No IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. JONATHAN CORBETT, Plaintiff-Appellant,

Transcription

1 No IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT JONATHAN CORBETT, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA BRIEF OF DEFENDANT-APPELLEE UNITED STATES OF AMERICA TONY WEST Assistant Attorney General WIFREDO A. FERRER United States Attorney DOUGLAS N. LETTER (202) SHARON SWINGLE (202) Attorneys, Appellate Staff Civil Division, Room 7250 Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C

2 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Appeal Number: Corbett v. United States I hereby certify that, to the best of my information and belief, the following is a complete list of interested persons pursuant to Eleventh Circuit Rule Bandstra, Hon. Ted E. Cooke, Hon. Marcia G. Corbett, Jonathan Ferrer, Wifredo A. Grauman, Jesse Letter, Douglas N. Mead, Joseph W. Moore, Hon. K. Michael Schraibman, Sandra M. Schultz, Anne R. Swingle, Sharon Turnoff, Hon. William C. Wells, Carlotta P. West, Tony C-1 of 2

3 Appeal Number: Corbett v. United States /s/ Sharon Swingle Sharon Swingle Counsel for the United States C-2 of 2

4 STATEMENT REGARDING ORAL ARGUMENT Plaintiff-appellant Jonathan Corbett has not requested oral argument, and defendant-appellee the United States likewise does not request oral argument. Should the Court determine that oral argument is necessary to decide this appeal, however, counsel for the United States wishes to participate at argument. i

5 TABLE OF CONTENTS Page STATEMENT REGARDING ORAL ARGUMENT i STATEMENT OF JURISDICTION STATEMENT OF THE ISSUES PRESENTED STATEMENT OF THE CASE A. Course of Proceedings B. Statement of Facts TSA s Authority Over Air Transportation Security TSA s Revised SOP Requiring The Use Of AIT Scanners And Current Pat-Down Procedures Background of This Litigation C. Standard of Review SUMMARY OF ARGUMENT ARGUMENT THE DISTRICT COURT LACKED JURISDICTION OVER THE PLAINTIFF S CHALLENGE UNDER 49 U.S.C A. The Plaintiff Challenges Airport Checkpoint Screening Methods Required Under The Revised SOP, Which Is An Order Within The Meaning Of B. Corbett s Arguments That He Did Not Challenge An Order Under Are Without Merit ii

6 1. An Order Under Is Not Limited To The Outcome Of Individualized Or Quasi-Judicial Proceedings Public Notice Of An Agency Decision Is Not Required For It To Constitute An Order Under 49 U.S.C The Alleged Inadequacy Of The Administrative Record Does Not Preclude A Finding That Corbett Challenges An Order Under C. The Plaintiff s Challenge To The Order s Finality Does Not Establish That The District Court Has Jurisdiction The Revised SOP Is Sufficiently Final For Review By A Court of Appeals Under The Government s Arguments In EPIC v. Department of Homeland Security That The Challenged Security Procedures Were Not Required To Be Adopted Through Notice-And-Comment Rulemaking Have Nothing To Do With The Finality Of The Revised SOP For Purposes Of Review Under Any Lack Of Finality Would Also Preclude District Court Review Of The Plaintiff s Challenge D. The Plaintiff s Claim Is Not A Broad Constitutional Challenge Outside The Scope Of s Exclusive Review Provision E. Requiring The Plaintiff To Bring His Challenge In The Court Of Appeals Does Not Violate Due Process iii

7 CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE iv

8 TABLE OF CITATIONS Cases: Aerosource, Inc. v. Slater, 142 F.3d 572 (3d Cir. 1998) American Wildlands v. Kempthorne, 530 F.3d 991 (D.C. Cir. 2008) Americopters, LLC v. FAA, 441 F.3d 726 (9th Cir. 2006) Association of Citizens to Protect & Pres. the Env t v. FAA, 287 F. App x 764 (11th Cir. 2008) , 43 Atorie Air, Inc. v. FAA, 942 F.2d 954 (5th Cir. 1991) , 36 Avia Dynamics, Inc. v. FAA, 641 F.3d 515 (D.C. Cir. 2011) Aviators for Safe and Fairer Regulation, Inc. v. FAA, 221 F.3d 222 (1st Cir. 2000) Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388, 91 S. Ct (1971) Camp v. Pitts, 411 U.S. 138, 93 S. Ct (1973) , 36, 50 Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271 (11th Cir. 2009) City of Alexandria v. Helms, 728 F.2d 643 (4th Cir. 1984) , 21, 40 City of Dania Beach v. FAA, 485 F.3d 1181 (D.C. Cir. 2007) , 27 City of Los Angeles v. FAA, 239 F.3d 1033 (9th Cir. 2001) , 49 City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct (1983) City of Pierre v. FAA, 150 F.3d 837 (8th Cir. 1998) * Authorities upon which we primarily rely are indicated by asterisk. v

