Episode 56 with Dr Ber & Ana Toledo, explaining this Motion and why its important.
https://youtu.be/2hOxpQd6Aqs
https://youtu.be/2hOxpQd6Aqs
| petforrehearingenbanc2.docx |
` No. 23-20342
__________________
In the
United States Court of Appeals
For the Fifth Circuit
___________________
TARGETED JUSTICE, INCORPORATED; WINTER O. CALVERT; DR.
LEONID BER; DR. TIMOTHY SHELLEY; KAREN STEWART; ARMANDO
DELATORRE; BERTA JASMIN DELATORRE; J. D., a minor; DEBORAH
MAHANGER; L. M., a minor; LINDSAY J. PENN; MELODY ANN HOPSON;
ANA ROBERTSON MILLER; YVONNE MENDEZ; DEVIN DELAINEY
FRALEY; SUSAN OLSEN; JIN KANG; JASON FOUST; H. F.,
Plaintiffs-Appellants,
v.
MERRICK B. GARLAND, Attorney General of the United States, in his individual
and official capacity; FEDERAL BUREAU OF INVESTIGATION;
CHRISTOPHER WRAY, Director of Federal Bureau of Investigations, in his
individual and official capacity; CHARLES KABLE, JR., Director of the Federal
Bureau of Investigation’s Terrorist Screening Center, in his individual and official
capacity; UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
SECRETARY ALEJANDRO MAYORKAS, Secretary of the Department of
Homeland Security, in his individual and official capacity; KENNETH
WAINSTEIN, Department of Homeland Security’s Under Secretary for Intelligence
and Analysis, in his individual and official capacity,
Defendants-Appellees,
On Appeal from the United States District Court for the Southern District of Texas
Houston Division, USDC No. 4:23-CV-1013
PETITION FOR REHEARING EN BANC
_____________________________________
April 5, 2024 Ana Luisa Toledo
Counsel for Plaintiffs-Appellants
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ii
No. 23-20342
TARGETED JUSTICE, ET AL.,
Plaintiffs-Appellants
v.
MERRICK GARLAND ET AL.,
Defendants-Appellees
CERTIFICATE OF INTERESTED PERSONS
The cause number and style of the case is No.23-00342, Targeted Justice et.
Al. v. Garland, et. Al. (USDC Civil No. 4:23-CV-1013, Southern District of Texas).
The undersigned counsel certifies that the following listed persons and
entities, as described in the fourth sentence of Rule 28.2.1, have an interest in the
outcome of this case. These representations are made so that the judges of this Court
may evaluate possible disqualification or recusal.
Plaintiffs-Appellants:
Targeted Justice, Incorporated
Winter O. Calvert
Dr. Leonid Ber
Dr. Timothy Shelley
Karen Stewart
Armando Delatorre
Berta Jasmin Delatorre
J. D., A minor
Deborah Mahanger
L. M., A minor
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iii
Lindsay J. Penn
Melody Ann Hopson
Ana Robertson Miller
Yvonne Mendez
Devin Delainey Fraley
Susan Olsen
Jin Kang
Jason Foust
H. F., A minor
Defendants-Appellees:
Merrick B. Garland, and spouse
Federal Bureau of Investigation
Christopher Wray, and spouse
Charles Kable, Jr., and spouse
United States Department of Homeland Security
Secretary Alejandro Mayorkas, and spouse
Kenneth Wainstein, and spouse
Attorney for Plaintiffs-Appellants:
Ana Luisa Toledo
Appellate Counsel for Defendants/Appellees:
Sharon Swingle
Graham White
Additional Trial Counsel for Defendants:
Madeline McMahon
Jacob Bennet
Other Interested Parties Identified:
Stephen Glasheen
Infragard
Citizen Corps
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iv
Microsoft Corporation
Leidos Corporation
Lockheed Martin Corporation
Boeing Corporation
L3Harris Corporation
Furthermore, pages iv-viii of this document, is a list of Targeted Justice
members that at this time have expressed in writing an interest in the outcome of this
case and registered with the organization. Like Plaintiffs, they want to get their
names removed off the TSDB as they do not represent a threat to national security
and were improperly added to the list. The entire list is adopted by reference for the
purpose of giving required notice under Rule 28.2.1.
Respectfully submitted.
Dated:
April 5, 2024 /s/ Ana Luisa Toledo
Ana Luisa Toledo
Counsel for Plaintiffs-Appellants
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v
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xiii
RULE 35(B)(1) REQUIRED STATEMENT
I express a belief, based on a reasoned and studied professional judgment, that
the panel decision, attached as the appendix of this petition, warrants en banc review
under both Rule 35 criteria.
The panel’s decision contravenes the precedents contained in the following
cases:
1) White v. U.S. Corrections, LLC, 996 F.3d 302 (5th Cir. 2021), that held
that the Court must “accept all well-pled facts as true, construing all reasonable
inferences in the complaint in the light most favorable to the plaintiff[s].”
2) Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), that held that “the
plausibility standard is not akin to a ‘probability requirement”.
