Mohammed Jibril, Individually , and on Behalf of Their Minor Children Y.j., and O.j. v. Alejandro N. Mayorkas

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 2024 Decided May 14, 2024
No. 23-5074
M OHAMMED J IBRIL, INDIVIDUALLY , AND ON BEHALF OF THEIR
MINOR CHILDREN Y.J., AND O.J., ET AL.,
APPELLANTS
v.
ALEJANDRO N. M AYORKAS , IN HIS OFFICIAL CAPACITY
AS S ECRETARY OF THE D EPARTMENT OF HOMELAND
S ECURITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-02457)
Christina A. Jump argued the cause for appellants. With
her on the briefs were Chelsea G. Glover and Samira S.
Elhosary.
Joshua Waldman, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the briefs were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Sharon Swingle, Attorney.

-- 1 of 23 --

2
Before: HENDERSON, Circuit Judge, and EDWARDS and
GINSBURG, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS .
EDWARDS , Senior Circuit Judge: In 2018, seven members
of the Jibril family (“the Jibrils” or “Appellants”) suffered
extensive and intrusive security screenings and were forced to
endure significant delays during their domestic and
international airline travels. The Jibrils surmised that they had
suffered these personal indignities and related disruptions in
their travel because they had been wrongfully placed on the so-
called “Selectee List,” one of the U.S. Government’s terrorist
watchlists. Because they were concerned about their welfare
during future trips that they planned to take, the Jibrils invoked
a Department of Homeland Security (“DHS”) administrative
redress process to challenge their alleged inclusion on the
Selectee List. When federal officials refused to share
information on their watchlist status, the Jibrils filed suit in the
District Court alleging violations of the Fourth and Fifth
Amendments and the Administrative Procedure Act (“APA”).
The Jibrils named the Secretary of the DHS and various other
federal officials in their official capacities as defendants
(collectively, “Government”), and sought declaratory and
injunctive relief for their injuries.
In the first iteration of this case, the Government neither
confirmed nor denied the Jibrils’ Selectee List status, and the
District Court dismissed the Jibrils’ complaint for lack of
standing. Jibril v. Wolf (“Jibril I”), 2020 WL 2331870, at *2-3
(D.D.C. May 9, 2020). This court reversed in part and
remanded, holding that the Jibrils plausibly alleged that they
were on a terrorist watchlist and faced imminent risk of undue
Government actions sufficient to support most of their claims

-- 2 of 23 --

3
for prospective relief. Jibril v. Mayorkas (“Jibril II”), 20 F.4th
804, 812-13 (D.C. Cir. 2021). On remand, the Government
filed a renewed motion to dismiss, this time submitting an ex
parte declaration to the District Court for in camera review.
See Robinson Declaration (“Decl.”), reprinted in Joint
Appendix (“J.A.”) 50-64 (redacted version). Based on this ex
parte submission, the District Court held that the Jibrils lacked
standing to pursue their complaint for prospective relief. Jibril
v. Mayorkas (“Jibril III”), 2023 WL 2240271, *5 (D.D.C. Feb.
27, 2023). The District Court reasoned, without explicitly
confirming or denying the contents of the ex parte submission,
that “[i]f the government provided evidence that satisfied this
Court that no member of the family is now on the Selectee List,
nor is there any reason they should be added to that list absent
some future development,” then “the Jibrils could not
adequately allege an imminent threat of future injury for those
claims challenging the Government’s policies and the alleged
lack of adequate redress process.” Id. at *8 (quotation omitted).
Appellants once again appealed the District Court’s dismissal
of their case.
In this second appeal, Appellants argue that the District
Court’s resolution of the case based on the Government’s ex
parte submission was inappropriate, because the court should
have treated the complaint’s factual allegations as true at the
motion to dismiss stage, and because the court’s reliance on ex
parte information deprived Appellants of a chance to respond.
Appellants also argue that they have standing regardless of the
contents of the ex parte submission, because they need not be
on a government watchlist to establish imminent risk of future
harm and to bring a facial challenge to the Government’s
policies. In the alternative, Appellants argue that the District
Court erred in denying their motion for leave to amend their
complaint.