9 City of Rochester v. Bond, 603 F.2d 927 (D.C. Cir. 1979) , 37 Crist v. Leippe, 138 F.3d 801 (9th Cir. 1998) * Durso v. Napolitano, F. Supp. 2d, 2011 WL (D.D.C. July 5, 2011), appeal docketed, No (D.C. Cir. Sept. 9, 2011) , 18, 20, 21, 22, 23, 29, 31, 34, 37, 47, 48, 50 Electronic Priv. Info. Ctr. v. U.S. Dep t of Homeland Sec., F.3d, 2011 WL (D.C. Cir. July 15, 2011) , 24, 41, 42, 46 FDIC v. Meyer, 510 U.S. 471, 114 S. Ct. 996 (1994) Florida Power & Light Co. v. Lorion, 470 U.S. 729, 105 S. Ct (1985) , 36 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S. Ct. 596 (1990) Gen. Elec. Uranium Mgmt. Corp. v. Dep t of Energy, 764 F.2d 896 (D.C. Cir. 1985) , 41 Gen. Elec. Co. v. Jackson, 610 F.3d 110 (D.C. Cir. 2010) * Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), cert. denied, 549 U.S. 1110, 127 S. Ct. 929 (2007) , 17, 20, 21, 23, 27, 33, 34, 39, 46, 47, 48 Greater Orlando Aviation Authority v. FAA, 939 F.2d 954 (11th Cir. 1991) * Green v. Brantley, 981 F.2d 514 (11th Cir. 1993) , 18, 21, 25, 33, 36, 37, 38, 46, 48 Green v. TSA, 351 F. Supp. 2d 1119 (W.D. Wash. 2005) , 24, 28, 47 Ibrahim v. DHS, 538 F.3d 1250 (9th Cir. 2008) , 24, 34, 37 vi

10 Kucana v. Holder, U.S., 130 S. Ct. 827 (2010) Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866 (1978) Mace v. Skinner, 34 F.3d 854 (9th Cir. 1994) , 48 McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S. Ct. 888 (1991) , 45, 49 Merritt v. Shuttle, Inc., 187 F.3d 263 (2d Cir. 1999) Merritt v. Shuttle, Inc., 245 F.3d 182 (2d Cir. 2001) Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, F. 3d, 2011 WL (11th Cir. Sept. 21, 2011) , 12 Pennsylvania Dep t of Corr. v. Yeskey, 524 U.S. 206, 118 S. Ct (1998) * Redfern v. Napolitano, 2011 WL (D. Mass. May 9, 2011), appeal docketed, No (1st Cir. July 13, 2011)... 13, 20, 21, 22, 23, 29, 30, 34, 47, 50 * Roberts v. Napolitano, F. Supp. 2d, 2011 WL (D.D.C. July 7, 2011), appeal docketed, No (D.C. Cir. Sept. 6, 2011) , 22, 23, 34, 39, 47, 48, 50 * Safe Extensions, Inc. v. FAA, 509 F.3d 593 (D.C. Cir. 2007) , 21, 27, 36 Scherfen v. DHS, 2010 WL (M.D. Pa. Feb. 2, 2010) * Sima Products Corp. v. McLucas, 612 F.2d 309 (7th Cir.), cert. denied, 446 U.S. 908, 100 S. Ct (1980) , 24, 27 Southern California Aerial Advertisers Ass n v. FAA, 881 F.2d 672 (9th Cir. 1989) , 36 State of New York v. FAA, 712 F.2d 806 (2d Cir. 1983) vii

11 Suburban O Hare Comm n v. Dole, 787 F.2d 186 (7th Cir.), cert. denied, 479 U.S. 847, 107 S. Ct. 169 (1986) , 41 Thomson v. Stone, 2006 WL (E.D. Mich. Mar. 27, 2006) , 14, 24, 47 Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 114 S. Ct. 771 (1994) Tooley v. Bush, 2006 WL (D.D.C. Dec. 21, 2006), rev d in part on other grounds, 556 F.3d 836 (D.C. Cir. 2009), judgment aff d on other grounds on reh g, 586 F.3d 1006 (D.C. Cir. 2009) United States v. Rojas, 429 F.3d 1317 (11th Cir. 2005) Village of Bensenville v. FAA, 457 F.3d 52 (D.C. Cir. 2006) , 39 Virginia v. United States, 74 F.3d 517 (4th Cir. 1996) Whitmore v. Arkansas, 495 U.S. 149, 110 S. Ct (1990) Constitution: Fourth Amendment , 12, 15, 16, 22, 35, 46, 47 Statutes: Administrative Procedure Act: 5 U.S.C. 551(4) U.S.C. 551(6) , 42 6 U.S.C. 203(2) U.S.C. 551(d) U.S.C. 552(d) U.S.C U.S.C. 1160(e) (1990) viii

12 28 U.S.C , U.S.C U.S.C U.S.C U.S.C. 114(b)(1) U.S.C. 114(d)(1) U.S.C. 114(e) U.S.C. 114(l) U.S.C. 114(l)(2)(A) , U.S.C. 114(r) , U.S.C. App , U.S.C U.S.C (a) , 18, U.S.C U.S.C (a) , U.S.C (b) U.S.C U.S.C (b) , U.S.C (a) U.S.C (e) U.S.C U.S.C (a) , U.S.C (b) U.S.C (b) , 29, 30, 31 * 49 U.S.C passim 49 U.S.C (a) , 18, 22, 24, 27, 29, U.S.C (c) , 50 Pub. L , 108 Stat. 745 (July 5, 1994) Regulations: 49 C.F.R. Part ix

