UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _____________________________________ No. 04-15736 JOHN GILMORE, Plaintiff-Appellant, V. ROBERTO GONZALES Defendants-Appellees BEFORE JUDGES TROTT, T.G. NELSON and PAEZ COURT OF APPEALS DATE: Thursday, December 8, 2005 TRANSCRIBED BY: ANGELA C. ROSS, CSR No. 10073, RPR 1 MR. HARRISON: May it please the Court, my name 2 is James Harrison. I represent appellant, John 3 Gilmore. I reserve five minutes of my time for 4 rebuttal. 5 JUDGE PAEZ: Yes. Just keep an eye on the clock. 6 MR. HARRISON: Eye on the clock, Your Honor. 7 One of the greatest dangers we face in the war on 8 terrorism comes from what we do to ourselves in the 9 name of security. And the judiciary must sometimes 10 protect us from our own well-intentioned, but 11 misguided behavior. 12 Let me cut to the heart of this case, Your Honor. 13 No matter how you define it or qualify it, the ID 14 requirement is part of the airport screening process. 15 Airport searches are necessary. 16 JUDGE PAEZ: Before we get to the heart of 17 this -- 18 MR. HARRISON: Yes, Your Honor. 19 JUDGE PAEZ: There is a preliminary matter, as 20 far as I'm concerned, which is jurisdiction. 21 MR. HARRISON: Yes, Your Honor. 22 JUDGE PAEZ: Let's talk about jurisdiction for 23 just a moment. 24 MR. HARRISON: Sure. TSA says that the only 25 court that can hear this case is the appellate court 2 1 for reasons of 46110 and the like. The real question 2 is can this Court exercise exclusive jurisdiction 3 without a record? And the answer is no. As Judge 4 Nelson said, this is not a trial court. As Judge 5 Trott just said, we are not here to redo something. 6 We don't -- you don't have a record to review in this 7 case. There is nothing for you to look at. There is 8 no -- 9 JUDGE PAEZ: They've offered to file in the 10 district court under seal whatever might exist out 11 there for the district court to look at. 12 MR. HARRISON: No, Your Honor, the government did 13 not offer to file in the district court. 14 JUDGE PAEZ: I stand corrected. They offered to 15 do it with us. 16 MR. HARRISON: Yes, they do offer to do it with 17 you, and they should have done it in the district 18 court, and there was no reason to do it in the 19 district court. You're here to review this 12(b)(6). 20 You're limited to what was available to the lower 21 court. Correct? On your review. 22 JUDGE PAEZ: Well, on a 12(b)(6) you can take a 23 look at what is alleged in the complaint -- 24 MR. HARRISON: Yes. 25 JUDGE PAEZ: -- and what is referred to in the 3 1 complaint. 2 MR. HARRISON: Correct. And you're asking me if 3 they can file with this court documents. They wanted 4 to file pleadings under seal and which, I presume, 5 would lead to some secret proceedings and some -- I 6 don't know what. The issue is that, you know, they 7 have to -- they had to have shown this in the 8 district court or they can't bring it up here. 9 JUDGE TROTT: Do you want us to remand so that 10 can happen? 11 MR. HARRISON: Yes. I certainly want this to 12 remand. I want this to remand for several reasons. 13 This needs to be remanded because it involves broad 14 constitutional challenges. This court is not 15 designed to hear evidence. You're not here to listen 16 to testimony or weigh evidence or finders of fact. 17 You're here to review. 18 JUDGE PAEZ: Well, it's a jurisdictional 19 question. That is the only thing I'm concerned 20 about. 21 MR. HARRISON: It's a jurisdictional question. 22 And the question is can this court exercise its 23 exclusive jurisdiction without a record? And the 24 answer is no. In Southern California -- 25 JUDGE NELSON: This case has been filed here. 4 1 Let's say it should have been filed here to begin 2 with. We would look at what was filed to see if we 3 had jurisdiction. Wouldn't we? 4 MR. HARRISON: That is correct, Your Honor. 5 JUDGE NELSON: Why can't we do it now? If it 6 wasn't filed in the district court and the district 7 court should not have had the case -- 8 MR. HARRISON: Right. 9 JUDGE NELSON: -- then why can't we look at what 10 would have been presented to us originally, avoid all 11 this jockeying back and forth and say we indeed have 12 jurisdiction based on these sealed documents? 13 MR. HARRISON: If this court wants to take a look 14 at the proceedings and sua sponte say or otherwise 15 say under 46110, we have jurisdiction over this, be 16 my guest. Please, go right ahead. But -- 17 JUDGE PAEZ: The way it's usually articulated is 18 we have jurisdiction to determine our jurisdiction. 19 MR. HARRISON: If you determine that, Your Honor, 20 I ask that we be able to amend our complaint. We are 21 not able to amend our complaint in the district court 22 because she found there was no jurisdiction. If that 23 is the case -- if the case is it belongs here, we ask 24 to amend. But I don't think it belongs here, Your 25 Honor, because it involves a broad constitutional 5 1 challenge to the administration's actions. Broad 2 constitutional challenges are first heard in the 3 lower court, either in the administrative court or 4 the district court. It does not belong in the 5 administrative court, because -- 6 JUDGE PAEZ: Are your challenges bound up in 7 this -- the government refers to it as the alleged 8 regulation or whatever? 9 MR. HARRISON: Whatever it is. 10 JUDGE PAEZ: Is it all tied up? Is it all 11 intricately intertwined and bound together? 