3) Tellabs, Inc. v. Makor Issues and Rights, Ltd. 551 U.S. 308 (2007) that
held that ‘[w]hen ruling on Rule 12(b)(6) motions to dismiss, Courts must take the
complaint in its entirety, as well as other sources. . . incorporated into the complaint
by reference and matters of which a court may take judicial notice.)
4) TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), that held that
intangible harms can be concrete and actionable such as damage to the person’s
reputation resulting from the false disclosure to third parties that a person is a
‘suspected terrorist’.
5) Missouri v. Biden, ___ F.4th___, 2023 WL 2578260 (5th Cir.2023)
This case also contains Court precedent that the panel disregarded in this case
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xiv
regarding the standing issue an injunction to halt ultra vires individual defendants’
actions: “Parties are entitled to sue for injunctive relief against federal officials in
their official capacity for actions beyond their statutory authority.”
6) Texas v. United States, 809 F.3d 134 (5th Cir. 2015) that held that one
plaintiffs’ standing is extensive to the rest by holding that “[i]t is not necessary for
all plaintiffs to demonstrate standing”; rather, “one party with standing is sufficient
to satisfy Article III case-or-controversy requirement.
7) Ramming v. U.S., 281 F.3d 158 (5th Cir. 2001), that held that upon
reviewing a district court’s granting of a motion to dismiss for lack of subject matter
jurisdiction, court precedent requires a review under a de novo standard. The panel
applied an incorrect abuse of discretion standard of review to ratify the district
court’s dismissal with prejudice of the complaint.
8) Taylor v. U.S. Treasury Dep’t, 127 F.3d 470 (5th Cir. 1997) that held
that as an exception to the exhaustion of remedies doctrine in the context of the
Freedom of Information Act is not required when constitutes an exercise in futility
or infringes upon constitutional rights, the doctrine is inapplicable.
Standing alone, the panel’s legal error would justify an en banc review.
However, I further express a belief, based on a reasoned and studied professional
judgment, that this appeal involves one or more questions of exceptional importance
that have never been adjudicated by any court of the United States :
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xv
A. This case is the first to challenge before any court of the United States
the unchecked, ultra vires, executive branch practice in excess of legal authority by
defendant Federal Bureau of Investigation (FBI) of labeling innocent Americans such
as plaintiffs as ‘suspected terrorists’ without reasonable suspicion for it, pursuant to
‘secret’ criteria, without giving them the due process required notice or opportunity
to controvert their permanent inclusion in two unauthorized categories of the
Terrorist Screening Database (TSDB) that defendant FBI acknowledges contain the
names of individuals that do not represent a threat to national security and are thus
not subjected to the additional screening that individuals on two other categories of
the TSDB known as the ‘Watchlist’ undergo when traveling.
B. This case is the first to challenge the government defamation in violation
of the Privacy Act resulting from Defendants’ distribution of the TSDB among
18,000 law enforcement agencies, over five hundred thirty-two corporations, 1,440
organizations and at least sixty countries through the National Crime Information
Center (NCIC), including its two secret categories that label non-terrorists such as
Plaintiffs as ‘suspected terrorists.’
Dated:
April 5, 2024 /s/ Ana Luisa Toledo
Ana Luisa Toledo
Counsel for Plaintiffs-Appellants
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xvi
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS .......................................................ii
REQUIRED STATEMENT...................................................................................xiii
TABLE OF CONTENTS ......................................................................................xvi
TABLE OF AUTHORITIES ................................................................................xvii
STATEMENT OF ISSUES THAT MERIT EN BANC CONSIDERATION.........1
INTRODUCTION....................................................................................................1
STATEMENT OF THE CASE................................................................................2
ARGUMENT……………………….......................................................................7
A. The “Memorandum and Order” was a final, appealable decision.......7
Plaintiffs did not have to exhaust administrative remedies.................8
B. The panel’s collateral confirmation of the appealed decision
violates due process and Court precedent..........................................10
C. The panel erred in refusing to review denial as ‘moot’ of the
limited jurisdictional discovery and other pending motions..............14
The discovery request would have not allowed the district
court to dismiss of the complaint.......................................................16
D. Some final words................................................................................17
CONCLUSION......................................................................................................18
CERTIFICATE OF COMPLIANCE.....................................................................19
CERTIFICATE OF SERVICE..............................................................................19
.