13 49 C.F.R. Part C.F.R (a) C.F.R. Part C.F.R C.F.R (a)(2) , 20, 39, C.F.R C.F.R (a) , 5, 20, 39, 40 Legislative Materials: S. Rep. No (2008) Miscellaneous: Bloomberg News, TSA To End Person-Specific Body Scan Images, Jul. 20, 2011, available at tsa-to-end- person-specific-body-scan-images.html x

14 TABLE OF RECORD REFERENCES IN THE BRIEF Page Dkt. 1, Complaint , 3, 9, 10, 25, 39, 48 Dkt. 4, Plaintiff s Emergency Motion for Temporary Restraining Order And/Or Preliminary Injunction Dkt. 7, 11/17/10 Minute Order Dkt. 10-2, Pistole Decl., Exh. A to Def. Memorandum in Opp. to Plaintiff s Mtn. for Temp. Restraining Order And/Or Prelim. Inj , 5, 6, 7, 8, 9, 18, 20 Dkt. 10-4, Department of Homeland Security, Privacy Impact Assessment Update for TSA Whole Body Imaging Dkt. 25, 3/1/11 Magistrate Report and Recommendation , 11, 33 Dkt. 30, 3/30/11 Order , 10 Dkt. 33, 4/29/11 Order , 3, 11 Dkt. 34, Notice of Appeal xi

15 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No JONATHAN CORBETT, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA BRIEF OF DEFENDANT-APPELLEE UNITED STATES OF AMERICA STATEMENT OF JURISDICTION The plaintiff invoked the jurisdiction of the district court under 28 U.S.C Dkt. 1, Complaint 7. The district court held that it lacked jurisdiction over the plaintiff s claims under 49 U.S.C , which provides for exclusive 1 The plaintiff also cited Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388, 91 S. Ct (1971), in his complaint and opening brief on appeal. That decision recognizes an implied cause of action, not an independent basis for a district court s exercise of jurisdiction. Furthermore, no Bivens claim was brought here. The plaintiff s complaint did not name any individual government officials as defendants. No Bivens-like cause of action is available against federal agencies or federal officials sued in their official capacities. See FDIC v. Meyer, 510 U.S. 471, , 114 S. Ct. 996, (1994).

16 jurisdiction in the court of appeals over challenges to certain orders of the Transportation Security Administration (TSA). Dkt. 33, 4/29/11 Order 2-4. The district court dismissed the plaintiff s claims in an order dated April 29, Ibid. The plaintiff filed a timely notice of appeal on May 27, Dkt. 34, 2 Notice of Appeal. This Court has jurisdiction under 28 U.S.C STATEMENT OF THE ISSUES PRESENTED In September 2010, TSA revised its screening checkpoint Standard Operating Procedures (SOP) to require the expanded use of advanced imaging technology (AIT) scanners and the use of specified pat-down procedures to screen passengers at airport checkpoints. The question presented is whether the district court erred in holding that, under 49 U.S.C , the plaintiff s challenge to the screening methods required by the revised SOP must be brought in a petition for review in the court of appeals. A. Course of Proceedings. STATEMENT OF THE CASE The plaintiff brought this pro se action against the United States seeking to enjoin TSA s use of AIT scanners and pat-down procedures to screen passengers 2 For the convenience of the Court, counsel for the United States is filing simultaneously with the filing of this brief a Supplemental Excerpts of Record. The Supplemental Excerpts of Record contains material from the district court record that is referenced or discussed in this brief but not included in the plaintiffappellant s Excerpts of Record. 2

17 at airport checkpoints. Dkt. 1, Complaint. The district court denied the plaintiff s motion for a preliminary injunction, Dkt. 30, 3/30/11 Order, and subsequently dismissed the action for lack of subject matter jurisdiction, Dkt. 33, 4/29/11 Order 4. The district court held that TSA s revised SOP requiring the use of AIT scanners and the current pat-down procedures is an order within the meaning of 49 U.S.C , and that the exclusive forum for challenging that order is a petition for review in the court of appeals. Dkt. 33, 4/29/11 Order 3-4. B. Statement of Facts. 1. TSA s Authority Over Air Transportation Security. For more than two decades, al-qaeda and other terrorists have sought to do harm to this country and have focused on aviation and airplanes. Pistole Decl To combat that threat, Congress has charged the TSA Administrator with 4 overall responsibility for civil aviation security. 49 U.S.C. 114(d)(1). The 3 John Pistole, the Administrator of TSA, provided a Dec. 6, 2010 declaration in support of the government s opposition to a motion for a temporary restraining order and preliminary injunction filed in district court. Dkt. 10-2, Pistole Decl., Exh. A to Def. Memorandum in Opp. to Plaintiff s Mtn. for Temp. Restraining Order And/Or Prelim. Inj. ( Pistole Decl. ). 4 When TSA was created, Congress appointed the Under Secretary of Transportation for Security as the head of TSA. 49 U.S.C. 114(b)(1). In 2002, the functions of TSA and the Under Secretary of Transportation for Security were transferred to the Department of Homeland Security. 6 U.S.C. 203(2), 551(d). Statutory references to the Under Secretary of Transportation for Security are thus deemed to refer to TSA and its Administrator. See id. 552(d),