12 MR. HARRISON: Our charges are centered -- our 13 claims are centered on the identification 14 requirement. Now, there are no facts that are 15 particular to John Gilmore that are so intertwined 16 that make him so different. He's not relitigating 17 any facts. There are no facts. So the issue of 18 there being a problem with that in the district court 19 proceedings doesn't exist in the circumstances, Your 20 Honor. 21 JUDGE TROTT: Tell me what the essence of your 22 constitutional challenge is. 23 MR. HARRISON: Certainly. This is an 24 administrative search. Period. This is not a Terry 25 search. This is not a request for a waiver of Fourth 6 1 Amendment rights by the government a hundred million 2 times a year saying can I look in the trunk. 3 JUDGE TROTT: It's asking for identification. 4 MR. HARRISON: Yes. It is an administrative 5 search. Administrative searches automatically 6 trigger Fourth Amendment challenges. And the 7 standard is reasonableness. This Court in U.S. vs. 8 Davis set out the standards for reasonableness in 9 airport searches. It is that it be limited to -- for 10 the search for weapons and explosives and be confined 11 in good faith for that purpose. The identification 12 requirement is not to find weapons. It is to find 13 people. 14 JUDGE TROTT: So it's unconstitutional to ask 15 somebody in an airport setting for identification? 16 MR. HARRISON: It's unconstitutional to use an 17 administrative search to go beyond the confines of 18 the administrative search. Two other tenets, basic 19 tenets of administrative searches are that they not 20 be personal and that they not be used for law 21 enforcement purposes. 22 JUDGE TROTT: What is your best case for the 23 proposition that asking someone for identification in 24 public is a search covered by the Fourth Amendment? 25 MR. HARRISON: Hiibel. The Supreme Court just 7 1 covered it last year. It involved identification. 2 And the Court applied Fourth Amendment analysis. In 3 that case they had suspicion. Here there is no 4 suspicion. In that case they had a law, a Nevada 5 statute, here we have nothing to look at, Your Honor. 6 Not only is our -- not only do we make the stand on 7 Fourth Amendment because on -- you know, in Davis the 8 Court warned about the obvious danger that an 9 administrative search would be subverted for law 10 enforcement purposes. They gave an example in 11 footnote 43 that the law enforcement would use flight 12 manifests for law enforcement purposes. Now, that is 13 what is going on here, Your Honor. 14 The other strong argument we have is the third 15 prong in Davis is that you must be able to not fly. 16 You must have a choice. Right? You must have 17 some -- you know, maybe -- you must be able to avoid 18 the search by electing not to fly. That doesn't mean 19 that if you do fly you -- prong one and two does not 20 apply. It still applies if you elect to fly. What 21 it means is that the Court looks at what happens if 22 you don't elect to fly. And the Court spent an 23 entire section, section four, in Davis on the right 24 to travel. They found that the right to travel is 25 fundamental. And it fully went over all of the 8 1 language that we know about -- 2 JUDGE PAEZ: Right to travel by airplane? 3 MR. HARRISON: No. You don't have a right to 4 travel by airplane. You have -- but if something 5 impinges upon your right to travel, then the court 6 must take a look at it. Davis said that every, every 7 aspect of an airport search must be given critical 8 examination for its imposition upon right to travel. 9 The lower court took a look at this and said right to 10 travel, it's only one form. Analysis doesn't apply, 11 Davis. This court said you must examine every part 12 of the airport search. And the ID requirement is 13 part of the airport search. We stated the claim on 14 Fourth Amendment grounds and right to travel. TSA's 15 practices that passengers must show ID to travel. 16 Appellant wrongly challenged this. 17 Disingenuously TSA calls this a security directive, a 18 law enforcement technique, an order, whatever. 19 Whatever they call it. We can't see it. And 20 fundamentally that affects appellant's and everybody 21 else's in this country ability to challenge this and 22 also the Court's ability to review this. That is our 23 due process challenge, Your Honor. So Fourth 24 Amendment, right to travel, due process. 25 JUDGE PAEZ: Whatever this directive is or order 9 1 or rule, we know that it requires the airlines, 2 apparently, or somebody to ask for ID. 3 MR. HARRISON: What it requires is for passengers 4 to go into their pocket and pull out their ID and 5 show it to somebody. That is a law. Either you 6 do -- the law is that either you do something or you 7 suffer the consequence. Here, this is a law -- 8 JUDGE PAEZ: Or you just leave. 9 MR. HARRISON: Or -- that is suffering the 10 consequences. You're giving up something. It's a 11 punishment. Laws of general applicability in this 12 country must be written down. If they are applied to 13 people, they must be clear. This is America. We do 14 not have secret laws. Period, Your Honor. I can't 15 stress that enough. 