UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MOHAMMED JIBRIL, et al.,
Plaintiffs,
v. Case No. 1:19-cv-2457-RCL
ALEJANDRO MAYORKAS, et al.,
Defendants.
MEMORANDUM OPINION
This case concerns the alleged placement of plaintiffs, the Jibril family, on a government-
maintained terrorist watchlist, and the allegedly unlawful treatment they suffered at the hands of
security officials on an international trip to Jordan in 2018 as a result. Plaintiffs filed suit in 2019
against various federal officers (together, "the government"), alleging violations of the
Administrative Procedure Act ("APA") and various constitutional rights and seeking declaratory
and injunctive relief. In 2020, this Court dismissed the complaint in full for want of subject-matter
jurisdiction, holding that plaintiffs lacked Article III standing. On appeal, the Circuit affirmed in
part, reversed in part, and remanded to this Court.
Before the Court on remand are Defendants' Renewed Motion [20] to Dismiss and
Plaintiffs' Motion [24] for Leave to File an Amended Complaint. For the reasons that follow, the
motion to dismiss will be GRANTED, the motion for leave to amend will be DENIED, and the
case will be DISMISSED for lack of subject-matter jurisdiction.
I. BACKGROUND
This Court and the Circuit have already explained the background of this case in detail in
prior opinions. See Jibril v. Wolf("Jibril r'), No. 19-cv-2457-RCL, 2020 WL 2331870, at *1-2
(D.D.C. May 9, 2020); Jibril v. Mayorkas, 20 F.4th 804, 808-12 (D.C. Cir. 2021). Accordingly,
1 the Court will provide only as much background here as is necessary to resolve the renewed motion
to dismiss.
A. Statutory and Regulatory Background
The Terrorist Screening Center ("TSC"), a multi-agency executive organization overseen
by the Federal Bureau of Investigation ("FBI"), maintains a database known as the Terrorist
Screening Dataset ("TSDS"). Overview of Government's Watchlisting Process and Procedures
("Watchlisting Overview") at 2, Ex. 1 to Defs.' Mot. to Dismiss, ECF No. 20-2. That dataset
includes two subsets relevant here: the No Fly List and the Selectee List. Id. Pursuant to its
statutory mandate to "assess" and "deal[] with threats to transportation," 49 U.S.C. § 114(f), and
to utilize the No Fly List and Selectee List in doing so, see id. § 44903(j)(2)(C)(ii), the
Transportation Security Administration ("TSA") prohibits individuals on the No Fly List from
flying into, out of, or over the United States and subjects individuals on the Selectee List to
enhanced screening before entering the secure areas of airports, Watchlisting Overview at 2. The
government does not publicly disclose who is on either TSDS list, nor even the criteria for
placement on the Selectee List. Id. at 4, 9.
The government has a policy against informing individuals of their placement on or
removal from the Selectee List, although it does sometimes inform individuals of their placement
on the No Fly List. Id. at 9. Regardless, any individual who "believes he or she has been improperly
or unfairly delayed or prohibited from boarding an aircraft or entering a sterile area" because of
placement on either list may submit an inquiry through the Department of Homeland Security's
("DHS") Traveler Redress Inquiry Program ("TRIP"). 49 C.F.R. § 1560.205(a), (b). The DHS
TRIP program office forwards the inquiry to the TSC's Redress Office, which then reviews the
traveler's record, if any, to determine whether the individual's status on either watchlist should be
2 modified. Watchlisting Overview at 8-9. When the inquiry is complete, DHS TRIP sends "a
determination letter advising the traveler of the results of the adjudication of the redress inquiry,"
but still does not confirm or deny the traveler's status on the Selectee List. Id. Individuals who are
not on the No Fly List, but who may be on the Selectee List, are therefore often unable to receive
a response that meaningfully informs them of the results of their DHS TRIP inquiry.