18 Administrator, working together with the Director of the FBI, must assess current and potential threats to the domestic air transportation system and decide on and carry out the most effective method for continuous analysis and monitoring of security threats to that system. Id (a). The Administrator must take necessary actions to improve domestic air transportation security, id (e), and is authorized to prescribe regulations to protect passengers and property on an aircraft from criminal violence or aircraft piracy, id (b). Federal law requires the screening of all passengers and property before boarding to ensure that no passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance. 49 U.S.C (a), 44902(a); see also id. 114(e); 49 C.F.R (a)(2), (a). An airline must refuse to transport a passenger who does not consent to a search of his person or property, 49 U.S.C (a), and is authorized to refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety, id (b). Congress has required the Secretary of the Department of Homeland Security TSA s parent agency to give a high priority to developing, testing, improving, and deploying, at airport screening checkpoints, equipment that detects nonmetallic, chemical, biological, and radiological weapons, and explosives. 49 U.S.C (a). The Secretary is instructed to ensure that this screening 4

19 equipment, whether used alone or as part of an integrated screening system, can detect under realistic operating conditions the types of weapons and explosives that terrorists would likely try to smuggle aboard an air carrier aircraft. Ibid. Congress has also directed the Secretary to develop a strategic plan for deploying explosive detection equipment at airport screening checkpoints, including the backscatter x-ray scanner equipment described below. Id (b). In carrying out its mandate to ensure civil aviation security, TSA issues Standard Operating Procedures (SOP) that establish standard security screening procedures to be followed by TSA screening officials. Pistole Decl , 25, 46. Passengers must be screened in compliance with the procedures set out in the SOP before they are allowed to proceed into the sterile area of an airport or board an aircraft. Pistole Decl. 6, 26, 46; see also 49 C.F.R (a). 2. TSA s Revised SOP Requiring The Use Of AIT Scanners And Current Pat-Down Procedures. This litigation challenges two screening methods the use of AIT scanners as a primary screening tool and the current pat-down procedures that are required under the revised SOP for checkpoint screening issued by the TSA Administrator on September 17, 2010, and implemented on October 29, Pistole Decl. 25, 46. The SOP constitutes Sensitive Security Information, id., 5

20 which cannot be publicly released. See 49 U.S.C. 114(r); 49 C.F.R. Parts 15, a. AIT scanners create an image of the full body, showing the contours of the body in order to reveal metallic and non-metallic objects on the body or concealed in an individual s clothing. Pistole Decl , 32. AIT scanners address a critical weakness in aviation security, i.e., the inability of walkthrough and hand-held metal detectors to screen for small threat items and nonmetallic explosive devices. Pistole Decl. 32. After extensive laboratory and operational testing beginning in 2007, TSA approved backscatter and millimeter wave AIT scanners for operational use, and began deploying them in select airports. Pistole Decl. 22, 29. In June 2008, the Senate Appropriations Committee acknowledged the importance of AIT as part of TSA s screening technology, and encouraged TSA to expand the use of AIT scanners to additional airports. S. Rep. No , at 60 (2008). Following the attempted bombing of a Detroit-bound airplane on December 25, 2009, the President directed TSA to [a]ggressively pursue enhanced screening technology, protocols, and procedures to prevent similar attempts in the future attempted-terrorist-attack. TSA subsequently determined, based on an analysis of available technology as well as intelligence, that AIT scanners are the 6

21 most effective method to detect threat items concealed on passengers, such as the non-metallic explosives used in the December 25, 2009 bombing attempt. Pistole Decl. 24. Accordingly, TSA determined that AIT scanners should be deployed as part of TSA s primary screening program. Pistole Decl. 25. As noted above, TSA s implementation of that decision is reflected in the September 17, 2010 revised SOP for checkpoint screening, which requires the use of AIT scanners as a primary screening device. Pistole Decl. 25, 46. Currently, there are 488 AIT scanners deployed at 78 airports nationwide. See (providing list of airports at which AIT is deployed) (last checked Oct. 12, 2011). TSA s goal is to deploy nearly 1,000 AIT machines by the end of calendar year Pistole Decl. 26. To date, however, AIT machines have not replaced walk-through metal detectors, and no security checkpoint uses only AIT scanners. See Pistole Decl. 31. Privacy safeguards have been put in place to protect members of the traveling public who are screened using AIT scanners. See generally Dkt. 10-4, Department of Homeland Security, Privacy Impact Assessment Update for TSA Whole Body Imaging. The AIT scanners used by TSA do not produce photographs, nude or otherwise, nor do they produce clear images. Pistole Decl. 37. All images are viewed in a walled-off location, by a transportation security officer who never sees the actual passenger being screened. Pistole Decl

22 The AIT scanners used in airports cannot store, export, print, or transmit images, and transportation security officers are prohibited from bringing cameras, cell phones, or other electronic recording device into the viewing room. Pistole Decl b. The revised SOP also requires that transportation security officers conduct a pat-down search of passengers who (i) do not wish to be screened using an AIT scanner; (ii) set off an alarm during screening at an AIT scanner or walkthrough metal detector; (iii) are physically unable to proceed through an AIT scanner or walk-through metal detector; or (iv) request private screening. Pistole Decl. 39, 43. In addition, a very small percentage of pat-downs are conducted at random by transportation security officers. Pistole Decl. 43. TSA s pat-down procedures help screening officials find possible explosives, chemical weapons, and other dangerous items that otherwise might go undetected. Pistole Decl. 43. The current pat-down procedures were adopted in the revised screening checkpoint SOP issued by the TSA Administrator on September 17, 2010, which sets out pat-down procedures that transportation 5 On July 20, 2011, TSA announced that it is installing software on millimeterwave scanners that will use a generic body outline, instead of a person-specific image, in order to further protect the privacy of individuals being screened. See Bloomberg News, TSA To End Person-Specific Body Scan Images, Jul. 20, 2011, available at (last visited Oct. 12, 2011). TSA is also testing the software on backscatter scanners. See ibid. 8