16 What TSA is about to argue is that congress told 17 us to do it. It doesn't matter who told them to do 18 it. What matters is does it comport with our laws. 19 JUDGE TROTT: What do you do with the Delgado 20 rules that seem to suggest that an officer doesn't 21 implicate the Fourth Amendment simply by asking 22 somebody for information? 23 MR. HARRISON: Delgado is a Terry search. We are 24 talking about an administrative search. 25 JUDGE TROTT: What is the difference in 10 1 constitutional terms? 2 MR. HARRISON: Administrative searches 3 automatically trigger Fourth Amendment protections. 4 The test is reasonableness. Davis sets out -- 5 JUDGE TROTT: Automatically triggers Fourth 6 Amendment protections. If the Fourth Amendment is 7 not implicated by asking somebody in public for 8 identification, as suggested by Delgado, that is the 9 end of that. 10 MR. HARRISON: No, it's not, Your Honor. The 11 differences between a Terry search and an 12 administrative search are vast. In Terry you need a 13 seizure and a search. Right? And here in 14 administrative clerk -- in an administrative searches 15 we don't go down that road. You don't need a seizure 16 to trigger Fourth Amendment analysis in 17 administrative searches. Terry does not apply nor 18 does the area of Fourth Amendment analysis where the 19 cop asks can I look in the trunk. They are not 20 asking 100 million people a year can I look in your 21 wallet for your ID. This is an administrative 22 search. Davis applies. It can't be used for -- it 23 can't be personal. I refer to page 1,244 of U.S. vs. 24 $124,570. 25 JUDGE TROTT: Part of the problem with your 11 1 analysis is that Terry involves a seizure. And here 2 I don't see that there is any seizure. So it seems 3 to me that, without a seizure, simply asking for 4 somebody -- asking somebody for identification 5 doesn't implicate the Fourth Amendment at all. 6 MR. HARRISON: Again, Your Honor, this is not a 7 Terry search. 8 JUDGE TROTT: Is there a seize when you ask 9 somebody for identification? 10 MR. HARRISON: That may be. And we have made 11 that argument, but it's not our strongest argument. 12 JUDGE TROTT: Perhaps it's your weakest argument? 13 MR. HARRISON: I would -- I would possibly agree 14 with you. 15 JUDGE TROTT: Seizure. 16 MR. HARRISON: But our strongest argument is that 17 this is an administrative search. No matter how you 18 define the ID requirement, no matter how you qualify 19 the ID requirement, you get in a line at the airport 20 and it says passengers must show ID. 21 JUDGE TROTT: You tell me your best case is 22 Hiibel, but that is a case that says asking questions 23 is an essential part of police investigation. In the 24 ordinary course a police officer is free to ask a 25 person for identification without implicating the 12 1 Fourth Amendment. Then they say, however, in a Terry 2 search you're effectuating a seizure. So therefore 3 if there is no seizure, it seems that the first part 4 of this plays off Delgado and Prouse vs. Delaware is 5 right. There is no seizure. There is no Fourth 6 Amendment implication, simply asking somebody for 7 identification. 8 MR. HARRISON: Terry did not. I mean, Hiibel did 9 not involve -- in all of the cases Hiibel refers to 10 there in that case did not involve an administrative 11 search. I can't stress this enough. You have to 12 look at this case as an administrative search. You 13 get in line at the airport, you -- it says you must 14 show ID, you get searched. 15 JUDGE TROTT: It's an inquiry. It isn't a 16 search. 17 MR. HARRISON: It's part of the administrative 18 search, Your Honor. And it couldn't be clearer. I 19 don't know what to say to you about that. 20 Congress has told us -- Congress is also going to 21 say this is -- this is SSI, we can't tell you about 22 it, but this is a law. This is law of general 23 applicability. SSI applies to security, things that 24 must be kept secret. A general law of applicability, 25 you must show ID to travel as part of an 13 1 administrative search, is not SSI. It is the law and 2 it must be public. 3 They say that if we made the law public we 4 wouldn't be able to catch as many bad guys. That is 5 a very dangerous road for this country to go down. I 6 ask that this case be remanded back down to the 7 district court for -- I was going to talk to Southern 8 California Aerial Advertisers vs. FAA, where the 9 court found that there was not an adequate record for 10 a substantive review of an order by the FAA. This is 11 the same situation. You have nothing to review. 12 This must be sent down somewhere. 13 I ask that this case be remanded for the 14 development of a record, that appellant be able to 15 inquire as to the reasons for the ID check and 16 challenge its effectiveness, the Court's 12(b)(6) 17 determinations be overruled. But if the Court feels 18 otherwise, grant leave to amend. 19 Thank you. I'll be back. 20 MR. WALDMAN: May it please the court, my name is 21 Joshua Waldman. I'm from the United States 22 Department of Justice, representing the federal 23 defendants in this case. 24 To protect airline security and passenger safety, 25 passengers are required to show their identification 14 1 or submit to a search before they board an airline. 