United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 12, 2024 Decided May 14, 2024

No. 23-5074

MOHAMMED JIBRIL, INDIVIDUALLY, AND ON BEHALF OF THEIR 

MINOR CHILDREN Y.J., AND O.J., ET AL.,

APPELLANTS

v.

ALEJANDRO N. MAYORKAS, IN HIS OFFICIAL CAPACITY 

AS SECRETARY OF THE DEPARTMENT OF HOMELAND 

SECURITY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-02457)

Christina A. Jump argued the cause for appellants. With 

her on the briefs were Chelsea G. Glover and Samira S. 

Elhosary.

Joshua Waldman, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With him on the briefs were 

Brian M. Boynton, Principal Deputy Assistant Attorney 

General, and Sharon Swingle, Attorney.
2

Before: HENDERSON, Circuit Judge, and EDWARDS and

GINSBURG, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: In 2018, seven members 

of the Jibril family (“the Jibrils” or “Appellants”) suffered 

extensive and intrusive security screenings and were forced to 

endure significant delays during their domestic and 

international airline travels. The Jibrils surmised that they had 

suffered these personal indignities and related disruptions in 

their travel because they had been wrongfully placed on the socalled “Selectee List,” one of the U.S. Government’s terrorist 

watchlists. Because they were concerned about their welfare 

during future trips that they planned to take, the Jibrils invoked 

a Department of Homeland Security (“DHS”) administrative 

redress process to challenge their alleged inclusion on the 

Selectee List. When federal officials refused to share

information on their watchlist status, the Jibrils filed suit in the 

District Court alleging violations of the Fourth and Fifth 

Amendments and the Administrative Procedure Act (“APA”).

The Jibrils named the Secretary of the DHS and various other 

federal officials in their official capacities as defendants 

(collectively, “Government”), and sought declaratory and 

injunctive relief for their injuries.

In the first iteration of this case, the Government neither 

confirmed nor denied the Jibrils’ Selectee List status, and the 

District Court dismissed the Jibrils’ complaint for lack of 

standing. Jibril v. Wolf (“Jibril I”), 2020 WL 2331870, at *2-3 

(D.D.C. May 9, 2020). This court reversed in part and 

remanded, holding that the Jibrils plausibly alleged that they 

were on a terrorist watchlist and faced imminent risk of undue 

Government actions sufficient to support most of their claims
3

for prospective relief. Jibril v. Mayorkas (“Jibril II”), 20 F.4th 

804, 812-13 (D.C. Cir. 2021). On remand, the Government 

filed a renewed motion to dismiss, this time submitting an ex 

parte declaration to the District Court for in camera review. 

See Robinson Declaration (“Decl.”), reprinted in Joint 

Appendix (“J.A.”) 50-64 (redacted version). Based on this ex 

parte submission, the District Court held that the Jibrils lacked 

standing to pursue their complaint for prospective relief. Jibril 

v. Mayorkas (“Jibril III”), 2023 WL 2240271, *5 (D.D.C. Feb. 

27, 2023). The District Court reasoned, without explicitly 

confirming or denying the contents of the ex parte submission,

that “[i]f the government provided evidence that satisfied this 

Court that no member of the family is now on the Selectee List, 

nor is there any reason they should be added to that list absent 

some future development,” then “the Jibrils could not 

adequately allege an imminent threat of future injury for those 

claims challenging the Government’s policies and the alleged 

lack of adequate redress process.” Id. at *8 (quotation omitted).

Appellants once again appealed the District Court’s dismissal

of their case.

In this second appeal, Appellants argue that the District 

Court’s resolution of the case based on the Government’s ex 

parte submission was inappropriate, because the court should 

have treated the complaint’s factual allegations as true at the 

motion to dismiss stage, and because the court’s reliance on ex 

parte information deprived Appellants of a chance to respond.

Appellants also argue that they have standing regardless of the 

contents of the ex parte submission, because they need not be

on a government watchlist to establish imminent risk of future 

harm and to bring a facial challenge to the Government’s 

policies. In the alternative, Appellants argue that the District 

Court erred in denying their motion for leave to amend their 

complaint.
4

A week after this court heard oral argument, the Supreme 

Court decided FBI v. Fikre, 144 S. Ct. 771 (2024). In that case,

the Court held that the plaintiff’s claims challenging his 

inclusion on a “No Fly List” were not moot simply because the 

Government removed him from the No Fly List after he filed 

suit and promised not to relist him based on currently available 

information. Id. at 778. Following the Supreme Court’s 

decision in Fikre, this court directed the parties here to provide

supplemental briefing addressing the applicability, if any, of 

Fikre to the issues in this case.

