Gilmore Opposition to Motion to Dismiss:




WILLIAM M. SIMPICH (#106672)
Attorney at Law
1736 Franklin Street, Tenth Floor
Oakland, California 94612
Telephone:  (510) 444-0226

JAMES P. HARRISON (#194979)
Attorney at Law
980-9th Street, 16th Floor
Sacramento, CA 95814
Telephone: (916) 452-4905

Attorneys for Plaintiff JOHN GILMORE

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA

JOHN GILMORE, 

                    Plaintiff,

vs. 

JOHN ASHCROFT, in his 
official capacity as                     
Attorney General of the                  
United States, ROBERT                    
MUELLER, in his official
capacity as Director of the FEDERAL
BUREAU OF INVESTIGATION,
NORM MINETA, in his
official capacity as Secretary
of Transportation, JANE F. GARVEY,
as Administrator of the Federal
Aviation Administration, JOHN W.
MAGAW, in his official capacity as chief
of the Transportation Security  
Administration, TOM RIDGE, as his official
capacity as chief of the OFFICE OF
HOMELAND SECURITY,  UAL
CORPORATION aka UNITED AIRLINES,
SOUTHWEST AIRLINES,  
DOES I-XXX, 
                                           
                    Defendants.

_____________________________________/

Case No. C-02 3334 SI

PLAINTIFF'S CONSOLIDATED OPPOSITION
TO DEFENDANTS' MOTIONS TO DISMISS

Date: January 17, 2003
Time: 9:00 am
Dept: Hon. Susan Illston






                      TABLE OF CONTENTS

                                                                     Page

PRELIMINARY STATEMENT                                                  1

STATUTORY AND REGULATORY BACKGROUND                                    4

ARGUMENT                                                               5

I.   LEGAL STANDARD FOR 12(b)(6) MOTIONS                               5

II.  STANDING                                                          5

     A.   LEGAL STANDARD                                               5

     B.   STANDING TO CHALLENGE THE IDENTIFICATION REQUIREMENT IS      6
          CONCEDED BY DEFENDANTS

          1.  PLAINTIFF HAS PERSONALLY SUFFERED INJURIES AS A RESULT   6
              OF DEFENDANTS' ACTIONS

          2.  PLAINTIFF'S INJURIES CAN BE FAIRLY TRACED TO THE         7
              CHALLENGED ACTION OF THE NAMED DEFENDANTS

          3.  PLAINTIFF'S INJURY IS LIKELY TO BE REDRESSED BY A
              FAVORABLE DECISION                                       8

III. THE DISTRICT COURT HAS JURISDICTION                               8

     A.   PLAINTIFF WAS NOT A PARTY TO AN ADMINISTRATION ACTION        8
          RESULTING IN AN ORDER

     B.   THE DISTRICT COURT HAS JURISDICTION TO HEAR BROAD           10
          CONSTITUTIONAL CHALLENGES TO ADMINISTRATIVE ACTIONS

IV.  AS SET FORTH IN DAVIS, AN IDENTIFICATION REQUIREMENT DOES        11
     NOT MEET THE CONSTITUTIONAL TEST IMPOSED ON AIRPORT SCREENING

V.   A DEMAND FOR IDENTIFICATION IS NOT A MINOR RESTRICTION ON        11
     THE RIGHT TO TRAVEL

     A.  AIR TRAVEL IS A FUNDAMENTAL RIGHT                            11

     B.  APPROVED ID IS NOW REQUIRED TO TRAVEL                        12
         DOMESTICALLY BY AIR, RAIL, WATER AND BUS

     C.  AIR TRAVEL IS A NECESSITY                                    12

     D.  LESS RESTRICTIVE MEANS EXIST                                 13

VI.  DEFENDANTS VIOLATE DUE PROCESS BY EXERCISING                     14
     STANDARDLESS  DISCRETION TO ENFORCE A SECRET LAW

VII. A DEMAND FOR IDENTIFICATION VIOLATES THE FOURTH                  15
     AMENDMENT

     A.  THE ID REQUIREMENT IS A "SERIOUS INTRUSION ON                15
         PERSONAL SECURITY"

     B.  DEFENDANTS CANNOT CONDITION THE EXERCISE OF THE              16
         RIGHT TO TRAVEL ON THE RELINQUISHMENT OF 4TH
         AMENDMENT RIGHTS

     C.  THE ADMINISTRATIVE SEARCH OR "SPECIAL NEEDS"                 17
         DOCTRINE IS NOT APPLICABLE

         1.   Gravity of the threat alone cannot justify abandoning
              the 4th Amendment                                       17

         2.   Examination of the primary purpose reveals no significant
              governmental interest                                   18

              a.  It is "more extensive or intensive than necessary,
                  in light of current technology", and reasonable
                  alternatives exist                                  18

              b.  The ID requirement is not "confined in good faith" to the
                  primary purpose, and no adequate safeguards exist   19

VIII. PLAINTIFF'S FIRST AMENDMENT RIGHTS ARE INTERTWINED WITH         19
      TRAVEL AND VIOLATED IN AN ID REQUEST PRIOR TO BOARDING

IX.  IF NECESSARY, THE COURT IS REQUESTED TO REVIEW THE "NEW          20
     FACTS" ADDENDUM, AND/OR  PROVIDE AN OPPORTUNITY TO AMEND
     COMPLAINT

CONCLUSION


                                TABLE OF AUTHORITIES

CASES                                                                PAGE

Abel v. United States, 362 U.S. 217 (1960)                            17

Air Line Pilots Association, International v. Quesada, 276 F.2d 892   9
(2d Cir. 1960), cert. denied, 366 U.S. 962 (1961)

Aptheker v. Secretary of State, 378 U.S. 500 (1964)                   1, 20

Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986)       11

Bykofsky v. Borough of Middletown 389 fsup 386 1975                   7, 19

Carey v. Nevada Gaming Board, 279 F.3d 873 (9th Cir. 2000)            8, 14

City of Dallas v. Stanglin, 490 U.S. 19 (1989)                        6, 19

City of Houston v. FAA, 670 F.2d 1184 (5th Cir. 1982)                 14

Cordero v. Cia Mexicana de Avaicion, 681 F.2d 669 (9th Cir. 1982)     15

Deutsche Lufthansa Aktiengesellschaft v. CAB, 479 F.2d 912 (1973)     9

Delaware v. Prouse, 440 U.S. 648 (1979)                               14

Flippo v. West Virginia, 528 U.S. 11 (1999)                           17

Foster v. Skinner, 70 F.3d 1084 (9th Cir.1995)                        16

Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583 (1926)            10

Gomez v. Turner, 672 F.2d 134 (D.C. Cir. 1982)                        11

Healy v. James,408 U.S. 168 (1972)                                    19

Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir. 1968)  6, 15

Indianapolis v. Edmond 531 US 32 (2000)                               17, 18

Jacobson v. Hughes Aircraft Co., 105 F.3d 1288 (9th Cir. 1997)        5

Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406 (3rd Cir. 1991)  5

Kolender v. Lawson, 461 U.S. 352 (1983)                               14, 15

Laird v. Tatum, 408 U.S.1 (1972)                                      7

Lawson v. Kolender, 658 F.2d 1362 (9th Cir. 1981)             2, 6, 8, 14, 16

Lyng v. International Union, UAW, 485 U.S. 360 (1988)                 19

Mace v. Skinner, 34 F.3d 854 (9th Cir.1994)                           10

Martinelli v. City of Beaumont, 820 F.2d 1491 (9th Cir. 1987)         6, 8, 14

McCarthy v. Madigan, 503 U.S. 140 (1992)                              10

McIntiyre v. Ohio, 514 U.S. 334 (1995)                                2

McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991)           10

Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999)                         12