B. Factual Background
The Jibril family consists of husband and wife Mohammed Jibril and Aida Shahin and their
five children: two adults named Ala'a Jibril and Khalid Jibril and three minors named H.J., Y.J.,
and O.J. Compl. ,r,r 1-7, ECF No. 1. All seven are United States citizens. Id. ,r 92. In the spring and summer of 2018, the Jibrils traveled to Jordan to visit family. Id. ,r 94. When the Jibrils went through security for their departing flight from Los Angeles, all seven,
including the minor children, were searched and patted down for two hours. Id. ,r,r 97-101. They were also interrogated for two hours upon arrival in Jordan. Id. ,r 102. When the Jibrils arrived at the airport for their return flight from Jordan, they were told by
Jordanian officials "that American officials have an issue with [Mohammed Jibril] and that the
family's names would need to be cleared prior to the family boarding the plane." Id. ,r 104. Upon arriving for a layover in the United Arab Emirates, the family was interrogated for roughly 45
minutes by Emirati officials. Id. ,r 106. They then endured an additional four hours of interrogation by U.S. Customs and Border Patrol ("CBP") officials "at the Preclearance location in Abu Dhabi."
Id. ,r 107. H.J. was interrogated by himself for some time without his parents. Id. ,r 111. O.J. was left without his parents at multiple points during the family's detention. Id. ,r 112. The CBP
officials searched all the Jibrils' electronic devices, including their cell phones, without warrants.
Id. ,r,r 113-14. Because the ordeal lasted so long, the Jibrils missed their flight and had to stay in
3 Abu Dhabi overnight. Id. ,r 118. When they returned to the airport, their phones were searched
again. Id. ,r 120. On March 1, 2019, Mohammed Jibril and Aida Shahin, through counsel, initiated inquiries
through the DHS TRIP program. Id. ,r 126. On March 20, 2019, the couple's children, through the same counsel, initiated their own inquiry. Id. ,r 127. In June and July of that year, DHS sent
"standard response letter[s] for persons who are not on the No Fly List, but who could be on the
Selectee List," to Mohammed Jibril, Aida Shahin, Ala'a Jibril, Khalid Jibril, and Y.J. Id. ,r,r 135- 37. None of those letters confirmed or denied whether the person referenced was on the Selectee
List. Id. O.J. received a slightly different letter additionally stating that "[y]our experience was
most likely caused by a misidentification against a government record or by random selection."
Id. ,r 137 n.13. As of the date of the complaint, H.J. had never received a determination letter. Id. ,r 138. C. Procedural History
The Jibrils filed suit in this Court against the Secretary of Homeland Security and various
other federal officers on August 13, 2019. See Compl. The complaint alleged six counts: (1)
violation of the Fourth Amendment right against unreasonable searches and seizures through
detentions and pat-downs, id. ,r,r 146-54; (2) violation of the same right through warrantless cell phone searches, id. mf 155-163; (3) violation of the Fifth Amendment right to due process through
placement on the Selectee List and inadequacy ofDHS TRIP procedures as a remedy, id. ,r,r 164- 79; (4) violation of the AP A due to detention conditions, id. ,r,r 180-93; (5) violation of the AP A due to placement on the Selectee List and inadequacy of DHS TRIP procedures as a remedy, id.
,r,r 194-200; and (6) a claim for an award of attorneys' fees under the Equal Access to Justice Act
4 ("EAJA"), id. ifif 201-03. Apart from the award of attorneys' fees, the complaint sought only
declaratory and injunctive relief. Id. Prayer for Relief,r,r 1-9.
On November 25, 2019, the government filed its first motion to dismiss for lack of subject-
matter jurisdiction and failure to state a claim. ECF No. 8. The Court granted that motion on May
9, 2020, holding that the Jibrils lacked standing-and thus the Court lacked subject-matter
jurisdiction-because they had not established that they would likely experience a similar travel
ordeal in the future. Jibril I, 2020 WL 2331870, at *3-5. Specifically, the Court reasoned that the
Jibrils did not adequately allege concrete future travel plans, id. at *3-4, and that given the Jibrils'
extensive history of traveling to Jordan with only one trip going awry, any future threat of similar
treatment on a hypothetical future trip was speculative, id. at *4-5.
On appeal, the Circuit affirmed in part, reversed in part, and remanded to this Court. Jibril
II, 20 F .4th at 817. The Circuit reasoned that the Jibrils alleged a likelihood of future travel given
that they have in the past traveled to Jordan every two years, id. at 814-15, and that, with respect
to most of their claims, they adequately alleged a likelihood of similar treatment in the future
because they alleged facts giving rise to a reasonable inference that they were on the Selectee List,
which necessarily triggers enhanced screening measures when traveling, id. at 815-17. However,
the Circuit affirmed this Court's dismissal of the Jibrils' claims insofar as they challenged the
patting down of minor children and separation of those children from their parents, because the
complaint alleged that the TSA had a policy of minimizing those practices, and thus it was unlikely
that they would recur even if the Jibrils were subject to enhanced screening in the future. Id. at
813.
