No. 11-12426

IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT

_______________

JONATHAN CORBETT, Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA, Defendant-Appellee.

_______________

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF FLORIDA

_______________

BRIEF OF DEFENDANT-APPELLEEUNITED STATES OF AMERICA

_______________

TONY WEST Assistant Attorney General

WIFREDO A. FERRER United States Attorney

DOUGLAS N. LETTER (202) 514-3602SHARON SWINGLE

(202) 353-2689 Attorneys, Appellate Staff Civil Division, Room 7250

Department of Justice 950 Pennsylvania Ave., N.W.

Washington, D.C. 20530-0001

Appeal Number: 11-12426Corbett v. United States

CERTIFICATE OF INTERESTED PERSONSAND CORPORATE DISCLOSURE STATEMENT

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 26.1.

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

Appeal Number: 11-12426Corbett v. United States

/s/ Sharon Swingle Sharon SwingleCounsel for the United States

C-2 of 2

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

TABLE OF CONTENTS

Page

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . i

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. TSA’s Authority Over Air Transportation Security. . . . . . . . . 3

2. TSA’s Revised SOP Requiring The Use Of AIT Scanners And Current Pat-Down Procedures. . . . . . . . . . . . . . 5

3. Background of This Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

THE DISTRICT COURT LACKED JURISDICTION OVER THEPLAINTIFF’S CHALLENGE UNDER 49 U.S.C. § 46110.. . . . . . . . . . . . . . . . . 16

A. The Plaintiff Challenges Airport Checkpoint Screening Methods Required Under The Revised SOP, Which Is An “Order” Within The Meaning Of § 46110. . . . . . . . . . . . . . . . . . 16

B. Corbett’s Arguments That He Did Not Challenge An“Order” Under § 46110 Are Without Merit. . . . . . . . . . . . . . . . . . . . 26

ii

1. An “Order” Under § 46110 Is Not Limited To The Outcome Of Individualized Or Quasi-Judicial Proceedings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

2. Public Notice Of An Agency Decision Is Not Required For It To Constitute An “Order” Under 49 U.S.C. § 46110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

3. The Alleged Inadequacy Of The Administrative Record Does Not Preclude A Finding That Corbett Challenges An “Order” Under § 46110. . . . . . . . . . . . . . . . . . 32

C. The Plaintiff’s Challenge To The Order’s Finality Does Not Establish That The District Court Has Jurisdiction. . . . . . . . . . . . . . 38

1. The Revised SOP Is Sufficiently “Final” For Review By A Court of Appeals Under § 46110. . . . . . . . . . . . . . . . . . 38

2. 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 § 46110.. . . . . 41

3. Any Lack Of Finality Would Also Preclude District Court Review Of The Plaintiff’s Challenge.. . . . . . . . . . . . . . 43

D. The Plaintiff’s Claim Is Not A Broad Constitutional Challenge Outside The Scope Of § 46110’s Exclusive Review Provision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

E. Requiring The Plaintiff To Bring His Challenge In The Court Of Appeals Does Not Violate Due Process. . . . . . . . . . . 49

iii

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

iv

TABLE OF CITATIONS

Cases:

Aerosource, Inc. v. Slater, 142 F.3d 572 (3d Cir. 1998).. . . . . . . . . . . . . . . . . . . 26

American Wildlands v. Kempthorne, 530 F.3d 991 (D.C. Cir. 2008). . . . . . . . . 50

Americopters, LLC v. FAA, 441 F.3d 726 (9th Cir. 2006). . . . . . . . . . . . . . . . . . 44

Association of Citizens to Protect & Pres. the Env’t v. FAA,287 F. App’x 764 (11th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 43

Atorie Air, Inc. v. FAA, 942 F.2d 954 (5th Cir. 1991). . . . . . . . . . . . . . . . . . 26, 36

Avia Dynamics, Inc. v. FAA, 641 F.3d 515 (D.C. Cir. 2011). . . . . . . . . . . . . . . . 29

Aviators for Safe and Fairer Regulation, Inc. v. FAA,221 F.3d 222 (1st Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Camp v. Pitts, 411 U.S. 138, 93 S. Ct. 1241 (1973). . . . . . . . . . . . . . . . . 35, 36, 50

Carmichael v. Kellogg, Brown & Root Servs., Inc.,572 F.3d 1271 (11th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

City of Alexandria v. Helms, 728 F.2d 643 (4th Cir. 1984). . . . . . . . . . . 18, 21, 40

City of Dania Beach v. FAA, 485 F.3d 1181 (D.C. Cir. 2007). . . . . . . . . . . . 21, 27

City of Los Angeles v. FAA, 239 F.3d 1033 (9th Cir. 2001). . . . . . . . . . . . . . 48, 49

City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660 (1983). . . . . . . . . . . 25

City of Pierre v. FAA, 150 F.3d 837 (8th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . 31_______________________________________________* Authorities upon which we primarily rely are indicated by asterisk.

v

City of Rochester v. Bond, 603 F.2d 927 (D.C. Cir. 1979). . . . . . . . . . . . . . . 12, 37

Crist v. Leippe, 138 F.3d 801 (9th Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . 34

* Durso v. Napolitano, ___ F. Supp. 2d ___, 2011 WL 2634183(D.D.C. July 5, 2011), appeal docketed, No. 11-5228 (D.C. Cir. Sept. 9, 2011). . . . . . . . . . . . . . . . . . . . . 13, 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 2739752 (D.C. Cir. July 15, 2011). . . . . . . . . . . . 15, 24, 41, 42, 46

FDIC v. Meyer, 510 U.S. 471, 114 S. Ct. 996 (1994).. . . . . . . . . . . . . . . . . . . . . . 1

Florida Power & Light Co. v. Lorion, 470 U.S. 729, 105 S. Ct. 1598 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S. Ct. 596 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Gen. Elec. Uranium Mgmt. Corp. v. Dep’t of Energy,764 F.2d 896 (D.C. Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 41

Gen. Elec. Co. v. Jackson, 610 F.3d 110 (D.C. Cir. 2010). . . . . . . . . . . . . . . . . . 45

* Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006), cert. denied,549 U.S. 1110, 127 S. Ct. 929 (2007).. . . . . . . . . . . . . 13, 17, 20, 21, 23, 27,

33, 34, 39, 46, 47, 48

Greater Orlando Aviation Authority v. FAA, 939 F.2d 954(11th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

* Green v. Brantley, 981 F.2d 514 (11th Cir. 1993).. . . . . . . . . . 17, 18, 21, 25, 33,36, 37, 38, 46, 48