-- 3 of 23 --

4
A week after this court heard oral argument, the Supreme
Court decided FBI v. Fikre, 144 S. Ct. 771 (2024). In that case,
the Court held that the plaintiff’s claims challenging his
inclusion on a “No Fly List” were not moot simply because the
Government removed him from the No Fly List after he filed
suit and promised not to relist him based on currently available
information. Id. at 778. Following the Supreme Court’s
decision in Fikre, this court directed the parties here to provide
supplemental briefing addressing the applicability, if any, of
Fikre to the issues in this case.
Upon consideration of the original and supplemental
briefs, including the Government’s ex parte submission, we
agree with the District Court that Appellants lack standing to
seek forward-looking relief. In short, if, hypothetically, the
Government’s ex parte declaration revealed that Appellants
were not on the Selectee List when they filed suit, they would
have standing to seek prospective relief only if they could show
a “sufficiently imminent and substantial” likelihood of being
added in the future. Jibril III, 2023 WL 2240271, at *7 (quoting
TransUnion LLC v. Ramirez, 594 U.S. 413, 435 (2021)).
Appellants have not met this burden. We therefore affirm the
District Court’s dismissal of Appellants’ claims for want of
standing. We also hold that the District Court did not abuse its
discretion in relying on the Government’s ex parte submission
to address matters implicating national security concerns.
Finally, we find no error in the District Court’s denial of
Appellants’ motion for leave to amend their complaint.
I. B ACKGROUND
The factual and procedural background of this case has
been extensively covered by this court and the District Court in
prior opinions. See Jibril I, 2020 WL 2331870, at *3
(dismissing for lack of standing); Jibril II, 20 F.4th at 812-13

-- 4 of 23 --

5
(finding standing for most claims and reversing); Jibril III,
2023 WL 2240271, at *5 (dismissing again on remand for lack
of standing). Therefore, we assume familiarity with the prior
opinions and limit our recitation of the facts and procedural
history to the matters most relevant to this appeal.
A. Factual History
The Federal Bureau of Investigation (“FBI”) administers
the multi-agency Terrorist Screening Center, which maintains
the Terrorist Screening Dataset (formerly known as the
Terrorist Screening Database, and commonly referred to as the
terrorist watchlist). See Jibril II, 20 F.4th at 808; see also
J.A. 40. The terrorist watchlist contains at least two subset
categories intended to identify known or suspected terrorists:
the “No Fly List” and the “Selectee List.” See Jibril II, 20 F.4th
at 808. The Transportation Security Administration (“TSA”)
prohibits individuals on the No Fly List from boarding a U.S.
commercial aircraft or flying within the United States.
Robinson Decl. ¶ 11. In contrast, individuals on the Selectee
List may board a commercial aircraft but are subject to
enhanced screening. Id. ¶ 12. The exact criteria for inclusion
on the Selectee List are not public. Id. The Government has
represented that it places individuals on the Selectee List who
“meet the reasonable suspicion standard applicable to known
or suspected terrorists and also satisfy additional specific
criteria, but do not meet the criteria required for inclusion on
the No Fly list.” Id.
“If an individual believes he or she has been improperly or
unfairly delayed or prohibited from boarding an aircraft”
because of placement on a watchlist, the individual may seek
redress through the DHS Traveler Redress Inquiry Program
(“TRIP”). 49 C.F.R. § 1560.205(a), (b). The TSA then

-- 5 of 23 --

6
coordinates with the Terrorist Screening Center and other
federal agencies as necessary to “review all the documentation
and information requested from the individual, correct any
erroneous information, and provide the individual with a timely
written response.” Id. § 1560.205(d). However, for security
reasons, the Government generally neither confirms nor denies
an individual’s status on the Selectee List, though it sometimes
informs individuals of their placement on the No Fly List. See
J.A. 47.
The facts, as the Jibrils allege them, are as follows. See
Casey v. McDonald’s Corp., 880 F.3d 564, 567 (D.C. Cir.
2018) (“On a motion to dismiss, we must assume that the
allegations of the complaint are true.”). The Jibrils are a family
of U.S. citizens of Jordanian origin, comprising two parents,
three of their adult children, and two of their minor children.
The Jibrils have routinely traveled to Jordan at least every two
to three years; the father, Mr. Mohammed Jibril, has visited
relatives in Jordan between 12 to 15 times over the past 25
years. Additionally, the Jibrils are Muslims with sincerely held
religious beliefs that require traveling to Saudi Arabia to
complete Hajj and pilgrimage obligations.
In 2018, the Jibrils traveled to the Middle East to visit
family in Jordan. However, during their airline trips, the Jibrils
were subjected to extensive and intrusive security screenings at
airports within the United States and abroad. After waiting an
hour at the Los Angeles airport for their departing flight, the
Jibrils all received boarding passes with “SSSS” printed on
them. The Jibrils, including their minor children, were then
searched for about two hours, causing them to almost miss their
flight. Once the Jibrils landed in Jordan, they were interrogated
for another two hours. Similarly, on their trip home after their
two-month stay in Jordan, the Jibrils again received boarding
passes with “SSSS” stamped on them. During their layover in

