record indicates there are multiple facts that could materially influence this analysis therefore the district court should have allowed this case to proceed to the merits phase now do we know that mr foley didn't present identification or do we know that he just didn't want to produce identification we state issued government identification like a driver's license for instance to enter the courthouse but presumably they have many other pieces of identification and jenna finding documents that would allow them to prove they say who they say they are and will they have it would they have objection to ok by dismissing on the pleadings the district court precluded fact finding as you just stated on whether or not a photo identification requirement is a necessary measure to accomplish that government interest i'd like to highlight three things first that  there was no factual finding because it was dismissed on the merits and dismissed on the pleadings that whether or not a photo identification that state issued is a necessary measure second the court below precluded consideration on the merits of whether or not a less restrictive alternative is available that would provide greater or equal security at minimal cost and third the district court erred in holding that it did not have subject matter jurisdiction because controlling ninth circuit precedent establishes that the administrative procedure provides an explicit waiver of sovereign immunity as to the first point plaintiffs concede that protecting the courthouse is a legitimate government interest and that the government has the right to annex acuity measures to protect to accomplish that goal now i assume that the screening that took place in this case took place at the entrance to the building yes your honor now is the entrance once you enter the front doors the first thing as it is in this this building the first thing you encounter is the nominee or an extra machine to put your belongings and it was there that into a clean case of access to courthouse because it may well be that someone coming in and i'm not saying mr this was true mr foley but i'm saying that someone coming to the front door coming to the guard says i'm going to the courthouse or i'm going to the courtrooms i therefore don't have to provide photo i d but in fact he's going to the i r s we're going somewhere else how do we as a practical matter how are we supposed to treat this as purely a courthouse case when in fact this cleaning is done at the entrance to the building this in this particular case mr foti was a prostitute living in the underlying case so he was listed on the docket for the summary judgment hearing or any other hearing that he was going to as a litigant and so that would have been it we would have been able to determine had the district court reached the fact that he was in fact on the docket and that he was entitled to be there and in fact ordered to be there for pretrial conferences and other court proceedings and we hold i mean if there's kind of us about him like a chinese box blodgett puzzle here we hold that he has a right to go to the courtroom without presenting i because he's on the docket how are those guards postol know whether he is who he says he is right here on earth and that is that is a bit of a catch twenty two and the plaintiffs are are sort of in a catch twenty two in this sense because they're prevented from going into the courtroom so then challenge whether or not they need id to go into the courtroom so they sort of get in this group that they can't get out of which is why they would request this court remounted the district court for factual findings because the is that whether he is who he says he is the fact of the matter is the security screening at the courthouse door is designed to text back basically you walk through a metal detector you put your belongings in the district court and reversed the dismissal with prejudice and what kind of relief are you seeking in the district court at the district court the plaintiffs are seeking injunctive relief against the government and asking for the court to to look at the facts and determine squarely within the exception for considering an issue for the first time on appeal for two reasons and the court should entertain it first that important constitutional issues were raised by these prostate litigants and that it's well established that prostate importantly this case fall squarely within mark steyn it is argued he goes back to the idea that the kin cannot be sued it's been around since before we were a nation understood your  states that it is not going to be interpreted as allowing for the creation of a national identity card so there's no law that says you have to have a national identity card or a government issued id to exist as a member of the society the clients mechanism to force people to get identification so that they can exercise their constitutional right and access important governmental now we've taken you a little bit over time why don't we hear from the government and then we'll give you a chance to respond thank thank you very much your honor my name is abraham simmons i'm assisting united states attorney i represent the defendant appel least in this case is a very interesting case to the extent that mr foti does require that he be permitted to walk into court rooms without on page ten of his complaint or so he claims that he would like to enter a building and man a miss lee that means without saying who he is although we have just heard from  willing to identify something that identifies himself i'm not sure whether now they're trying to say has something to do with the picture identification or with the government aspect of the identification but the way that the complaint is written clearly it says i should be able to enter a man of mystery i e without anyone ever knowing who i am and that's not just the court house it's the building where the court room is in and i think that you're right it did put your finger on one very troubling aspect of what happens when someone is permitted to do that in a federal building that is the court has to share and share with others who may have other reasons for requiring security not just the obvious reasons that are