23 security officers are required to use. Pistole Decl. 46. The procedures were changed after the December 25, 2009 attempted bombing and covert testing showing that, when testers were able to get items through screening, it was largely because [transportation security officers] were not being thorough enough in the pat-downs. Pistole Decl The new pat-down procedures involve an inspection of the upper thigh and groin area to search for concealed items. Pistole Decl. 48. Pat-downs are conducted by an officer of the same gender as the passenger, and passengers may request private screening with a witness of their choice. Pistole Decl. 51. These procedures are meant to ensure that pat-downs are as minimally invasive as possible while still remaining effective. As TSA Administrator Pistole has noted, [t]he prior pat-down procedures would not have detected the explosives concealed on the body of the December 25, 2009 bomber. Pistole Decl Background of This Litigation. Corbett brought a Fourth Amendment challenge to TSA s use of AIT technology and its current pat-down procedures. See Dkt. 1, Complaint 4. Although Corbett claims to be a frequent air traveler, he did not allege in his complaint that he has been screened with an AIT machine or subjected to a patdown search under the current pat-down procedures. Dkt. 1, Complaint 3-4. Instead, he alleged that he had three airline tickets departing from U.S. airports 9

24 utilizing AIT scanners departing within thirty days of the filing of the complaint, and that he was experiencing emotional distress at the thought of being subjected to the new screening procedures. Dkt. 1, Complaint 2, 3-4. Corbett moved in district court for an emergency injunction barring TSA from using an AIT scanner or its current pat-down procedures to screen him or any other passenger without probable cause or other reasonable suspicion. See Dkt. 4, Plaintiff s Emergency Motion for Temporary Restraining Order And/Or Preliminary Injunction. The district court denied the motion on the ground that there was no true emergency, Dkt. 7, 11/17/10 Minute Order, and also denied Corbett s subsequent motion for a preliminary injunction, Dkt. 30, 3/30/11 Order. The district court adopted the report and recommendation of the magistrate judge, who reasoned that Corbett was unlikely to succeed on his claim because the district court lacked jurisdiction under 49 U.S.C and the challenged screening procedures were reasonable in light of the grave threat posed by airborne terrorist attacks and the government s interest in the safety of the passengers and the public at large. Dkt. 25, 3/1/11 Magistrate Report and Recommendation 5-6, 8-9. The magistrate judge also noted that Corbett could not establish irreparable injury because he is free to avoid additional screening by electing not to travel by air, and that issuing an injunction barring the use of the 10

25 challenged screening procedures would cause substantial harm to the public by compromising TSA s ability to prevent terrorist attacks. Id. at The district court subsequently granted the government s motion to dismiss the complaint. Dkt. 33, 4/29/11 Order 4. The district court ruled that it lacked subject matter jurisdiction because Corbett s lawsuit squarely attacks a TSA order or regulation concerning airport security, and, under 49 U.S.C , the exclusive mechanism for review is a petition filed with the U.S. Court of Appeals for the D.C. Circuit or this Circuit. Dkt. 33, 4/29/11 Order 3-4. Corbett has appealed the dismissal of his claim. After filing his appeal, Corbett moved in this Court for a preliminary injunction prohibiting TSA from using AIT scanners or the current pat-down procedures as a primary screening tool for use at airport security checkpoints. Corbett v. United States, No , Appellant s Motion for Preliminary Injunction (11th Cir. filed May 31, 2011). His motion was denied by the Court on July 27, Corbett v. United States, No , Order (11th Cir. July 27, 2011). C. Standard of Review. On appeal from the district court s dismissal of an action for lack of subject matter jurisdiction, this Court review[s] the district court s legal conclusions de novo and its factual findings for clear error. Odyssey Marine Exploration, Inc. v. 11

26 Unidentified Shipwrecked Vessel, F. 3d, 2011 WL , at *4 (11th Cir. Sept. 21, 2011) (quoting Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009)). Federal courts are courts of limited jurisdiction, United States v. Rojas, 429 F.3d 1317, 1320 (11th Cir. 2005), and Congress, acting within its constitutional powers, may freely choose the court in which judicial review may occur. City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979). If there is any ambiguity as to whether jurisdiction lies with a district court or with a court of appeals under 49 U.S.C , the court must resolve that ambiguity in favor of review by a court of appeals. Suburban O Hare Comm n v. Dole, 787 F.2d 186, 192 (7th Cir.), cert. denied, 479 U.S. 847, 107 S. Ct. 169 (1986); see also Gen. Elec. Uranium Mgmt. Corp. v. Dep t of Energy, 764 F.2d 896, 903 (D.C. Cir. 1985). SUMMARY OF ARGUMENT A. The district court correctly held that it lacked jurisdiction under 49 U.S.C over the plaintiff s Fourth Amendment challenge to TSA s use of AIT scanners and the current pat-down procedures. The revised SOP for security checkpoints issued by the TSA Administrator on September 17, 2010 requires transportation security officers to use AIT scanners and the current pat-down procedures as part of their standard screening procedures before air passengers and 12