-- 6 of 23 --

7
the United Arab Emirates, Abu Dhabi officials interrogated the
family for roughly 45 minutes. U.S. Customs and Border
Protection agents in Abu Dhabi then detained the Jibrils and
interrogated them separately for at least another four hours.
Because of their prolonged detention, the Jibrils missed their
flight and stayed in Abu Dhabi overnight. When they returned
the next day, their electronic devices were searched again for
at least an hour.
All seven family members submitted complaints to DHS
TRIP based on these experiences. Five received identical
responses that DHS TRIP could “neither confirm nor deny any
information about [them] which may be within federal
watchlists.” Jibril II, 20 F.4th at 810-11 (quotation omitted).
The Jibrils believe this is the standard response sent to people
who are not on the No Fly List, but who could be on the
Selectee List. O.J., a minor, received a different response that
his experience was most likely caused by misidentification or
random selection. And one family member never received a
response.
B. Procedural History (Including the Findings of
the District Court)
On August 13, 2019, the Jibrils filed suit in the District
Court. The complaint alleged violations of the Fourth
Amendment right against unreasonable searches and seizures;
violations of the Fifth Amendment right to due process because
of their apparent placement on the Selectee List and the
allegedly inadequate DHS TRIP redress procedures; and
violations of the APA due to the detention conditions and the
inadequacy of the DHS TRIP process. Complaint ¶¶ 146-200,
J.A. 25-31.

-- 7 of 23 --

8
On May 9, 2020, the District Court dismissed the case for
lack of standing. Jibril I, 2020 WL 2331870, at *3. On appeal,
this court reversed in part and remanded, holding that the Jibrils
had standing to pursue most of their claims for prospective
relief. See Jibril II, 20 F.4th at 813 (holding that the Jibrils only
lacked standing to challenge the Government’s allegedly
unlawful pat-down searches of minors and the separation of
minors from their families). This court reasoned that the Jibrils
alleged facts plausibly indicating that they were all on the
Selectee List in 2018, remained on the watchlist, and would
soon travel again. Id. at 814-15. The court explained that it
“infer[red] from the Jibrils’ factual allegations that the family
members remain on the watchlist,” “[b]ecause the Government
ha[d] provided no information to the contrary.” Id. at 816.
Accordingly, “[o]n the record before [it],” this court concluded
that the Jibrils adequately alleged an imminent risk of future
injury from the challenged Government actions. Id. at 817.
On remand, the Government filed a renewed motion to
dismiss for want of standing, this time supporting its motion
with an ex parte declaration from FBI Special Agent and
Associate Deputy Director of the Terrorist Screening Center,
Samuel P. Robinson. Jibril III, 2023 WL 2240271, at *3. The
Jibrils protested that the ex parte submission was inappropriate.
Id. at *5. However, the District Court maintained that ex parte,
in camera review was “permissible in certain extraordinary
circumstances implicating national security concerns,” such as
in this case. Id. (citing Jifry v. FAA, 370 F.3d 1174, 1181-82
(D.C. Cir. 2004)).
Based on the Government’s ex parte submission, the
District Court dismissed the case again for lack of standing. Id.
In doing so, the court expressed reluctance “to indulge what
almost seems to be a sick sense of delight the government has
taken in withholding from the Jibrils information that is key to

-- 8 of 23 --

9
the resolution of a jurisdictional question in their case.” Id.
Nonetheless, the District Court avoided explicitly disclosing
information about any individual’s status on the Selectee List,
instead explaining its reasons for dismissing the case as
follows:
If, hypothetically, Mohammed Jibril were placed on
the Selectee List but his family members were not, the
other Jibrils would lack standing to seek prospective
relief on any of their claims for that reason alone,
unless they could adequately allege concrete future
plans to travel with him in particular. It is conceivable
given the Circuit’s reasoning in Jibril II that the other
Jibrils could make that showing. However, that would
not be enough to survive a motion to dismiss for lack
of subject-matter jurisdiction if their intended travel
partner were no longer on the Selectee List himself.
If, hypothetically, Mohammed Jibril were placed on
the Selectee List prior to the family’s 2018 trip to
Jordan and subsequently removed from that list after
initiating his DHS TRIP inquiry but prior to the filing
of the complaint, the Jibrils would lack standing to
seek prospective relief because they could not
demonstrate a substantial risk of future injury. In that
case, standing, not mootness, would be the proper
framework for evaluating the problem with subject-
matter jurisdiction, because standing is judged at the
filing of the complaint and mootness is judged during
the pendency of the action. And if the government
satisfied the Court with an affidavit given under
penalty of perjury that it would not add Mohammed
Jibril back to the Selectee List unless new information
provided a reason for doing so, any apprehension that
the Jibrils might be subjected to similar enhanced