Upon consideration of the original and supplemental 

briefs, including the Government’s ex parte submission, we

agree with the District Court that Appellants lack standing to 

seek forward-looking relief. In short, if, hypothetically, the 

Government’s ex parte declaration revealed that Appellants 

were not on the Selectee List when they filed suit, they would 

have standing to seek prospective relief only if they could show 

a “sufficiently imminent and substantial” likelihood of being 

added in the future. Jibril III, 2023 WL 2240271, at *7 (quoting 

TransUnion LLC v. Ramirez, 594 U.S. 413, 435 (2021)).

Appellants have not met this burden. We therefore affirm the 

District Court’s dismissal of Appellants’ claims for want of 

standing. We also hold that the District Court did not abuse its 

discretion in relying on the Government’s ex parte submission 

to address matters implicating national security concerns. 

Finally, we find no error in the District Court’s denial of 

Appellants’ motion for leave to amend their complaint.

I. BACKGROUND

The factual and procedural background of this case has 

been extensively covered by this court and the District Court in 

prior opinions. See Jibril I, 2020 WL 2331870, at *3

(dismissing for lack of standing); Jibril II, 20 F.4th at 812-13
5

(finding standing for most claims and reversing); Jibril III, 

2023 WL 2240271, at *5 (dismissing again on remand for lack 

of standing). Therefore, we assume familiarity with the prior 

opinions and limit our recitation of the facts and procedural 

history to the matters most relevant to this appeal.

A. Factual History

 

The Federal Bureau of Investigation (“FBI”) administers 

the multi-agency Terrorist Screening Center, which maintains

the Terrorist Screening Dataset (formerly known as the 

Terrorist Screening Database, and commonly referred to as the 

terrorist watchlist). See Jibril II, 20 F.4th at 808; see also

J.A. 40. The terrorist watchlist contains at least two subset

categories intended to identify known or suspected terrorists: 

the “No Fly List” and the “Selectee List.” See Jibril II, 20 F.4th 

at 808. The Transportation Security Administration (“TSA”) 

prohibits individuals on the No Fly List from boarding a U.S. 

commercial aircraft or flying within the United States. 

Robinson Decl. ¶ 11. In contrast, individuals on the Selectee 

List may board a commercial aircraft but are subject to 

enhanced screening. Id. ¶ 12. The exact criteria for inclusion 

on the Selectee List are not public. Id. The Government has 

represented that it places individuals on the Selectee List who 

“meet the reasonable suspicion standard applicable to known 

or suspected terrorists and also satisfy additional specific 

criteria, but do not meet the criteria required for inclusion on 

the No Fly list.” Id.

“If an individual believes he or she has been improperly or 

unfairly delayed or prohibited from boarding an aircraft”

because of placement on a watchlist, the individual may seek 

redress through the DHS Traveler Redress Inquiry Program 

(“TRIP”). 49 C.F.R. § 1560.205(a), (b). The TSA then 
6

coordinates with the Terrorist Screening Center and other 

federal agencies as necessary to “review all the documentation 

and information requested from the individual, correct any 

erroneous information, and provide the individual with a timely 

written response.” Id. § 1560.205(d). However, for security 

reasons, the Government generally neither confirms nor denies

an individual’s status on the Selectee List, though it sometimes 

informs individuals of their placement on the No Fly List. See 

J.A. 47.

The facts, as the Jibrils allege them, are as follows. See 

Casey v. McDonald’s Corp., 880 F.3d 564, 567 (D.C. Cir. 

2018) (“On a motion to dismiss, we must assume that the 

allegations of the complaint are true.”). The Jibrils are a family 

of U.S. citizens of Jordanian origin, comprising two parents, 

three of their adult children, and two of their minor children.

The Jibrils have routinely traveled to Jordan at least every two 

to three years; the father, Mr. Mohammed Jibril, has visited 

relatives in Jordan between 12 to 15 times over the past 25 

years. Additionally, the Jibrils are Muslims with sincerely held 

religious beliefs that require traveling to Saudi Arabia to 

complete Hajj and pilgrimage obligations.