available to the court house also i should apologize to the courts of the first time i filed a brief in this case in opposition to the pro se appellate briefs it was november of nineteen of two thousand and five gilmore had not yet been decided they did file an additional brief after getting counsel and when i did my follow up research i did not look closely enough to find gilmore but obviously that case blows quite a hole in some of the and i think i should have found go morning should have explained that a little bit more the gilmore case does pretty well say that we're not going to be concerned with the request for for identification it's not a fo look at other things that they would like to require in this case on appeal let me ask you this about the sovereign immunity question damages to one side and asking only about injunctive relief against governmental officers is the government claiming that it is immune from based on sovereign immunity from an unjust of still for future action by government officials in that respect your honor i think it is very important answer is now i do not find the case that says that we are entitled that you are ok and so with respect to what allegations or what complaints may arise in the future which in which there precise questions i think we pretty well understand the limitations of the fourth amendment claims in this in this case there are no there is no fifth amendment violation that has been laid out in the complaint i think what's important to look at is that in the process complaint here not in this there's no violation as alleged in the complaint perhaps the best thing i could do with it with the time remaining you're assisted to pay very close attention to the allegations that were made in the complaint because things do begin to shift as we get on to appeal i think it's very important to look at pages four seven and nine which end up being on pages thirty three thirty six and thirty seven excerpts of record there are the beginnings of paragraphs seven eight and nine and what you find when you look at these paragraphs around here is claim about the fourth amendment being about the right to step in security based interest you know and acts in preventing access that is i think we all agree it's common ground probably her everyone in this courthouse maybe everyone in the entire country that the government has an appropriate interest in protecting the security and the safety of people in the courthouse but the but that's there's some sense of fear and questions and that is what does the government have a right to ask for and furthering or protecting that interest and what to conduct all kinds of magnet magnetics searches x ray searches strip searches and so on you raise an interesting point with respect to why identification in that regard i would that the courts have an interest in identifying who is in court the courts have an i have an interest separate and apart from security from knowing for all the same reasons that we don't require we don't allow  so it is important to address i think the arguments and of the witnesses as well and with respect to that we think yes it's still important to understand that not all of the reasons and not all of the procedures have been put before this court but that was because of the procedural aspects of where this court came you saw and gilmore that with respect to some policies it is not wise to make less than and camera presentation of what all the rules are in this case it may be that the act of requesting identification may lead to some sort of investigation it may be that there is a list in the heads or there may be just the chance that the production of an identification identifying some and as for osama bin laden or something of the sort would trigger some sort of reaction other than to  just let them through it is not just pro forma and it is required and in fact when i printed out the schedule for this particular argument it said right there on the bottom idea required to get into the courtroom there's a reason for that there's a reason why this court requires it there's a reason why the district court does as to each and every reason we didn't get that far because there was not a sufficient enough claim as presented mr foti walked into the with respect to the f t c a claims there was no administrative complaint filed that's not just a matter of is there some way of addressing a claim on appeal as we heard on by opposing counsel that is that claim is  gone for ever because there was not within the two years and administrative complaint filed that's not a complaint that we can that is challengeable just because it was with prejudice or without prejudice the claim is gone they can always if they want to again try and create additional facts different facts and come again before this court if they think that there is a way to get it but as pled with the fact that we already know what's w there's nothing more to do with this case we request that you are from thank you matter is we just don't know because the facts are not developed in this record i will i will let you know that there is a less restrictive alternative in fact the irony was not lost upon us when we saw the notice of hearing that said photo id is required in fact mr  suggest that the fourth amendment issues are not in this case are precluded by the case however the gilmore case is one that's raised in the airline context and the ninth circuit specifically said that there is no right to travel by airplane by commercial understood and refused to prove right and the fact that i was on his way on mongo going here we go and that's not my case to argue your honor but the fact of the matter  is the ninth circuit did uphold a less restrictive alternative a secondary security screening that could be implemented at the courthouse door for very minimal cost because the number of people who don't have identification is relatively small and that actually would provide greater security than the flashing and identification because the officers would be able to confirm through visit visual and physical search of a person's body and their belongings that there are no weapons and so that actually provides greater security which is the justification offered for