Monarch Travel Servs. Inc. v. Associated Cultural Clubs, Inc,         12
466 F.2d 552 (9th Cir. 1972)

National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)    18

NAACP v. Alabama, 357 U.S. 449 (1958)                                 2

Oregon Natural Resources Counsel v. Lowe, 109 F.3d 521 (9th Cir. 1997)  8

Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d 1133         5
(9th Cir. 2001)

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)             12

Pegram v. Herdrich, 530 U.S. 211 (2000)                               5

Perry v. Sindermann, 408 U.S. 593 (1972)                              16

Richards v. Wisconsin, 520 U.S. 385 (1997)                            17

Roberts v. United States Jaycees, 468 U.S. 609 (1984)                 6, 19, 20

Satellite Broadcasting Co., Inc. v. F.C.C., 824 F.2d 1, 3             6, 14
(C.A.D.C. 1987).

Shelton v. Tucker, 364 U.S. 479 (1960)                                12, 20

Sima Products Corp. v. McLucas, 612 F.2d 309 (7th Cir. 1980)          8

Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976)     6

Sorenson v. National Transp. Safety Bd., 684 F.2d 683 (9th Cir. 1982)  8

Speiser v. Randall, 357 U.S. 513 (1958)                               16

Talley v. California, 362 U.S. 60 (1960)                              2

Torbet v. United Airlines, 298 F. 3d 1087 (9th Cir. 2002)             18, 19

United Gas Pipe Line v. FPC, 181 F.2d 796 (DC Cir. 1950)              9

United States v. Albarado, supra, 495 F.2d 799 (2nd Cir. 1974)   6, 12, 13, 16

United States v. City of Redwood City, 640 F.2d 963 (9th Cir. 1981)   5

United States v. Davis, 482 F.2d 893 (9th Cir. 1973)            11, 14, 17, 18

United States v. Dorsey, 641 F.2d 1213 (7th Cir. 1981)                18

United States v. Guest, 383 U.S. 745 (1966)                           11

United States v. Lopez , 328 F. Supp 1077 (E.D.N.Y. 1971)          11, 15, 16

United States v. Meulener, 351 F. Supp. 1284 (CD Cal. 1972)           16

United States v. (SCRAP), 412 U.S. 669 (1973)                         16

Valley Forge Christian College, 454 U.S. 464, 472 (1982)              7

Village of Hoffman Estates et al. v.  Flipside, 455 U.S. 489 (1982)   14

Warth v. Seldin, 422 U.S. 490 (1975)                                  8

Whatch Tower Bible v. Village of Stratton, 122 S CT 2080 (2002)       2

Waters v. Barry, 711 F. Supp. 1125 (U.S.D.C. 1989)                    20

Watson v. National Transp. Safety Bd., 513 F.2d 1081 (9th Cir. 1975)  9

White v. Lee, 227 F.3d 1214 (9th Cir. 2000)                           19

Writers Guild of America, West, Inc. v. FCC, 423 F. Supp. 1064 (1976)  9


STATUTES

49 U.S.C. 114                                                         4, 5

49 U.S.C. 40119(b)(1)                                                 4

49 U.S.C. 44106(d)(1)                                                 9

49 U.S.C. 44902(b)                                                    5

49 U.S.C. 44903(i)                                                    5

49 U.S.C. 46105(b)                                                    9

49 U.S.C. 46110(c)                                                    8, 9

P.L. 107-71                                                           16

PRELIMINARY STATEMENT

     "Free movement by the citizen is of course as dangerous to a
tyrant as free expression of ideas or the right of assembly and it is
therefore controlled in most countries in the interests of
security. That is why riding boxcars carries extreme penalties in
Communist lands. That is why the ticketing of people and the use of
identification papers are routine matters under totalitarian regimes,
yet abhorrent in the United States."  Aptheker v. Secretary of State,
378 U.S. 500, 519 (1964) (Douglas, J, concurring).

     The facts of this case are deceptively simple. Plaintiff John
Gilmore, a U.S. citizen, was not allowed to board commercial aircraft
at two airports because he refused to show identification ("ID") and
refused to consent to a more intense security screening based on his
refusal to show ID.  He wishes to travel anonymously. Since then, he
has not attempted any domestic travel by air, water, train, or
intercity bus, because of the posted ID requirements, the above
experience, and a previous experience being arrested at the San
Francisco airport for refusing to show ID.

     At the heart of this case lie two complex questions: (1) Are
domestic travelers presently required by law to show identification
papers upon demand?  And, if so, (2) Is that requirement
constitutional?

     The first question may seem odd.  After all, Plaintiff was not
permitted to fly by Southwest Airlines because he would not show his
ID and anyone who has traveled by air for the last several years
probably believes that he or she must show a government-issued photo
ID to board an airplane.  Amtrak and Greyhound's web pages indicate
that ID is now required to board trains and buses as well.  At San
Francisco International Airport, and probably every other commercial
airport in the United States, signs say that "PASSENGERS MUST PRESENT
IDENTIFICATION UPON INITIAL CHECK-IN."

     But Defendants cannot identify a published law or regulation
that requires it.  A spokesman for the Transportation Security
Administration (TSA) has stated that "[t]he actual presentation of ID
by passengers is not required.  Refusal to allow passengers to board
or not board the aircraft is at the discretion of the airline."

     So what must Plaintiff do in order to fly commercially? The fact
is, we just don't know -- because the government refuses to publish the
pertinent rules.  There is very little case law about secret laws,
because our government has seldom been brazen enough to try enforcing
one.

     This "secret law" situation forces Plaintiff and other air
travelers who do not wish to show ID to guess at what the law is, and
means that their freedom to travel is subject to the discretion of
airlines who may or may not be following federal law or standards -
thus creating unconstitutional vagueness.  On information and belief,
the complaint alleges that "the airlines have been mandated by the
federal government to inform air travelers that the law requires them
to show identification" (para. 5).  Plaintiff contends that Defendants
must abandon these secret rules.

     The second question flows from the first. If in fact federal law
requires Plaintiff to show ID (or consent to a more intrusive body and
luggage search solely because he refuses to show ID -- as he was told
by United Airlines) in order to travel, is that requirement
constitutional?  This question implicates three three constitutional
rights: freedom of travel, anonymity, and freedom from unreasonable
search.