APPENDIX: OPINION.....................................................................................1
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xvii
TABLE OF AUTHORITIES
Cases
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ................................................................................xiii,11
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971) ................................................................................13,14
Carver v. Atwood,
18 F.4th 494 (5th Cir. 2021) ..........................................................................14
Elhady v. Kable,
391 F.Supp.3d 562 (E.D.VA 2019), rev’d 993 F.3d 208 (2021) ....................15
Green Tree Fin. Corp.-Ala. v. Randolph,
531 U.S. 79 (2000) .........................................................................................7
Hammond Packing Co. v. Arkansas,
212 U.S. 322 (1909)… ..................................................................................16
Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss.,
143 F.3d 1006, 1010 (5th Cir.1998) .............................................................12
Kovac v. Wray,
__F4th__,2023 WL 2430147 (5th Cir.) .........................................................15
McLeod, Alexander, Powel & Apffel, P.C. v. Quarles,
894 F.2d 1482, 1485 (5th Cir.1990) ..........................................................….17
Missouri v. Biden,
__F.4th__, 2023 WL 2578260 (5th Cir.2023) ......................................xiii, 12
Paul v. Davis,
424 U.S. 693 (1976) ......................................................................................13
Piratello v. Philips Elecs. N. Am. Corp.,
360 F.3d 506 (5th Cir. 2004) .........................................................................16
Preble-Rish Haiti, S.A. v. BB Energy USA, LLC,
__F4th___, 2021 WL 5143757, at *2 (5th Cir. 2021) ..................................16
Ramming v. U.S.,
281 F.3d 158 (5th Cir. 2001) .................................................................. xiv,11
San Jacinto Sav. & Loan v. Kacal,
928 F.2d 697, 701 (5th Cir. 1991) ................................................................. 14
Spivey v. Chitimacha Tribe of Louisiana,
79 F.4th 444 (5th Cir. 2023) .........................................................................14
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xviii
Taylor v. U.S. Treasury Dep’t,
127 F.3d 470 (5th Cir. 1997) ..................................................................xiv, 9
Tellabs, Inc. v. Makor Issues and Rights, Ltd.
551 US 308 (2007) .................................................................................xiii, 11
Texas v. Thompson,
70 F.3d 390 (5th Cir. 1995) .........................................................................14
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) ..................................................................xiv, 13
TransUnion LLC v. Ramirez,
594 U.S. 413 (2021) ............................................................................. xiii, 13
White v. U.S. Corrections, LLC,
996 F.3d 302 (5th Cir. 2021) ................................................................ xiii, 11
Wiwa v. Royal Dutch Petroleum Co.,
392 F.3d 812 (5th Cir. 2004) ........................................................................15
United States Constitution
Article III...........................................................................................................xiv,13
Fourth Amendment...............................................................................................4,14
Fifth Amendment .....................................................................................................5
Sixth Amendment ....................................................................................................5
Treaties
Article 32 of the Convention (IV) relative to the Protection of Civilian Persons in
Time of War, Geneva, 12 August 1949, ratified by the United States on 02.08.1955
(“Geneva Convention”) ..........................................................................................5
United Nations’ Convention 1753 against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, ratified by the United States of America in
1994 Convention Against Torture.............................................................................5
Statutes
Administrative Procedure Act...........................................................................passim
Privacy Act, , 5 USC § 552(a)(4)(B); ...............................................................3,10,14
28 U.S.C. § 1291......................................................................................................16
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xix
Rules
F.R.App.P. 43..........................................................................................................3
F.R.App.Proc 4(a)(7)(B) .........................................................................................7
F.R.Civ.Proc. 8...................................................................................................2, 13
F.R.Civ.Proc. 12(b)(1) .....................................................................................passim
F.R.Civ.Proc 12(b)(6). ............................................................................................5
Executive Orders
Homeland Security Presidential Directive 6............................................................3
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1
STATEMENT OF ISSUES THAT MERIT EN BANC CONSIDERATION1
1. Whether the panel erred by concluding that the district court’s
‘Memorandum and Order’ (M/O) dismissing with prejudice the complaint for lack
of subject-matter jurisdiction and denying pending motions as “moot”, constituted
an unappealable “interlocutory order”, denying a full adjudication of the issues
presented for review.
2. Whether the panel erred in collaterally confirming the district court’s
dismissal with prejudice of the complaint as ‘frivolous’ and ‘fantastical’ as part of
its review of an issue not argued in Plaintiffs’ opening brief and in violation of
Plaintiffs’ due process rights.
3. Whether the panel erred in refusing to review the district court’s order
denying as ‘moot’ the jurisdictional discovery.
INTRODUCTION
As plaintiff Winter O. Calvert laid on the floor, contorting in excruciating pain
caused by a blood clot in his lungs, the Brazoria County deputy sheriff did not let
the ambulance in the driveway until they had ‘secured the premises’ since they were
told a suspected terrorist lived there. ROA.641 [¶¶ 397-398] The only occupants of
the home were Calvert and his 87-year-old mother. ROA.402.
1 Choosing the battles that fit within a 3,900-word limitation does not mean that Plaintiffs renounce
to the full adjudication of the issues raised on appeal and reserve the right to argue them again.
This is especially true of the issue regarding the district court’s denial of basic fairness and the
transfer of the case to the Houston division.
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2
Almost one hour later, the officers allowed the ambulance in. ROA.642 [¶
399] On his way to the hospital, Plaintiff Calvert heard the ambulance technicians
screaming at the driver to hurry up. He almost did not make it.
Seeking protection from the constant crimes against her, her elderly parents
and her pets, Plaintiff Karen Stewart, a retired NSA whistleblower, went to the Leon
County Sheriff’s office. After checking her name in her presence in a set of folders
he kept on the trunk of his car, the deputy sheriff told her: “I am not allowed to help
you” and left. ROA.638 [¶ 381], ROA.408.