On remand, the government filed a renewed motion to dismiss for lack of subject-matter
jurisdiction and failure to state a claim on April 28, 2022. ECF No. 20. In support of that motion,
5 the government submitted to the Court for ex parte, in camera review an affidavit of FBI Special
Agent and TSC Associate Deputy Director Samuel P. Robinson, a redacted version of which it
also filed on the public docket. See Not. of Lodging, ECF No. 21; Redacted Deel. of Samuel P.
Robinson, Ex. 2 to Defs.' Mot. to Dismiss, ECF No. 20-3. In the government's view, Agent
Robinson's declaration establishes a separate reason, which neither this Court nor the Circuit has
yet had occasion to consider, why the Jibrils lack standing to bring any of their claims. The Jibrils
filed their opposition to the renewed motion to dismiss, along with an alternative motion to amend
the complaint to seek nominal damages, on May 26, 2022, ECF Nos. 23, 24, and a supplemental
opposition brief on June 28, 2022, ECF No. 30. The government filed its reply on July 8, 2022.
ECF No. 31. The renewed motion to dismiss and the motion to amend are now ripe for review.
II. LEGAL STANDARDS
A. Rule 12(b)(l) Motions and Article III Standing
A defendant in a civil action may move to dismiss a complaint under Federal Rule of Civil
Procedure 12(b)(l) for "lack of subject-matter jurisdiction." A court considering such a motion
must take all the well-pleaded allegations in the complaint as true and draw all reasonable
inferences in the plaintiffs favor. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.
Cir. 2000). "However, those factual allegations receive closer scrutiny than they do in the Rule
12(b)(6) context," and "a court that is assessing a motion brought under Rule 12(b)(l) may look
to documents outside of the complaint in order to evaluate whether or not it has jurisdiction to
entertain a claim," including to "resolve factual disputes concerning jurisdiction." Doe v. Wash.
Metro. Area Transit Auth., 453 F. Supp. 3d 354, 361 (D.D.C. 2020) (K.B. Jackson, J.) (internal
quotation marks and citations omitted).
One way a court might lack subject-matter jurisdiction is if a plaintiff lacks Article III
standing. See Haase v. Sessions, 835 F.2d 902,906 (D.C. Cir. 1987). The plaintiff bears the burden
6 of establishing standing by demonstrating (1) a concrete injury in fact that is (2) traceable to the
complained-of conduct and (3) redressable by the relief sought. See Lujan v. Deft. of Wildlife, 504
U.S. 555, 560.,..{il (1992). Furthermore, "[i]n a case of this sort, where the plaintiffs seek
declaratory and injunctive relief, past injuries alone are insufficient to establish standing," Dearth
v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011), and "a threatened injury must be 'certainly
impending' or there has to be a 'substantial risk that the harm will occur,"' Union of Concerned
Scientists v. Dep't of Energy, 998 F.3d 926, 929 (D.C. Cir. 2021) (quoting Susan B. Anthony List
v. Driehaus, 573 U.S. 149, 158 (2014)).
Relatedly, a court lacks subject-matter jurisdiction if a case becomes moot-that is, if
"[t]he requisite personal interest that must exist at the commencement of the litigation (standing)"
does not "continue through its existence (mootness)." Arizonans for Official English v. Arizona,
520 U.S. 43, 68 n.22 (1997) (internal quotation marks and citation omitted). The defendant, not
the plaintiff, "bears the burden to establish that a once-live case has become moot." West Virginia
v. EPA, 142 S. Ct. 2587, 2607 (2022). A notable exception to the doctrine ofmootness exists where
"[t]he only conceivable basis for a finding of mootness in [the] case is [the defendant's] voluntary
conduct." Friends ofthe Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).
"'[V]oluntary cessation does not moot a case' unless it is 'absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur."' West Virginia, 142 S. Ct. at 2607
(alteration added) (quoting Parents Involved in Community Schools v. Seattle School Dist. No. 1,
551 U.S. 701, 719 (2007)).
B. Rule 12(b)(6) Motions
A defendant in a civil action may also move to dismiss a complaint under Federal Rule of
Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." To survive
7 a Rule 12(b)(6) motion, a complaint must contain sufficient factual allegations, accepted as true,
to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A claim is plausible on its face if it "pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Id. A court evaluating
a Rule 12(b)(6) "motion presumes th&t the complaint's factual allegations are true and construes
them liberally in the plaintiffs favor." A/emu v. Dep 't of For-Hire Vehicles, 327 F. Supp. 3d 29,
40 (D.D.C. 2018). However, "[a] court need not accept a plaintiffs legal conclusions as true, ...
nor must a court presume the veracity oflegal conclusions that are couched as factual allegations."