In 2018, the Jibrils traveled to the Middle East to visit 

family in Jordan. However, during their airline trips, the Jibrils 

were subjected to extensive and intrusive security screenings at 

airports within the United States and abroad. After waiting an 

hour at the Los Angeles airport for their departing flight, the 

Jibrils all received boarding passes with “SSSS” printed on 

them. The Jibrils, including their minor children, were then 

searched for about two hours, causing them to almost miss their 

flight. Once the Jibrils landed in Jordan, they were interrogated 

for another two hours. Similarly, on their trip home after their 

two-month stay in Jordan, the Jibrils again received boarding 

passes with “SSSS” stamped on them. During their layover in 
7

the United Arab Emirates, Abu Dhabi officials interrogated the 

family for roughly 45 minutes. U.S. Customs and Border 

Protection agents in Abu Dhabi then detained the Jibrils and 

interrogated them separately for at least another four hours.

Because of their prolonged detention, the Jibrils missed their 

flight and stayed in Abu Dhabi overnight. When they returned 

the next day, their electronic devices were searched again for 

at least an hour.

All seven family members submitted complaints to DHS 

TRIP based on these experiences. Five received identical 

responses that DHS TRIP could “neither confirm nor deny any 

information about [them] which may be within federal 

watchlists.” Jibril II, 20 F.4th at 810-11 (quotation omitted). 

The Jibrils believe this is the standard response sent to people 

who are not on the No Fly List, but who could be on the 

Selectee List. O.J., a minor, received a different response that 

his experience was most likely caused by misidentification or 

random selection. And one family member never received a 

response.

B. Procedural History (Including the Findings of 

the District Court)

On August 13, 2019, the Jibrils filed suit in the District 

Court. The complaint alleged violations of the Fourth 

Amendment right against unreasonable searches and seizures;

violations of the Fifth Amendment right to due process because 

of their apparent placement on the Selectee List and the 

allegedly inadequate DHS TRIP redress procedures; and 

violations of the APA due to the detention conditions and the 

inadequacy of the DHS TRIP process. Complaint ¶¶ 146-200, 

J.A. 25-31. 
8

On May 9, 2020, the District Court dismissed the case for 

lack of standing. Jibril I, 2020 WL 2331870, at *3. On appeal, 

this court reversed in part and remanded, holding that the Jibrils 

had standing to pursue most of their claims for prospective 

relief. See Jibril II, 20 F.4th at 813 (holding that the Jibrils only 

lacked standing to challenge the Government’s allegedly 

unlawful pat-down searches of minors and the separation of 

minors from their families). This court reasoned that the Jibrils

alleged facts plausibly indicating that they were all on the 

Selectee List in 2018, remained on the watchlist, and would

soon travel again. Id. at 814-15. The court explained that it

“infer[red] from the Jibrils’ factual allegations that the family 

members remain on the watchlist,” “[b]ecause the Government 

ha[d] provided no information to the contrary.” Id. at 816. 

Accordingly, “[o]n the record before [it],” this court concluded 

that the Jibrils adequately alleged an imminent risk of future 

injury from the challenged Government actions. Id. at 817.

On remand, the Government filed a renewed motion to 

dismiss for want of standing, this time supporting its motion 

with an ex parte declaration from FBI Special Agent and 

Associate Deputy Director of the Terrorist Screening Center, 

Samuel P. Robinson. Jibril III, 2023 WL 2240271, at *3. The 

Jibrils protested that the ex parte submission was inappropriate. 

Id. at *5. However, the District Court maintained that ex parte, 

in camera review was “permissible in certain extraordinary 

circumstances implicating national security concerns,” such as 

in this case. Id. (citing Jifry v. FAA, 370 F.3d 1174, 1181-82 

(D.C. Cir. 2004)).

Based on the Government’s ex parte submission, the 

District Court dismissed the case again for lack of standing. Id.

In doing so, the court expressed reluctance “to indulge what 

almost seems to be a sick sense of delight the government has 

taken in withholding from the Jibrils information that is key to 
9

the resolution of a jurisdictional question in their case.” Id.

Nonetheless, the District Court avoided explicitly disclosing

information about any individual’s status on the Selectee List, 

instead explaining its reasons for dismissing the case as 

follows:

If, hypothetically, Mohammed Jibril were placed on 

the Selectee List but his family members were not, the 

other Jibrils would lack standing to seek prospective 

relief on any of their claims for that reason alone, 

unless they could adequately allege concrete future 

plans to travel with him in particular. It is conceivable 

given the Circuit’s reasoning in Jibril II that the other 

Jibrils could make that showing. However, that would 

not be enough to survive a motion to dismiss for lack 

of subject-matter jurisdiction if their intended travel 

partner were no longer on the Selectee List himself.