Green v. TSA, 351 F. Supp. 2d 1119 (W.D. Wash. 2005). . . . . . . . . 13, 24, 28, 47

Ibrahim v. DHS, 538 F.3d 1250 (9th Cir. 2008). . . . . . . . . . . . . . . . . 13, 24, 34, 37

vi

Kucana v. Holder, ___ U.S. ___, 130 S. Ct. 827 (2010). . . . . . . . . . . . . . . . . . . 41

Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866 (1978). . . . . . . . . . . . . . . . . . . . . 31

Mace v. Skinner, 34 F.3d 854 (9th Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . 47, 48

McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S. Ct. 888 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 45, 49

Merritt v. Shuttle, Inc., 187 F.3d 263 (2d Cir. 1999). . . . . . . . . . . . . . . . . . . . . . 25

Merritt v. Shuttle, Inc., 245 F.3d 182 (2d Cir. 2001). . . . . . . . . . . . . . . . . . . . . . 48

Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, ___ F. 3d ___, 2011 WL 4374964 (11th Cir. Sept. 21, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206,118 S. Ct. 1952 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

* Redfern v. Napolitano, 2011 WL 1750445 (D. Mass. May 9, 2011), appeal docketed, No. 11-1805 (1st Cir. July 13, 2011). . . 13, 20, 21, 22, 23,

29, 30, 34, 47, 50

* Roberts v. Napolitano, ___ F. Supp. 2d ___, 2011 WL 2678950 (D.D.C. July 7, 2011), appeal docketed, No. 11-5226 (D.C. Cir. Sept. 6, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . 13, 22, 23, 34, 39, 47, 48, 50

* Safe Extensions, Inc. v. FAA, 509 F.3d 593 (D.C. Cir. 2007). . . . . . 20, 21, 27, 36

Scherfen v. DHS, 2010 WL 456784 (M.D. Pa. Feb. 2, 2010).. . . . . . . . . . . . . . . 24

* Sima Products Corp. v. McLucas, 612 F.2d 309 (7th Cir.), cert. denied, 446 U.S. 908, 100 S. Ct. 1834 (1980). . . . . . . . . . . . . 13, 24, 27

Southern California Aerial Advertisers’ Ass’n v. FAA,881 F.2d 672 (9th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 36

State of New York v. FAA, 712 F.2d 806 (2d Cir. 1983).. . . . . . . . . . . . . . . . . . . 26

vii

Suburban O’Hare Comm’n v. Dole, 787 F.2d 186 (7th Cir.), cert. denied, 479 U.S. 847, 107 S. Ct. 169 (1986). . . . . . . . . . . . . . . . . 12, 41

Thomson v. Stone, 2006 WL 770449 (E.D. Mich.Mar. 27, 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 24, 47

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 114 S. Ct. 771 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Tooley v. Bush, 2006 WL 3783142 (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).. . . . . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Rojas, 429 F.3d 1317 (11th Cir. 2005). . . . . . . . . . . . . . . . . . . . 12

Village of Bensenville v. FAA, 457 F.3d 52 (D.C. Cir. 2006).. . . . . . . . . . . . 21, 39

Virginia v. United States, 74 F.3d 517 (4th Cir. 1996).. . . . . . . . . . . . . . . . . . . . 50

Whitmore v. Arkansas, 495 U.S. 149, 110 S. Ct. 1717 (1990). . . . . . . . . . . . . . . 25

Constitution:

Fourth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12, 15, 16, 22, 35, 46, 47

Statutes:

Administrative Procedure Act:5 U.S.C. § 551(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425 U.S.C. § 551(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 42

6 U.S.C. § 203(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6 U.S.C. § 551(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6 U.S.C. § 552(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6 U.S.C. § 557. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

8 U.S.C. § 1160(e) (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

viii

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 25 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1631. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

49 U.S.C. § 114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 49 U.S.C. § 114(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 49 U.S.C. § 114(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 49 U.S.C. § 114(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 49 U.S.C. § 114(l). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 49 U.S.C. § 114(l)(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 31 49 U.S.C. § 114(r). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 30

49 U.S.C. App. § 1486. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 31

49 U.S.C. § 44901. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 49 U.S.C. § 44901(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 18, 19 49 U.S.C. § 44902. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 49 U.S.C. § 44902(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 19 49 U.S.C. § 44902(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 49 U.S.C. § 44903. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 49 U.S.C. § 44903(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 19 49 U.S.C. § 44904(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 49 U.S.C. § 44904(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

49 U.S.C. § 44925. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 49 U.S.C. § 44925(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 19 49 U.S.C. § 44925(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

49 U.S.C. § 46105(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 29, 30, 31

* 49 U.S.C. § 46110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 49 U.S.C. § 46110(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18, 22, 24, 27, 29, 40 49 U.S.C. § 46110(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 50

Pub. L. 103-272, 108 Stat. 745 (July 5, 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Regulations:

49 C.F.R. Part 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ix

49 C.F.R. Part 1520. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 49 C.F.R. § 1520.15(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

49 C.F.R. Part 1540. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 49 C.F.R. § 1540.105.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 49 C.F.R. § 1540.105(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 20, 39, 40 49 C.F.R. § 1540.107.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 49 C.F.R. § 1540.107(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 20, 39, 40

Legislative Materials:

S. Rep. No. 110-396 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Miscellaneous:

Bloomberg News, “TSA To End Person-Specific Body Scan Images,” Jul. 20, 2011, available at

http://www.bloomberg.com/news/2011-07-20/tsa-to-end- person-specific-body-scan-images.html.. . . . . . . . . . . . . . . . . . . 8

www.tsa.gov/approach/tech/ait/faqs.shtm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

www.whitehouse.gov/the-press-office/presidential-memorandum-regarding-12252009-attempted-terrorist-attack. . . . . . . . . . . . . . . . . . . . . . . 6

x

TABLE OF RECORD REFERENCES IN THE BRIEF

PageDkt. 1, Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 9, 10, 25, 39, 48

Dkt. 4, Plaintiff’s Emergency Motion for Temporary Restraining OrderAnd/Or Preliminary Injunction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Dkt. 7, 11/17/10 Minute Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Dkt. 10-2, Pistole Decl., Exh. A to Def. Memorandum in Opp.to Plaintiff’s Mtn. for Temp. Restraining Order And/OrPrelim. Inj.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 6, 7, 8, 9, 18, 20

Dkt. 10-4, Department of Homeland Security, Privacy ImpactAssessment Update for TSA Whole Body Imaging. . . . . . . . . . . . . . . . . . . . 7

Dkt. 25, 3/1/11 Magistrate Report and Recommendation. . . . . . . . . . . . . 10, 11, 33

Dkt. 30, 3/30/11 Order.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10

Dkt. 33, 4/29/11 Order.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 11

Dkt. 34, Notice of Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

xi

IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT

_______________

No. 11-12426_______________

JONATHAN CORBETT, Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA, Defendant-Appellee.