-- 9 of 23 --

10
screening measures on a future trip (Counts I, II, and
IV), or have any reason to make further attempts to
contest their potential watchlist status (Counts III and
V), would depend on the hypothetical possibility that
the government might receive new information in the
future convincing it that Mohammed Jibril once again
met the criteria for inclusion on the Selectee List.
Without a way of demonstrating that a threatened
inquiry was certainly impending or there was a
substantial risk that the harm will occur, the Jibrils
would be unable to meet their burden of establishing
standing.
Id. at *6 (alterations, citation, and quotations omitted).
The District Court further rejected the Jibrils’ argument
that they would have standing to bring a facial challenge to the
DHS TRIP process itself under the Due Process Clause and the
APA, even if they were not on the Selectee List when they filed
suit:
The Jibrils’ due process and APA challenges to
the DHS TRIP program do not allege that it is that
program that deprives them of a protected liberty or
property interest without due process. Rather, those
challenges allege that the DHS TRIP program is a
constitutionally inadequate process for a deprivation
effected by their alleged placement on the Selectee
List. The Jibrils allege that the government has
deprived them, and continues to deprive them, of a
protected liberty interest within the meaning of the
due process clause by “chilling” their exercise of their
right to travel and to freely practice their religion. . . .
They also argue that the government has deprived
them, and continues to deprive them, of a protected

-- 10 of 23 --

11
reputational interest by disseminating their alleged
placement on the Selectee List to government officials
and potentially private institutions, and by making
that alleged placement apparent to fellow travelers at
airports who may witness the enhanced screening
measures in application—a so-called “stigma-plus”
claim.
Even if the interests cited by the Jibrils amount to
constitutionally protected liberty interests, the alleged
injuries to those interests would be ongoing only if the
Jibrils were in fact currently on the Selectee List. And
if the Jibrils were not on the Selectee List, they would
have standing to seek prospective relief only if they
could demonstrate a “sufficiently imminent and
substantial” risk of being added to it in the future.
TransUnion, 141 S. Ct. at 2210. Put more concretely,
the Jibrils would not be subjected to enhanced
screening, listed as suspected terrorists, or pulled out
of line in front of other travelers because of the
Selectee List if none of them were on the Selectee
List. And if the challenged policy did not continue to
injure the Jibrils, nor could they demonstrate a
substantial likelihood that it would injure them again
in the future, they would not have standing to
challenge that policy.
Jibril III, 2023 WL 2240271, at *7 (footnote and citations
omitted).
Finally, the District Court denied the Jibrils’ motion for
leave to amend their complaint to seek nominal damages. The
District Court noted that “the Jibrils might theoretically have
standing to pursue retrospective, monetary relief to redress the
alleged injuries they suffered during their 2018 trip to Jordan.”

-- 11 of 23 --

12
Id. at *8. However, the District Court held that the proposed
amendment would be futile, because the Jibrils sued federal
officers in their official capacity and they had not identified a
waiver of sovereign immunity to support a claim for monetary
relief. Id. at *8 & n.3. The District Court thus denied the Jibrils’
motion to amend their complaint and dismissed the case. The
present appeal followed.
This court heard oral argument on March 12, 2024. A
week later, the Supreme Court held in FBI v. Fikre that the
Government could not moot a case simply by removing the
plaintiff from the No Fly List after he filed suit and promising
the plaintiff that he “w[ould] not be placed on the No Fly List
in the future based on the currently available information.”
Fikre, 144 S. Ct. at 778 (quotation omitted). We then directed
the parties in this case to submit supplemental briefing
“addressing the applicability, if any, of the Supreme Court’s
recent decision in [Fikre] on the issues in this case.” Order,
Jibril v. Mayorkas, No. 23-5074 (D.C. Cir. Mar. 21, 2024).
II. ANALYSIS
A. Standard of Review
We review a district court’s dismissal for lack of subject
matter jurisdiction de novo. Saline Parents v. Garland, 88 F.4th
298, 303 (D.C. Cir. 2023). We review “[t]he fact-finding of the
court to support or deny standing . . . under the clearly
erroneous standard.” Haase v. Sessions, 835 F.2d 902, 907
(D.C. Cir. 1987). And we review for abuse of discretion a
district court’s decision to review evidence ex parte, Labow v.
DOJ, 831 F.3d 523, 533 (D.C. Cir. 2016), and to deny a motion
for leave to amend a complaint, Williams v. Lew, 819 F.3d 466,
471 (D.C. Cir. 2016).