2 The United States vs. Davis, this court upheld a 3 screening procedure just like that against a Fourth 4 Amendment challenge and against the right to travel 5 challenge. Davis is right on point and forecloses 6 the principal claims of the plaintiff in this case. 7 These additional claims are that the same screening 8 procedure violates the First Amendment, the right to 9 petition the government, the right to assemble. But 10 the plain fact is that-- 11 JUDGE PAEZ: As applied to him. 12 MR. WALDMAN: As applied to him. That is 13 correct, Your Honor. But nothing in the screening 14 procedure at all impinges upon a person to assemble. 15 They can assemble wherever they want. They can 16 petition wherever they want. They merely have to 17 comply with the screening procedure. They can travel 18 by other modes of transportation. They could 19 assemble in any way that they want. At most there is 20 a very minimal incidental affect on your right to 21 assemble. Which does not implicate First Amendment 22 rights at all under the case of Arcadia vs. Cloud 23 Brooks. 24 And the final challenge on -- on the merits is a 25 vagueness claim, which fails as well. The first 15 1 claim being that plaintiff did not have any notice of 2 the ID requirement. His own complaint at page seven 3 in the joint appendix says he received oral 4 instructions, that he looked on TSA and FAA web sites 5 and saw a sign in the airport, all of which told him 6 about the ID requirement. That is actual notice. 7 Normally we rely on the legal fiction that things are 8 in the United States code. Here we have actual 9 notice. It's one better. 10 And the last claim is that the ID requirement 11 violates due process because it vests standardless 12 discretion in government officials. It's the case 13 here, as it was in Davis, that the screening 14 requirement is applied to everyone uniformly and that 15 per Davis the screening, the ID requirement and all 16 aspects of the screening process are restricted to 17 good faith effort to deter weapons or explosives. 18 Those two aspects sufficiently confine the discretion 19 of government officials and resolve that due process 20 claim. 21 JUDGE PAEZ: How about the jurisdictional issue? 22 MR. WALDMAN: Well, that certainly is the 23 toughest question in the case, Your Honor. I think 24 that the answer is that the plaintiff is required to 25 file a petition directly in this court and not go to 16 1 the district court. It's all governed by Section 2 46 -- 3 JUDGE NELSON: How do we know? How did the 4 district court know that at the time it ruled? 5 MR. WALDMAN: Well, I think the first question 6 you have to ask is whether or not there is a, quote, 7 order within the meaning of 46110. 8 JUDGE NELSON: Okay. So point me to an order. 9 Point me to the record which shows the order which 10 vests jurisdiction in this court rather than the 11 district court. 12 MR. WALDMAN: Well, the first thing to be aware 13 is you don't actually need to have an administrative 14 record in order to have an order. You don't need an 15 administrative proceedings or record. And this Court 16 has made that clear in Nevada Airlines and in San 17 Diego Air Sports Centers. 18 JUDGE NELSON: But there has to be showing of an 19 order? 20 MR. WALDMAN: No. That there does not need to 21 be -- that there needs to be an order, but there 22 doesn't need to be an administrative record. 23 JUDGE NELSON: Right. 24 MR. WALDMAN: Now, the order itself, the one that 25 is alleged here that is the center of this case is a 17 1 security directive, and that is in plaintiff's 2 complaint, and we accept that as true. Now, under 3 this Court's precedence, what counts as an order is 4 essentially anything except notice -- rule making 5 under notice and comment procedures under the APA. 6 Everything else is essentially an order under 46110. 7 Now, we know that we are not involved with a rule 8 pursuant to notice and comment rule making here, 9 because we are talking about a security directive 10 which is issued pursuant to section 14(s), which is 11 expressly referenced in 46110. 12 And security directives, as we all know in this 13 case, are not published, obviously not pursuant to 14 notice and comment rule making. So the only thing it 15 could be is an order under 46110. 16 JUDGE TROTT: Therefore? 17 MR. WALDMAN: Therefore jurisdiction is vested 18 exclusively in this Court pursuant to petition for 19 rehearing. 20 JUDGE NELSON: How do we know there is an order? 21 Did you say there was? In other words, when the 22 district court said I don't have jurisdiction, it was 23 looking at something or looking at nothing or 24 listening to arguments of counsel? How did it get 25 there? 18 1 MR. WALDMAN: What it did is it looked at the 2 complaint, which alleged the existence of a security 3 directive. Then it took our motion to dismiss and 4 said the standard on a motion to dismiss in this 5 case, as in any other case not involving security 6 directives, is to assume the truth of the allegations 7 in the plaintiff's complaint. So he said, the 8 district court judge said, I assume the existence of 9 a security directive. I understand that to be an 10 order within the meaning of 46110 and therefore I, 11 the district court, do not have jurisdiction. It's 12 exclusively -- 13 JUDGE PAEZ: But the government didn't stipulate 14 that there was an order? 15 MR. WALDMAN: No. We did not stipulate. In 16 fact, we -- we couldn't confirm or deny -- 17 JUDGE PAEZ: Right. 18 MR. WALDMAN: -- the existence. 