_______________

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF FLORIDA

_______________

BRIEF OF DEFENDANT-APPELLEEUNITED STATES OF AMERICA

_______________

STATEMENT OF JURISDICTION

The plaintiff invoked the jurisdiction of the district court under 28 U.S.C.

§ 1331. Dkt. 1, Complaint ¶ 7. The district court held that it lacked jurisdiction1

over the plaintiff’s claims under 49 U.S.C. § 46110, which provides for exclusive

The plaintiff also cited Bivens v. Six Unknown Narcotics Agents, 403 U.S.1

388, 91 S. Ct. 1999 (1971), in his complaint and opening brief on appeal. Thatdecision recognizes an implied cause of action, not an independent basis for adistrict court’s exercise of jurisdiction. Furthermore, no Bivens claim was broughthere. The plaintiff’s complaint did not name any individual government officialsas defendants. No Bivens-like cause of action is available against federal agenciesor federal officials sued in their official capacities. See FDIC v. Meyer, 510 U.S.471, 485-486, 114 S. Ct. 996, 1005-1006 (1994).

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, 2011.

Ibid. The plaintiff filed a timely notice of appeal on May 27, 2011. Dkt. 34,

Notice of Appeal. This Court has jurisdiction under 28 U.S.C. § 1291.2

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. § 46110, 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.

STATEMENT OF THE CASE

A. Course of Proceedings.

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

For the convenience of the Court, counsel for the United States is filing2

simultaneously with the filing of this brief a Supplemental Excerpts of Record. The Supplemental Excerpts of Record contains material from the district courtrecord that is referenced or discussed in this brief but not included in the plaintiff-appellant’s Excerpts of Record.

2

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. § 46110, 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.

¶ 9. To combat that threat, Congress has charged the TSA Administrator with3

overall responsibility for civil aviation security. 49 U.S.C. § 114(d)(1). The4

John Pistole, the Administrator of TSA, provided a Dec. 6, 2010 declaration3

in support of the government’s opposition to a motion for a temporary restrainingorder 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. RestrainingOrder And/Or Prelim. Inj. (“Pistole Decl.”).

When TSA was created, Congress appointed the Under Secretary of4

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 weretransferred 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 thusdeemed to refer to TSA and its Administrator. See id. §§ 552(d), 557.

3

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. § 44904(a). The Administrator must take

“necessary actions to improve domestic air transportation security,” id. § 44904(e),

and is authorized to “prescribe regulations to protect passengers and property on

an aircraft” from “criminal violence or aircraft piracy,” id. § 44903(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. §§ 44901(a), 44902(a); see

also id. § 114(e); 49 C.F.R. §§ 1540.105(a)(2), 1540.107(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. § 44902(a), and is authorized to “refuse to transport a

passenger or property the carrier decides is, or might be, inimical to safety,” id.

§ 44902(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. § 44925(a). The Secretary is instructed to ensure that this screening

4

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. § 44925(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. ¶¶ 12-14, 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. § 1540.107(a).

2. TSA’s Revised SOP Requiring The Use Of AIT Scanners AndCurrent 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, 2010.

Pistole Decl. ¶ 25, 46. The SOP constitutes “Sensitive Security Information,” id.,

5

which cannot be publicly released. See 49 U.S.C. § 114(r); 49 C.F.R. Parts 15,

1520.

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. ¶¶ 29-30, 32. AIT scanners

address a “critical weakness in aviation security,” i.e., the “inability of walk-

through and hand-held metal detectors to screen for small threat items and non-

metallic 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. 110-396, 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.

www.whitehouse.gov/the-press-office/presidential-memorandum-regarding-

12252009-attempted-terrorist-attack. TSA subsequently determined, based on an

analysis of available technology as well as intelligence, that AIT scanners are “the

6

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 www.tsa.gov/approach/tech/ait/faqs.shtm (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 2011. 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. ¶ 38.

7

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.

¶ 38.5

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 walk-

through 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

On July 20, 2011, TSA announced that it is installing software on millimeter-5

wave scanners that will use a generic body outline, instead of a person-specificimage, in order to further protect the privacy of individuals being screened. SeeBloomberg News, “TSA To End Person-Specific Body Scan Images,” Jul. 20,2011, available at http://www.bloomberg.com/news/2011-07-20/tsa-to-end-person-specific-body-scan-images.html (last visited Oct. 12, 2011). TSA is alsotesting the software on backscatter scanners. See ibid.

8

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. ¶¶ 44-46.

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. ¶ 49.

3. 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 pat-

down 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

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. § 46110 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

challenged screening procedures “would cause substantial harm to the public” by

compromising TSA’s ability to prevent terrorist attacks. Id. at 9-10.

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. § 46110, 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. 11-12426, Appellant’s Motion for Preliminary

Injunction (11th Cir. filed May 31, 2011). His motion was denied by the Court on

July 27, 2011. Corbett v. United States, No. 11-12426, 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

Unidentified Shipwrecked Vessel, ___ F. 3d ___, 2011 WL 4374964, 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. § 46110, 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. § 46110 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

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 § 46110.

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 § 46110. See Roberts v. Napolitano, ___ F. Supp. 2d ___, 2011 WL

2678950, at *3-*4 (D.D.C. July 7, 2011), appeal docketed, No. 11-5226 (D.C. Cir.

Sept. 6, 2011); Durso v. Napolitano, ___ F. Supp. 2d ___, 2011 WL 2634183, at

*2-*7 (D.D.C. July 5, 2011), appeal docketed, No. 11-5228 (D.C. Cir. Sept. 9,

2011); Redfern v. Napolitano, 2011 WL 1750445, at *3-*8 (D. Mass. May 9,

2011), appeal docketed, No. 11-1805 (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, 1132-1133 (9th Cir. 2006), cert. denied, 549 U.S. 1110, 127 S. Ct.

929 (2007); Ibrahim v. DHS, 538 F.3d 1250, 1256-1257 (9th Cir. 2008); Sima

Products Corp. v. McLucas, 612 F.2d 309, 312-314 (7th Cir.), cert. denied, 446

U.S. 908, 100 S. Ct. 1834 (1980); Green v. TSA, 351 F. Supp. 2d 1119, 1124-1125

(W.D. Wash. 2005); Thomson v. Stone, 2006 WL 770449, at *3-*6 (E.D. Mich.

13

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 § 46110 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 § 46110.