Id. (citation omitted).
C. Motions to Amend a Complaint
A plaintiff may amend a complaint as a matter of course 21 days after serving it or 21 days
after service of a responsive pleading or motion under Federal Rule of Civil Procedure 12(b), (e),
or (f). Fed. R. Civ. P. 15(a)(l). Thereafter, a plaintiff may amend a complaint "only with the
opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). Although courts
should grant such leave freely when justice so requires, id., "[a] court may deny as futile a motion
to amend a complaint when the proposed complaint would not survive a motion to dismiss,"
Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101, 114 (D.D.C. 2002).
III. DISCUSSION
The government moves to dismiss the complaint on the ground that, based on facts relayed
in its ex parte submission, the Jibrils lack standing to pursue any of their claims, and thus the Court
lacks subject-matter jurisdiction. See Def.'s Mem. in Support of Mot. to Dismiss at 13-15 ("Mot.
8 to Dismiss Mem. "), ECF No. 20-1. 1 In the alternative, the government moves to dismiss all claims
on the merits for failure to state a claim. See id. at 16-31. In addition to defending their claims on
the merits, see Pls.' Opp 'n to Mot. to Dismiss at 20-3 7, ECF No. 23, the Jibrils argue that ex parte,
in camera review is inappropriate, see id. at 18, that what they believe to be in the ex parte
submission-a statement that the Jibrils are not on the watchlist--does not in fact deprive the
Court of subject-matter jurisdiction because the voluntary cessation doctrine applies, see id. at 14-
17, and that at the very least they have standing to challenge the government's broader watchlisting
and DHS TRIP policies, see id. at 15-16. In the alternative, the Jibrils move for leave to amend
their complaint to cure any problem with standing to pursue prospective relief by adding a request
for nominal damages, a retrospective form of relief. See id. at 37-39.
Based on its ex parte, in camera review of the government's submission, the Court agrees
with the government that the Jibrils lack standing and the Court therefore lacks subject-matter
jurisdiction. Accordingly, the Court has no occasion to consider the merits of the government's
Rule 12(b)(6) motion. The Court further concludes that amending the complaint as the Jibrils
propose would be futile, because the government has not waived its sovereign immunity with
respect to the nominal damages the Jibrils would seek.
A. The Jibrils Lack Standing to Pursue Any of their Claims
The government now argues as a factual matter, independently from the reasons it relied
on in its first motion to dismiss, that the Jibrils lack Article III standing to pursue their remaining
claims on remand. It does so on the basis of an ex parte submission to the Court for in camera
1 The government also argues that the Court lacks subject-matter jurisdiction to review the Jibrils' due process clause claim and their coextensive APA claim because 49 U.S.C. § 46110 gives the Courts of Appeals exclusive jurisdiction to review orders issued " in whole or in part" by the TSA. See Mot. to Dismiss Mem. at 15-16. But as the government acknowJedges, lhe Circuit has held that§ 46110 does not apply to challenges to the TSC-administered watchli ting proces, see Ege v. Dep't ofHomeland Security, 784 F.3d 791 , 795-96 (D.C. Cir. 2015), and this Court is bound by that precedent.
9 review. The government argues that national security concerns justify in camera review of that ex
parte submission, as well as keeping its contents secret. The Court reluctantly agrees.
"Ex parte, in camera resolution of dispositive issues should be avoided whenever
possible." Ellsberg v. Mitchell, 709 F.2d 51, 69 n.78 (D.C. Cir. 1983). However, it is permissible
in certain extraordinary circumstances implicating national security concerns. See, e.g., Jifry v.
FAA, 370 F.3d 1174, 1181-82 (D.C. Cir. 2004). On that ground, at least some district courts have
conducted in camera, ex parte review of submissions involving the TSDS and potentially revealing
plaintiffs' placement on or removal from that list. See Nur v. Unknown CBP Officers, No. 22-cv-
169-AJT, 2022 WL 16747284, at *6-7 (E.D. Va. Nov. 7, 2022); Kovac v. Wray, No. 3:18-cv-110-
X, 2022 WL 717260, at *1-4 (N.D. Tex. Mar. 10, 2022).