     Citizens have a fundamental right to travel.  Governments may
condition an individual method of travel, but there are restrictions
to the conditions that can be made.  Defendants now seek to impose
conditions on all methods of mechanized travel.  These conditions
would involve giving up other constitutionally protected rights.

     The right to not identify oneself has been upheld in many First
Amendment contexts, including press (McIntyre v. Ohio Elections
Comm'n, 514 U.S. 334 (1995); Talley v. California 362 U.S. 60 (1960));
association (NAACP v. Alabama, 357 U.S. 449 (1958)) and speech
(Watchtower Bible, et al. v. Village of Stratton, 122 S. Ct. 2080
(2002)).  It has been upheld in the context of travel and the Fourth
Amendment (Lawson, infra).  Defendants now arrogate the power to
outlaw or condition all anonymous travel except by foot.

     Under Ninth Circuit law, government ID requests are a search
under the Fourth Amendment.  (Lawson, infra).  But airport searches
are strictly limited to the purpose of detecting weapons or
explosives.  (United States v. Davis, infra)  A person's willingness to
show ID is unrelated to whether one has a weapon or a bomb, however,
and Defendants have not suggested that the ID requirement furthers the
purpose of searching for guns or bombs.  Indeed, Defendants concede
that the purpose of the ID requirement is to allow airline security to
"determine whether the passenger is among those individuals known...or
suspected of posing...a threat."  (Federal Defendants' MPA at 25,
internal quotes omitted).  Defendants concede that the ID requirement
is designed primarily to enable airline security to check whether a
person is on a list of suspects.

     Defendants claim that they do not "require" ID because travelers
may "consent" to a more intrusive search.  But forcing travelers to
choose between showing ID and being searched more intensely in order
to exercise their right to travel is unconstitutional.  See Frost
Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 594 (1926) ("If the
state may compel the surrender of one constitutional right as a
condition of its favor, it may, in like manner, compel a surrender of
all.")

     The ID cards produced by domestic travelers is used to check
them against a No-Fly List prepared by the FBI.  A TSA official has
stated that these individuals have been deemed "threats to aviation"
and may not fly under any circumstances.  An FBI official has stated
that another tool used is a "Watch List", which includes political
activists and other individuals who are suspected to have engaged in
criminal activity.

     The ID requirement is also the backbone of the profiling system
called CAPPS (Computer-Assisted Passenger Prescreening System), in
force at many commercial airports since 1997. Since Sept. 11, 2001,
plans have been made for a much more privacy-invasive system called
CAPPS II that will use the data from one's "required" ID to search
government passport and DMV databases to find one's social security
number.  It will then search tax, credit, criminal, driving, banking
and dozens of other databases, with the assistance of John
Poindexter's "Total Information Awareness" program at DARPA.  After
gleaning more than 1000 items of data to examine personal travel
habits, a threat assessment score is created using secret criteria.
The score will determine if you can travel and whether you are waved
on your way or strip-searched.

     Accordingly, Plaintiff contends that the ID requirement violates
his right to travel without showing "identification papers," and that
he has adequately stated injuries that are traceable to secret law,
CAPPS, and the No-Fly and Watch Lists.


STATUTORY AND REGULATORY BACKGROUND

     CAPPS

     Since December 31, 1997, Congress has authorized the use of a
passenger prescreening system to identify the luggage of passengers
who might pose a risk to civil aviation, and to ensure that it is
adequately screened.  Between 1997-2001, the screening method was to
identify individuals through a 25 item hijacker profile.  Since the
passage of P.L. 107-71 (Airline Transportation Security Act) on
November 19, 2001, section 49 USC 44903(i) now states that it can also
be used to "evaluate all passengers" and "includes procedures to
ensure that individuals selected by the system and their carry-on and
checked baggage are adequately screened".  On November 25, 2002, the
Homeland Security Bill was signed into law, expanding the US
government's authority and capacity to monitor its own citizens.

     Southwest's contention that: "the passenger is never forced to
show his or her identification" or that "the passenger can consent to
a more thorough search prior to boarding" as an option to showing
identification, is misleading.  (Southwest's MPA, page 6).

     No known statutes or regulations are known to safeguard the
procedures by which the collection of information from databases is
used to determine a threat assessment score.  Nor is anything known on
how the CAPPS threat assessment score is maintained, whether it is as
a single number, accompanied by a dossier or whether an entire
database is created for each individual.  Nor are there any safeguards
known to Plaintiff to prevent the information in the CAPPS database
from being provided to any other governmental agency or private party.

     NO-FLY AND WATCH LISTS

     A spokesperson for the TSA has admitted the existence of a
No-Fly List, prepared by the FBI.  There is also an FBI-prepared
"Watch List" provided to TSA for monitoring the travel behavior of
"suspicious" individuals.  A purpose of Defendants' ID requirement is
to cross-check these lists with the passengers' names and other data.
49 U.S.C.114 governs administrative procedures to manage all
individuals believed to be a "threat to civil aviation".

     SECRET LAW

          49 USC 40119(b) provides that the FAA Administrator may
prescribe secret regulations as considered necessary to prohibit
disclosure of any information obtained or developed in conduct of
security or research development activities if (s)he concludes that
disclosure would be detrimental to safety of persons traveling in
transportation.

          49 USC 114 -- Procedures for management of those individuals
believed to be a "threat to civil aviation", with no notice and
comment period for regulations or security directives.

          49 USC 44902(b) provides that an air carrier can refuse to
transport a passenger or property the carrier decides is, or might be,
inimical to safety.

          These statutes are the apparent authority for the
security directives and secret regulations that created the "demand
for ID" such as SD 96-05 ("airlines required to request ID" -- the
"internal passport"), as well as CAPPS, the No-Fly List, and the Watch
List.


ARGUMENT

I.  THE LEGAL STANDARD FOR 12(b)(6) MOTIONS

     A ruling that Plaintiff has failed to state a claim under
12(b)(6) may be granted only in extraordinary circumstances.  United
States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).
Rule 8(a)(2) requires "a short and plain statement of the claim
showing that the pleader is entitled to relief".  The party bringing a
12(b)(6) motion has the burden to show that Rule 8(a)(2) has not been
met.  Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3rd
Cir. 1991) The court's role at the 12(b)(6) stage is not to evaluate
the strength or weakness of claims.  Jacobson v. Hughes Aircraft
Co. (9th Cir. 1997) 105 F.3d 1288, 1292.  A Plaintiff's brief may
always be used "to clarify allegations in her complaint whose meaning
is unclear."  Pegram v. Herdrich (2000) 530 U.S. 211, 230, fn. 10.
"New" facts in Plaintiff's opposition must be considered to determine
if to grant leave to amend or to dismiss with or without prejudice.
Orion Tire Corp. v. Goodyear Tire & Rubber Co. (9th Cir. 2001) 268
F.3d 1133, 1137.