2. 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

§ 46110 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 § 46110 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

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 2739752, 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 § 46110.

1. 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

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 § 46110. 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

§ 46110 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 THEPLAINTIFF’S CHALLENGE UNDER 49 U.S.C. § 46110

A. The Plaintiff Challenges Airport Checkpoint Screening MethodsRequired Under The Revised SOP, Which Is An “Order” Within TheMeaning Of § 46110.

1. The district court correctly held in this case that it lacked jurisdiction

over the plaintiff’s challenge pursuant to 49 U.S.C. § 46110. Under § 46110(a),

a person disclosing a substantial interest in an order issued by theSecretary of Transportation[, the Administrator of TSA, see n.3,

16

supra, or the Administrator of FAA,] in whole or in part under thisPart, part B, or subsection (l) or (s) of section 114 may apply forreview of the order by filing a petition for review in the United StatesCourt of Appeals for the District of Columbia Circuit or in the courtof appeals of the United States for the circuit in which the personresides 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.

§ 46110(c).

As this Court has recognized, the term “order” in § 46110 has been given an

“expansive construction.” Green v. Brantley, 981 F.2d 514, 519 (11th Cir. 1993). 6

“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 § 46110 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

At the time Brantley was decided, the statutory provision governing review6

was codified at 49 U.S.C. app. § 1486 rather than § 46110. However, “[t]hestatutes do not materially differ.” Association of Citizens to Protect & Pres. theEnv’t v. FAA, 287 F. App’x 764, 766 n.3 (11th Cir. 2008).

17

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 § 46110’s exclusive review

provision through creative pleading. Durso, 2011 WL 2634183, 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, 2010. 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.

§ 44901(a) to “provide for the screening of all passengers and property” that will

18

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. § 44901(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. § 44902(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. § 44903(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. § 44925(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.

§§ 1540.105, 1540.107. “No individual may enter a sterile area or board an

19

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. § 1540.107(a); see also 49 C.F.R. § 1540.105(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, 46.

3. 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.

§§ 1540.105(a)(2), 1540.107(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 § 46110.

See Gilmore, 435 F.3d at 1132; Durso, 2011 WL 2634183, at *3; Redfern, 2011

WL 1750445, at *5; see also, e.g., Safe Extensions, Inc. v. FAA, 509 F.3d 593, 598

20

(D.C. Cir. 2007); City of Dania Beach v. FAA, 485 F.3d 1181, 1187-1188 (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 2634183, at *5-*6; Redfern, 2011 WL 1750445, at *6;

21

Roberts, 2011 WL 2678950, at *3-*4; Thomson, 2006 WL 770449, 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. § 46110(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 pat-

down procedures is through a petition for review filed in the court of appeals. See

Roberts, 2011 WL 2678950, at *3-*4; Durso, 2011 WL 2634183, at *2-*7; Blitz,

No. 1:10CV930, Order (M.D. N.C. Sep. 12, 2011); Redfern, 2011 WL 1750445, 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

checkpoint screening and that the exclusive means of review under § 46110 was a

petition for review in the court of appeals. See Durso, 2011 WL 2634183, at *2-

*7; Roberts, 2011 WL 2678950, 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. 2011 WL

1750445, 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

precise issue presented here, courts of appeals have repeatedly held that similar7

challenges to airport security screening procedures are subject to exclusive review

in the courts of appeals under § 46110. 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 § 46110 that could only be challenged in the court

An appeal of the dismissal of a similar challenge under to 49 U.S.C. § 461107

is currently pending before the U.S. Court of Appeals for the First Circuit inRedfern v. Napolitano, No. 11-1805. Appeals are also pending in Roberts v.Napolitano, No. 11-5226 (D.C. Cir.), and Durso v. Napolitano, No. 11-5228 (D.C.Cir.).

23

of appeals. Id. at 1133 & n.9; see also Ibrahim v. DHS, 538 F.3d 1250, 1256-1257

(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

the court of appeals. Id. at 312-315. And in EPIC, the D.C. Circuit exercised8

jurisdiction over a petition for review filed under § 46110(a) challenging one of

the screening methods at issue here — the use of AIT scanners. 2011 WL

2739752.

The overwhelming and uniform rulings of courts of appeals and district

courts thus establish that challenges to screening procedures used at airport

District courts have reached similar conclusions in a variety of challenges to8

other TSA screening and security procedures. See, e.g., Green, 351 F. Supp. 2d at1124-1125 (challenge to TSA security directives establishing “no-fly list” ofpassengers barred from flying and “selectee list” of passengers subject toheightened scrutiny); Thomson, 2006 WL 770449, at *5-*6 (passenger’s challengeto full upper-body pat downs and explosives testing on prosthetic leg by airportsecurity officials); Scherfen v. DHS, 2010 WL 456784, at *10-*13 (M.D. Pa. Feb.2, 2010) (challenge to plaintiffs’ alleged inclusion on terrorist watch list); Tooleyv. Bush, 2006 WL 3783142, at *26 (D.D.C. Dec. 21, 2006) (challenge toindividual’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, 586F.3d 1006 (D.C. Cir. 2009).

24

security checkpoints must be brought in a petition for review in the court of

appeals under 49 U.S.C. § 46110. The district court properly dismissed the

plaintiff’s action in district court for lack of subject matter jurisdiction.9

The only jurisdictional argument raised by the plaintiff on appeal is that the9

district court had subject matter jurisdiction over his claim under 49 U.S.C.§ 46110. He does not argue that the district court should have transferred his caseto this Court sua sponte under 28 U.S.C. § 1631, or that this Court should exercisejurisdiction directly under 49 U.S.C. § 46110. The plaintiff’s failure to petition forreview in this Court under § 46110 bars the Court from exercising jurisdictionunder that provision. See Brantley, 981 F.2d at 521 n.2; Merritt v. Shuttle, Inc.,187 F.3d 263, 271 n.6 (2d Cir. 1999).

Furthermore, because this Court is exercising solely appellate jurisdictionunder 28 U.S.C. § 1291 to review the propriety of the district court’s dismissal forlack of subject matter jurisdiction, the question whether the plaintiff would havestanding to bring a petition for review in the court of appeals under § 46110 is notsquarely presented in this appeal. The government notes, however, that thereappears to be a significant question based on the current record as to the plaintiff’sstanding to challenge TSA’s use of AIT scanners and its current pat-downprocedures. Cf. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-231, 110 S. Ct.596, 607 (1990) (recognizing that federal courts have an independent obligation ateach stage of litigation to ensure that the plaintiff has standing). Because theplaintiff seeks prospective injunctive relief, he must show that any injury healleges is “certainly impending.” Whitmore v. Arkansas, 495 U.S. 149, 158, 110S. Ct. 1717, 1724-1725 (1990). The only allegations of future injuries in theplaintiff’s complaint involved flights scheduled within 30 days of the filing of hiscomplaint, a period that has long since passed. Dkt. 1, Complaint ¶¶ 8, 24. Theplaintiff did not allege that he had been personally subjected in the past to thechallenged screening techniques, and, in any event, past injuries would not conferstanding for injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 102-103, 103 S. Ct. 1660, 1665-1666 (1983). Nor has the plaintiff sought to amend hiscomplaint to allege future imminent harm that would demonstrate standing.