If, hypothetically, Mohammed Jibril were placed on 

the Selectee List prior to the family’s 2018 trip to 

Jordan and subsequently removed from that list after 

initiating his DHS TRIP inquiry but prior to the filing 

of the complaint, the Jibrils would lack standing to 

seek prospective relief because they could not 

demonstrate a substantial risk of future injury. In that 

case, standing, not mootness, would be the proper 

framework for evaluating the problem with subjectmatter jurisdiction, because standing is judged at the 

filing of the complaint and mootness is judged during 

the pendency of the action. And if the government 

satisfied the Court with an affidavit given under 

penalty of perjury that it would not add Mohammed 

Jibril back to the Selectee List unless new information 

provided a reason for doing so, any apprehension that 

the Jibrils might be subjected to similar enhanced 
10

screening measures on a future trip (Counts I, II, and 

IV), or have any reason to make further attempts to 

contest their potential watchlist status (Counts III and 

V), would depend on the hypothetical possibility that 

the government might receive new information in the 

future convincing it that Mohammed Jibril once again 

met the criteria for inclusion on the Selectee List. 

Without a way of demonstrating that a threatened 

inquiry was certainly impending or there was a 

substantial risk that the harm will occur, the Jibrils 

would be unable to meet their burden of establishing 

standing. 

Id. at *6 (alterations, citation, and quotations omitted). 

The District Court further rejected the Jibrils’ argument 

that they would have standing to bring a facial challenge to the 

DHS TRIP process itself under the Due Process Clause and the 

APA, even if they were not on the Selectee List when they filed 

suit:

The Jibrils’ due process and APA challenges to 

the DHS TRIP program do not allege that it is that 

program that deprives them of a protected liberty or 

property interest without due process. Rather, those 

challenges allege that the DHS TRIP program is a 

constitutionally inadequate process for a deprivation 

effected by their alleged placement on the Selectee 

List. The Jibrils allege that the government has 

deprived them, and continues to deprive them, of a 

protected liberty interest within the meaning of the 

due process clause by “chilling” their exercise of their 

right to travel and to freely practice their religion. . . . 

They also argue that the government has deprived 

them, and continues to deprive them, of a protected 
11

reputational interest by disseminating their alleged 

placement on the Selectee List to government officials 

and potentially private institutions, and by making 

that alleged placement apparent to fellow travelers at 

airports who may witness the enhanced screening 

measures in application—a so-called “stigma-plus” 

claim. 

Even if the interests cited by the Jibrils amount to 

constitutionally protected liberty interests, the alleged 

injuries to those interests would be ongoing only if the 

Jibrils were in fact currently on the Selectee List. And 

if the Jibrils were not on the Selectee List, they would 

have standing to seek prospective relief only if they 

could demonstrate a “sufficiently imminent and 

substantial” risk of being added to it in the future.

TransUnion, 141 S. Ct. at 2210. Put more concretely, 

the Jibrils would not be subjected to enhanced 

screening, listed as suspected terrorists, or pulled out 

of line in front of other travelers because of the 

Selectee List if none of them were on the Selectee 

List. And if the challenged policy did not continue to 

injure the Jibrils, nor could they demonstrate a 

substantial likelihood that it would injure them again 

in the future, they would not have standing to 

challenge that policy.

Jibril III, 2023 WL 2240271, at *7 (footnote and citations

omitted).

Finally, the District Court denied the Jibrils’ motion for 

leave to amend their complaint to seek nominal damages. The 

District Court noted that “the Jibrils might theoretically have 

standing to pursue retrospective, monetary relief to redress the 

alleged injuries they suffered during their 2018 trip to Jordan.” 
12

Id. at *8. However, the District Court held that the proposed 

amendment would be futile, because the Jibrils sued federal 

officers in their official capacity and they had not identified a 

waiver of sovereign immunity to support a claim for monetary 

relief. Id. at *8 & n.3. The District Court thus denied the Jibrils’ 

motion to amend their complaint and dismissed the case. The 

present appeal followed.

This court heard oral argument on March 12, 2024. A 

week later, the Supreme Court held in FBI v. Fikre that the 

Government could not moot a case simply by removing the 

plaintiff from the No Fly List after he filed suit and promising 

the plaintiff that he “w[ould] not be placed on the No Fly List 

in the future based on the currently available information.”

Fikre, 144 S. Ct. at 778 (quotation omitted). We then directed 

the parties in this case to submit supplemental briefing 

“addressing the applicability, if any, of the Supreme Court’s 

recent decision in [Fikre] on the issues in this case.” Order, 

Jibril v. Mayorkas, No. 23-5074 (D.C. Cir. Mar. 21, 2024).