19 JUDGE PAEZ: You just said -- you just said, 20 well, it's alleged in the -- it's just alleged in the 21 complaint and we'll accept their allegation, I guess, 22 for purposes of this legal ruling. 23 MR. WALDMAN: I think that's true. But it 24 certainly -- I -- you know, I'm not someone who is 25 going to say that doesn't sound peculiar, but I will 19 1 say -- 2 JUDGE PAEZ: It does sound -- doesn't it take you 3 as a bit odd? I mean -- 4 MR. WALDMAN: It does, but if-- 5 JUDGE PAEZ: -- Nelson's concerns? 6 MR. WALDMAN: -- you think about it, Your Honor, 7 if we were not dealing with the security directive 8 and SSI in this case, we would say exactly the same 9 thing. Simply because that is the standard on a 10 motion to dismiss; you assume the factual allegations 11 to be true and you don't dispute them or stipulate to 12 them. 13 JUDGE PAEZ: Well, the Court -- you know, you do 14 know the rule. We can't -- it's proper for the Court 15 to look at a matter that is alleged in the 16 complaint -- 17 MR. WALDMAN: Uh-huh. 18 JUDGE PAEZ: -- documents referred to in the 19 complaint and items you can take judicial notice of. 20 That is all proper, you know, material for 21 consideration on a 12(b)(6). 22 MR. WALDMAN: I think -- 23 JUDGE PAEZ: And, you know, the district court 24 needs to assure itself or we need to assure ourselves 25 that we have jurisdiction. So I don't see why it 20 1 would not be -- it seems kind of strange not to take 2 a look at whatever it is out there, whatever it may 3 be. 4 MR. WALDMAN: Well, I think the district court 5 felt that it was in the position to determine the 6 jurisdictional issue without actually looking at the 7 face of the orders. And all we need to know is if 8 there a court order within the meaning of 46110, then 9 it doesn't matter what it says or doesn't say, 10 because we are not going to care. 11 JUDGE PAEZ: Let me ask you this. Did she have 12 to look at that order, or whatever it is -- I don't 13 know whatever it is -- whatever it might be, in order 14 to determine whether his other claims -- the other 15 claims are related or separate or it's a broad 16 constitutional challenge? Because the district court 17 went on, even though the district court said I don't 18 have jurisdiction of the due process claim, I can 19 reach the merits of these other arguments because 20 it's a broad constitutional challenge. She did that 21 without looking, without actually seeing what this 22 order is. Is that okay? 23 MR. WALDMAN: Well, I don't think that she had 24 jurisdiction over any of the claims. That's -- 25 that's our position. Because they are all 21 1 intertwined with the order. But -- 2 JUDGE PAEZ: Wouldn't you want to see whatever it 3 is that is out there in order to make that 4 determination, whether it's all bound up into one? 5 MR. WALDMAN: Well, I think you just look at the 6 face of the complaint. What he's saying is there is 7 a security directive and pursuant to that security 8 directive officers did a bunch of things, including 9 asking me for my identification, and that inquiry, 10 that request, violates a number of constitutional 11 provisions. I think it's plain, just simply from 12 understanding that story in the complaint, that they 13 are all intimately bound up with the security 14 directive and you can't separate out the claims and 15 decide them piecemeal, some in the District Court and 16 some in the Court of Appeals. 17 JUDGE PAEZ: So the government's position is that 18 the District Court had no jurisdiction whatsoever? 19 MR. WALDMAN: That's correct. That the proper 20 course was to file a petition for review in this 21 court. 22 JUDGE TROTT: I love it. The government is 23 clamoring to get before the Ninth Circuit Court. 24 MR. WALDMAN: There are a number of things. 25 JUDGE TROTT: Be careful what you wish for. 22 1 MR. WALDMAN: Well, we assume you will come to 2 the right judgment, Your Honor. So -- 3 JUDGE PAEZ: Let me ask you this. 4 MR. WALDMAN: Yes. 5 JUDGE PAEZ: Can we just transfer the complaint 6 here and deem it as a petition -- 7 MR. WALDMAN: Yes. I think that would be within 8 your discretion to do that, and we suggest that in 9 our brief. If you, you know, felt like it was the 10 correct thing to do, to address the merits, I think 11 that would be within your discretion. 12 JUDGE PAEZ: We do have some case law -- I think 13 it's called Mace -- where we talk about broad 14 constitutional challenges to a practice. 15 MR. WALDMAN: That's right. 16 JUDGE PAEZ: Why doesn't this, these -- the 17 non-due process claim, that directly goes to the-- 18 directly goes right to this alleged regulation or 19 whatever it is, directive, why doesn't principles of 20 Mace sort of apply to this whole tact here? 21 MR. WALDMAN: Well, Mace is a little bit of a 22 tricky case. And you may have noticed we have a very 23 long footnote in our brief -- 24 JUDGE PAEZ: Yeah. 25 MR. WALDMAN: -- addressing it. Let me see if I 23 1 can sort of parse that out for you. It's not just 2 Mace. There is Foster and Crist and some other cases 3 that come after it. What Mace and Progeny do is 4 establish a distinction between constitutional 5 challenges that are made as applied versus on their 6 face and says that as applied constitutional 7 challenges must go directly to the Court of Appeals, 8 where facial challenges can go to the District Court, 9 notwithstanding 46110. 