Calvert’s and Stewart’s detailed pleadings regarding how they discovered
their placement on the TSDB exceed F.R.Civ.Proc. 8’s criteria. Yet the panel
disregarded their allegations because they “have not seen” the list, curtailing
Plaintiffs’ due process right to discovery.
When ultra vires, unauthorized government action infringes on basic human
and civil rights protected by the United States Constitution, separation of power
justifies this Courts’ en banc consideration.
STATEMENT OF THE CASE
Plaintiffs comprise eighteen individuals including three children that have no
ties to terrorism. ROA.567 [¶ 27] In conjunction with Targeted Justice, Inc., an
organization they belong to along with over 4,500 other individuals, they filed suit
against the FBI, the Department of Homeland Security (DHS) and five public
officials in their official and individual capacities. ROA.559.
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3
The crux of Plaintiffs’ complaint is that Defendants FBI, Christopher Wray,
and Charles Kable2 listed and/or maintain them in two secret categories of the TSDB
known as Handling Codes 3 and 4 (HC3/4) without notice or opportunity to
controvert their nomination thereto. They contend that HC3/4 were not authorized
by Congress or by the 2003 Homeland Security Presidential Directive 6 (HSPD-6)
that authorized it, because they contain the names of individuals that Defendants
recognize a) do not meet the required reasonable suspicion terrorist criteria; b) do
not represent a threat to national security; and c) are thus not subjected to
extraordinary screening measures when traveling. ROA.566 [¶¶ 23-24].
Defendants nationally distribute the TSDB including HC3/4 falsely labeling
Plaintiffs and TJ Members as “suspected terrorists” through the National Crime
Information Center (NCIC).
The complaint requested, inter alia, that the court declare unconstitutional and
a violation of the Privacy Act Plaintiffs’ secret and defamatory classification as
‘suspected terrorists’ and its nationwide distribution. ROA.600 [¶ 188] Plaintiffs
also asked the court to issue a permanent injunction prohibiting defendants from
continuing this practice. ROA.668-682.
Plaintiffs further alleged that Defendants’ illegal inclusion of Plaintiffs in
HC3/4 made them ‘targets’ of a weaponized government program that subjects them
2 Two weeks after the filing of the complaint, Charles Kable retired. Defendants never informed
the court nor have substituted defendant Kable with his sucessor, Steven Glasheen. F.R.App.P. 43.
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4
to illegal surveillance, inordinate difficulties in daily life, and physical suffering.
ROA.610-632, ROA.729, ROA.768. Plaintiffs buttressed their accurate, factual
allegations about this program with an uncontroverted statement under penalty of
perjury by Ted Gunderson, former FBI Senior Special Agent-in-Charge, who
attested to its existence.3 ROA.685.
Nowhere in the complaint do Plaintiffs accuse Defendants of carrying out
directed energy weapons and/or microwave auditory effect (voice to skull) attacks
on them. Br.34 [¶ 20].
Plaintiffs further alleged that Defendants DHS, Kenneth Wainstein, and
Alejandro Mayorkas are responsible for concocting and implementing the policy at
the Fusion Centers that are notorious for perpetrating illegal surveillance, stalking,
harassment, and civil rights violations against them. ROA.578-579 [¶¶ 66-67],
Plaintiffs included as Exhibit 11 of the complaint was a Brennan Center for Justice
report titled “Ending Fusion Centers Abuse” concluding that its “domestic
intelligence model has undermined Americans’ privacy, civil rights, and civil
liberties.” ROA.737.
Plaintiffs alleged that defendants’ conduct infringed on their Constitutional
rights to be secure in their persons and property pursuant to the Fourth Amendment;
3 The complaint also alleged that most of the individuals placed on the illegal subcategories of the
TSDB are women and/or people that hold politically conservative values. ROA.628 [¶¶ 328,330],
ROA.630 [¶ 336]
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5
to substantive and procedural due process rights contained in the Fifth and Sixth
Amendments; to be free from cruel and unusual punishment under the Eighth
Amendment; and the rights deriving from the Convention Against Torture and
Article 32 of the Geneva Convention. ROA.577 [¶ 65] ROA.565 [¶¶ 18 and 21],
ROA.567 [¶26], ROA. [¶ 30].
Early in the case, Defendants rolled out the ‘fanciful and fantastical’ language
to describe the pleadings. Br.31. This prompted Plaintiffs to file on April 8, 2023 a
Motion to Compel Limited Discovery (Motion to Compel) regarding their TSDB
status. ROA.888. Defendants objected to producing to Plaintiffs their TSDB status
information deeming it an unnecessary ‘fishing expedition’ prior to the Court’s
resolution of their dispositive motion that they seemed to be certain would be
granted. ROA.1164. The court disregarded the Motion to Compel, only to deny it as
‘moot’ upon dismissal. ROA.1638.
Official and Individual Capacity Defendants filed separate Motions to
Dismiss under F.R.Civ.Proc 12(b)(1) and 12(b)(6). ROA.988, ROA.1587.
