national who's resided in israel for several decades together with her american husband david matar and her six children and a bunch of grandchildren unfortunately as much as she would have liked not  not be here today because her name may or may not appear on a federal watchlist specifically the no fly list your honour's congress authorized the executive branch through the respondent transportation security administration to create and administer an advanced passenger prescreening system and with it the no fly list to protect this country country from terror another national security petition nor the t s a trip travel to address it we program that we're discussing here today has to determine whether miss my target is a terrorist or whether she provides properly considered a national security threat no ms matal are initiated this proceeding your honor is for the sole purpose of learning whether her name is there ever was on a federal watch list and your honors if so just a simple explanation of how as to how that good have occurred so that she might at some point decide whether or not she can then there's a sixty day period i think everybody understands the sixty day period correct and everybody also understands that it was found beyond sixty days it was filed exactly two days beyond the sixty days depending how you calculate the date that the sixty day period runs around and that's that's that what we've discussed here judge henderson wrote in her opinion and they view dynamics i think the definitive interpretation of what the section forty six one ten what it says and in terms of the beginning of this sixty day period that period runs when the agency action has issued now what does that mean does it mean as the government apparently contends in this case that it's the date that actually appeared on this letter that arrived in israel on august thirteenth or is it the date on which the petition received that actually got notice of this proceeding on august thirteenth or the data some as some have suggested when the decision was made by the t s a now i don't want to and you know burden the court today with an elaborate esoteric discussion about actual notice and private communications that discuss that in our brief let's assume for the sake of this discussion today that the appropriate by the way they work to take judicial notice of the fact that the decision the date of the decision to date on the actual nonresponsive the issue here in this case is twenty eight july two thousand and seventeen that was a friday now you the t s a has yet to provide us with any information any clue as to when that decision was actually mail because if it was mailed for example on the next work day which i believe was a a postmark at all that's right postmark would have told us what is the t s a tell us about this because we can't find the the envelope the client who received the the docket by the way he was never sent to me you'll notice from the rule i think that's a little bit backwards your honour's i think they're the proper approach in this case is that where the party that has control of the information and they should know when they mail a decision they should have a record in it just like the fourth i think there's an inference that they did not mail that decision on that friday and may have mail been in the mail subsequent to that in which case we're ok under the sixty day rule but even if and i get we the time is limited so i live with your permission i'll move on to the merits of the case your honors and judge edwards  opinion two opinions really want to know a barrister and the other in a marriage that made it very clear that under the american the administrative procedure act it is that solemn duty of the end of the  federal agents to articulate the grounds for their decision so that the recipient can understand the the basis for the reasoning of the if any by the agency and take remedial action you're honest have read the letter in this case is standard form letter that the t s a routinely distributes to all applicants under the t or i says nothing because it at least tells you that your client at least tells the audience that they request was received and that to the extent that there had to  actions taken necessary in response to it in those actions were taken by me ted tell it it does tell you something i know you think that that's not much well i think that's another not much i think that's nothing particularly your honor when you consider the considerable effort to which congress went to emphasize the importance of offering a system of redress for persons who agree to believe th by this system by this watch list system he tells what exactly so there's minister several kind of injuries that have been spelled out in the briefing what's what's the injury i think the key is the key issue there are several all of which would sustain standing under article three for the petitioner in this case but the key would as informational as information industry injury because these statutes and therefore no less than four under the  various statutes at issue in this case in which congress has mandated that the that the agency adopt a system for redress to allow persons who believe that they're injured to appeal that's the language of the statutes and it appears four times does it ever include anyone other than a u s citizen or a permanent legal resident it does not and that's an excellent question because it doesn't distinguish at all between u s citizens or u s persons and foreign claimants at all and then congress doesn't know how to do that and we know for example under the privacy act right and that the congress made a very clear determination that individuals who only divisions were u s persons can can make take advantage of that statute but in this one absolutely no determination no distinction was made by congress between foreign national travelers and u s person travelers now vs egg in its inimitable wisdom and this is important because in response to litigation that has been spawned around the country of the one nine hundred six certain the fourth circuit the t s a changed its policy here and specifically authorized the release of the very information that nijhum atar in this case is request is she on the list was she ever on the list and a simple reason why what which the statutory language that actually entitles somebody to know that because there's there's desperate language that in titles that of these creates a regime under which a person can appeal a determination and seek to have information corrected but i guess i i didn't forty four nine zero nine the congress said you've got to set up a system that's this look it would says of forty four nine twenty six work forty four no three g two g i executive sell us a timely and fair process for individuals that benefit as a threat to appeal to the t s a the determination to correct and the wrong use information but that's the language that we're relying on here how does an ordinary traveler u s person or foreign national made eight appeal and ask for the rectification of any road use classification on one of these watch this unless that person knows and is told that she's on the list and some reason why and that's the reason why cases in other circuits are owners have a rule that the t s a must comply with this as a matter of due process