25

B. Corbett’s Arguments That He Did Not Challenge An “Order”Under § 46110 Are Without Merit.

The plaintiff raises a series of arguments about why the revised screening

checkpoint SOP is not an “order” within the meaning of § 46110, but, as we next

show, none of them has merit.

1. An “Order” Under § 46110 Is Not Limited To The Outcome OfIndividualized Or Quasi-Judicial Proceedings.

The plaintiff argues that the revised SOP cannot constitute an “order” within

the meaning of § 46110 because that term is limited to “individualized

proceedings.” Pl. Br. 12. As the cases cited above make clear, however, a

challenge to airport security screening procedures or methods must be brought in

the court of appeals under § 46110, even if the screening methods or procedures

challenged are generally applied. Furthermore, courts have recognized that the

term “order” in § 46110 should be construed expansively, e.g., Atorie Air, Inc. v.

FAA, 942 F.2d 954, 960 (5th Cir. 1991); State of New York v. FAA, 712 F.2d 806,

808 (2d Cir. 1983), and that there is no “criterion for an [agency] action to be an

order that it affect only a single company.” Aerosource, Inc. v. Slater, 142 F.3d

572, 581 (3d Cir. 1998).

Relatedly, the plaintiff argues that an “order” is limited to a decision

following “quasi-judicial proceedings” in which evidence was introduced and an

administrative record created, purportedly because the purpose of § 46110 is to

26

protect against duplicative fact-finding by a district court. Pl. Br. 12-13. No court

of appeals has accepted that restrictive view of the meaning of “order,” and

numerous courts have held that the term is not limited to the outcome of an

evidentiary hearing before an agency and have applied § 46110 to other types of

agency decisions. See Safe Extensions, 509 F.3d at 598-599 (rejecting the

argument that a quasi-judicial hearing is required for an “order” to fall within

§ 46110); Sima Products, 612 F.2d at 313 (same); see also, e.g., City of Dania

Beach, 485 F.3d at 1188-1189; Gilmore, 435 F.3d at 1132-1133.

Indeed, the plaintiff’s argument that “order” is limited to an agency ruling

following an evidentiary proceeding is inconsistent with § 46110 itself, which

includes orders promulgated under “subsection (l) * * * of section 114” in the

class of orders that can only be challenged in the courts of appeals. 49 U.S.C.

§ 46110(a). Because Section 114(l)(2)(A) authorizes TSA to issue security

directives “without providing notice or an opportunity for comment,” Congress

clearly envisioned that § 46110 could apply to an order that had not been issued

27

following an evidentiary hearing. See Green, 351 F. Supp. 2d at 1125. The10

plaintiff’s counter-argument is erroneous.

The plaintiff also suggests in his brief that, because the title of Title 49,

Chapter 461 is “Investigations and Proceedings,” the provision in § 46110 must

be intended to apply only where an agency has resolved an investigation or a

proceeding. Pl. Br. 16. “The title of a statute cannot limit the plain meaning of the

text.” Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212, 118 S. Ct. 1952,

1956 (1998) (quotation marks, ellipses, and citation omitted). It would be

particularly anomalous to rely on ambiguous descriptive language in the title of a

statutory chapter, which does not even refer to judicial review, to restrict the

specific language of one provision of that chapter governing judicial review.11

The revised SOP issued in this case is not a security directive, which are10

directed at airlines and transportation companies rather than TSA officials, and itwas issued pursuant to 49 U.S.C. §§ 44901-44903, 44925, rather than § 114(l). Nevertheless, the fact that § 46110 indisputably applies to security directivesissued under § 114(l), which can be issued without notice and an opportunity forcomment, shows that its reach is not limited to agency rulings followingadjudicative proceedings.

The plaintiff also invokes the definition of “order” in the Administrative11

Procedure Act, 5 U.S.C. § 551(6), see Pl. Br. 17, but it is not clear whatproposition that definition is intended to support. As courts have noted, the APAdefinition of “order” is quite broad, and supports a similarly expansiveconstruction of “order” in § 46110. See, e.g., Aviators for Safe and FairerRegulation, Inc. v. FAA, 221 F.3d 222, 225 (1st Cir. 2000); Southern CaliforniaAerial Advertisers’ Ass’n v. FAA, 881 F.2d 672, 675 (9th Cir. 1989).

28

2. Public Notice Of An Agency Decision Is Not Required For It ToConstitute An “Order” Under 49 U.S.C. § 46110.

The plaintiff raises a series of arguments about why the lack of public notice

of TSA’s revised SOP means that the SOP is not an “order” within the meaning of

§ 46110. None of the arguments is correct.

The plaintiff asserts that a non-public order cannot satisfy the requirement

in § 46110(a) that a petition for review “must be filed not later than 60 days after

the order is issued” unless there are “reasonable grounds for not filing by the 60th

day.” Pl. Br. 16. But § 46110 is not rendered inapplicable simply because an

individual affected by the revised SOP does not receive notice of its requirements

within the initial 60-day period following its issuance. See Durso, 2011 WL

2634183, at *4-*5; Redfern, 2011 WL 1750445, at *5-*6. The delay in notice

merely means that the time limits in § 46110(a) might not yet have begun to run.

See Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 518-519 (D.C. Cir. 2011).

Relatedly, the plaintiff asserts that the part of § 46105(b) requiring service

of an “order” on the affected parties must be understood to limit the definition of

“order” in § 46110. Pl. Br. 16. As the D.C. Circuit held in Avia Dynamics,

however, the term “order” as used in § 46110 is not limited by the meaning of

“order” in § 46105(b). 641 F.3d at 520-521. The meaning of “order” in § 46110

is read expansively because of its purpose of channeling judicial review

29

exclusively to the courts of appeals, and it is well-established that certain agency

actions, such as “informal adjudications” by the FAA, are “orders” within the

meaning of § 46110 even though they are not required to be served under

§ 46105(b). See ibid.