27 crew can enter a sterile area of an airport or board an aircraft. The revised SOP satisfies the expansive definition of order under 46110, and accordingly is reviewable exclusively in the court of appeals. Even if the plaintiff s claims do not directly challenge the SOP, furthermore, they are so inescapably intertwined with that SOP that they must be brought in the court of appeals under Every federal court to have considered a similar challenge to TSA screening methods has held that the challenge was reviewable exclusively in the court of appeals under See Roberts v. Napolitano, F. Supp. 2d, 2011 WL , at *3-*4 (D.D.C. July 7, 2011), appeal docketed, No (D.C. Cir. Sept. 6, 2011); Durso v. Napolitano, F. Supp. 2d, 2011 WL , at *2-*7 (D.D.C. July 5, 2011), appeal docketed, No (D.C. Cir. Sept. 9, 2011); Redfern v. Napolitano, 2011 WL , at *3-*8 (D. Mass. May 9, 2011), appeal docketed, No (1st Cir. July 13, 2011); Blitz v. Napolitano, No. 1:10CV930, Order (M.D.N.C. Sept. 12, 2011); see also Gilmore v. Gonzales, 435 F.3d 1125, (9th Cir. 2006), cert. denied, 549 U.S. 1110, 127 S. Ct. 929 (2007); Ibrahim v. DHS, 538 F.3d 1250, (9th Cir. 2008); Sima Products Corp. v. McLucas, 612 F.2d 309, (7th Cir.), cert. denied, 446 U.S. 908, 100 S. Ct (1980); Green v. TSA, 351 F. Supp. 2d 1119, (W.D. Wash. 2005); Thomson v. Stone, 2006 WL , at *3-*6 (E.D. Mich. 13

28 Mar. 27, 2006). The district court properly followed this uniform body of decisions in dismissing the plaintiff s claim for lack of jurisdiction. B. The plaintiff s arguments that the revised SOP is not an order within the meaning of are without merit. 1. An order is not limited to an agency decision in individualized or quasi-judicial proceedings. That cramped construction has been rejected by multiple courts and is inconsistent with the text of An order also is not required to be issued publicly. Lack of public notice may toll the time for filing a petition for review, but it does not render inapplicable. Similarly, the fact that an order is not required to be served under 46105(b) does not take it outside the scope of 46110, which applies to a broader class of orders. Numerous courts have applied to nonpublic orders. 3. The alleged inadequacy of the agency record does not establish that a challenged agency action is not an order or that it is subject to review in the district court. The government was not required to file an administrative record in the district court in order to establish that court s lack of subject matter jurisdiction a requirement that would be contrary to the basic purpose of channeling review to the court of appeals. In the only case in which a petition for 14

29 review of TSA s order has been properly filed, the record was clearly sufficient to permit the court of appeals to consider and reject a Fourth Amendment challenge to TSA s use of AIT scanners. Electronic Priv. Info. Ctr. v. U.S. Dep t of Homeland Sec., F.3d, 2011 WL , at *8-*9 (D.C. Cir. July 15, 2011) ( EPIC ). In this case, the materials submitted in district court showed that there would be an adequate record for court of appeals review. In addition, the proper remedy for any inadequacy in the administrative record would be to remand to the agency rather than to hold a trial in district court. C. The plaintiff s challenges to the finality of the order do not show that the district court erred in dismissing his claim under The revised SOP was sufficiently final for review because, once implemented, it imposed requirements on TSA screening officials and passengers. The SOP was not tentative, interlocutory, or subject to further investigation or agency proceedings. 2. Nothing in the government s briefing in EPIC suggests that the revised SOP was not final. The issue before the EPIC Court whether the agency was required to conduct formal notice-and-comment rulemaking in order to require the use of AIT scanners was wholly distinct from the jurisdictional question presented here. The SOP continues to govern airport screening procedures until a new rule is issued. 15

30 3. Even if the revised SOP were not sufficiently final for review under 46110, that would simply mean that the plaintiff s claim would not yet be ripe for review in any court. D. The fact that the plaintiff s challenge to the revised SOP is brought under the Constitution does not take it outside the scope of An appellate court is an adequate forum in which to litigate the merits of the plaintiff s Fourth Amendment claim, and courts of appeals have repeatedly adjudicated similar claims. E. Requiring the plaintiff to bring his claim in the court of appeals under does not violate due process. If further factual development becomes necessary, the court of appeals is authorized, where appropriate, to supplement the record and remand to the agency for further proceedings. ARGUMENT THE DISTRICT COURT LACKED JURISDICTION OVER THE PLAINTIFF S CHALLENGE UNDER 49 U.S.C A. The Plaintiff Challenges Airport Checkpoint Screening Methods Required Under The Revised SOP, Which Is An Order Within The Meaning Of The district court correctly held in this case that it lacked jurisdiction over the plaintiff s challenge pursuant to 49 U.S.C Under 46110(a), a person disclosing a substantial interest in an order issued by the Secretary of Transportation[, the Administrator of TSA, see n.3, 16