II.  STANDING

     A.  LEGAL STANDARD

     For standing, a litigant must show: [1] that he personally has
suffered some actual or threatened injury as a result of the
putatively illegal conduct of the Defendant . . .[2] that the injury
"fairly can be traced to the challenged action" and [3] [that the
injury] "is likely to be redressed by a favorable decision."  Simon
v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 (1976).
Plaintiff asserts multiple discrete injuries, caused by the CAPPS
program and the No-Fly and Watch List, which are based on their "ID
requirement" and redressable by a favorable decision.

     B.  STANDING TO CHALLENGE THE IDENTIFICATION REQUIREMENT
         CONCEDED BY DEFENDANTS

     Federal Defendants state that "(P)laintiff was allegedly
prevented from boarding two aircraft because he refused to produce any
form of identification at the request of Defendants Southwest and
United, and because he refused to consent to a hand search of his
baggage.  Complaint 24-34", and that "the airlines acted pursuant to
unpublished regulations and/or security directives issued by the FAA
and the TSA, Complaint, (paragraphs) 23, 25, 33, 37-39, -- allegations
that are sufficient, on a motion to dismiss."  (Emphasis added)
Defendant United Airlines incorporates this same statement by
reference.  As shown below, the demand for identification is
inescapably intertwined with the CAPPS program, the No-Fly and Watch
list, thereby providing Plaintiff standing to challenge each program.

     1.  PLAINTIFF HAS PERSONALLY SUFFERED INJURY AS A RESULT OF
         DEFENDANTS' ACTIONS

     On July 4, 2002, Plaintiff was injured by the loss of his right
to travel within the United States (see Lawson, Albarado, Section V):
a demand for ID that violated the Fourth Amendment, (Lawson,
Martinelli, Casey, Section VI), all based on secret law that violates
due process (see Lopez , Satellite, Holmes, Section VII).

     This present action stems from Plaintiff's attempts to fly to DC
on July 4, 2002 to petition for redress to the US government.  Since
that date, Plaintiff has also been deprived of his first amendment
rights "to enter into certain intimate human relationships" and "the
right to associate for the purpose of engaging in those activities
protected by the First Amendment -- speech, assembly, petition for the
redress of grievances... ." Roberts v. United States Jaycees, 468 U.S.
609, 617-618 (1984); City of Dallas v. Stanglin, 490 U.S. 19, 25-26
(1989):

     Plaintiff is a board member and investor in a New York
corporation that has board meetings several times a year that he has
not been able to attend, and has suffered economic injury as a result.
U.S. v. (SCRAP), 412 U.S. 669, 686 (1973) ("identifiable trifle"
sufficient) Plaintiff has family obligations on the East Coast that
cannot be met.  Plaintiff has been asked to speak at a conference on
Travel Data and Privacy in New York in April 2003, which he does not
believe he will be able to attend due to his inability to fly.  (Also
see Section VIII, infra).

     Plaintiff is chilled by a "realistic fear of prosecution" (see
Bykofsky v. Borough of Middletown, 389 F. Supp. 836, 841 (1975)),
unlike the Laird plaintiffs, as he was previously arrested in 1996 for
refusing to comply with the ID requirement at SFO.  Plaintiff fears
"implied consent" to either a search or detention once he places his
bag on the x-ray conveyor belt -- as was decided in the recent case of
Torbet v. United Airlines, 298 F. 3d 1087, 1089 (9th Cir. 2002) -- and
he does not want to be arrested again for failing to display ID when
exercising his right associated with travel.

     Defendants' ID requirement is for the purpose of running CAPPS,
the No-Fly List, and the Watch List, and provides Plaintiff with
standing to challenge these programs. Plaintiff also challenges SD
96-05 ("airlines required to request ID" -- the "internal passport")
and all other secret directives and regulations that created the ID
requirement.  These asserted injuries place his constitutional issues
in a "concrete factual context conducive to a realistic appreciation
of the consequences of judicial action." Valley Forge Christian
College, 454 U.S. 464, 472 (1982).

     2.  PLAINTIFF'S INJURY CAN BE FAIRLY TRACED TO THE
         CHALLENGED ACTIONS OF THE NAMED DEFENDANTS

     Defendants have conceded that the airlines acted pursuant to
unpublished regulations requiring ID and that Plaintiff has standing
to sue FAA and TSA.  The airlines misled the passengers by stating
that the ID requirement was "mandatory" when it was not.  DOJ vetted
the secret regulations and security directives listed above and
improperly found them to be constitutional.  DOT houses these two
agencies and is ultimately responsible for approving all travel
security directives.  OHS is in charge of coordinating a comprehensive
national strategy to protect transportation systems.  FBI prepared the
No-Fly and Watch List, and provided them to TSA .  All of these
organizations work together through the auspices of the Technical
Support Working Group as part of the mission to implement the ID
requirement.  Complaint, 14-19, 35.

     The logic behind the ID requirement is to determine a traveler's
true name, to see if it matches a name on the No-Fly List or Watch
List, as well as for a CAPPS profile.  (Federal Defendants MPA, p. 25)
Hence, Plaintiff's injuries are "fairly traceable" to these programs.
Also, unlike Laird v. Tatum, 408 U.S. 1 (1972), the Plaintiff is a
direct target of all these programs he has been told by Defendant
Southwest that cannot fly unless he submits to providing his identity.
Due to the "serious intrusion on personal security" suffered by
Plaintiff, he suffered a 4th Amendment injury as described in Lawson,
supra; Martinelli, supra; Carey, supra.

     3.  PLAINTIFF'S INJURY IS LIKELY TO BE REDRESSED BY A
         FAVORABLE DECISION

     In accordance with Warth v. Seldin, 422 U.S. 490, 504 (1975),
Plaintiff has "allege(d) facts from which it reasonably could be
inferred that . . . there is a substantial probability [that the
asserted injury would end] if the court affords the relief
requested". Plaintiff's injuries would be redressed if he was not
forced to provide his name.

III. THE DISTRICT COURT HAS JURISDICTION

     Defendants are trying to pigeon-hole this case into an
inappropriate appellate procedure reserved for the review of
administrative actions in which all parties were involved.  As
Plaintiff was neither a party to the rule making process nor able to
participate in its secretive creation, the review of its enforcement
by the appellate court is inappropriate.  No record of administrative
fact finding and procedure does not exist for an appellate court to
review on appeal.  The District Court has jurisdiction as Plaintiff's
claim involves broad constitutional challenges to agency actions.

     A.  PLAINTIFF WAS NOT A PARTY TO AN ADMINISTRATIVE ACTION
         RESULTING IN AN ORDER

     Administrative orders "may be reviewed by the Courts of Appeals,
providing adequate administrative record has been compiled by agency."
Sima Products Corp. v. McLucas, 612 F.2d 309 (7th Cir. 1980) The
appellate court's "function is not to weigh evidence or to evaluate
witness's credibility." Sorenson v. National Transp. Safety Bd., 684
F.2d 683 (9th Cir. 1982).  "Judicial review of agency decisions is
generally limited to review of the administrative record."  Oregon
Natural Resources Counsel v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997).
49 USCS 46110 (c) reads "[T]he [appellate] court has exclusive
jurisdiction to affirm, amend, modify, or set aside any part of the
order... . Findings of fact by the Secretary, Under Secretary, or
Administrator, if supported by substantial evidence, are conclusive."
Here, there has been no administrative hearing or finding of fact
involving plaintiff.  The administration has provided no record for
the appellate court to review for abuse of discretion.