10 Now, the plaintiff's allegations in this case, 11 the constitutional challenges, are all as applied 12 challenges. And we know that for several reasons. 13 First, if you look at his statement of issues, he 14 speaks about as applied constitutional challenges. 15 Second, if you look at his argument and his 16 complaint, all of his constitutional challenges rely 17 on facts particular to him. We don't agree that the 18 outcome actually turns on that, but that is how he 19 presents them to the court. 20 For example, his right to travel claim hinges 21 on -- one of his arguments is I can't travel by any 22 means, airplane or otherwise, and I can't even get in 23 my own car and drive because I have a medical 24 condition that prohibits me from driving, which is 25 something that is particular to him and not to your 24 1 average plaintiff. He says, with respect to the 2 Fourth Amendment claim, I have a particular fear that 3 I'm going to be arrested and not just simply allowed 4 to go along my merry way if I don't show my ID, based 5 on a 1996 arrest of his. That, again, is something 6 that the -- that is going to make his challenge as 7 applied challenge rather than a facial challenge. 8 And he makes similar allegations in his due process 9 claim about the nature of precisely what he was told 10 by various airline representatives made it vague to 11 him. 12 And, again, we don't agree with the -- that the 13 outcome on the merits would turn on those things, but 14 they do make his challenge as applied, rather than 15 facial. And therefore under Mace, they are not what 16 Mace would call the broad constitutional challenge. 17 The are what Mace and Progeny would call an as 18 applied challenge. And therefore must be filed 19 directly by a petition for review in this court. 20 It's a little bit convoluted. I admit that. The 21 substitute itself is a little bit -- is not the most 22 artfully drawn thing, and the cases are a little bit 23 confusing. But that is the way it works out 24 ultimately under this Court's precedence. 25 JUDGE TROTT: What was the government's purpose 25 1 in the district court of playing cat and mouse with 2 what this was? You know, it was referred to 3 variously as a policy and you refused to take -- 4 government refused to take any position. What was 5 that for? 6 MR. WALDMAN: I'm -- honestly, I don't know what 7 Your Honor is referring to. 8 JUDGE TROTT: The District Court says the 9 government won't really concede anything about 10 whatever this is or isn't, policy or -- 11 MR. WALDMAN: I don't remember if it was a 12 dispute of the labels or its just existence or its 13 content, but, certainly, the attorney who represented 14 the government in the trial court, like I am, we are 15 bound by regulations that relate to SSI. And what it 16 says is that, you know, neither I or the district 17 court attorney can disclose this information without, 18 you know, a need to know. And it was the position in 19 the district -- 20 JUDGE TROTT: The defendants refused to concede 21 whether a written order or directive exists or, if it 22 does, who issued it or what it says. You say that is 23 because somebody was afraid of being charged with a 24 classified information felony or something? 25 MR. WALDMAN: Well, it's not classified 26 1 information, but -- if you're an attorney, a 2 government attorney in the district court, and you 3 are bound by this regulation that says you can't 4 disclose its contents, its existence, et cetera, 5 then, you know, you are bound by that. And if -- and 6 furthermore, if you're before the district court and 7 the district court says I think I can decide this 8 case, assuming the truths of the complaint without 9 your saying what is in it, then there is no reason to 10 go ahead and do so. 11 JUDGE TROTT: Now there is an attempt to file 12 something under seal. 13 MR. WALDMAN: Well, we've only -- we have offered 14 it. And we stand ready -- you know, we are 15 continuing to offer it. If the Court feels that 16 there is a need to know in order to resolve this 17 case, we stand ready to file it in camera ex parte. 18 JUDGE TROTT: There is a brouhaha about whether 19 it can be filed under seal. 20 MR. WALDMAN: That's right. I mean, I personally 21 don't understand it. I mean, it would give the 22 court, if the court felt it was necessary, an 23 opportunity to actually review the thing that we are 24 talking about. Everyone's been saying there is this 25 sort of this peculiar Orwellian feel about it. Now 27 1 we have offered to show it a panel of three impartial 2 judges, and somehow that is seen as improper. 3 JUDGE NELSON: You heard earlier, we don't know 4 what we are doing. We wouldn't know what to ask. 5 MR. WALDMAN: Well, I do -- 6 JUDGE TROTT: We wouldn't know what to do with 7 it. 8 MR. WALDMAN: I assume you can read. So there it 9 would be. I mean, I -- you know, again, I don't 10 think it's necessary for you to see it in order to 11 decide the case. You could decide it purely on 12 jurisdictional grounds. You could take the course 13 that the district court did, assume the facts to be 14 true -- 15 JUDGE TROTT: What is the government recommending 16 that we do with this? 17 MR. WALDMAN: I think that you should either 18 dismiss the case on jurisdictional grounds on the 19 whole or reach the merits treating it as a transfer, 20 and then affirm on the merits under Davis and all of 21 the arguments on the merits in the brief. And we 22 give arguments on -- in our brief on how you can 23 decide the case without looking at the sealed 24 material. And, you know, since that is not really 25 necessary. It's a lot of sort of extra procedure, I 28 1 don't think that you need to do that. But we stand 2 ready to provide it if you -- if you come to a 3 contrary conclusion. 