited to the fact that he got notice that he had been removed full stop that's it i didn't understand the last part of the question is that all he knows just that he's been taken off the you're yes all right so so if you win on voluntary cessation and we agree that we can't tell since the government has flip flopped once and we've got no reason to know they won't flip flop again forg my informal expression of that sentiment but that's how this record looks to me and and governments council can certainly respond then i think we have to decide whether or not part of this claim is moot anyway because he's been taken off the list and after all you stipulated that he's been taken off the list yes ok and so that certainly moves at least part of your claim does it not it does not mean we can see that we've asked for for the no fly list claim declaratory relief that the policy itself is that issue is not moot because the policy continues so ok so that's a better way to do it what's left what's left is we still have the declaratory relief to declare that the underlying policy itself which is still in place which is still substantially  is still gives the government an opportunity to place mr fix and other muslims who are overseas on the no fly list we're also asking that the government not use  the no fly list as leverage to ask somebody to become an informant particularly muslims as in the case of mr figure on the no fly list again to give injunctive relief to explain why he was placed on the no fly list as you said as you just had a question does he no no he doesn't we're asking for why he was placed on the no fly list and if he's placed on the no fly list again in the future to to notify him and others that they are placed on the no fly list instead of waiting for their for them to be overseas try to go to an airline and realize somehow mysteriously they're not allowed to fly ok if those are the four claims so that for for that you listed in your brief yes ok my question on the second one is is this the second one is that the government not use placement on the list as leverage to coerce someone to to to cooperate as an informant basically yes i'm trying to figure out whether you claim is that the the government that you're asking the relief you're asking for it at the government be be ordered not to say wrongfully put someone on the list who otherwise wouldn't be on the list for the purpose of facilitating arm twisting vers whether you're asking for an order that if someone is on the list the government ought not be allowed to make that offer that you come off the list if you agree to cooperate what's your c not condition the removal of upon agreeing to become an informant but is that an issue that is right for us to rule upon at this point there's no concrete controversy on that point right now because his he's been removed his name has been removed so i would just be given then opinion at that point i would beg to disagree because we're claiming that it's a custom and policy for the government to place individuals on the no fly list and then used that placement on the no fly list as leverage not to place them i mean for them to become informed like this to complain have specific allegations to that effect for it to show a custom in policy there has to be specific elucidation of incidents where that has occurred on several occasions and i don't think your complaint goes into that specificity well we have site we have cited that in terms of in the pleadings that this is happened in other cases for example not that's not specific require require us to show that we can make a reasonable inference that the behavior complained of is is plausible right you have to show a plausible plausible basis for relief and for custom in practice that means you have to articulate with some specificity individuals date and occurrences that fit within your  think the case law requires some continuity of action not just against one person but a routine of doing was judge brown asked to take additional notice of the other cases that several which are pending in front of judge brown where that similar allegations are made but i don't see in the record where there have been she's was asked to look at them holistically you're right we didn't we didn't ask her to take judicial notice of the those other cases although we've cited repeatedly in the  yes i'd like to take this opportunity to at least addressed some more detail plaintiff's fourth amendment claim and that is the the fourth amendment claim is adequate adequately pl and as you said judge rawlinson the ball analysis for pleadings is whether the factual allegations allow the court to draw a reasonable inference that defendant is liable for the conduct complain were intercepted retained and disseminated to various government agencies and we also have a notice filed in the southern district of california that the government intended to use  these communications for a criminal indictment that has since been dismissed also independently all of that i'm sorry what's wrong with that is it your contention that the trial court found it's pretty clear that there was a fi authorization isn't that fair and if and if so i'm just gonna get that is that your are you really taking on fire and saying that wasn't properly authorized or what is your argument here on the fourth amendment where both we've we've alleged and claimed twelve claim twelve we don't know but that is the that was the government the government provided notice that they had collected communities communications pursuant to face authority doesn't say they had an order doesn't say what section they used just that they that they collected these communications text email phone conversation that's in the record and that's ok if that's what we're talking about we certainly certainly read that so my question is it sounds like you are taking that on the trial court in this case this order appealed from say something to the