and under the a p a the t s a get the basis the authorization to distinguish between foreign and u s travelers it's not in the law in fact when you look at the legislative history in this case and particularly every port that the d h as a security privacy officer issued in response to a statutory mandate back in two thousand and six which is the predicate for what happened in the neck and that in a section forty four nine twenty six a in two thousand and seven that report stated unequivocally that and without any distinction between u s person travelers and foreign travelers that that the protection i think i'm quoting now correctly of a row both robust and effective appeal procedure is essential as a matter of fundamental due process and i'll talk about the fifth amendment here i'm talking about basic values that ever the essential to our american democracy so there's no basis i maintain at all in the law under which t s a is operating created the trip system to distinguish between foreign and u s travelers none and the decision by t s a to adopt such a distinction in my view is the height of arbitra this case you're on is will be the first time that a court will specifically be asked to address the issue that i'm putting before you today that the miss mccarthy is putting before you today and we ask your hono that this circuit adopt a rule that makes it clear that t s a what's good for the u s traveler in the u s from you know a permanent resident traveler is also good and appropriate for a foreign traveler and without standing to press a petition first she contends that in twenty thirteen she was advised that she was on a watch list by a canadian official and in response to that statement and advised not to intervene ited states and in response to that statement she cancelled her ticket and went back to israel's on her own allegations she's never been denied boarding on a flight she's never been told she's on the no fly list even if that one incident in twenty thirteen in the ensuing five years she alleges no additional travel difficulties or other challenges agencies had taken appropriate steps to make any necessary corrections to federal records that were brought to light by her redress requests and she has not attended to fly since that time so if we put aside the five years and her and petition to make use of the trip and the trip request so if we just go back twenty thirteen and she brought her claim right after she got the advice from the canadian official you'd still be argued that there's no that happened is extra screening out enough to to create an injury we are those are two different lists there's a selectee list for individuals who are subject to additional screening and then there's the no fly list and so if the injury as she's repeatedly alleged is or inability to fly to the united states extra screening would not affect but extreme it could be an injury your honor perhaps but that's not presented here because there's no allegation that she's ever suffered heightened screening and that would be a separate and distinct injury from the one she's actually claiming this petition which is inability to fly to the united states robson i'm a little perplexed you say that there is a ridge rose procedural votes in place and if a person has some fair indication from even though it's canadian canadian not get an answer at least that you're not on any list well your honor i want to separate the two separate things one is as just standing that suggestion goes only to whether or not this is a purely procedural harm which we think it is the government official i'll be canadian that she's on a no fly list and then when she does get around to asking and your whole hansard rules have no one has ever said she's gone over this well she asked someone on a less like government officials as was the answer she gets is we're you can't fly said she was advised not to enter the united states and whatever not to fly the yarn yes certainly ambiguously really i think it's a very second small position for the government to suggest would you if you're quibbling over nonsense she was told don't fly these are average people who are looking to get somewhere and they're told by an official the whole you can do this that means you can walk ok forget the five years no she yes she's being responsible she's assumed she can't fly now she says i just don't get this and she asked what why are you so comfortable in saying it's ok for us in light of the fact that congress set up a redress system it's ok for us to say we're not telling you anything because you're our congress also tast t s a with protecting transportation security specifically aviation security and delegated authority for the agency to promulgated regulations addressing so to say you're you you've got a little bit of a stumble where but forget the food i don't know how that gets to your comfort level and security as being the answer if you're talking about a person who's not on any list how does it hurt u s security to say to a person who is told you can't fly here or who thinks i'm on a no fly list because a government official s no you're not so how does how her government security your i mean just my out of your car is the same rationale that animates any sort of response of this nature which is that if an organization for example a terrorist organization were to submit redress requests on behalf of all of its members they could ascertain which members are are not on the list and so confirming one way or the other necessarily reveals information about what the u s government knows or does not know about abusers are organizations hypothetically were someone who's been totals who isn't is not on the list it's an individual person who's been denied the rights of law and there is a redress and they say and i understand what's going on if the answer is you're not on any list i don't understand how that promulgated new regulations to address those individuals to address concerns about due process and the fifth amendment rights those individuals have and so the fact that t s a was sensitive to enter action to address concerns of that nature says nothing about the type of process that's due to non u s persons outside the united states who do not have fifth amendment rights now and as to whether congress would have provided for such a thing the point is that any rights mr tarr has are congressionally conferred and you have to read them in context of the entire statutory delegation to t s a and h s to establish this procedure the procedures the regulation that is that the statutory text provides for no particular set of procedures that must be followed and it also comes cases that are legion the agency it is not specific we barred from doing something agencies assume that means we can do whatever we want to do was long as we're in the general area of concern that really isn't the law  timely filed a petition to pursue and then has any sort of statutory right to necessarily receive not only the sensitive security information about whether or not she is or is not on the list but also the classified information a protected class or mission that might under go again shoot to the extent that we've thought about it all but we have not yet the side of the nonresident non citizen so you are all those cases address us citizens or u s persons right and it's