-- 12 of 23 --

13
B. The District Court’s Ex Parte, In Camera Review
Appellants contend that the District Court’s reliance on ex
parte evidence was improper because it should have treated the
complaint’s factual allegations as true at the motion to dismiss
stage. Appellants also argue that ex parte, in camera review
wrongfully deprived them of their right to challenge the facts
upon which the Government moved for dismissal. We find no
merit in these claims.
“It is well-settled that [a court] may consider materials
outside the pleadings to determine [its] jurisdiction.” Kareem
v. Haspel, 986 F.3d 859, 866 n.7 (D.C. Cir. 2021). In assessing
whether a plaintiff has standing, a court can “test the asserted
theory of injury, causation, and redressability at the factual,
evidentiary level.” Haase, 835 F.2d at 907. “[T]he court can
initiate this factual inquiry at the motion to dismiss stage” and
“base its standing decision on its assessment of the facts.” Id.
(citing Duke Power Co. v. Carolina Env’t Study Grp., Inc., 438
U.S. 59, 67-68 (1978)). Here, the District Court recognized that
it had “an ‘independent obligation’ to assure itself that it ha[d]
subject-matter jurisdiction.” Jibril III, 2023 WL 2240271, at *6
(quoting Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)). The
District Court therefore reviewed the Government’s ex parte
submission, and then concluded that it “s[aw] no conceivable
way” for the Jibrils to challenge the Government’s position
“even with a full opportunity for adversarial testing.” Jibril III,
2023 WL 2240271, at *6.
The District Court’s decision to accept and credit the
Government’s ex parte declaration was not improper. An
authorized Government official signed the contested
declaration under penalty of perjury. In these circumstances,
we afford a presumption of regularity to the official acts of
public officers in the absence of clear evidence to the contrary.

-- 13 of 23 --

14
See Latif v. Obama, 666 F.3d 746, 748-49 (D.C. Cir. 2011)
(holding that intelligence reports produced by government
official and contested by Guantanamo detainee were entitled to
a presumption of regularity).
Furthermore, the District Court did not abuse its discretion
in reviewing the Government’s declaration ex parte and in
camera, without giving Appellants an opportunity to challenge
its contents. Ex parte submissions “generally are disfavored
because they conflict with a fundamental precept of our system
of justice: a fair hearing requires a reasonable opportunity to
know the claims of the opposing party and to meet them.” U.S.
v. Microsoft Corp., 56 F.3d 1448, 1464 (D.C. Cir. 1995)
(quotations omitted). However, “in cases in which sensitive
materials may be in issue, . . . ‘the court has inherent authority
to review [such] material ex parte, in camera as part of its
judicial review function.’” Olivares v. TSA, 819 F.3d 454, 462
(D.C. Cir. 2016) (quoting Jifry, 370 F.3d at 1181-82).
As relevant here, there are legal and policy constraints
cabining the disclosure of an individual’s status on the Selectee
List. Under 49 C.F.R. § 1520.5(b)(9)(ii), “[a]n individual’s
placement on the . . . Selectee list, as well as any explanation
for the placement, is ‘Sensitive Security Information’ that is
restricted from public access.” Matar v. TSA, 910 F.3d 538, 540
(D.C. Cir. 2018); see also Jibril II, 20 F.4th at 817 (noting that
“Selectee List status constitutes Sensitive Security
Information”) (citing 49 U.S.C. § 114(r); 49 C.F.R.
§ 1520.5(a)). In addition, courts generally “do not second-
guess expert agency judgments on potential risks to national
security.” Olivares, 819 F.3d at 462. “Rather, we defer to the
informed judgment of agency officials whose obligation it is to
assess risks to national security.” Id. In this case, the
Government’s declaration reasonably explained the national
security concerns motivating the ex parte filing. For instance,