     Further, an administrative court would not have had original
jurisdiction to adjudicate this matter as it is a review of a
rule-making proceeding and not an adjudication.  The NTSB does not
have jurisdiction over challenges to FAA regulations of general
application, even though such regulations may have substantial effects
on individuals. See Air Line Pilots Association, International
v. Quesada, 276 F.2d 892, 897-98 (2d Cir. 1960), cert. denied, 366
U.S. 962, 6 L. Ed. 2d 1254, 81 S. Ct. 1923 (1961). The FAA action
challenged here is clearly rule-making, not adjudication. Watson
v. National Transp. Safety Bd., 513 F.2d 1081, 1082 (9th Cir. 1975)

     The term "order" has "never has been interpreted to include all
agency actions. The term "order" implies a formal agency mandate
issued at the culmination of some regular agency proceeding." Writers
Guild of America, West, Inc. v. FCC, 423 F. Supp. 1064, 1079 (1976)

     An examination of the related statutes confirms that view. For
example, 49 USCS 46105 (b) reads:  "An order of the Secretary, Under
Secretary, or Administrator shall include the findings of fact on
which the order is based and shall be served on the parties to the
proceeding and the persons affected by the order." Similarly, 49 USCS
44106 (d)(1) reads: "A person whose certificate is revoked by the
Administrator under subsection (b) of this section may appeal the
revocation order to the National Transportation Safety Board. The
Board shall affirm or reverse the order after providing notice and a
hearing on the record." The statutory scheme of appellate court
jurisdiction envisions a written order entered on the record with
appropriate notice to the parties.

     Nor does the case law suggest a different result. The leading
case is United Gas Pipe Line v. FPC, 181 F.2d 796 (D.C. Cir. 1950).
There the court of appeals was asked to review an order of the Federal
Power Commission. Recognizing the fact that the statute granted a
party aggrieved by an "order" of the Federal  Power Commission the
right to seek review in the court of appeals. The court stated that
review in the court of appeals presupposed the need for "a record
fully encompassing the issues." 181 F.2d at 799. In the absence of
such a record, appellate courts were recognized to have "no
intelligible basis for decision" and were without "authority to
directly review the Commission's action." Id. at 799.  And although
the requirement of an actual hearing has been questioned by many
courts (see, e.g., Deutsche Lufthansa Aktiengesellschaft v. CAB, 479
F.2d 912, 915-16 (1973)), the requirement of the need of a record for
review has survived. Indeed, "(i)t is the availability of a record for
review and not the holding of a quasi judicial hearing which is now
the jurisdictional touchstone." Id. at 916.  There is no record
involving Plaintiff's claim for the appellate court to review.

     Secret directives that affect the constitutional rights
of citizens without a record for review are plainly not "orders" of
the FAA or TSA within the meaning of 49 U.S.C. 46110.

     B.  THE DISTRICT COURT HAS JURISDICTION TO HEAR BROAD
         CONSTITUTIONAL CHALLENGES TO ADMINISTRATIVE ACTIONS

     Statutory appellate court jurisdiction to review agency actions
or procedures do not preclude the district court's jurisdiction over
"general collateral challenges to unconstitutional practices and
policies." Mace v. Skinner, 34 F.3d 854,859 (9th Cir.1994) citing
McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 at 492 (1991)
Appellate court exclusive jurisdiction to review agency actions is
limited to "see if they comport with the procedural dictates set out
in the applicable regulations."  Mace, 34 F.3d at 858.  The appellate
courts do not possess original subject matter jurisdiction.

     Similarly, the exhaustion of administrative remedies becomes much
less likely to be required when the agency "lacks institutional
competence to resolve the particular type of issue presented, such as
the constitutionality of a statute."  Mace, 34 F.3d at 860 n.5 citing
McCarthy v. Madigan, 503 U.S. 140, 147-148 (1992).  "[A] district
court has subject matter jurisdiction over broad constitutional
challenges to FAA practices because the Federal Aviation Act, 49
U.S.C.A. 40101, 49105 (1995), provides no remedy for such claims."
Foster v. Skinner, 70 F.3d 1084, 1088 (9th Cir.1995).

     Defendants state that Plaintiff lacks standing to make a claim
except upon the "narrow" issue of the identification requirement, and
then mischaracterize Plaintiff's constitutional challenge to it as
"narrow" without the benefit of any legal analysis. Plaintiff's
multiple and complex constitutional claims surrounding the issue of
the identification requirement is broad using any accepted
interpretation of the word. Plaintiff's other broad constitutional
claims on agency actions, for which the court determines he has
standing no mater how "narrow" the claim may be, also provide for
district court subject matter jurisdiction.

IV.  AN IDENTIFICATION REQUIREMENT DOES NOT MEET THE
     CONSTITUTIONAL TEST IMPOSED ON AIRPORT SCREENING

     The standards used to determine the constitutionality of airport
searches is that the "screening process is no more extensive than
necessary, in light of the current technology, to detect the presence
of weapons or explosives, that it is confined in good faith to that
purpose, and that potential passengers may avoid the search by
electing not to fly."  United States v. Davis, 482 F.2d 893, 913 (9th
Cir. 1973).  The Hon. Jack Weinstein has emphasized that the procedure
instituted to detect hijackers "survives constitutional scrutiny only
by its careful adherence to absolute objectivity and neutrality.  When
elements of discretion and prejudice are interjected it becomes
constitutionally impermissible." United States v. Lopez, 328
F. Supp. 1077, 1098 (1971).

     The identification requirement is not directed at detecting the
presence of weapons or explosives.  Knowing the identity of a person
does not achieve this goal.  The ID requirement is designed to use
"lists" of people sought by law enforcement or politically disfavored.
Statistics involving past "problematic vs. nonproblematic departure
and destination points" are objective and do not target individuals.
But searches that include personal names lose objectivity, and subject
people to unreasonable suspicion.  A No-Fly rule aimed at a specific
person is a bill of attainder, unless there is an associated warrant
or a conviction.  The airport security screening procedure has become
a dragnet for law enforcement, rather than a safety procedure for
travel.  Such a system ignores the Davis standard that requires the
focus on weapons and explosives.

     Plaintiff believes that the airlines have been mandated by the
federal government to inform air travelers that the law requires them
to show identification.  (Complaint, para. 5).  Defendants must
abandon these rules.