Furthermore, § 46105(b) does not purport to define the term “order,” but

only to impose service requirements on certain agency issuances determined to be

“orders” within the meaning of that subsection. The subsection must be read in

conjunction with other relevant statutory provisions, including 49 U.S.C. § 114(r),

which requires the TSA Administrator to prescribe regulations “prohibiting the

disclosure of information obtained or developed in carrying out security under

chapter 449 of this title” if disclosure would “be detrimental to the security of

transportation.” Plainly, the service provision in § 46105(b) would not trump a

determination that disclosure is prohibited under federal regulations implementing

49 U.S.C. § 114(r). See 49 C.F.R. § 1520.15(a). Even “orders” within the

meaning of § 46105(b) need not be “served” where, as here, they constitute

“Sensitive Security Information” under the regulations implementing § 114(r).

The fact that the revised screening checkpoint SOP was not publicly disclosed is

thus irrelevant to whether it is an order within the meaning of §§ 46105(b) or

46110. See Redfern, 2011 WL 1750445, at *5 (holding that SOP is not required to

30

be served under § 46105(b) to be an “order” under § 46110); Durso, 2011 WL

2634183, at *4 (same).

Finally, the plaintiff relies on City of Pierre v. FAA, 150 F.3d 837 (8th Cir.

1998), for the proposition that agency action must be public to be an “order” under

§ 46110. Pl. Br. 18. The only issue in City of Pierre, however, was whether the

FAA’s announcement that it would close certain flight service stations in a multi-

stage process was sufficiently “final” to start the time limits for review. Id. at 839-

840. Stray dictum in the opinion does not support the plaintiff’s argument.

In sum, the fact that a challenged agency decision is not publicly available is

immaterial to its status as an “order” under § 46110. Numerous courts have

applied § 46110’s exclusive review provision to nonpublic agency orders,

including TSA screening methods or security directives that were not publicly

issued or served. See pp. 22-25, supra (collecting cases). And, as noted above,

Congress clearly envisioned that the term “order” as used in § 46110 could include

an order that had not been issued with notice and an opportunity for comment

under 49 U.S.C. § 114(l)(2)(A). The plaintiff’s unduly cramped construction of12

Indeed, in re-enacting former provision 49 U.S.C. app. § 1486 as 49 U.S.C.12

§ 46110, see Pub. L. 103-272, 108 Stat. 745 (July 5, 1994) (stating that § 1486was re-codified “without substantive change”), Congress is presumed to have beenaware of and to have endorsed the broad understanding that courts had accordedthe term “order” by that time. See Lorillard v. Pons, 434 U.S. 575, 580-581, 98 S.Ct. 866, 870 (1978).

31

“order” as applying only to public agency decisions is not supported by the text of

the statute or the decisions of courts interpreting and applying that text.

3. The Alleged Inadequacy Of The Administrative Record Does NotPreclude A Finding That Corbett Challenges An “Order” Under§ 46110.

The plaintiff also contends that § 46110 does not apply to his challenge,

because TSA did not provide an adequate administrative record in support of the

Administrator’s decision to require the use of AIT scanners and the current pat-

down procedures. Pl. Br. 13-15. The plaintiff argues that the government had the

burden to show that the administrative record was adequate to permit review under

§ 46110 of the lawfulness of the revised screening checkpoint SOP, and that the

agency’s failure to submit an administrative record in district court should have

precluded dismissal. Pl. Br. 15-16.

First, the fact that the government did not submit an administrative record in

the district court does not establish the inadequacy of the record for review by a

court of appeals under § 46110. It would make little sense to hold that § 46110’s

exclusive review provision applies only after the government submits an

administrative record in district court and the district court reviews that record and

finds it adequate. Imposing such a threshold requirement would defeat the basic

purpose of channeling review exclusively to the court of appeals.

32

Notably, in the only case of this type that has been properly brought to date

under § 46110, through a petition for review in the court of appeals challenging

TSA’s use of AIT scanners, the government submitted a comprehensive

administrative record concerning the development and deployment of AIT

scanners. See EPIC v. Napolitano, No. 10-1157, Amended Certified Index to

Record (D.C. Cir. filed Oct. 29, 2010). That record was manifestly adequate to

permit meaningful review.

Second, there is no requirement in § 46110 of an extensive administrative

record as a condition for court of appeals review. Although “the agency record

must be adequate enough to support judicial review,” that test can be met by a

“single letter.” Brantley, 981 F.2d at 519; see also, e.g., Gilmore, 435 F.3d at

1133. The adequacy of the record in support of the revised SOP was established

by the Pistole Declaration and other documents submitted by the government in

the district court. See Dkt. 25, 3/1/11 Magistrate Judge’s Report and

Recommendation 6 (concluding that SOP and other TSA documents “constitute a

sufficient administrative record for review by the courts of appeals”).

The plaintiff also argues that the district court should have reviewed the

revised SOP before determining that the agency record was adequate, but there is

no such requirement in the statute or the case law. Notably, every other district

court in which a similar challenge to AIT scanners and pat-down procedures has

33

been brought has determined that it lacked subject matter jurisdiction under

§ 46110, without the need to review the revised SOP mandating those screening

methods. See Durso, 2011 WL 2634183, at *3-*7; Roberts, 2011 WL 2678950, at

*1, *3-*4; Redfern, 2011 WL 1750445, at *1 n.2, *3-*5; see also Ibrahim, 538

F.3d at 1256-1257 & n.10 (holding that a TSA security directive was an “order”

under § 46110 without reviewing the directive in camera). And in any event, if

this Court were unable to determine that the revised SOP constitutes an “order”

without first reviewing the SOP, the appropriate remedy would not be to reverse

the district court judgment. Instead, the Court could simply order the government

to submit the revised SOP for ex parte and in camera review. See Gilmore, 435

F.3d at 1131, 1133.

The plaintiff cites Crist v. Leippe, 138 F.3d 801 (9th Cir. 1998), in arguing

that a defendant must show there is an adequate record for review by the court of

appeals before an action may be dismissed by a district court under § 46110. Pl.

Br. 16. That case is readily distinguishable, however. There, the plaintiff’s claim

was that the agency had discarded evidence that was relevant to the FAA’s

suspension of his commercial pilot certificate, with the result that he was denied a

fair hearing and due process in the administrative proceedings. Id. at 802-803.