31 supra, or the Administrator of FAA,] in whole or in part under this Part, part B, or subsection (l) or (s) of section 114 may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. The court of appeals has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order, and may also order the Secretary, [the Administrator of TSA, or the Administrator of FAA] to conduct further proceedings. Id (c). As this Court has recognized, the term order in has been given an 6 expansive construction. Green v. Brantley, 981 F.2d 514, 519 (11th Cir. 1993). Order includes any agency decision which imposes an obligation, denies a right, or fixes some legal relationship. Gilmore, 435 F.3d at 1132 (internal quotation marks and citation omitted). An agency order issued by TSA concerning air commerce and safety falls within the scope of if it is final. Brantley, 981 F.2d at 519. The requirement of finality means only that the order must be the definitive statement on the subject matter it addresse[s], i.e., that the decision will be implemented without further investigation or additional proceedings. Ibid. (quotation marks and citation omitted). An order 6 At the time Brantley was decided, the statutory provision governing review was codified at 49 U.S.C. app rather than However, [t]he statutes do not materially differ. Association of Citizens to Protect & Pres. the Env t v. FAA, 287 F. App x 764, 766 n.3 (11th Cir. 2008). 17

32 can be final even if it is of temporary duration. See City of Alexandria v. Helms, 728 F.2d 643, 646 (4th Cir. 1984). Even where a claim does not directly challenge an agency order, the claim must be brought in the court of appeals if the merits of the claim are inescapably intertwined with a review of the procedures and merits surrounding an order. Brantley, 981 F.2d at 521. If a plaintiff could proceed in district court merely by asking for an injunction barring the agency from taking the action required by the order in question, a plaintiff would be able to avoid s exclusive review provision through creative pleading. Durso, 2011 WL , at *6. 2. The plaintiff challenges the requirement that officers use AIT scanners and modified pat-down procedures as part of their standard security checkpoint screening. Those screening methods are mandated by the revised SOP for checkpoint screening issued by the TSA Administrator on September 17, 2010, with an implementation date of October 29, See Pistole Decl. 25, 46. The SOP falls within the plain language of 46110(a) because it was issued by the TSA Administrator in whole or in part under Title 49, Subtitle VII, Part A, Air Commerce and Safety, and involves security duties and powers designated to be carried out by the TSA Administrator. As noted above, the TSA Administrator is required under 49 U.S.C (a) to provide for the screening of all passengers and property that will 18

33 be carried on a passenger aircraft. In the cases of flights originating in the United States, the screening shall take place before boarding and shall be carried out by a Federal Government employee. 49 U.S.C (a). The TSA Administrator is also charged with prescribing regulations requiring an airline to refuse to transport a passenger who does not consent to a search of his person or property to determine whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance, id (a). The TSA Administrator is required to prescribe regulations to protect passengers and property on an aircraft operating in air transportation or intrastate air transportation against an act of criminal violence or aircraft piracy, including, to the maximum extent practicable, the requirement of a uniform procedure for searching and detaining passengers and property to ensure their safety and their courteous and efficient treatment. Id (b). And the TSA Administrator is charged with deploying, at airport screening checkpoints, equipment that detects nonmetallic, chemical, biological, and radiological weapons, and explosives, in all forms, on individuals and in their personal property. Id (a). In accordance with these statutory duties, the TSA Administrator has promulgated regulations governing the screening that passengers must undergo before entering the sterile area of an airport or boarding an aircraft. See 49 C.F.R , No individual may enter a sterile area or board an 19

34 aircraft without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area or aircraft under [49 C.F.R. Part 1540, Subchapter C]. 49 C.F.R (a); see also 49 C.F.R (a)(2) ( No person may * * * [e]nter, or be present within, a * * * sterile area without complying with the systems, measures, or procedures being applied to control access to, or presence or movement in, such area[]. ). The specific procedures that are required to be used to screen and inspect passengers at the screening checkpoint are set forth in the revised SOP issued by TSA on September 17, 2010, which requires the use of AIT scanners and the current pat-down procedures as part of the standard screening process. See Pistole Decl. 25, Once the revised SOP was implemented on October 29, 2010, TSA officers were required to use the methods and procedures set out in the SOP to screen passengers at airport security checkpoints. See 49 C.F.R (a)(2), (a). By impos[ing] an obligation on TSA officials conducting the screening, and on individuals wishing to enter a sterile area or to board an aircraft, the SOP constituted an order within the meaning of See Gilmore, 435 F.3d at 1132; Durso, 2011 WL , at *3; Redfern, 2011 WL , at *5; see also, e.g., Safe Extensions, Inc. v. FAA, 509 F.3d 593,