V.  A REQUIREMENT FOR IDENTIFICATION IS NOT A MINOR RESTRICTION
    ON THE RIGHT TO TRAVEL

    A.  AIR TRAVEL IS A FUNDAMENTAL RIGHT

     "[Freedom] to travel throughout the United States has long been
recognized as a basic right under the Constitution."  United States
v. Guest, 383 U.S. 745, 758 (1966). A "fundamental right" Attorney
General of New York v. Soto-Lopez, 476 U.S. 898, 903 (1986).  A law
that requires ID burdens the right to travel, as it is one of the
"cherished liberties that distinguish this nation from so many
others."  Gomez v. Turner, 672 F.2d 134, 143 n. 18 (D.C. Cir. 1982);
and must be necessary to further a compelling state interest."  Laws
that burden that right must be necessary to further a compelling state
interest.  Soto-Lopez, supra . 476 U.S. at 905.  "These amenities have
dignified the right of dissent and have honored the right to be
nonconformists and the right to defy submissiveness.  They have
encouraged lives of high spirits rather than hushed, suffocating
silence."  Papachristou v. City of Jacksonville, 405 U.S. 156, 164
(1972).  Even with a compelling state interest, "that purpose cannot
be pursued by means that broadly stifle fundamental personal liberties
when the end can be more narrowly achieved." Shelton v. Tucker, 364
U.S. 479, 488 (1960).

     B.  APPROVED ID IS NOW REQUIRED TO TRAVEL DOMESTICALLY BY
         AIR, RAIL, WATER AND BUS

     Government-issued ID is now required to commercially travel
domestically by air, rail, water and bus within the United States.
This is akin to an internal passport to travel for United States
citizens.  To argue that Plaintiff's right to travel has not been
substantially infringed because he has other modes of interstate
transportation (Southwest MPA, p. 13) ignores reality.

     Defendants' reliance on Miller v. Reed, 176 F.3d 1202 (9th
Cir. 1999) is unfounded, as public transport by common carriers now
require ID.  Application of the Miller standard would permit the
government to condition the right to travel by forcing Plaintiff to
waive other rights.  Miller relies on Monarch Travel Servs. Inc.
v. Associated Cultural Clubs, Inc, 466 F.2d 552 (9th Cir. 1972) which
found that financial burdens on a single mode of transportation are
not sufficient to implicate the right to interstate travel.  However,
Monarch did not address an industry and nation wide government
sanctioned requirement for the production of ID, applied to all major
modes of public transportation, as a prerequisite to carriage. Miller
also relies on Berberian v. Petit, 374 A.2d 791 (1977), which
differentiated denial of a driver's license from being "prevented from
traveling ... by common carrier." (Miller, supra at 1206). In
contrast, Plaintiff is being denied interstate carriage by common
carrier airlines.

     C.  AIR TRAVEL IS A NECESSITY

     "[I]t would work a considerable hardship on many travelers to be
forced to utilize an alternative form of transportation, assuming one
exists at all." United States of America v.  Albarado, 495 F.2d 799,
807 (2nd Cir. 1974).  It is "often a necessity to fly on a commercial
airliner, and to force one to choose between that necessity and the
exercise of a constitutional right is coercion in the constitutional
sense."  Id. At 807. Also see United States v. Kroll, 481 F.2d 884,
886 (8th Cir. 1973).  In City of Houston v. FAA, 670 F.2d 1184, 1198
(5th Cir. 1982), the court conceded that a ban on using a particular
airport "might well give rise to a constitutional claim".  The Ninth
Circuit in Davis stated that "a restriction that burdens the right to
travel too broadly and too indiscriminately cannot be sustained.".
Id. at 912. There are growing numbers of air travelers who commute
between San Francisco and Los Angeles on a daily basis.  It is no less
a necessity for the Plaintiff to visit his family, his company, and
his representatives in Congress.

     D.  LESS RESTRICTIVE MEANS EXIST

     Defendants' secret directives are unconstitutional unless
Defendants can show that they are the least restrictive means
available to accomplish their compelling state interest, and that they
actually do further their compelling state interest.

     The abuse of discretion, permitted under the current secret
security directive, can easily be narrowed by either eliminating it or
publishing it.  A published directive would be less restrictive
because it would enable citizens to know what their rights under the
directive are and to challenge officials who attempted to deny those
rights.  Alternatively, the government could merely publish a clear
regulation stating what forms of identification will be accepted.

     TSA claims that the ID requirement is optional today -- but does
not address whether the travelers are properly informed of this
option.  It also accompanies that claim with purported secret
requirements that airlines must infringe the Fourth Amendment by
searching travelers without ID more intensively than other
travelers. Each airline has its own set of requirements that they
generate for TSA approval, which are also kept secret.  Elimination of
secret rules would provide a less restrictive means to clarify the
law.

     In Britain, air carriers have discretion on whether to conduct
ID checks.  The dominant carrier, British Airlines, does not check
identification within England despite having been the target of
terrorists attacks for decades resulting from England's conflict with
Northern Ireland.  It is less intrusive and within the realm of
reasonableness for the U.S. to adopt the British rule.

     Armed air marshals are now flying as passengers.  Cockpit doors
have been strengthened.  Physical searches have been intensified.
Passengers and crew are now advised to resist any hostile takeover.
Even the decision giving guns to pilots makes more sense than giving
the government the power to declare "open season" on its citizens.

     Plaintiff has raised plausible but less restrictive means to
effectively achieve the same objective.  The Davis holding does not
give the government discretion to continue ratcheting up its
intrusions on the Fourth Amendment until there is no possibility of
violent conflict on airplanes.

VI.  DEFENDANTS VIOLATE DUE PROCESS BY EXERCISING STANDARDLESS
     DISCRETION TO ENFORCE A SECRET LAW

     In striking down a law that required people to show "credible
and reliable" ID on demand, the Supreme Court held that
void-for-vagueness doctrine requires that a law be drafted "with
sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement."  Kolender v. Lawson, 461
U.S. 352, 357 (1983); Delaware v. Prouse, 440 U.S. 648, 662-663
(1979), (no right for police to conduct random or arbitrary seizures
to check a motorist's ID, as "to allow this action would create a
'grave danger' of abuse of discretion."); Village of Hoffman Estates
et al. v. Flipside, 455 U.S. 489, 499 (1982) (more stringent
vagueness test in First Amendment cases).

     "Traditional concepts of due process incorporated into
administrative law preclude an agency from penalizing a private party
for violating a rule without first providing adequate notice of the
substance of the rule." Satellite Broadcasting Co., Inc. v. F.C.C.,
824 F.2d 1, 3 (C.A.D.C.  1987).  Defendants' claim that the
consequence of noncompliance "is not a penalty at all" (Federal
Defendants' MPA, p. 13) is nonsense.  Plaintiff was previously
arrested in 1996 for refusing to show ID upon demand by an airport
security officer.

     The airline employees could not articulate which forms of ID were
required, the consequences, or its source.  The consequences include
being subject to intrusive searches, detainment and questioning by
authorities, denial of the right to travel, and potential arrest.