Nowhere in the record did Defendants or the district court discuss the legality
of any of the following:
a) Defendants’ ultra vires practice of labeling innocent Americans, such as
Plaintiffs, as domestic terrorists, including them in the TSDB’s HC3/4
without reasonable suspicion criteria and continuously and massively
disseminating it throughout the nation and sixty countries. Br.34.
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6
b) The ‘secret criteria’ used to place individuals in HC3/4. Br.34, ROA.1176
[¶ 8].
c) The TSDB secret nomination process denying Plaintiffs notice and an
opportunity to be heard.Br.27.
d) The inexistence of a mechanism to be removed from the lists. ROA.601-
602.
Exactly six months after the filing of the complaint, on July 11, 2023, the
district court entered the M/O dismissing the complaint with prejudice ‘for lack of
jurisdiction’ and dismissing the pending motions as ‘moot’. ROA.1619 fn.1. The
M/O adopted defendants’ language deeming the pleadings as ‘fantastical’ and
‘bizarre’ and failed to discuss Plaintiffs’ allegations regarding the classification of
innocent Americans as domestic terrorists and their illegal inclusion in HC3/4.
ROA.1619.
On July 12, 2023, Plaintiffs filed a Notice of Appeal. ROA1641. Plaintiffs
sought review of various orders included in the district court’s decision including
the dismissal with prejudice of the complaint. Id.
Three months after the briefing concluded, the panel issued an opinion
dismissing the appeal on jurisdictional grounds, holding that “[a]ll of the orders that
the Plaintiffs appeal are interlocutory” and ‘unappealable’. App.3. The panel
collaterally confirmed the district court’s dismissal with prejudice of the complaint
as frivolous without adjudicating the merits of Plaintiffs’ arguments against it.
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7
App.5. The panel’s confirmation of the judgment came about as a result of its review
of a matter that Plaintiffs did not raise in the opening brief: the denial of the Request
for Preliminary Injunction. App.3.
Plaintiffs request this Court reverse the panel’s decision and adjudicate the
merits of the appeal.
ARGUMENT
A. The “Memorandum and Order” was a final, appealable decision.
The panel concluded that the district court’s ‘M/O’ dismissing the complaint
for lack of jurisdiction with prejudice and denying pending motions as “moot”,
constituted a non-appealable “interlocutory order”, denying Plaintiffs a full
adjudication of all the issues presented for review. App.1
F.R.App.Proc 4(a)(7)(B) provides: “A failure to set forth a judgment or order
on a separate document when required by F.R.Civ.Proc. 58(a) does not affect the
validity of an appeal from that judgment or order.” The district court’s failure to
enter a separate judgment containing its dismissal with prejudice of Plaintiffs’
complaint cannot act as an obstacle to the appeal.
Furthermore, a final decision is one that “ends the litigation on the merits and
leaves nothing more for the court to do but execute the judgment.” Green Tree Fin.
Corp.-Ala. v. Randolph, 531 U.S. 79, 86 (2000) (citations omitted).
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8
The district court’s M/O containing the dismissal with prejudice for lack of
subject matter jurisdiction constituted an appealable final judgment because it
disregarded all of Plaintiff’s substantive claims.
Moreover, upon the filing of the notice of appeal, this Court carried out a
“jurisdictional review” indispensable to allow the appeal to proceed. The panel’s
conclusion that the Court lacked jurisdiction to evaluate the challenge to all the
issues on appeal, issued three months after the submission of briefs and seven
months after the filing of the notice of contravenes the Court’s jurisdictional check
and the basic notions of fairness.
Plaintiffs did not have to exhaust administrative remedies.
Plaintiffs did not have to, nor did they want to, carry out the “exhaustion of
administrative remedies” the district court suggested.4 The district court erroneously
imposed an “administrative stay” to force Plaintiffs to engage in an exercise in
futility not mandated by this Court’s precedent. The court’s suggested course of
action would have turned into a ‘legal gotcha’ game that would deprive plaintiffs of
their day in court.
Upon filing this appeal, Plaintiffs exercised their right to refuse to accept the
district court’s “administrative stay”. Following the court’s procedural mechanism
would allow for the clock to tick on Plaintiffs’ time to appeal the dismissal of the
4 The district court copied the data for the ‘exhaustion of remedies” from Official Capacity
Defendants’ Motion to Dismiss. ROA.1002.
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9
complaint and related orders, while exhausting remedies they are not legally
compelled to exhaust in the first place. The district court’s use of unconventional
procedural mechanisms that would deprive litigants of their due process rights merits
reversal.
This Court’s precedent in Taylor v. U.S. Treasury Dep’t, 127 F.3d 470, 477
(5th Cir. 1997), precluded the district court from requiring Plaintiffs to exhaust
administrative remedies. First, because the principal claims in this case entail
constitutional challenges and implied constitutional law tort claims deriving from
Defendants’ illicit actions that would remain standing after exhaustion of the
administrative remedy. Id. Furthermore, when the administrative remedy as in this
case is plainly inadequate and constitutes an exercise in futility, the jurisprudential
doctrine of exhaustion of remedies is inapplicable. Id.