Here, in contrast, the plaintiff does not challenge the lawfulness of the process by

34

which the revised SOP was issued, but the substance of the screening methods it

requires. That challenge must be brought in the court of appeals under § 46110.13

Third, to the extent the administrative record in support of the revised SOP

is inadequate to establish its lawfulness, the appropriate disposition is not to

conduct a trial in district court, but instead to remand to the agency to supplement

its record. See, e.g., Camp v. Pitts, 411 U.S. 138, 142-143, 93 S. Ct. 1241, 1244

(1973). As the Supreme Court explained in Florida Power & Light Co. v. Lorion,

470 U.S. 729, 743, 105 S. Ct. 1598, 1607 (1985), if a reviewing court of appeals

lacks “an adequate agency-compiled factual basis to evaluate the agency action,”

the consequence is not that the case may be brought in a “district court with

factfinding powers [that] could make up that deficiency.” Rather, “[i]f the record

before the agency does not support the agency action, if the agency has not

considered all relevant factors, or if the reviewing court simply cannot evaluate the

challenged agency action on the basis of the record before it, the proper course,

except in rare circumstances, is to remand to the agency for additional

Although the plaintiff’s opening brief suggests that TSA could have13

followed the procedures for notice-and-comment rulemaking, Pl. Br. 14, theplaintiff’s complaint does not bring a claim challenging the lawfulness of theprocedures by which the use of AIT scanners and the current pat-down procedureswas adopted. The sole claim in the complaint was that the challenged screeningprocedures violate the Fourth Amendment, and the sole issue raised on appeal iswhether the district court had jurisdiction under 49 U.S.C. § 46110. No challengeto the adequacy of the procedures by which TSA adopted the screening methods isproperly before this Court on appeal.

35

investigation or explanation.” Id. at 744. This same standard applies under

§ 46110, which requires exclusive review in the courts of appeals “even when the

agency fails to provide an adequate record for review.” Safe Extensions, Inc., 509

F.3d at 598-600.

This Court suggested in dictum in Brantley that “the agency record must be

adequate enough to support judicial review” in order for § 46110’s exclusive

review provision to apply, 981 F.2d at 519, but no decision of this Court squarely

adopts such a requirement, which would be inconsistent with Camp v. Pitts and

Florida Power & Light. Nor do the decisions cited in Brantley adopt such a

requirement; to the contrary, they merely observe that some courts have looked to

the adequacy of the administrative record as a relevant factor in applying § 46110,

without adopting such a requirement themselves. See Greater Orlando Aviation

Auth. v. FAA, 939 F.2d 954, 959 n.16 (11th Cir. 1991); Atorie Air, 942 F.2d at

960; S. Cal. Aerial Advertisers’ Ass’n v. FAA, 881 F.2d 672, 676 (9th Cir. 1989).

Furthermore, the “adequacy of the record” referenced in those cases does not

appear to mean the sufficiency of the record on the merits to justify the challenged

agency decision, but instead whether “the record adequately demonstrates that the

consequences of the order are sufficiently concrete and definite to warrant

review.” Atorie Air, 942 F.2d at 960. The government has already shown that the

revised SOP is sufficiently final to be reviewable under § 46110.

36

The plaintiff makes a related argument that his challenge is not barred by

§ 46110 because he is not seeking to circumvent agency proceedings or to

collaterally attack the outcome of such proceedings. Pl. Br. 19. The purpose of

exclusive review provisions such as § 46110 is not simply to prevent duplication

of fact-finding, however. As the D.C. Circuit recognized in City of Rochester v.

Bond, an additional rationale for exclusive review provisions such as § 46110 “is

that coherence and economy are best served if all suits pertaining to designated

agency decisions are segregated in particular courts.” 603 F.2d 927, 936 (D.C.

Cir. 1979). That rationale applies here, and requires the plaintiff to seek review

exclusively in the courts of appeals. See Durso, 2011 WL 2634183, at *6.

Finally, to the extent the plaintiff’s argument challenges the basic legal principle

that § 46110 applies not only to direct challenges to agency orders but also to

claims that are inextricably intertwined with a challenge to an order, it fails under

this Court’s binding precedent in Brantley, 981 F.2d at 520-521.14

The plaintiff also relies on Ibrahim v. DHS, 538 F.3d 1250 (9th Cir. 2008),14

for the proposition that a constitutional challenge to TSA’s screening proceduresis not “inextricably intertwined” with a TSA order. Pl. Br. 18. The court inIbrahim specifically held, however, that a constitutional challenge to securityscreening procedures imposed by a TSA Security Directive was reviewableexclusively in the court of appeals under § 46110. 538 F.3d at 1256-1257. Thecourt held that § 46110 did not bar a challenge in federal district court to anindividual’s initial placement on a No-Fly List, but that was because the agencymaking the listing decision was not one of the agencies named in § 46110. Id. at1255. Here, it is undisputed that the revised SOP was issued by TSA, a covered

(continued...)

37

C. The Plaintiff’s Challenge To The Order’s Finality Does NotEstablish That The District Court Has Jurisdiction.

In addition to arguing that TSA’s revised SOP is not an “order” within the

meaning of § 46110, the plaintiff also argues that the agency action he challenges

is not sufficiently final to fall within that exclusive review provision. The plaintiff

is wrong to assert that the agency action being challenged is not sufficiently

definitive or lacks a sufficiently direct and immediate effect for review. And even

if he were correct that the agency action were not final, the consequence would be

that no court could review the unripe agency action, not that review would go

forward in district court.

1. The Revised SOP Is Sufficiently “Final” For Review By A Court ofAppeals Under § 46110.

As this Court recognized in Brantley, an agency “order” is reviewable in the

courts of appeals under § 46110 if it is “final.” Brantley, 981 F.2d at 519. Finality

requires that the challenged agency action be “the definitive statement on the

subject matter it addressed,” to be implemented without further investigation or

additional proceedings. See ibid. (quotation marks and citation omitted).

Here, once the revised SOP was implemented on October 29, 2010, the

checkpoint screening procedures in the SOP were required to be applied by TSA

(...continued)14

agency. See pp. 5-9, supra.

38

transportation security officers without any further investigation by or proceedings

before the agency. By regulation, no person was permitted to enter a sterile area

of the airport or to board an aircraft without first being screened in conformity

with the revised SOP. 49 C.F.R. §§ 1540.107(a), 1540.105(a)(2). By imposing an

obligation on TSA security officers to employ the new screening methods, and by

prohibiting individuals at security checkpoints using those screening methods

from entering a sterile area or boarding an aircraft without being screened, the

order satisfied the requirement of finality under § 46110. See Gilmore, 435 F.3d

at 1133; see also Roberts, 2011 WL 2678950, at *3 (holding that the SOP

“determines the rights and obligations of both TSA and airline passengers and

pilots”).