     The Kolender court held that a legislature must establish
minimal guidelines to govern law enforcement.  Otherwise, a law may
permit "a standardless sweep [that] allows policemen, prosecutors, and
juries to pursue their personal predilections." Id. at 358.  There is
not even a published regulation in this case that provides minimal
standards.

     As to when a passenger can be ejected for "safety reasons", the
9th Circuit standard is whether the airline exercised its discretion
reasonably based on all the information available when the decision
was made.  Cordero v. Cia Mexicana de Avaicion, 681 F.2d 669, 672 (9th
Cir. 1982) (protester wrongfully labeled as "violent" and not allowed
to fly).

     The vagueness also encompasses the selection of travelers for
different degrees of searching.  Absolute discretion in a government
agency is "an intolerable invitation to abuse".  Holmes v. New York
City Housing Authority, 398 F.2d 262 (2d Cir. 1968) The Holmes court
rejected a New York City public housing allocation plan based on a
"scoring system", and noted that it would discriminate if "some
applicants, but not others, are secretly rejected by the Authority,
are not thereafter informed of their ineligibility, and are thereby
deprived of the opportunity to seek review of the Authority's
decision.".  Id. at 265.

     Travelers such as Plaintiff face a similar predicament under the
secret CAPPS scoring scheme.  The system selects some travelers
"randomly" for intrusive searches, providing cover for any non-random
searches ordered by officials with unbridled discretion.  Such a
program is unconstitutional unless it adheres to "absolute objectivity
and neutrality" and avoids "elements of discretion and prejudice."
U.S. v. Lopez , 328 F. Supp 1077 (E.D.N.Y. 1971).  An ID requirement
based on vague and secret "security directives" makes it difficult to
know whether any guidelines to law enforcement exist. Even citizens
who display government-approved photo ID can still be detained because
they have names that "resemble" names on a "no-fly" list, or because
they have engaged in protests or acts of civil disobedience in the
past and have therefore been earmarked as "selectees".  Such elements
cannot withstand constitutional scrutiny.

VII. THE IDENTIFICATION REQUIREMENT VIOLATES THE FOURTH AMENDMENT

     A.  THE ID REQUIREMENT IS A "SERIOUS INTRUSION ON PERSONAL
         SECURITY"

     An ID requirement constitutes a "serious intrusion on personal
security" that is more serious than a pat down search.  Lawson
v. Kolender, 658 F.2d 1362, 1367-68 (9th Cir. 1981) (aff'd on other
grounds, Kolender v. Lawson, 461 U.S. 352 (1983)).  Kolender
established a line of 9th Circuit cases (Martinelli v. City of
Beaumont, 820 F.2d 1491, 1494 (9th Cir. 1987); Carey v. Nevada Gaming
Board, 279 F.3d 873, 880 (9th Cir. 2000)) finding a 4th Amendment
violation to require a person to provide reliable identification upon
police demand, even when there is a reasonable suspicion of criminal
activity.  Ignoring twenty years of precedent, Defendants have
instituted a system that demands ID whether or not there is even
reasonable suspicion, and far short of probable cause: "Police
knowledge of the identity of an individual they have deemed
'suspicious' grants the police unfettered discretion to initiate or
continue investigation of the person long after the detention has
ended.  Information concerning the stop, the arrest, and the
individual's identity may become part of a large scale data bank."
Lawson, 658 F.2d at 1368.

     Although the Supreme Court declined to resolve this issue in
1983, it held in Brown v. Texas, 442 U.S. 47, 51-52 (1979) that a
demand for ID by police must be based on reasonable suspicion with
objective criteria.  Thus, the requirement that Plaintiff provide
identification, conducted by the airline Defendants at the behest of
TSA, violates the Fourth Amendment under either Lawson or Brown:.  "We
believe that the serious intrusion on personal security outweighs the
mere possibility that identification may provide a link leading to
arrest." Lawson, supra, at 1368.

     The fourth amendment analysis does not change because of advances
in technology.  The court held in Delaware v. Prouse, 440 U.S. 648,
663 (1979) that citizens were not shorn of their 4th Amendment rights
because they "stepp(ed) from the sidewalks into their automobiles.".

     B.  DEFENDANTS CANNOT CONDITION THE EXERCISE OF THE RIGHT TO
         TRAVEL ON THE RELINQUISHMENT OF 4TH AMENDMENT RIGHTS

     On airplanes, there must be a compelling state interest (Davis,
supra, 482 F.2d at 912-913) and "the government (cannot) properly
argue that it can condition the exercise of the Defendant's
constitutional right to travel on the voluntary relinquishment of his
Fourth Amendment rights.  Implied consent under such circumstances
would be inherently coercive." United States v. Lopez, 328
F. Supp. 1077, 1093 (E.D.N,Y. 1971); accord, United States
v. Meulener, 351 F. Supp. 1284, 1288 (CD Cal. 1972). The test is the
reasonableness of the search, not consent to search.  United States
v. Albarado, supra, 495 F.2d at 807.

     The Lopez injunction about conditioning the right to travel on
relinquishing the 4th Amendment stems from cases such as Perry
v. Sindermann, 408 U.S. 593 (1972) (coerced consent violates the
doctrine of unconstitutional conditions; the Government cannot
condition the receipt of a governmental benefit on waiver of a
constitutionally protected right); Speiser v. Randall, 357 U.S. 513
(1958), (veterans tax benefit may not be conditioned on taking a
loyalty oath) Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 594
(1926) (on unconstitutional conditions, "it is inconceivable that
guarantees embedded in the Constitution of the United States may thus
be manipulated out of existence.")  Southwest Airlines cannot condition
the right to board on an ID requirement, nor can United condition
boarding on a "more intrusive search".

     C.  THE ADMINISTRATIVE SEARCH EXCEPTION AND THE SPECIAL
         NEEDS DOCTRINE ARE NOT APPLICABLE

     1.  Gravity of the threat alone cannot justify abandoning the
         4th Amendment

     The ID requirement can not justified by defining it as an
"administrative search" (United States v. Davis, 482 F.2d 893 (9th
Cir. 1973) or pursuant to the "special needs" doctrine (Indianapolis
v. Edmond (2000) 531 US 32, 47-48, 121 S. Ct. 447, 457 ("Our holding
also does not affect the validity of border searches or searches at
places like airports and government buildings, where the need for such
measures to ensure public safety can be particularly acute."))  The
focus, of course, is on weapons and explosives - not ID cards.

     The Indianapolis court held that:

     "In determining whether individualized suspicion is
required, we must consider the nature of the interests threatened and
their connection to the particular law enforcement practices at
issue." Id. at 42-43.  Even though the government cited the "the
severe and intractable nature of the drug problem", the court held
that "the gravity of the threat alone cannot be dispositive of
questions concerning what means law enforcement officers may employ to
pursue a given purpose". Id. at 42.