4 JUDGE TROTT: Did you want to address any of the 5 merits, the search and seizure? 6 MR. WALDMAN: Sure. The search and seizure, I 7 think that is all, you know, under Davis. The 8 argument's squarely foreclosed. The question is did 9 Davis set forth the absolute constitutional maximum 10 of what you could do in a security procedure? I 11 don't think so. I don't think that the incremental 12 additional of an ID requirement changes the 13 constitutional outcome. It's not just -- this Court 14 asks for ID when you come into the courthouse. It 15 says so on your notice for the oral argument, ID 16 required. I don't think that that changes the 17 outcome here. 18 The same thing with the right to travel. 19 Arguably it's not an imposition at all. It promotes 20 the right to travel by protecting everyone's safety. 21 And Davis itself makes that point. 22 In terms of the First Amendment, they are not 23 really even implicated. These are at most incidental 24 burdens on the right to assemble or the right to 25 petition. I'm not really aware of any right to 29 1 travel anonymously, recognized by any case anywhere. 2 All those cases deal with core first amendment speech 3 activities. 4 JUDGE TROTT: I don't know. If you read 5 Griswald, there is a right of privacy that might 6 attach. 7 MR. WALDMAN: Well, I mean, I don't know that the 8 anonymity aspect to it would come out of Griswald. 9 That is certainly not the argument here. 10 And we don't deny that there are some rights that 11 an aspect of which is anonymity. I mean, that is 12 clear in Watch Tower Revival and McIntyre. Our point 13 is that those deal with core First Amendments speech, 14 such at leafletting, where the court said, you know, 15 since time immemorial people have been doing -- since 16 the Federalist paper, people have been doing these 17 things anonymously. But that is not the same thing 18 as being able to get onto an airplane without showing 19 your photo ID. Which, by the way, according to the 20 complaint, he didn't have to do either. He could 21 have just submitted to what he called the heightened 22 search, which is alleged in his complaint, and not 23 shown his ID. So, I mean, I think that squarely 24 forecloses his claims. 25 And if there are any further questions, I would 30 1 be happy to address them. 2 JUDGE NELSON: If a plaintiff were to show that 3 his or her particular situation were such that 4 aircraft travel was the only way that that person 5 could travel, would that at all force a court to 6 address the choice question? In other words, if you 7 can turn to spin on your tracks and go back, but if 8 you're going to travel at all, if that person is 9 going to travel at all it has to be by plane, does 10 that change the analysis at all? 11 MR. WALDMAN: Well, it certainly doesn't change 12 the Fourth Amendment analysis. And it doesn't -- I 13 think arguably it would -- it would have some impact 14 on the right to travel analysis. And here, of 15 course, we don't have that claim. And I think it's 16 sufficient to say only one mode of travel was 17 foreclosed and that is it and that is all we have 18 standing the challenge. 19 But the ultimate question for the right to travel 20 is whether the burden placed upon it is a reasonable 21 one or an unreasonable one. And in the government's 22 view, the small minimal requirement of showing your 23 identification, when it's done for such compelling 24 public safety interests and it affords you the right 25 to turn around and leave, that that minimal 31 1 imposition doesn't impose -- doesn't 2 unconstitutionally interfere with the right to 3 travel, even if the airline is the only way you have 4 to travel. I have a difficulty understanding why 5 someone couldn't get into a car or hire a chauffeur 6 or something to do travel. But if that were the 7 situation, I think the outcome would be the same. 8 Are there any further questions, Your Honor? 9 Then I ask you to affirm the district court. 10 JUDGE PAEZ: Thank you. 11 MR. WALDMAN: Thank you. 12 JUDGE PAEZ: I think we have some rebuttal time. 13 MR. HARRISON: Yes, this court should extend 14 jurisdiction over this. And, yes, it should send it 15 down to the district court for an evaluation of the 16 broad constitutional challenges and the establishment 17 of a record. 18 JUDGE PAEZ: If we keep it, do you wish to amend? 19 MR. HARRISON: I would like the opportunity to 20 amend if the issue of jurisdiction -- 21 JUDGE PAEZ: In what respect? 22 MR. HARRISON: One of the issues that has been 23 large in this case is just what forms of travel the 24 appellant is challenging. He's challenging all forms 25 of travel in the United States that require 32 1 identification as a prerequisite for their use. 2 Amtrak presently requires ID to travel by train. 3 It doesn't give an option of a heightened level of 4 search. It's ID or nothing. The coast guard on 5 their website in MARSEC one standards says all 6 passenger vessels must get ID from their passengers 7 before they can board. We would like to flesh in the 8 other forms of travel that require identification. 