II. ANALYSIS

A. Standard of Review

We review a district court’s dismissal for lack of subject 

matter jurisdiction de novo. Saline Parents v. Garland, 88 F.4th 

298, 303 (D.C. Cir. 2023). We review “[t]he fact-finding of the 

court to support or deny standing . . . under the clearly 

erroneous standard.” Haase v. Sessions, 835 F.2d 902, 907 

(D.C. Cir. 1987). And we review for abuse of discretion a 

district court’s decision to review evidence ex parte, Labow v.

DOJ, 831 F.3d 523, 533 (D.C. Cir. 2016), and to deny a motion 

for leave to amend a complaint, Williams v. Lew, 819 F.3d 466, 

471 (D.C. Cir. 2016).
13

B. The District Court’s Ex Parte, In Camera Review

Appellants contend that the District Court’s reliance on ex 

parte evidence was improper because it should have treated the 

complaint’s factual allegations as true at the motion to dismiss 

stage. Appellants also argue that ex parte, in camera review 

wrongfully deprived them of their right to challenge the facts 

upon which the Government moved for dismissal. We find no 

merit in these claims.

“It is well-settled that [a court] may consider materials 

outside the pleadings to determine [its] jurisdiction.” Kareem 

v. Haspel, 986 F.3d 859, 866 n.7 (D.C. Cir. 2021). In assessing 

whether a plaintiff has standing, a court can “test the asserted 

theory of injury, causation, and redressability at the factual, 

evidentiary level.” Haase, 835 F.2d at 907. “[T]he court can 

initiate this factual inquiry at the motion to dismiss stage” and 

“base its standing decision on its assessment of the facts.” Id.

(citing Duke Power Co. v. Carolina Env’t Study Grp., Inc., 438 

U.S. 59, 67-68 (1978)). Here, the District Court recognized that 

it had “an ‘independent obligation’ to assure itself that it ha[d]

subject-matter jurisdiction.” Jibril III, 2023 WL 2240271, at *6

(quoting Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)). The 

District Court therefore reviewed the Government’s ex parte 

submission, and then concluded that it “s[aw] no conceivable 

way” for the Jibrils to challenge the Government’s position 

“even with a full opportunity for adversarial testing.” Jibril III, 

2023 WL 2240271, at *6.

The District Court’s decision to accept and credit the 

Government’s ex parte declaration was not improper. An 

authorized Government official signed the contested 

declaration under penalty of perjury. In these circumstances, 

we afford a presumption of regularity to the official acts of 

public officers in the absence of clear evidence to the contrary. 
14

See Latif v. Obama, 666 F.3d 746, 748-49 (D.C. Cir. 2011) 

(holding that intelligence reports produced by government 

official and contested by Guantanamo detainee were entitled to 

a presumption of regularity).

Furthermore, the District Court did not abuse its discretion

in reviewing the Government’s declaration ex parte and in 

camera, without giving Appellants an opportunity to challenge

its contents. Ex parte submissions “generally are disfavored 

because they conflict with a fundamental precept of our system 

of justice: a fair hearing requires a reasonable opportunity to 

know the claims of the opposing party and to meet them.” U.S. 

v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995)

(quotations omitted). However, “in cases in which sensitive 

materials may be in issue, . . . ‘the court has inherent authority 

to review [such] material ex parte, in camera as part of its 

judicial review function.’” Olivares v. TSA, 819 F.3d 454, 462 

(D.C. Cir. 2016) (quoting Jifry, 370 F.3d at 1181-82).

As relevant here, there are legal and policy constraints 

cabining the disclosure of an individual’s status on the Selectee 

List. Under 49 C.F.R. § 1520.5(b)(9)(ii), “[a]n individual’s 

placement on the . . . Selectee list, as well as any explanation 

for the placement, is ‘Sensitive Security Information’ that is 

restricted from public access.” Matar v. TSA, 910 F.3d 538, 540 

(D.C. Cir. 2018); see also Jibril II, 20 F.4th at 817 (noting that 

“Selectee List status constitutes Sensitive Security 

Information”) (citing 49 U.S.C. § 114(r); 49 C.F.R. 

§ 1520.5(a)). In addition, courts generally “do not secondguess expert agency judgments on potential risks to national 

security.” Olivares, 819 F.3d at 462. “Rather, we defer to the 

informed judgment of agency officials whose obligation it is to 

assess risks to national security.” Id. In this case, the 

Government’s declaration reasonably explained the national 

security concerns motivating the ex parte filing. For instance, 
15

the Government maintained that disclosure of an individual’s 

watchlist status “would arm terrorists with the knowledge of 

who would be required to undergo additional screening and 

who would not,” which could facilitate terrorists in evading 

enhanced security screening. Robinson Decl. ¶ 29. Disclosure 

could also compromise ongoing counterterrorism 

investigations by “giving members of terrorist groups the 

opportunity to gauge whether a particular individual is the 

subject of counterterrorism, intelligence, or investigative 

interest, causing the person to alter his or her behavior, destroy 

evidence, take new precautions against surveillance, or change

the level of any terrorism-related activity in which he or she is 

engaged.” Id. ¶ 26. Therefore, given the legitimate security 

concerns at issue, the District Court did not err in conducting 

an ex parte, in camera review of the Government’s declaration.