effect that it's it's constitutional and some say it's not when i say yes i'm talking specifically about section fifty u s c eighteen zero four which changes the purpose of the feis intelligence to a significant purpose what is your strongest authority as is us versus kavanagh which is this court's ninth circuit opinion and then in that case well first of all in heath he said that it will just be no exception to advance you dish authorization for internal domestic investigations and in this court cavanagh case they said that the primary purpose for any surveillance application under fire must be together for an intelligence and must include minimum they should procedures that's our authority and that and this case on point has not been decided by the ninth circuit and it hasn't even been decided by the supreme court again so in addition to pleading that his his communications were intercepted he also has pled that they were unconstitutional that is that he and his brother were u s citizens that they were  not all the communications took place when they were in the u s and that it was without a warrant without probable cause an unreasonable therefore it clearly meets the the if paul keating standard in that will be six pleading standards the coincidentally the when there's not a warrant it's the government's burden to show that the surveillance of the search was not reasonable  also in the hypothetical you suffice that is also that's a defense for the government to plead improve which it has not yet i'd like to in let you have any further questions i'd like to reserve my time for eventuality that costs the lawsuits what do we wear that we have that in this case so i would say this your honor number one after he was removed and got formal notice that he was removed he did in fact flop and that's uncontested in the record and it's been two years to the day since he was informed that he's on the no fly list and there's no indication the record that he's back on the no fly list at this point so we have a formal public an unequivocal statement and i know you're stopping your starting at the after that here's what we're struggling with after that he asked to be taken off the list and the government no that's right but then the government took him off the list but that's all we've got right now your honor it was more than a year passed between when he was told he's still on the list and when he was removed and as you all know i think the government continues to receive additional intelligence analyze that intelligence and periodically audit the people that are on the no fly list and take them off if that's appropriate but what's to keep the government from again placing him on the no fly list well i think what you can do is number one i think you are to engage in just a common sense exercise which is if the government truly thought based on the information that he had that he was in fact a threat to civil aviation and belonged on the no fly list it's farfetched as judge brown said to think that they take him off the no fly list allow him to fly even thinking that he's a threat to civil aviation simply to moo this claim but we have to be very concerned about our precedent this is a really important doctrine and given these facts it just strikes me as we'd be creating havoc in our president judge brown did a lot of hard work on these cases no question and she recognized in her order this doctrine is an uncomfortable thing what's your best response when you know what the what the what the factors are and how do they fit these cases where we've got no explanation at all well i think that's that's true normally when people are taken off you know if i was the i think the government could have done the government could have said we won't put you back on for the same reasons we had you on before even though we're not going to tell you what those reasons are and and i'm not well suggesting that you ought to or the government could could issue something that he could show people because he's making a claim but it's loss of his business reputation that acknowledges he shouldn't have been there i would say this your honor the reason why we follow the declaration for example in tarhouni is because judge brown asked us to do s this if you think the difference between rudeness and not this is the absence of a doctor ration and if there were a declaration that it would clearly be moot i stand here today to represent on behalf of my client that he will not be placed back on the no fly list based on the currently end if your honour's think that's important just issue an order giving us leave and directing us to grant the father dr ration and we will do that why does that take a court order why hasn't the government offered that the the ok first time it happened was in a case coughlan t where there were fifteen plaintiffs and some number of them i can't remember the exact number were told under the new procedures they're not in the no fly list and the court simply removed them from the case as dismissed without any decoration but the case continued with the other plaintiffs then tarhouni came and tarhouni was removed told that he was removed under the new procedures and judge brown saying well this is the first time it's going to move the whole case could i have some sort of a a declaration and we said sure we found one then mokdad came along mokdad was over in the sixth circuit and there the district court judge said well why don't you just follow the same you know ordered us to follow the same doc the ration that was followed into who knew so we did and the sixth circuit held that that mooted the case and so now we have this case and judge forgive me for interrupting on that one but you are marching through it's very helpful sure didn't the six hundred two things in that declaration one you're off the list the said to herself i'm there's no indication anymore to me that the government is doing anything other than