certainly not unreasonable for t s a to treat differently constitutional right unless an individual has come within the territory this country instead of a substantial connections this court's cases are clear as a supreme court cases are that non citizens do not have fifth amendment to process rights so in this circumstance miss retard is not even a test and she fundamental statutory scheme under which the redress procedure operates and that redress procedure operates not only in the context of a very general delegation from congress about exactly what type of procedure to create but also specific authorization get regulations that address sensitive security information the t s a has exercised that authority and regulation that again is not challenging circumstances and under those circumstances there's no reason to think there's any particular is an issue that can be addressed regardless of standing on the theory that even though under seal company traditionally addressed jurisdictional issues first the time on this is a threshold question like for not convenience that can be addressed sent out and also it should be incumbent upon you to come up with proof that in fact the determination was sent out on the day of the letter so we do not have any information about when precisely the letter was sent we just do not have that so under something in the record as the record reflects we don't have information so the only question here is who bears the burden in these particular circumstances and it's certainly the case here that you mr tar had the relevant evidence in her possession of the time she received a letter and then i don't know that but had at the time when she received the letter ample remaining time in the sixty day period in which to bring a petition in fact acted the next day how her counsel contact t s a and then did nothing for slightly over six weeks before filing a petition so even if you were if you had some concerns about sort of the  forty forty right that's the letter yes and if you go to paragraph three with the difference would be i just want to be sure i'm clear about this with the difference and that response if she were an american citizen or a lawful permanent resident with the difference and been instead of saying v h s trip can neither confirm nor deny any information about you which may be within federal watch list or reveal any law enforcement sensitive information if you had been a us citizen or lawful they would have told her either yes you're on the list or no you're not completed and the individual remains on the no fly list at the conclusion of that review under those circumstances a u s person would receive a letter telling them you are on the list and that would be all it would say at that time there within the further back and forth and the opportunity to eventually receive some information about the reasons why i like but at least as to the initial letter no it's not generally the case you get not a general e and then maybe apprised of her status and they inform the africa of his or her status on the list of if she is on the list now if it's even a us citizen has to be denied boarding before being told or being eligible to be told whether you're on a list or not that's i think significant but if you go on in this  not withstanding she was not told whether she was on the list or not she was told we made any corrections to records that our inquiries deemed were necessary without saying whether they've done or not including as appropriate notations that may assist in avoiding incidence of mis identification it's grand they go on to say and here's how if you want to come into the  you do it first when you use this redress control number when making your reservations now i don't know whether airlines i don't know i don't know if you know when i do it's not the record whether airlines w take their we dress number and stop it at that point or make a reservation for he's denied boarding or not to dive boarding but in any event she's been told the steps she can take and four years after that she tried i think to get the waiver and twenty seventeen the waiver from a not an immigrant visa requirement thirteen her access to her sort of ability to use the visa waiver program was revoked but i'm not aware of any allegation that she's attempted to use the visa waiver program since twenty thirty ok so they ok so it was the no that as a couple points that visa application really does demonstrate some serious problems with this case she plied for a visa she was turned down is judge henderson turned that indicated because she couldn't after thirty years living in israel establish that she was going to return to her children or grandchildren can i all i can say is that's suspect but that's not before the court today it's nothing for the court but what is before the court is pages forty four forty five of the record and there in response to a counsel statement about speculative injuries is a letter from another component of the department of homeland security called the united states customs and border protection in response to miss my tars trip inquiry and that letter says is about esther this is the system electronic system for travel authorization yes that is an automated system used to determine the eligibility of visitors to travel to the united states of the visa waiver program and as i mentioned mr tars a belgian national therefore she's eligible for that as discrete this is important as to screens all applications against security and law enforcement databases so that only those individuals who are found in dresses other point about security sensitive security information s s i that the congress did talk about in section one fourteen or of title forty nine miss m asking her honors for the united states to disclose sensitive security information if we took that done at t s a as position in this case i think is judge edwards inquiry or colloquy with counsel demonstrates there would be no justification for the change the city's serious change in procedure that the t s a adopted in response to the litigation the district of oregon latif versus holder latif versus sessions and related cases they change that there will because the court told them that what they were doing with respect to u s persons the least was improper it under the a p a and under the constitution and the court said on balance the disclosure of this limited amount of information to applicants under the chip program is appropriate and appropriate balance runners i come from israel we know what terrors about we know it every single day of our lives but we also know what democracy is about and this country had a lot to teach us about that and democracy your honour's requires that an appropriate balance be made you just can't put people on some kind of a watch was because it's convenient for you you call it security information you've got to achieve a balance and balance is simply what the courts in the in the ninth circuit in the fourth circuit in the head has to have told us it's simply to tell them are you on the list or you're not on the list and some simple unclassified reason as to why so that the ordinary person like ms metod can make a determination that she was eroni is simply put on a list it stigmatizes her and it prevents her from traveling internationally not only of the united states but