C. Standing

The Government contends that the Jibrils lack standing to 

pursue prospective relief because they have not plausibly

alleged an imminent risk of future injury. In the Jibrils’ first 

appeal, “the Government neither confirmed nor denied the 

Jibrils’ Selectee List status.” Jibril II, 20 F.4th at 812.

Consequently, we reasoned that Appellants had standing to 

pursue most of their prospective-relief claims because their 

factual allegationsled this court to the reasonable inference that 

the family members were on the Selectee List during their 2018 

travels and remained on the list when we first heard this case.

Id. at 816. We noted that we would “presume that the family 

members’ watchlist status ‘remains the same’ ‘[u]nless the 

[G]overnment provides documentation’ to the contrary.” Id.

(alterations in original) (quoting Shearson v. Holder, 725 F.3d 

588, 593 (6th Cir. 2013)). On remand, the Government then 

submitted an ex parte declaration for in camera review, and 

again moved to dismiss for lack of standing. Upon review of 
16

this new information, the District Court once again dismissed 

the case. Based on this court’s assessment of the Government’s 

ex parte submission, we agree that the Jibrils lack standing to 

pursue their claims for prospective relief.

“The Constitution grants federal courts jurisdiction to 

decide ‘Cases’ or ‘Controversies.’” Fikre, 144 S. Ct. at 777

(quoting Art. III, §§ 1, 2). To satisfy the case-or-controversy 

requirement under Article III, a “plaintiff must have a personal 

stake in the case—in other words, standing.” TransUnion, 594 

U.S. at 423 (quotations omitted). A plaintiff establishes 

standing by showing “(i) that he suffered an injury in fact that 

is concrete, particularized, and actual or imminent; (ii) that the 

injury was likely caused by the defendant; and (iii) that the 

injury would likely be redressed by judicial relief.” Id. As 

relevant here, an alleged future injury may suffice to meet the 

injury-in-fact element of standing if the threatened injury is 

“certainly impending” or there is a “substantial risk” it will 

occur. Hemp Indus. Ass’n v. Drug Enf’t Admin., 36 F.4th 278, 

290 (D.C. Cir. 2022) (citing Attias v. Carefirst, Inc., 865 F.3d 

620, 627 (D.C. Cir. 2017)).

We understand that, in addressing matters presented to the 

court, federal judges generally “are not free to take up 

hypothetical questions that pique a party’s curiosity or their 

own.” Fikre, 144 S. Ct. at 777. However, given the unusual 

constraints of this case – which include national security 

concerns, in camera review, and critical evidence supported by 

an ex parte submission – the District Court usefully employed 

hypotheticals to impartially assess the matters in dispute while

avoiding explicitly disclosing the contents of the Government’s 

ex parte submission. The Government has not contested the 

District Court’s “hypothetical” characterizations, nor has it

objected to any of the District Court’s findings. The District 

Court wisely understood that hypotheticals would be a 
17

thoughtful way to meaningfully respond to Appellants’ quest 

for redress in a case in which important information is beyond 

their reach due to national security concerns. Appellants are not 

left with “no response” as they were in the first round of this 

case. Appellants may not be satisfied with the judgment in this 

case, but they will likely have a better understanding of their 

situation. What follows are critical findings that defeat 

Appellants’ claims.

The District Court first held that Appellants have not 

sufficiently alleged a “certainly impending” or “substantial 

risk” of injury in their future travels. See Jibril III, 2023 WL 

2240271, at *6. As the District Court reasoned, any member of 

the Jibril family who has never been on the Selectee List would 

lack standing to seek prospective relief, unless they could show 

concrete plans to travel again with a family member on the 

Selectee List.

If, hypothetically, Mohammed Jibril were placed 

on the Selectee List but his family members were not, 

the other Jibrils would lack standing to seek 

prospective relief on any of their claims for that 

reason alone, unless they could adequately allege 

concrete future plans to travel with him in 

particular. . . . However, [even] that would not be 

enough to survive a motion to dismiss for lack of 

subject-matter jurisdiction if their intended travel 

partner were no longer on the Selectee List himself.