Having filed suit, Plaintiffs acquired a right to discovery of the information
about their TSDB status. This made it unnecessary to undergo the administrative
process that has proved to be futile and was initiated for the sole purpose of drafting
a most thorough complaint as practicable. ROA.570 [¶ 41], ROA.579 [¶ 71]
The filing of this appeal is a rejection of the district court’s ‘administrative
stay’ designed to preclude an appeal, depriving Plaintiffs of their due process rights.
Consequently, the panel erred when concluding that it did “not have
jurisdiction to review the order denying outstanding motions as moot or the transfer
of the case to Houston” and that the M/O was not a final, appealable decision.
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10
This Court should reverse the panel’s opinion and adjudicate all the issues that
Plaintiffs raised on appeal.
B. The panel’s collateral confirmation of the appealed decision violates due
process and Court precedent.
While the panel concluded it lacked jurisdiction to review the M/O object of
this appeal, it chose to review an issue that Plaintiffs did not brief on appeal: the
denial of the Motion for Preliminary Injunction. ROA.321. Upon stating that it had
jurisdiction to review the collateral order denying the preliminary injunction, the
panel expressed that they also had “jurisdiction to review the district court’s
dismissal of the APA claims, constitutional claims, and Privacy Act claims because
they are intertwined with the injunction ruling”. App.3.
Applying an incorrect abuse of discretion standard of review and without
considering the merits of Plaintiffs’ arguments for reversal, the panel collaterally
affirmed the district court’s decision by concluding that it “properly dismissed the
individual Plaintiffs’ constitutional and APA claims for lack of subject-matter
jurisdiction because they are frivolous.” App.4.
In so doing, the panel violated Plaintiffs’ basic right to due process and
contravened long-standing Supreme Court and Fifth Circuit precedent as discussed
below.
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11
First, Plaintiffs did not include in their opening brief any argument regarding
the denial of the Preliminary Injunction. It was thus improper for the Panel to rule
on an issue that was not properly before the court.
Second, the panel’s adjudication of the denial of Preliminary Injunction that
Plaintiffs did not include in their opening brief resulted in the collateral confirmation
of the district court’s dismissal with prejudice of the complaint without delving into,
discussing, or controverting any of Plaintiffs’ arguments on appeal that warranted
the reversal of the complaint’s dismissal.
In its review, the panel applied an erroneous abuse of discretion standard of
review even though this Court evaluates de novo the district court’s grant of a Rule
12(b)(1) motion for dismissal applying the same standard used by the district court.
Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001).
Upon confirming the district court’s dismissal, the panel’s decision
demonstrated that it disregarded Court precedent imposing an obligation on the
reviewing court to accept as true the well-pled facts of a complaint dismissed on
F.Civ.Proc.R. 12(b)(1) grounds. The Court must “accept all well-pled facts as true,
construing all reasonable inferences in the complaint in the light most favorable to
the plaintiff[s].” White v. U.S. Corrections, LLC, 996 F.3d 302, 306–07 (5th Cir.
2021). Moreover, the panel disregarded the district court’s failure to take the
complaint in its entirety, “as well as other sources…incorporated into the complaint
Case: 23-20342 Document: 77-1 Page: 30 Date Filed: 04/05/2024
12
by reference and matters of which a court may take judicial notice.” Tellabs, Inc. v.
Makor Issues and Rights, Ltd., 551 U.S. 308 (2007).
The panel’s decision also overlooked Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), that held that “the plausibility standard is not akin to a ‘probability
requirement’ and that “[u]ltimately, a motion to dismiss for lack of subject matter
jurisdiction should be granted only if it appears certain that the plaintiff cannot prove
any set of facts in support of his claim that would entitle plaintiff to relief.” Home
Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th
Cir.1998).
Upon concluding that the district court properly dismissed the individual
Plaintiffs’ constitutional and APA claims for lack of subject-matter jurisdiction
“because they are frivolous” (App.4), the Panel never explained how the listing of
innocent Americans on HC3/4 despite Defendants’ admission that they do not meet
the reasonable suspicion terrorist criteria is a frivolous claim. Neither does the panel
explain the frivolity of Plaintiffs’ request for injunctive relief to order the elimination
of HC3/4 from the TSDB that would not cause any governmental harm because, by
FBI’s own admission, the people listed on those categories “do not represent a threat
to national security.” ROA.592 [¶140]
The panel’s decision warrants reversal because it disregarded plaintiff’s right
deriving from court precedent to demand a halt to Defendants’ ultra vires conduct.
“Parties are entitled to sue for injunctive relief against federal officials in their
Case: 23-20342 Document: 77-1 Page: 31 Date Filed: 04/05/2024
13
official capacity for actions beyond their statutory authority.” Missouri v. Biden, ___
F.4th___, 2023 WL 2578260 (5th Cir.2023).
The panel disregarded F.R.Civ.Proc 8 precedent in the context of Calvert’s
and Stewart’s well-pled allegations about how they learned they were on the TSDB.