-- 14 of 23 --

15
the Government maintained that disclosure of an individual’s
watchlist status “would arm terrorists with the knowledge of
who would be required to undergo additional screening and
who would not,” which could facilitate terrorists in evading
enhanced security screening. Robinson Decl. ¶ 29. Disclosure
could also compromise ongoing counterterrorism
investigations by “giving members of terrorist groups the
opportunity to gauge whether a particular individual is the
subject of counterterrorism, intelligence, or investigative
interest, causing the person to alter his or her behavior, destroy
evidence, take new precautions against surveillance, or change
the level of any terrorism-related activity in which he or she is
engaged.” Id. ¶ 26. Therefore, given the legitimate security
concerns at issue, the District Court did not err in conducting
an ex parte, in camera review of the Government’s declaration.
C. Standing
The Government contends that the Jibrils lack standing to
pursue prospective relief because they have not plausibly
alleged an imminent risk of future injury. In the Jibrils’ first
appeal, “the Government neither confirmed nor denied the
Jibrils’ Selectee List status.” Jibril II, 20 F.4th at 812.
Consequently, we reasoned that Appellants had standing to
pursue most of their prospective-relief claims because their
factual allegations led this court to the reasonable inference that
the family members were on the Selectee List during their 2018
travels and remained on the list when we first heard this case.
Id. at 816. We noted that we would “presume that the family
members’ watchlist status ‘remains the same’ ‘[u]nless the
[G]overnment provides documentation’ to the contrary.” Id.
(alterations in original) (quoting Shearson v. Holder, 725 F.3d
588, 593 (6th Cir. 2013)). On remand, the Government then
submitted an ex parte declaration for in camera review, and
again moved to dismiss for lack of standing. Upon review of

-- 15 of 23 --

16
this new information, the District Court once again dismissed
the case. Based on this court’s assessment of the Government’s
ex parte submission, we agree that the Jibrils lack standing to
pursue their claims for prospective relief.
“The Constitution grants federal courts jurisdiction to
decide ‘Cases’ or ‘Controversies.’” Fikre, 144 S. Ct. at 777
(quoting Art. III, §§ 1, 2). To satisfy the case-or-controversy
requirement under Article III, a “plaintiff must have a personal
stake in the case—in other words, standing.” TransUnion, 594
U.S. at 423 (quotations omitted). A plaintiff establishes
standing by showing “(i) that he suffered an injury in fact that
is concrete, particularized, and actual or imminent; (ii) that the
injury was likely caused by the defendant; and (iii) that the
injury would likely be redressed by judicial relief.” Id. As
relevant here, an alleged future injury may suffice to meet the
injury-in-fact element of standing if the threatened injury is
“certainly impending” or there is a “substantial risk” it will
occur. Hemp Indus. Ass’n v. Drug Enf’t Admin., 36 F.4th 278,
290 (D.C. Cir. 2022) (citing Attias v. Carefirst, Inc., 865 F.3d
620, 627 (D.C. Cir. 2017)).
We understand that, in addressing matters presented to the
court, federal judges generally “are not free to take up
hypothetical questions that pique a party’s curiosity or their
own.” Fikre, 144 S. Ct. at 777. However, given the unusual
constraints of this case – which include national security
concerns, in camera review, and critical evidence supported by
an ex parte submission – the District Court usefully employed
hypotheticals to impartially assess the matters in dispute while
avoiding explicitly disclosing the contents of the Government’s
ex parte submission. The Government has not contested the
District Court’s “hypothetical” characterizations, nor has it
objected to any of the District Court’s findings. The District
Court wisely understood that hypotheticals would be a

-- 16 of 23 --

17
thoughtful way to meaningfully respond to Appellants’ quest
for redress in a case in which important information is beyond
their reach due to national security concerns. Appellants are not
left with “no response” as they were in the first round of this
case. Appellants may not be satisfied with the judgment in this
case, but they will likely have a better understanding of their
situation. What follows are critical findings that defeat
Appellants’ claims.
The District Court first held that Appellants have not
sufficiently alleged a “certainly impending” or “substantial
risk” of injury in their future travels. See Jibril III, 2023 WL
2240271, at *6. As the District Court reasoned, any member of
the Jibril family who has never been on the Selectee List would
lack standing to seek prospective relief, unless they could show
concrete plans to travel again with a family member on the
Selectee List.
If, hypothetically, Mohammed Jibril were placed
on the Selectee List but his family members were not,
the other Jibrils would lack standing to seek
prospective relief on any of their claims for that
reason alone, unless they could adequately allege
concrete future plans to travel with him in
particular. . . . However, [even] that would not be
enough to survive a motion to dismiss for lack of
subject-matter jurisdiction if their intended travel
partner were no longer on the Selectee List himself.
Id.
The District Court then concluded that if no member of the
Jibril family was on the Selectee List when the Jibrils filed suit
– either because they were never on the list to begin with or
because they were removed from the list before they filed suit