operating good in good faith where it takes this person off the finest charge who need came back to her on remand there's no allegation that he was back on list in this case the plaintive actually flew and it was undisputed in the record so i don't think she needed a declaration but i'm saying to you if you think that that's the difference between mootness and not remiss we're happy to offer the the problem to me with your position is that you put the onus on the court to put feel a burden which on the app president is on you to convince us that the voluntary their lives disrupted and having their spouses leave them and marriages destroyed and and businesses in there with at least that allegation and of course that's why we have to take it that there is a possibility for additional relieved to be granted you just offered that you know to be taking off the table i'm not taking it off off the table i don't think that it's required to show that we satisfy voluntary association but if you disagree we're happy to offer it so on th look at what the agency has done to commemorate the voluntary cessation we don't generally in our cases we don't just take the word  policy that's what the majority relied on they said that the emails ok but only because it doesn't represent a change in policy what we've got here and this is really important if you can you know for me anyway the problem we've got is there's a court order to change in policy that the government complied with and then after the fact the government said he may not come off the list and then after the fact is really no explanation there in that it is off the list that's the problem ok you know i think there's no more concrete way of showing that the government is serious about it than that he flew after he was taken off the no fly list of him in his request where he says i've got this is is this created chaos in my life and in my business reputation and the no fly list and he won't be put back on but even if you got back to clarify relief the thing you're talking about your ire is not solved which is everyone agrees that even if you had our declaration or your declaratory judgment he could be put back on the no fly list in the future going forward absolutely so he wife that he can show it to try to clean up the chaos that's been created in his life according to him and i only have his side of the story for that but nevertheless that's his allegation and so to show that he's not entitled to that relief may not be granted to me th seems like the obvious first question is he he could have the government could give him a declaration that it made a mistake well first of all you have to you have to do to kate that the government made a mistake which is not sort of the question on appeal right no we're trying to do to kate whether or not this fits the voluntary cessation doctrine and we're pointing to a reason it does not i know when the next question is whether it's otherwise moot and if it's and it would be if the government couldn't an opportunity to file and we were prepared to do it we were actually expecting judge brown to ask for it and she didn't because i think she was comfortable that the government was operating in good faith and this court precedents say that in this area there is greater is that your perspective is that you have no obligation to moralize the voluntary cessation unless you're asked or ordered to do so by a court that it's not what our president says we look at what has been done to memorial memorialize the voluntary sensation at the outset so we those cases do not involve instances where there has been an order from the court or requests from core we'd look at what's already been done by the party to a moralizing so i have some difficulty with your position on this because i think that your perception is that unless asked or that you have no obligation to memorialize you we will provide it just just after this case issue was ordered saying the government has to leave mission in order and following the law the law already tells she that's what you have to do i i don't know about michael palace but i don't not think our case is put the onus on us to tell you what you have to do to meet the voluntary secession ok i mean yours and ask you another question sure as your time's ticking when you look like a guy who wouldn't mind having objecting i would actually i would many of the judges i realize it's a different kind of many of the judges said why don't you just tell people that they're not on the no fly and the case will be over over that's what they kept saying to me we don't really know now you're going to take their time that's a really different case and we were there only on fees and we're looking retrospectively about why did we have to have all the salvation why didn't you just tell him that's a really different question but i don't think we need to go there and i don't think that case is going to help you today but i do have a different question counsel if  as leverage basically to convince people or he thinks to coerce people to serve as informants what is that relief that is not available cannot be granted i just think that's entirely speculative that that kind of thing is going to happen and again  alleges that it did i mean very generously can screw construed his allegation is i shouldn't have been on the list they put me on the list while i was out of the country so after i had just taken an international flight so that they could twist my arm of that question was entirely speculative if he was on the no fly this he had been on the no fly list for a matter of hours right because he had just arrived overseas when he had the visit at the embassy when you know he was i think this is in the complaint he was on what's called a one time waiver to get a citizen back to the country it didn't it didn't because if you recall he came back to the country then he went to the d h as trip process he went through again under the