This Court has serious misgivings about allowing the government to rely on information
that it refuses to disclose to the Jibrils to have their case dismissed. It seems only fair if the Court
is to dismiss this case that the plaintiffs and their counsel, who have expended great effort and
resources litigating it at multiple levels of the court system, should know the basis for the Court's
reasoning. Moreover, the Court is reluctant 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 the
resolution of a jurisdictional question in their case, with government counsel suggesting at oral
argument before the Circuit that "if the Jibrils would like to determine whether they remain on a
terrorist watchlist, some or all members of the family can book another trip to see whether they
endure the same problems that they faced in 2018." Jibril II, 20 F.4th at 817.
Nevertheless, the Court has an "independent obligation" to assure itself that it has subject-
matter jurisdiction. Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). Based on the information the
government has submitted ex parte, the Court sees no conceivable way that the Jibrils could
10 demonstrate that they have standing, even with a full opportunity for adversarial testing of the
government's position. Furthermore, the government has explained at length in its ex parte
submission, and to some extent in the redacted, public version of the same document, see Redacted
Robinson Deel. ,r,r 25-26, 28-32, why, in general, disclosure of an individual's status on the
Selectee List might pose a threat to national security, especially by facilitating circumvention of
law enforcement and national security investigations. While the government has not entirely
explained why that concern would exist in this particular case, particularly with respect to the
plaintiffs who are minor children, the Court recognizes that sometimes courts must keep private
highly sensitive information that could compromise the executive's exercise of ongoing national
security duties. Accordingly, the Court will grant the government's request that the Court conduct
an ex parte, in camera review of the materials submitted and will endeavor to explain its reasoning
as clearly as possible without expressly confirming or denying any individual's status 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. 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
11 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 subject-matter
jurisdiction, because standing is judged at the filing of the complaint and mootness is judged during
the pendency of the action. See Arizonans for Official English, 520 U.S. at 68 n.22. 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 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. Union of
Concerned Scientists, 998 F.3d at 929 (quoting Susan B. Anthony List, 573 U.S. at 158).
The Jibrils argue that removal from the Selectee List at least would not affect their standing
to bring their due process and AP A challenges to the "policy itself'-that is, the DHS TRIP
procedures for redressing one's possible placement on the Selectee List-because "singular relief
on one aspect of a claim does not moot the party's challenge to that policy or practice as a whole."
Pls.' Opp'n at 16. But both cases they cite for that proposition are inapposite here. In Cause of
Action Inst. v. Dep 't of Justice, the Circuit held that its own conclusion that the Department of
Justice ("DOJ") violated the Freedom oflnformation Act ("FOIA") in the plaintiffs case did not
moot that plaintiffs more general challenge to DOJ's FOIA procedures, because "[i]t is generally
understood that 'even though a party may have obtained relief as to a specific request under the
12 FOIA, this will not moot a claim that an agency policy or practice will impair the party's lawful
access to information in the future."' 999 F.3d 696, 703-04 (D.C. Cir. 2021) (alterations in
original) (quoting Payne Enters., Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988)). But
the Circuit also made clear that "to pursue its challenge to the [agency's FOIA policy] once its
request for specific relief is no longer at issue, [the plaintiff] must still demonstrate standing to
challenge the disputed policy or practice." Id. at 704. The plaintiff in Cause of Action Inst. met
that bar because it had "additional FOIA requests pending with DOJ" and thus was "at risk of
receiving the same improper treatment in the future." Id. (internal quotation marks omitted).
Similarly, the Supreme Court held in Super Tire Engineering Co. v. McCorkle that when a plaintiff
challenges a policy, "[i]t is sufficient" for mootness purposes "that the litigant show the existence
of [a] ... policy that has adversely affected and continues to affect a present interest." 416 U.S.
115, 125-26 (1974) (emphasis added).
Those cases would not help the Jibrils if any family member who was ever on the Selectee
List were removed. Even setting aside the fact that the cases are about mootness rather than
standing, there would be no agency policy "continu[ing] to affect a present interest" asserted in
the complaint. Id. at 126. And under the proper framework of standing, any risk of future harm to
the interests the Jibrils assert would not be "sufficiently imminent and substantial" to supply
standing to seek prospective relief. TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210 (2021).