Standing of one or two plaintiffs is extensive to the rest since “[i]t is not necessary
for all plaintiffs to demonstrate standing”; [rather] “one party with standing is
sufficient to satisfy Article III case-or-controversy requirement.” Texas v. United
States, 809 F.3d 134 (5th Cir. 2015).
The panel did not explain how Plaintiffs’ alleged placement on the TSDB did
not require giving Plaintiffs notice and an opportunity to be heard. “Where a person’s
good name, reputation, honor, or integrity is at stake because of what the government
is doing to him, notice and an opportunity to be heard are essential.” Paul v. Davis,
424 U.S. 693, 708 (1976). Hence, “where the State attaches ‘a badge of infamy’ to
the citizen, due process comes into play.” Id., 424 U.S. at 707 (citations omitted).
Upon concluding that the complaint was properly dismissed as ‘frivolous’, the
panel also disregarded the Supreme Court’s decision in TransUnion LLC v. Ramirez,
594 U.S. 413 (2021) that held that intangible harms can be concrete and actionable
such as damage to the person’s reputation resulting from the false disclosure to third
parties that a person is a ‘suspected terrorist’.
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14
The panel disregarded this Court’s precedent relevant to Plaintiffs’ Privacy
Act and Bivens5 claims holding that the “damage to an individual’s reputation as a
result of defamatory statements made by a state actor, accompanied by an
infringement of some other interest, is actionable under § 1983.” Texas v. Thompson,
70 F.3d 390, 392 (5th Cir. 1995) (citations omitted). A plaintiff may bring a § 1983
due process claim under a “stigma plus infringement” theory by showing a
stigmatizing statement plus a deprivation of a “life, liberty, or property interest.” San
Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 701 (5th Cir. 1991).
In the context of the Bivens claims set forth in the complaint, the panel also
disregarded the well-pled allegations about electronic surveillance and hacking in
violation of the Fourth Amendment. ROA319-321.
The panel’s decision to collaterally confirm a dismissal with prejudice under
F.R.Civ.Proc.12(b)(1) contravenes circuit precedent that precludes it. “A
jurisdictional dismissal must be without prejudice.” Carver v. Atwood, 18 F.4th 494,
498 (5th Cir. 2021). A court without jurisdiction cannot render a judgment “that
carries res judicata effect—including, as relevant here, a dismissal with prejudice.”
Spivey v. Chitimacha Tribe of Louisiana, 79 F.4th 444, 448 (5th Cir. 2023).
C. The panel erred in refusing to review denial as ‘moot’ of the limited
jurisdictional discovery and other pending motions.
5 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)
Case: 23-20342 Document: 77-1 Page: 33 Date Filed: 04/05/2024
15
The denial as moot of the Motion to Compel was not an interlocutory order
because it was issued simultaneously with the dismissal of the complaint. ROA.888,
ROA.1077. The panel erred in failing to review this issue briefed on appeal.
The panel’s assessment of the interlocutory nature of the M/O disregarded
circuit precedent that allows review of the district court’s denial of the Motion to
Compel limited discovery germane to the Court’s jurisdiction. This Court recognizes
the appealability of discovery orders. “We review a district court’s discovery rulings,
including the denial of a motion to compel, for abuse of discretion.” Wiwa v. Royal
Dutch Petroleum Co., 392 F.3d 812, 817 (5th Cir. 2004).
In prior cases involving individuals on the actual TSDB Watchlist, Plaintiffs
have had access to the information that Defendants hide from innocent Americans
that should not be on any terrorist list to begin with. Elhady v. Kable, 391 F.Supp.3d
562 (E.D.VA 2019), rev’d 993 F.3d 208 (2021) (Counsel allowed to review TSDB),
Kovac v. Wray, --F4th--,2023 WL 2430147 (5th Cir.) (District court examined
documents in camera review).
The limited discovery would have precluded the district court from dismissing
the complaint regarding Plaintiffs as delusional because Plaintiffs’ inclusion in
HC3/4 would have become an uncontroverted fact at a pleading stage. The discovery
of Plaintiffs’ names in HC3/4 would have done away with Defendants’ ‘fantastical’
and ‘frivolous’ language that the district court ultimately adopted.
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16
Since the panel collaterally reviewed the district court’s dismissal, it should
have adjudicated the erroneous denial as moot of the request for discovery germane
to the jurisdictional issue it ratified. Disregarding Plaintiffs’ well-pled facts
discussed above, the panel went on to state that Plaintiffs concocted their
‘fantastical’ allegations “due to their placement on a secret “blacklist” within the
Terrorist Screening Dataset (TSDS)—which, according to their allegations, they
have never seen or otherwise confirmed”. App.4-5.
The discovery request would have not allowed the district court to dismiss of
the complaint.
This matter was raised on appeal. Br.65.