35 (D.C. Cir. 2007); City of Dania Beach v. FAA, 485 F.3d 1181, (D.C. Cir. 2007). Furthermore, the SOP satisfied the requirement of a final order, because the requirement to comply with the SOP was effective as of the implementation date, October 29, 2010, without the need for further investigation by or proceedings before the agency. The revised SOP was not merely tentative or interlocutory in nature. Village of Bensenville v. FAA, 457 F.3d 52, 68 (D.C. Cir. 2006) (quotation marks and citation omitted). It reflected the agency s definitive statement on the subject matter [] addressed. Brantley, 981 F.2d at 519 (quotation marks and citation omitted); see also City of Alexandria, 728 F.2d at 646. Finally, even if the plaintiff s lawsuit does not constitute a direct attack on the revised SOP, the merits of his claim are inextricably intertwined with the SOP because the relief he seeks is an injunction barring the enforcement of screening methods the use AIT scanners and current pat-down procedures required under the SOP. As courts have repeatedly recognized in analogous circumstances, a claim that screening methods are unconstitutional as applied to the plaintiff is inextricably intertwined with a challenge to the underlying TSA SOP or security directive that requires those screening methods. See Gilmore, 435 F.3d at 1133 & n.9; Durso, 2011 WL , at *5-*6; Redfern, 2011 WL , at *6; 21

36 Roberts, 2011 WL , at *3-*4; Thomson, 2006 WL , at *6. In order to challenge the lawfulness of the screening procedures required under the revised SOP issued on September 17, 2010, the plaintiff must file a petition for review in the court of appeals under 49 U.S.C (a). 4. Notably, every court to have considered the question has ruled that a challenge to screening methods used by TSA falls within the exclusive review provisions of 46110, and must be brought in a petition for review filed in the court of appeals. Since TSA modified its screening checkpoint SOP to require the use of AIT scanners and the current pat-down procedures, numerous challenges to the lawfulness of those screening methods have been brought in district courts. Every district court to rule on the jurisdictional question has agreed that, under 46110, the exclusive means to challenge TSA s use of AIT scanners and the current patdown procedures is through a petition for review filed in the court of appeals. See Roberts, 2011 WL , at *3-*4; Durso, 2011 WL , at *2-*7; Blitz, No. 1:10CV930, Order (M.D. N.C. Sep. 12, 2011); Redfern, 2011 WL , at *3-*8. In Durso and Roberts, the district court rejected arguments identical to those raised by the plaintiff here and ruled that a Fourth Amendment challenge to the use of AIT scanners and the current pat-down procedures was inextricably intertwined with review of the TSA s Standard Operating Procedures for 22

37 checkpoint screening and that the exclusive means of review under was a petition for review in the court of appeals. See Durso, 2011 WL , at *2- *7; Roberts, 2011 WL , at *3-*4. The district court in Redfern reached the same conclusion, dismissing challenges to TSA s use of AIT scanners at airport security checkpoints and the current pat-down procedures WL , at *3-*8. The district court in Blitz, adopting the reasoning in Durso, also dismissed claims challenging the constitutionality of the use of AIT scanners and pat-down procedures, as well as the process by which those requirements were established. Blitz, No. 1:10CV930, Order, at 3 (M.D.N.C. Sept. 12, 2011). Furthermore, although no other court of appeals has yet considered the 7 precise issue presented here, courts of appeals have repeatedly held that similar challenges to airport security screening procedures are subject to exclusive review in the courts of appeals under In Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), the Ninth Circuit held that a TSA Security Directive requiring airline passengers to present identification or to be subject to more intrusive scrutiny, and requiring airport security personnel to enforce this obligation, was an order within the meaning of that could only be challenged in the court 7 An appeal of the dismissal of a similar challenge under to 49 U.S.C is currently pending before the U.S. Court of Appeals for the First Circuit in Redfern v. Napolitano, No Appeals are also pending in Roberts v. Napolitano, No (D.C. Cir.), and Durso v. Napolitano, No (D.C. Cir.). 23

38 of appeals. Id. at 1133 & n.9; see also Ibrahim v. DHS, 538 F.3d 1250, (9th Cir. 2008) (same). Similarly, in Sima Products Corp. v. McLucas, 612 F.2d 309 (7th Cir. 1980), the plaintiffs challenged an FAA rule governing the use of X-ray machines for inspecting carry-on baggage at airport security checkpoints and the appropriate warning to be provided to passengers. Id. at 311. The Court held that, under the predecessor statutory provision to 46110, review was available exclusively in 8 the court of appeals. Id. at And in EPIC, the D.C. Circuit exercised jurisdiction over a petition for review filed under 46110(a) challenging one of the screening methods at issue here the use of AIT scanners WL The overwhelming and uniform rulings of courts of appeals and district courts thus establish that challenges to screening procedures used at airport 8 District courts have reached similar conclusions in a variety of challenges to other TSA screening and security procedures. See, e.g., Green, 351 F. Supp. 2d at (challenge to TSA security directives establishing no-fly list of passengers barred from flying and selectee list of passengers subject to heightened scrutiny); Thomson, 2006 WL , at *5-*6 (passenger s challenge to full upper-body pat downs and explosives testing on prosthetic leg by airport security officials); Scherfen v. DHS, 2010 WL , at *10-*13 (M.D. Pa. Feb. 2, 2010) (challenge to plaintiffs alleged inclusion on terrorist watch list); Tooley v. Bush, 2006 WL , at *26 (D.D.C. Dec. 21, 2006) (challenge to individual s alleged inclusion on TSA watch list), rev d in part on other grounds, 556 F.3d 836 (D.C. Cir. 2009), judgment aff d on other grounds on reh g, 586 F.3d 1006 (D.C. Cir. 2009). 24