9 If there is standing issues, we would like to correct 10 those. 11 This -- Davis is not limiting on the -- on what 12 they can do. I mean -- I'm sorry. I got that 13 backwards. Davis is extremely limiting on what they 14 can do in the administrative airport searchs. It 15 must be confined in good faith for a search of 16 weapons and explosives. Only that. If you take a 17 look at all of the cases after Davis about 18 administrative searches, it's just that. A great 19 case to look at is U.S. versus $124,570. It's right 20 on point. They talk to -- 21 JUDGE TROTT: What case says -- what case says 22 that simply asking somebody for identification in a 23 public setting is a search? 24 MR. HARRISON: This is not a public setting, Your 25 Honor. This is an administrative search procedure. 33 1 JUDGE TROTT: Thank you for answering my 2 question. 3 MR. HARRISON: Yes. It might be public that 4 you're doing it with other people. It might be 5 public that you can be viewed, but it's -- it's not 6 walking on the street. 7 JUDGE TROTT: I assume what you're telling me is 8 there are no cases? 9 MR. HARRISON: This is unique in America. We are 10 facing uncharted territory. And we rely on the 11 judiciary to lead us through this, Your Honor. 12 The facts of Gilmore's case do not limit his 13 challenge here. There is no facts in his case 14 that -- that are different from anybody else with 15 regards to the broad constitutional challenges that 16 he's bringing. Everybody must be -- everybody must 17 show ID, although they are saying everybody must not 18 show ID. I, frankly, don't understand what the rule 19 is, Your Honor. And I think ninety-nine percent of 20 America would be just floored if they knew that you 21 could fly on an airplane without having to show ID. 22 It's just not out there. I tried to fly without ID. 23 I about got arrested. I wasn't asked for a search. 24 I was -- I got searched and had to show ID. I wasn't 25 given a choice. 34 1 JUDGE NELSON: Your point is America would be 2 shocked to know we're not asking for ID? 3 MR. HARRISON: America would be shocked to know 4 that one branch of this administration is putting 5 signs up in airports that say passengers must show 6 ID. The next time you go to the airport look. It 7 says it right there. It's a TSA sign. Government 8 attorneys are coming in here and saying to this 9 court, no, passengers don't have to show ID. They 10 are in opposite. I think that this country would be 11 shocked to -- to -- to know that, yes. 12 JUDGE NELSON: So they would be shocked if the 13 sign were to say passengers must show ID or leave, 14 right? That would be shocking? 15 MR. HARRISON: No. That is not -- that is not 16 what is shocking, Your Honor. What is shocking is 17 that the judiciary is getting one story and the 18 America people are getting another. Regarding 19 anonymity, administrative searches cannot be based on 20 personal -- they cannot be personal. It's 21 suspicionless, and for that reason it's not personal. 22 The ID requirement makes it personal. All of a 23 sudden we are not looking at somebody for what they 24 have with them, we are looking at who you are. And 25 that is -- that is just in opposite to administrative 35 1 search law. All of it, going back to the very 2 beginning of administrative searchs. 3 Regarding aircraft and the only way to travel, 4 look at 124,000 case, look at Davis. It is a unique 5 and irreplaceable form of travel that covers great 6 distances in no time. It crosses borders, both -- 7 both, you know, countries, oceans. It's not 8 replaceable. It's not something that is replaceable. 9 And for that reason it receives special stuff. 10 The -- one of the reasons that the court puts out 11 on page 79 in our brief is that what they are doing 12 with the ID test is conducting a behavioral test on 13 people to see if they're willing to show ID or not. 14 What are they doing here? They are conducting 15 behavioral tests within the lines of TSA. That is 16 not their job. Their job is to search for weapons 17 and explosives. 18 It is the very ubiquitousness of the airport 19 security checks that calls for our greatest vigilance 20 on our part. Liberty, the freedom from unwanted 21 intrusions by government is easily lost by the 22 insistent nibbles. You know the story. You know the 23 quote. We are losing it to the insistent nibbles of 24 the government. 25 JUDGE PAEZ: Time's up. Thank you. 36 1 MR. HARRISON: Thank you, Your Honor. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 1 STATE OF CALIFORNIA ) 2 ) ss 3 COUNTY OF SACRAMENTO ) 4 5 CERTIFICATE OF REPORTER 6 I, ANGELA C. ROSS, a Certified Shorthand 7 Reporter, hereby certify that I have transcribed the 8 foregoing proceedings from a downloaded official 9 recording of the proceeding to the best of my ability 10 and that it accurately reflects a true transcription 11 of the said proceeding that was had. 12 I further certify that I am not of counsel or 13 attorney for either or any of the parties to said 14 proceeding, nor in any way interested in the event of 15 this cause, and that I am not related to any of the 16 parties thereto. 17 DATED: 18 19 ANGELA C. ROSS, CSR #10073, RPR 20 21 22 23 24 25 38