Id.

The District Court then concluded that if no member of the 

Jibril family was on the Selectee List when the Jibrils filed suit

– either because they were never on the list to begin with or 

because they were removed from the list before they filed suit 
18

– then none of the Jibrils would be able to show an “imminent 

and substantial” risk of future harm sufficient to support a 

claim for prospective relief. Id. at *7 (quoting TransUnion, 594 

U.S. at 435).

If, hypothetically, Mohammed Jibril were placed 

on the Selectee List prior to the family’s 2018 trip to 

Jordan and subsequently removed from that list after 

initiating his DHS TRIP inquiry but prior to the filing 

of the complaint, the Jibrils would lack standing to 

seek prospective relief because they could not 

demonstrate a substantial risk of future injury. . . . [I]f 

the government satisfied the Court with an affidavit 

given under penalty of perjury that it would not add 

Mohammed Jibril back to the Selectee List unless new 

information provided a reason for doing so, any 

apprehension that the Jibrils might be subjected to 

similar enhanced screening measures on a future trip 

(Counts I, II, and IV), or have any reason to make 

further attempts to contest their potential watchlist 

status (Counts III and V), would depend on the 

hypothetical possibility that the government might 

receive new information in the future convincing it 

that Mohammed Jibril once again met the criteria for 

inclusion on the Selectee List. Without a way of 

demonstrating that a threatened inquiry was certainly 

impending or there was a substantial risk that the harm 

will occur, the Jibrils would be unable to meet their 

burden of establishing standing.

Id. at *6 (alterations and quotations omitted).

The District Court additionally rejected Appellants’

contention that removal from the Selectee List would not affect 

their standing to bring a facial challenge to the DHS TRIP 
19

process itself on due process and APA grounds. The District 

Court explained that if, hypothetically, none of the Jibrils were 

on the Selectee List when the suit was filed, then they would 

not face a substantial risk of harm from the allegedly 

inadequate DHS TRIP process sufficient to establish standing

for their facial challenge.

The Jibrils’ due process and APA challenges to 

the DHS TRIP program do not allege that it is that 

program that deprives them of a protected liberty or 

property interest without due process. Rather, those 

challenges allege that the DHS TRIP program is a 

constitutionally inadequate process for a deprivation 

effected by their alleged placement on the Selectee 

List. . . .

[However,] the Jibrils would not be subjected to 

enhanced screening, listed as suspected terrorists, or 

pulled out of line in front of other travelers because of 

the Selectee List if none of them were on the Selectee 

List. And if the challenged policy did not continue to 

injure the Jibrils, nor could they demonstrate a 

substantial likelihood that it would injure them again 

in the future, they would not have standing to 

challenge that policy.

Id. at *7 (footnote omitted). 

We agree with the District Court’s reasoning and adopt its 

analysis. In addition, we amplify two points. First, importantly, 

Appellants’ complaint does not raise any claims for 

retrospective relief. In the hearings before both courts, the 

Government did not doubt the possibility of Appellants seeking 

retrospective relief; rather, the Government contended, and we 

have found, that Appellants’ submissions in this case do not 
20

support a claim for retrospective relief. In consequence, we do 

not opine on whether a claim for retrospective relief would be 

viable if properly raised. For instance, the District Court posed 

a hypothetical regarding individuals subjected to multiple

intrusive and extensive screenings, despite not being on the 

Selectee List. We leave for another day the question of whether 

plaintiffs could successfully seek damages in such situations.

Second, the Supreme Court’s decision in Fikre does not 

affect the outcome of this case. Fikre concerned the 

Government’s ability to show that plaintiff’s claims were moot. 

The plaintiff in Fikre was on the No Fly List when he sued the 

Government to challenge his placement, and he was removed 

from the watchlist during the pendency of the litigation. See

Fikre, 144 S. Ct. at 775-76. There was no doubt that the 

plaintiff had standing to request prospective relief when he 

filed suit while still on the No Fly List. “The only question”

before the Supreme Court was “whether the government’s 

[removal of Mr. Fikre from the No Fly List] suffice[d] to render 

Mr. Fikre’s claims moot.” Id. at 775. The Court answered in 

the negative, reasoning that the Government failed to show it 

would not relist the plaintiff for doing the same or similar 

things that landed him on the list the first time. Id. at 778. The 

Court explained that “a defendant’s ‘voluntary cessation of a 

challenged practice’ will moot a case only if the defendant can

show that the practice cannot ‘reasonably be expected to 

recur.’” Id. at 777 (quoting Friends of the Earth, Inc. v. Laidlaw 

Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)).