     Terrorism-related crimes undoubtedly inflict "social harms of
the first magnitude," but the "gravity of the threat alone" cannot
justify abandoning the traditional protections of the Fourth
Amendment.  The Supreme Court has refused to recognize Fourth
Amendment exceptions based on the seriousness of the crime under
investigation. See, e.g., Flippo v. West Virginia, 528 U.S. 11, 13-14
(1999) (per curiam) (no "murder-scene" exception to warrant
requirement); Richards v. Wisconsin, 520 U.S. 385, 391-95 (1997)
(refusing to recognize blanket exception to knock-and-announce
requirement in drug cases); Abel v. United States, 362 U.S. 217,
219-20 (1960) (applying Fourth Amendment to espionage case)

     The standard is:

     (1) "...where a Fourth Amendment intrusion serves special
governmental needs, beyond the normal need for law enforcement, it is
necessary to balance the individual's privacy expectations against the
government's interests to determine whether it is impractical to
require a warrant or some level of individualized suspicion in the
particular context." (Italics added), as set forth in National
Treasury Employees Union v. Von Raab, 489 U.S. 656, 665-66 (1989),

     (2) "we examine the available evidence to determine the primary
purpose of the checkpoint program. While we recognize the challenges
inherent in a purpose inquiry, courts routinely engage in this
enterprise in many areas of constitutional jurisprudence as a means of
sifting abusive governmental conduct from that which is lawful."
Indianapolis, 531 F.2d at 46-47.

     2.  Examination of the primary purpose reveals no significant
         governmental interest

     The Defendants claim that the primary purpose of the ID
requirement is "the need to prevent airline hijacking" and "detecting
the weapons employed in airline terrorism".  (Federal Defendants' MPA,
p. 19-20).  The 9th Circuit has mandated that the two factors that
must be found in any reasonable airport screening search conducted to
"prevent airline hijacking" and "detect the presence of weapons and
explosives".  (United States v. Davis, 482 U.S. 893, 910 (1973) -- such
a search must be "no more extensive or intensive than necessary, in
light of current technology" and it must be "confined in good faith to
that purpose".  Torbet v. United Airlines, 298 F.3d 1087, 1089 (9th
Cir. 2002)

          a.  It is "more extensive or intensive than necessary, in light
              of current technology", and reasonable alternatives exist

     Discovery will reveal whether mandatory government-issued photo
identification tied in with these programs is even a marginally useful
law enforcement tool in locating weapons and explosives.  A "sleeper"
terrorist with no criminal record can easily be activated bearing
spotless ID.  A recent MIT study shows that the CAPPS analysis can be
easily overcome if three dry runs are conducted to determine who is
selected.  Government-approved photo ID is easily faked.

     United States v. Dorsey, 641 F.2d 1213 (7th Cir. 1981)
identifies cogent observations designed to lead to actual
evidence. Factors which may be relevant in judging propriety of
searches include "nervous or unusual conduct, tips from informants,
loose clothing, travel itinerary, lack of employment, needle marks,
information from traveling companions, inadequate luggage and evasive
or contradictory answers."  Nothing remotely akin to those methods
used in CAPPS is mentioned here.  And reasonable alternatives exist,
as discussed elsewhere in this brief.

          b.  The ID requirement is not "confined in good faith" to the
              primary purpose, and no adequate safeguards exist

     The deceptive ID "requirement", and the complete failure to
provide due process protections for victims of CAPPS and the Watch and
No-Fly Lists illustrates that the government is not acting in good
faith. After discovery, Plaintiff maintains that the evidence will
show that the privacy-invasive techniques of the ID requirement and
profiling are the least likely to be effective.  Less privacy-invasive
techniques (see Section V.D, supra) are the most likely to be
effective.

     Because law enforcement involvement can always be construed to
serve some broader social purpose, Defendants' view would immunize
virtually any nonconsensual suspicionless search under the special
needs doctrine by defining the search solely in terms of its ultimate
goal, rather than immediate purpose.. Given the primary purpose of the
Torbet factors are to "prevent airline hijacking" and "detect the
presence of weapons and explosives", this case simply does not fit
within the closely guarded category of "special needs."  Such an
approach violates the 4th Amendment.

VIII.  PLAINTIFF'S FIRST AMENDMENT RIGHTS ARE INTERTWINED WITH
       TRAVEL AND VIOLATED IN AN ID REQUEST PRIOR TO BOARDING

     The ID request deprives Plaintiff of a host of first amendment
rights: His right to speak without being chilled due to justified fear
of arrest (Bykofsky, supra); freedom of association City of Dallas
v. Stanglin, supra; Roberts, supra; the right to petition the
government for redress (White v. Lee, 227 F.3d 1214 (9th Cir. 2000));
see Section IIB, above.

     Being unable to fly to these cities means that it will take him
many days to get to these cities by any other method of transport.
This is the "indirect injury" referred to in Healy v. James (408
U.S. 168, 183 (1972)) that constitutional protection is not limited to
direct interference with fundamental rights, but extends to indirect
and unintended interference.  Lyng v. International Union, UAW, 485
U.S. 360, 367 (1988) approvingly cites Healy for the proposition that
"associational

rights 'are protected not only against heavy-handed
frontal attack, but also from being stifled by more subtle
governmental interference'" and emphasized that a food stamp cut-off
on striking union members' households will not "affect in any
significant way the existing members' ability to associate freely".
In contrast, the injuries to Plaintiff's relations with his family,
his company, and his political advocacy are highly significant.  In
Waters v. Barry, 711 F. Supp. 1125, 1134 (U.S.D.C. 1989), the court
struck down a curfew as "trampl(ing) upon associational and liberty
interests", holding that "when government undertakes to limit these
rights in some manner, it must act gingerly...narrowly focused on the
harm at hand, as well as sensitive to needless intrusions upon the
constitutional rights of the innocent" (Id. at 1134, citing Roberts,
supra, 468 U.S. at 623; Aptheker, supra, 378 U.S. at 508; Shelton,
supra, 364 U.S. at 488).

IX.  IF NECESSARY, THE COURT IS REQUESTED TO REVIEW THE "NEW FACTS"
     ADDENDUM, AND/OR PROVIDE AN OPPORTUNITY TO AMEND COMPLAINT

     Plaintiff has stated valid causes of action based on the
contentions of the complaint.  Plaintiff has waived argument on his
claims pursuant to equal protection and FOIA.  If the court feels it
necessary, Plaintiff respectfully asks the court to review the "new
facts" Addendum and/or provide an opportunity to amend the complaint.

CONCLUSION

     Plaintiff is innocent of any wrongdoing.  If the individuals on
these lists are convicts or have outstanding warrants, these lists are
a law enforcement tool and not a security screen.

     The ID requirement unreasonably prevents people from flying who
are not threats to aviation.  They violate due process, the right to
travel, and the 1st and 4th Amendment.

     Plaintiff has adequately stated injuries that are traceable to
secret law, CAPPS, and the No-Fly and Watch Lists, and has alleged
sufficient facts to state the relevant causes of action.

     Dated: November 27, 2002




                                       ___________________________________

                                       WILLIAM M. SIMPICH
                                       JAMES P. HARRISON
                                       Attorneys for Plaintiff JOHN GILMORE