revised process then he was told he was still on the no fly list and then he was  removed can you can you do that again can you say he had flown overseas that's right i don't i can't tell you exactly the year but that's ok just if you could just do the sequence because i think i'm missing a step i want to be corrected ok so he was overseas  on the no fly list and that's why he says he can't he couldn't come back in those situation this did he know he was on the no fly list when he left was there or was there an exemption is that you're saying no i'm i'm i think what happened if i take his then went when he was out of the country couldn't get back the answer and i think his allegation this is my question if his allegation is that he was put on the list for the purposes of facilitating this ask that he cooperate  is i think one of the one of the allegations he's seeking or the claims or others he's seeking an order preventing the government from putting somebody on the list for that purpose and my response is that that's not really fits available because it's too speculative i think it's i think it's speculative he would first have to be put back on the list which for the same reasons that we think you know the voluntary we went under sponsors or sation we think that that's not going to happen at least and he wants what wants something from the government promising they won't put him back for it for the same reasons right but if he had that really good if there were declaration if you allowed us to file it or through a good card or a judgment that would then prevent that other thing from happening you wouldn't need additional relief for  now before your time begins would it satisfy you if the government were to file a declaration of the nature we discussed with the poles and counsel with respect to the past placement on the no fly list and that that he will not be placed on the no fly list for those reasons we would like that assurance of course but we're not just first of all we have to make a distinction we're not just challenging the individual actions against victory we're challenging the no fly list as being unconstitutional it's a it has a very low standard i don't know the exact standard but it's something to the effect of reasonable suspicion of being involved in a reasonable suspicious of terrorist activities i mean there's no we don't know why somebody is placed on the no fly list or how the how they get off we're challenging not just the fact that he was put on or taken off the list but the policy itself which is does not provide a adequate notice or opportunity for review would that be moot if the declaration you you want to challenge it prospectively is that what you're saying perspective the application of it we want to we want to challenge those prospectively in and in the future that we feel like it's not the government by the way just to clarify the government and voluntary cessation the government has the heavy burden to prove that the it's absolutely clear that the wrongful behavior complained of in this case being placed on the no fly list could not be reasonably expected to recur that's the government burden under voluntary sation that you you've so particularly been talking about and we are arguing they have not met that burden i agree have not met that burden at this point but i was asking you if the declaration is found in your view with that meet the burden that would not meet the burden because because we've argued that he can be placed arbitrarily on on that you can't you cannot deprive somebody of a fundamental right without due process of law and even if it's not a fundamental right even if you didn't agree that this was a fundamental right right to movement which justice stewart in one nine hundred sixty eight had said yes it is even if you didn't you still can't deny right without due process if it's arbitrary and we would be able to bring a lawsuit if it happened in the future if the declaration resolved all of the past issues about the no fly list and then in the future for different reasons he was placed on the file flatly yes you could file in action at that point continued to challenge the placement we could but that's that's the precisely the reason why we have this voluntary sation doctrine so that we don't have this this is precisely the kind of litigation maneuvering that the supreme court had condemned and already versus  nike in two thousand and thirteen this is precisely that kind of case he was on the list for almost six years even after he was reaffirmed in may two thousand and sixteen he remained on the list under the so called new policies were which were virtually the same as the old policies the only thing that change now they had to confirm the yes you're on the policy that is not a substantial change in the underlying policy which we are challenging which we argue is arbitrary and capricious where you can strand a muslim individual u s citizen when he's overseas to try to gather information for criminal investigations that are occurring here in the u s either in southern district of california or here in portland and so we're challenging the policy itself we say it doesn't afford  court constitutional armas of due process and we're asking for perspective relief why was he at why was his name added to the no fly list in the first place this destroyed his marriage it destroyed his business he's not here today because he's he's currently a long haul truck driver who couldn't be here because he's trying to make ends meet because it cost him ruination of his business his family relationships who didn't know why he was on the plane placed on the no fly list of reasons even credible there's a stigma that somehow you  are a terrorist and therefore the relief he's asking is if he's placed on the no fly list again he's notified of this and the reason why both in the past prospectively and in the future all right thank you thank you thank you both counts of the