Even though “[a]s a general matter, discovery orders do not constitute final
decisions” under 28 U.S.C. § 1291, and therefore, are not immediately appealable,
Piratello v. Philips Elecs. N. Am. Corp., 360 F.3d 506, 508 (5th Cir. 2004), some
discovery orders are immediately appealable. Preble-Rish Haiti, S.A. v. BB Energy
USA, LLC, __F4th___, 2021 WL 5143757, at *2 (5th Cir. 2021)
The discovery Plaintiffs sought would have corroborated that Plaintiffs are
listed on the illicit TSDB categories devoid of Congressional or Executive authority.
ROA.888.
The refusal to produce evidence material to the administration of due process
is an admission of the want of merit in the asserted defense. Hammond Packing Co.
v. Arkansas, 212 U.S. 322, 351 (1909). Defendant FBI’s refusal to produce
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17
Plaintiffs’ TSDB status could be construed as an implied admission that Plaintiffs
appear on the TSDB’s HC3/4 object of the crux of this case. If none of the Plaintiffs
appeared on HC3/4, Defendant FBI would not have opposed the discovery, and we
would not be here today. Its refusal to do so speaks volumes.
In failing to review the denial of the Motion to Compel, the panel disregarded
Court precedent that required Defendants to “show specifically how ... each [request]
[was] not relevant or how each question is overly broad, burdensome or oppressive.”
McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th
Cir.1990).
D. Some final words
Defendants have gone the distance to curtail Plaintiffs’ constitutional right to
petition for redress of grievances, by including, but not limited to making false
representations to the court. Instead of prosecuting the civil and human rights
violations that Defendants have perpetrated upon Plaintiffs, a weaponized
Department of Justice defends Defendants’ ultra vires, unconstitutional abuse of
power of illegally placing innocent Americans on HC3/4.
Defendant Merrick Garland and the Department of Justice are aware about
these abuses. They have full access to the Terrorist Screening Center audit reports
that document the irregularities in the TSDB nomination and listing process, some
portions of which were made part of the record. ROA.380, ROA.385, ROA.1119.
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18
The nefarious consequences resulting from being listed on HC3/4 of the
TSDB range from the troubling (hacking, mail tampering), to the unspeakable, such
as the microwave burns on one of Targeted Justice’s founding members.
Defendants’ weaponization of their agencies against innocent Americans end.
CONCLUSION
Plaintiffs petition the Court to follow Supreme Court and Fifth Circuit
precedent, reverse the panel’s decision that contravene those precedents and grant
an en banc rehearing and adjudication of this appeal.
Respectfully submitted.
Dated: /s/ Ana Luisa Toledo
April 5, 2024 Ana Luisa Toledo
Counsel for Plaintiffs-Appellants
Case: 23-20342 Document: 77-1 Page: 37 Date Filed: 04/05/2024
19
CERTIFICATE OF COMPLIANCE
1. This petition complies with the type-volume limitation of Federal Rule of
Appellate Procedure 35(b)(2)(A) or Federal Rule of Appellate Procedure 28.1(e).
The petition contains 3,900 words, excluding the parts exempted by Federal Rule of
Appellate Procedure 32(a)(7)(B)(iii).
2. This petition complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and type style requirements of Federal Rule of
Appellate Procedure 32(a)(6). The petition has been prepared in a proportionally
spaced typeface using Microsoft Word Version in 14-point Time New Roman font.
Dated:
April 5, 2024 /s/ Ana Luisa Toledo
Ana Luisa Toledo
Counsel for Plaintiffs-Appellants
CERTIFICATE OF SERVICE
I certify that on April 4, 2024, an electronic copy of the foregoing brief was
filed with the Clerk of Court for the United States Court of Appeals for the Fifth
Circuit using the appellate CM/ECF system, and that service will be accomplished
on all counsel of record by the appellate CM/ECF system.
Dated:
April 5, 2024 /s/ Ana Luisa Toledo
Ana Luisa Toledo
Counsel for Plaintiffs-Appellants
Case: 23-20342 Document: 77-1 Page: 38 Date Filed: 04/05/2024
Targeted Individuals
individuos apuntados
Individuo dirigido
Personne ciblée
Individu ciblé
فرد مستهدف
目标个人
目標個人
लक्षित व्यक्ति
Individu yang Disasarkan
Целевая личность
লক্ষ্যযুক্ত ব্যক্তি
Indivíduo segmentado
対象者
Zielgruppe
Diangkah Individu
대상 개인
Hedeflenen Birey
Cá nhân được nhắm mục tiêu
లక్ష్యంగా ఉన్న వ్యక్తి
लक्ष्यित वैयक्तिक
இலக்கு தனிநபர்
Individuo mirato
نشانہ انفرادی۔
લક્ષ્યાંકિત વ્યક્તિગત
Ukierunkowana osoba
Цільова особа
فردی هدفمند
ടാർഗെറ്റുചെയ്ത വ്യക്തിഗത
ಉದ್ದೇಶಿತ ವೈಯಕ್ತಿಕ
ਨਿਸ਼ਾਨਾ ਵਿਅਕਤੀਗਤ
ඉලක්කගත තනි පුද්ගලයෙකි
Individual vizat
Məqsədli Fərdi