-- 17 of 23 --

18
– then none of the Jibrils would be able to show an “imminent
and substantial” risk of future harm sufficient to support a
claim for prospective relief. Id. at *7 (quoting TransUnion, 594
U.S. at 435).
If, hypothetically, Mohammed Jibril were placed
on the Selectee List prior to the family’s 2018 trip to
Jordan and subsequently removed from that list after
initiating his DHS TRIP inquiry but prior to the filing
of the complaint, the Jibrils would lack standing to
seek prospective relief because they could not
demonstrate a substantial risk of future injury. . . . [I]f
the government satisfied the Court with an affidavit
given under penalty of perjury that it would not add
Mohammed Jibril back to the Selectee List unless new
information provided a reason for doing so, any
apprehension that the Jibrils might be subjected to
similar enhanced screening measures on a future trip
(Counts I, II, and IV), or have any reason to make
further attempts to contest their potential watchlist
status (Counts III and V), would depend on the
hypothetical possibility that the government might
receive new information in the future convincing it
that Mohammed Jibril once again met the criteria for
inclusion on the Selectee List. Without a way of
demonstrating that a threatened inquiry was certainly
impending or there was a substantial risk that the harm
will occur, the Jibrils would be unable to meet their
burden of establishing standing.
Id. at *6 (alterations and quotations omitted).
The District Court additionally rejected Appellants’
contention that removal from the Selectee List would not affect
their standing to bring a facial challenge to the DHS TRIP

-- 18 of 23 --

19
process itself on due process and APA grounds. The District
Court explained that if, hypothetically, none of the Jibrils were
on the Selectee List when the suit was filed, then they would
not face a substantial risk of harm from the allegedly
inadequate DHS TRIP process sufficient to establish standing
for their facial challenge.
The Jibrils’ due process and APA challenges to
the DHS TRIP program do not allege that it is that
program that deprives them of a protected liberty or
property interest without due process. Rather, those
challenges allege that the DHS TRIP program is a
constitutionally inadequate process for a deprivation
effected by their alleged placement on the Selectee
List. . . .
[However,] the Jibrils would not be subjected to
enhanced screening, listed as suspected terrorists, or
pulled out of line in front of other travelers because of
the Selectee List if none of them were on the Selectee
List. And if the challenged policy did not continue to
injure the Jibrils, nor could they demonstrate a
substantial likelihood that it would injure them again
in the future, they would not have standing to
challenge that policy.
Id. at *7 (footnote omitted).
We agree with the District Court’s reasoning and adopt its
analysis. In addition, we amplify two points. First, importantly,
Appellants’ complaint does not raise any claims for
retrospective relief. In the hearings before both courts, the
Government did not doubt the possibility of Appellants seeking
retrospective relief; rather, the Government contended, and we
have found, that Appellants’ submissions in this case do not

-- 19 of 23 --

20
support a claim for retrospective relief. In consequence, we do
not opine on whether a claim for retrospective relief would be
viable if properly raised. For instance, the District Court posed
a hypothetical regarding individuals subjected to multiple
intrusive and extensive screenings, despite not being on the
Selectee List. We leave for another day the question of whether
plaintiffs could successfully seek damages in such situations.
Second, the Supreme Court’s decision in Fikre does not
affect the outcome of this case. Fikre concerned the
Government’s ability to show that plaintiff’s claims were moot.
The plaintiff in Fikre was on the No Fly List when he sued the
Government to challenge his placement, and he was removed
from the watchlist during the pendency of the litigation. See
Fikre, 144 S. Ct. at 775-76. There was no doubt that the
plaintiff had standing to request prospective relief when he
filed suit while still on the No Fly List. “The only question”
before the Supreme Court was “whether the government’s
[removal of Mr. Fikre from the No Fly List] suffice[d] to render
Mr. Fikre’s claims moot.” Id. at 775. The Court answered in
the negative, reasoning that the Government failed to show it
would not relist the plaintiff for doing the same or similar
things that landed him on the list the first time. Id. at 778. The
Court explained that “a defendant’s ‘voluntary cessation of a
challenged practice’ will moot a case only if the defendant can
show that the practice cannot ‘reasonably be expected to
recur.’” Id. at 777 (quoting Friends of the Earth, Inc. v. Laidlaw
Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)).
Unlike Fikre, this case concerns whether Appellants have
made the requisite showing of standing. The Supreme Court
has made it clear that while a defendant carries the “formidable
burden” of showing that a once-live case is now moot, id.
(quotation omitted), the plaintiff bears the burden of
establishing standing at the outset of the litigation, Friends of