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. See U.S. Const.
amend. V. The Jibrils allege that the government has deprived them, and continues to deprive
13 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. See Pls.' Opp'n at 22-23
("Although future travel will happen, the Jibril family members' experiences had a significant
chilling effect on their willingness to travel and sense of well-being while doing so."); id. at 24
("[The Jibrils] allege that [their] belief [in making a pilgrimage to Mecca] is burdened by the
government's policies and actions of placing the entire family on a Terrorist Watchlist, making it
difficult ... to travel or attempt to travel."). They also argue that the government has deprived
them, and continues to deprive them, of a protected 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. See id. at 25-28.
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 ofline 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,2 they would not
have standing to challenge that policy.
2 As noted above, although it is the defendant who bears the burden of establishing that a case has become moot during its pendency, it is the plaintiff who bears the burden of demonstrating that standing exists at the filing of the complaint. West Virginia, 142 S. Ct. at 2607. For that reason, if standing were the proper framework, the cases that the parties
14 That conclusion is entirely consistent with the Circuit' s reasoning in Jibril II. Noting that
"the Jibrils allege facts supporting the conclusion that they appeared on the Selectee List during
their 2018 travels," the Circuit "simply [drew] the reasonable inference from those facts that this
remains the case today, particularly since the Government has provided no evidence to the
contrary." Jibril II, 20 F .4th at 816-17. If 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, that inference would no longer be reasonable,
and 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
817.
The Court regrets that in granting the government's request not to expressly confirm or
deny the contents of the ex parte submission, it must leave the Jibrils in the dark as to precisely on
what factual basis their case will be dismissed for a second time. But based on the Court' s in
camera review of that submission and the legal principles outlined above, the Court concludes that
none of the Jibrils have standing to pursue any of their claims for declaratory and injunctive relief.
Because the Court lacks subject-matter jurisdiction over any of the Jibrils' claims, it has no
occasion to consider whether the complaint also fails to state a claim upon which relief can be
granted.
cite concerning application of the voluntary cessation exception to mootness to an affidavit promising that a plain.tiff would not be added back to a TSDS watc.hlist would not provide a helpfu l analog. See Fit.Te v. FBI 35 F.4th 762 770-73 (9th Cir. 2022); Long v. Pekoske, 38F.4th417 422-26 (4th Cir. 2022). Unlike in those cases, it would not be incumbent on the government to make ' absolutely clear that the aUegedly wrongful behavior' of returning a plaintiff to a watchlist "could not reasonably be expected to recur." West Virginia, 142 S. Ct. at 2607 (quotation marks and citation omitted).
15 B. Amending the Complaint Would Be Futile
As an alternative to their opposition to the government's motion to dismiss, the Jibrils move
for leave to amend their complaint to seek nominal damages, based on the Supreme Court's recent
holding in Uzuegbunam v. Preczewski that "a request for nominal damages satisfies the
redress ability element of standing where a plaintiffs claim is based on a completed violation of a
legal right." 141 S. Ct. 792, 802 (2021); see Pls.' Opp'n at 37-39. That proposed amendment
would be futile. While the Jibrils might theoretically have standing to pursue retrospective,
monetary relief to redress the alleged injuries they suffered during their 2018 trip to Jordan, they
have not identified a waiver of sovereign immunity that would allow them to pursue claims for
monetary damages against the government. 3 The AP A's waiver of sovereign immunity does not
apply to suits for "money damages," 5 U.S.C. § 702, including nominal damages, see Leonard v.
Dep't of Defense, 38 F. Supp. 3d 99, 104 n.2 (D.D.C. 2014). Because "the proposed complaint
would not survive a motion to dismiss," the Court will "deny as futile [the Jibrils'] motion to
amend [their] complaint." Robinson, 211 F. Supp. 2d at 114.
IV. CONCLUSION
For the foregoing reasons, the Court will GRANT the government's motion to dismiss for
lack of subject-matter jurisdiction, DENY the Jibrils' motion to amend the complaint, and
DISMISS the case. A separate Order shall issue this date.
Date: February ,._1, 2023 Royce C. Lamberth United States District Judge
3 Although the defendants are all individual federal officers, the proposed amended complaint names them in their official capacities. See Proposed Am. Comp!. ,rn 9-13. The Jibrils' claims must therefore be treated for purposes of sovereign immunity as claims against the United States. See Zaidan v. Trump, 317 F. Supp. 3d 8, 21 (D.D.C. 2018).