Unlike Fikre, this case concerns whether Appellants have 

made the requisite showing of standing. The Supreme Court 

has made it clear that while a defendant carries the “formidable 

burden” of showing that a once-live case is now moot, id.

(quotation omitted), the plaintiff bears the burden of 

establishing standing at the outset of the litigation, Friends of 
21

the Earth, 528 U.S. at 190. Thus, contrary to Appellants’ 

arguments, the issue in this case is not whether the Government

has satisfied its burden of demonstrating mootness under the

voluntary cessation doctrine. Rather, the issue is whether 

Appellants have satisfied their initial burden of establishing the 

three elements of standing. As discussed above, Appellants 

have not. If, unlike the plaintiff in Fikre, no Appellant was on 

a terrorist watchlist when they filed suit, and none of them can 

show an imminent risk of being placed on a watchlist in the 

future, then they would not have a “concrete stake” in the 

litigation sufficient to satisfy the injury-in-fact requirement of 

standing. Id. at 191. The District Court therefore correctly 

dismissed Appellants’ claims for lack of standing.

D. Motion for Leave to Amend Complaint

In the alternative, Appellants argue that the District Court 

abused its discretion in denying them leave to amend their 

complaint. Appellants primarily “seek leave to amend to add a 

request for nominal damages in accordance with the postoriginal filing holding of Uzuegbunam v. Preczewski, that 

‘nominal damages can satisfy the redressability requirement 

[of standing] . . . and can keep an otherwise moot case alive.’”

Plaintiffs’ Opposition to Motion to Dismiss at 38-39, Jibril v. 

Mayorkas, No. 1:19-cv-02457 (D.D.C. May 26, 2022), ECF 

No. 23 (quoting Uzuegbunam v. Preczewski, 141 S. Ct. 792, 

802 (2021) (Kavanaugh, J., concurring)). In reviewing a district 

court’s denial of a motion to amend a complaint for abuse of 

discretion, we “requir[e] only that the court base its ruling on a 

valid ground.” James Madison Ltd. by Hecht v. Ludwig, 82 

F.3d 1085, 1099 (D.C. Cir. 1996). A district court “may deny 

a motion to amend a complaint as futile . . . if the proposed 

claim would not survive a motion to dismiss.” Id.
22

Here, the District Court did not abuse its discretion in 

holding that Appellants’ proposed amendment would be futile.

Appellants framed their original complaint as one for 

prospective relief, suing federal officials in their official 

capacity and alleging facts relevant to their claims for 

declaratory and injunctive relief. Belatedly, Appellants now 

wish to add a request for nominal damages. Yet, because the

original complaint was set up to seek prospective relief, 

Appellants’ proposal to seek nominal damages falls short. The 

complaint does not sue the right individuals, nor does it offer a 

legal theory or allege the facts necessary to support a claim for 

retrospective relief.

Appellants’ complaint includes claims under the APA, but 

the APA does not authorize suits seeking “money damages”

against the Government. See 5 U.S.C. § 702. Appellants also 

bring claims under the Fourth and Fifth Amendments, but they 

do not assert a legal theory in support of their damages request

for alleged constitutional violations. Although the Supreme 

Court in Bivens has recognized an implied cause of action 

under the Constitution for monetary damages against federal 

officials sued in their individual capacities, Bivens does not 

extend to claims against officials sued in their official 

capacities, as is the case here. See Kim v. United States, 632 

F.3d 713, 715 (D.C. Cir. 2011) (discussing Bivens v. Six 

Unknown Named Agents of the Fed. Bureau of Narcotics, 403 

U.S. 388 (1971)). Furthermore, a Bivens claim must “allege 

that the defendant federal official was personally involved in 

the illegal conduct.” Simpkins v. Dist. of Columbia Gov’t, 108 

F.3d 366, 369 (D.C. Cir. 1997). But consistent with their 

original request for only prospective relief, Appellants’

complaint names only agency heads in their official capacities.

Appellants’ proposed amended complaint does not name any 

defendants in their individual capacities, nor does it allege facts 
23

indicating that any of the defendant agency heads personally 

carried out the allegedly unlawful searches.

In sum, Appellants have not suggested a viable claim for 

retrospective, monetary relief. Accordingly, the District 

Court’s denial of Appellants’ motion for leave to amend their 

complaint was not an abuse of discretion.

III. CONCLUSION

For the reasons set forth above, we affirm the dismissal of 

Appellants’ action for lack of Article III standing.

So ordered.