-- 20 of 23 --

21
the Earth, 528 U.S. at 190. Thus, contrary to Appellants’
arguments, the issue in this case is not whether the Government
has satisfied its burden of demonstrating mootness under the
voluntary cessation doctrine. Rather, the issue is whether
Appellants have satisfied their initial burden of establishing the
three elements of standing. As discussed above, Appellants
have not. If, unlike the plaintiff in Fikre, no Appellant was on
a terrorist watchlist when they filed suit, and none of them can
show an imminent risk of being placed on a watchlist in the
future, then they would not have a “concrete stake” in the
litigation sufficient to satisfy the injury-in-fact requirement of
standing. Id. at 191. The District Court therefore correctly
dismissed Appellants’ claims for lack of standing.
D. Motion for Leave to Amend Complaint
In the alternative, Appellants argue that the District Court
abused its discretion in denying them leave to amend their
complaint. Appellants primarily “seek leave to amend to add a
request for nominal damages in accordance with the post-
original filing holding of Uzuegbunam v. Preczewski, that
‘nominal damages can satisfy the redressability requirement
[of standing] . . . and can keep an otherwise moot case alive.’”
Plaintiffs’ Opposition to Motion to Dismiss at 38-39, Jibril v.
Mayorkas, No. 1:19-cv-02457 (D.D.C. May 26, 2022), ECF
No. 23 (quoting Uzuegbunam v. Preczewski, 141 S. Ct. 792,
802 (2021) (Kavanaugh, J., concurring)). In reviewing a district
court’s denial of a motion to amend a complaint for abuse of
discretion, we “requir[e] only that the court base its ruling on a
valid ground.” James Madison Ltd. by Hecht v. Ludwig, 82
F.3d 1085, 1099 (D.C. Cir. 1996). A district court “may deny
a motion to amend a complaint as futile . . . if the proposed
claim would not survive a motion to dismiss.” Id.

-- 21 of 23 --

22
Here, the District Court did not abuse its discretion in
holding that Appellants’ proposed amendment would be futile.
Appellants framed their original complaint as one for
prospective relief, suing federal officials in their official
capacity and alleging facts relevant to their claims for
declaratory and injunctive relief. Belatedly, Appellants now
wish to add a request for nominal damages. Yet, because the
original complaint was set up to seek prospective relief,
Appellants’ proposal to seek nominal damages falls short. The
complaint does not sue the right individuals, nor does it offer a
legal theory or allege the facts necessary to support a claim for
retrospective relief.
Appellants’ complaint includes claims under the APA, but
the APA does not authorize suits seeking “money damages”
against the Government. See 5 U.S.C. § 702. Appellants also
bring claims under the Fourth and Fifth Amendments, but they
do not assert a legal theory in support of their damages request
for alleged constitutional violations. Although the Supreme
Court in Bivens has recognized an implied cause of action
under the Constitution for monetary damages against federal
officials sued in their individual capacities, Bivens does not
extend to claims against officials sued in their official
capacities, as is the case here. See Kim v. United States, 632
F.3d 713, 715 (D.C. Cir. 2011) (discussing Bivens v. Six
Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388 (1971)). Furthermore, a Bivens claim must “allege
that the defendant federal official was personally involved in
the illegal conduct.” Simpkins v. Dist. of Columbia Gov’t, 108
F.3d 366, 369 (D.C. Cir. 1997). But consistent with their
original request for only prospective relief, Appellants’
complaint names only agency heads in their official capacities.
Appellants’ proposed amended complaint does not name any
defendants in their individual capacities, nor does it allege facts

-- 22 of 23 --

23
indicating that any of the defendant agency heads personally
carried out the allegedly unlawful searches.
In sum, Appellants have not suggested a viable claim for
retrospective, monetary relief. Accordingly, the District
Court’s denial of Appellants’ motion for leave to amend their
complaint was not an abuse of discretion.
III. CONCLUSION
For the reasons set forth above, we affirm the dismissal of
Appellants’ action for lack of Article III standing.
So ordered.

-- 23 of 23 --