In 2018, seven members of the Jibril family, U.S. citizens of Jordanian origin, experienced extensive and intrusive security screenings and significant delays while traveling domestically and internationally. Suspecting they had been wrongfully placed on the government's Selectee List, a subset of the terrorist watchlist subjecting individuals to enhanced screening, they sought redress through the DHS TRIP program. When officials refused to confirm or deny their status, the family sued federal officials in the District Court, alleging violations of the Fourth and Fifth Amendments and the Administrative Procedure Act. After an initial dismissal and a partial reversal by this court in 2021, the government submitted an ex parte declaration to the District Court confirming the family was no longer on the list. The District Court dismissed the case again for lack of standing, reasoning that without current status or a substantial risk of future harm, the plaintiffs lacked a concrete injury. The Jibrils appealed, arguing the ex parte review was improper and that they had standing regardless of their list status.
Senior Circuit Judge Edwards, writing for the panel, affirmed the dismissal based on Article III standing requirements. The court first addressed the propriety of the District Court's reliance on an ex parte declaration. It held that while ex parte submissions are generally disfavored, courts have inherent authority to review such materials in camera when national security concerns prevent public disclosure. The court noted that Selectee List status is classified as Sensitive Security Information, and disclosure could reveal who is subject to enhanced screening, potentially aiding terrorists. The court found no abuse of discretion in the District Court's review of the government's declaration. On the merits of standing, the court applied the principle that a plaintiff must show an injury that is concrete, particularized, and actual or imminent. The court explained that if the Jibrils were not on the Selectee List when they filed suit, they could only maintain standing if they demonstrated a 'sufficiently imminent and substantial' likelihood of being added to the list in the future. The court found the Jibrils failed to meet this burden. The court distinguished the recent Supreme Court decision in FBI v. Fikre, clarifying that Fikre addressed mootness regarding a plaintiff who was on the list when they sued, whereas the Jibrils failed to establish standing at the outset because they could not show they were on the list or faced an imminent risk of being placed on it. Finally, the court affirmed the denial of the motion to amend the complaint to seek nominal damages, ruling that the proposed amendment would be futile because the complaint named officials in their official capacities and did not allege facts supporting a Bivens claim for monetary relief.
The case is dismissed, and the Jibrils cannot pursue prospective injunctive relief to challenge their watchlist status or the DHS TRIP process. The decision reinforces that plaintiffs must demonstrate a concrete, imminent risk of future injury to challenge watchlist policies, even when the government withholds specific status information for national security reasons. The court left open the possibility of a claim for retrospective monetary relief if properly raised against individual officials, but noted the current complaint did not support such a claim.
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