The plaintiff’s own complaint repeatedly alleges that TSA’s new security

procedures were deployed “[o]n or about the beginning of November 2010”; that

those procedures required travelers to undergo screening using AIT scanners and

new pat-down methods; and that once those procedures were deployed, travelers

were required to be screened using either AIT scanners or the new pat-down

procedures, and were not permitted to select some other method of screening.

Dkt. 1, Complaint ¶¶ 9-10, 12, 15. Those allegations establish that the new

screening procedures were not merely “tentative or interlocutory,” Village of

Bensenville, 457 F.3d at 68, but marked the agency’s final decision on the matter.

39

See City of Alexandria, 728 F.2d at 646 (holding that temporary agency test can be

final for purposes of review under § 46110).

The plaintiff also argues that the revised SOP was not final because it

imposed obligations only on TSA screeners, but not on the plaintiff. Pl. Br. 21.

The argument is based on an erroneous premise: air travelers are forbidden by

federal regulations from entering a sterile area or boarding an aircraft unless they

have submitted to screening and inspection carried out in conformity with the

applicable SOP. 49 C.F.R. §§ 1540.107(a), 1540.105(a)(2). Furthermore, agency

action does not have to impose obligations directly on an individual in order to be

“final” for purposes of § 46110. The text of § 46110(a) envisions that an order

may be challenged by persons with “a substantial interest in an order,” even if they

are not directly regulated by the order. Every court to have considered a similar

challenge to an airport screening procedure has found the challenged agency

action sufficiently final for review. See pp. 22-25, supra.

The plaintiff additionally argues that the district court erred in failing to

examine the revised SOP in camera to determine whether it was “final,” before

dismissing his claim under § 46110. Pl. Br. 23-24, 26-27. As noted above,

numerous other district courts have dismissed actions challenging the very same

SOP, without the need for in camera review. The plaintiff asserts that “clear and

convincing” evidence was needed to establish that the district court lacked

40

jurisdiction, but that standard applies only where Congress seeks to deny judicial

review altogether. See Kucana v. Holder, ___ U.S. ___, ___, 130 S. Ct. 827, 839-

840 (2010). Where the question is whether jurisdiction rests in the district court or

instead exclusively in the court of appeals, there is a presumption in favor of the

court of appeals. See Suburban O’Hare Comm’n, 787 F.2d at 192; Gen. Elec.

Uranium Mgmt. Corp., 764 F.2d at 903. In any event, as we explain below, even

if TSA’s revised SOP requiring the use of AIT scanners and current pat-down

procedures was not final for purposes of review under § 46110, that would not

mean that review was available in the district court.

2. The Government’s Arguments In EPIC v. Department of HomelandSecurity That The Challenged Security Procedures Were NotRequired To Be Adopted Through Notice-And-Comment RulemakingHave Nothing To Do With The Finality Of The Revised SOP ForPurposes Of Review Under § 46110.

In arguing that TSA’s revised checkpoint screening SOP was not

sufficiently “final” to be reviewable under § 46110, the plaintiff relies heavily on

statements taken from the government’s briefs in EPIC. Pl. Br. 22-24.

In that case, however, the petitioner filed a petition for review directly in the

court of appeals under § 46110. See 2011 WL 2739752, at *2; see also EPIC v.

Napolitano, No. 10-1157, Initial Brief for Respondents 25 (D.C. Cir. filed Dec. 23,

2010) (Resp. Br.). The Court’s exercise of jurisdiction in EPIC thus supports the

district court’s conclusion in this case that § 46110 vests exclusive jurisdiction in

41

the court of appeals to adjudicate the plaintiff’s challenge to TSA’s use of AIT

scanners and the current pat-down procedures.

The government’s brief in EPIC argued that the agency action directing the

use of AIT scanners as a primary screening device was not a “rule” within the

meaning of 5 U.S.C. § 551(4), but that does not demonstrate that the revised SOP

reflecting this directive is not an “order” within the meaning of § 46110. To the

contrary, the government’s brief explicitly noted that TSA’s SOP is a “final order[]

that can be reviewed in the Court of Appeals pursuant to 49 U.S.C. § 46110.”

Resp. Br. 29 n.7. Furthermore, because the APA itself defines “rule” and “order”

separately, and explicitly excludes rulemaking from the definition of “order” in 5

U.S.C. § 551(6), arguing that agency action is not a rule does not logically suggest

that it is not an order.

Nor do the specific statements from the government’s brief in EPIC, which

the plaintiff quotes out of context, undermine the conclusion that the revised SOP

is “final” rather than tentative or interlocutory. The government’s brief in EPIC

noted that the challenged agency decision was to deploy more broadly, and as part

of the primary screening process, a screening method that was already in limited

use, and argued that this expanded use of AIT scanners did not constitute a rule

within the meaning of the APA. Resp. Br. 29. The government also argued that,

if the requirement to use AIT scanners was a rule, it was an “interpretive” rule,

42

because it constituted the agency’s interpretation of existing statutes and

regulations. Resp. Br. 33-36. Finally, the government argued that the requirement

to use AIT scanners was a statement of agency policy exempt from formal

rulemaking, because TSA retained discretion about where and how to expand the

use of AIT scanners nationwide. Resp. Br. 38-39. None of these arguments

undermines the basic point that, at airport security checkpoints at which AIT

scanners have been deployed, federal regulations and the revised SOP require

passengers to undergo screening by an AIT scanner and/or the current pat-down

procedures as a condition of entering a sterile area or boarding an aircraft.

3. Any Lack Of Finality Would Also Preclude District Court Review OfThe Plaintiff’s Challenge.

Even if the plaintiff were correct that TSA’s revised SOP was insufficiently

final to be subject to review under § 46110, this would not mean that the district

court could adjudicate his challenge. As this Court recognized in Association of

Citizens to Protect & Pres. the Env’t v. FAA, 287 F. App’x 764 (11th Cir. 2008), if

agency action is “not in a final form susceptible of meaningful review” under

§ 46110, then a challenge to that action also “would not be ripe, as the reviewing

court would in essence be rendering an advisory opinion on a preliminary

administrative decision.” Id. at 766. Because the APA permits judicial review

only of a final agency action, furthermore, if TSA’s order is not “final” for

43

purposes of § 46110, then “neither [the court of appeals] nor the district court

ha[s] jurisdiction over the case.” Americopters, LLC v. FAA, 441 F.3d 726, 735

(9th Cir. 2006).

D. The Plaintiff’s Claim Is Not A Broad Constitutional ChallengeOutside The Scope Of § 46110’s Exclusive Review Provision.

The plaintiff also argues that § 46110’s exclusive review provision is

inapplicable because his claim is a broad constitutional challenge that is not

subject to an exclusive review provision. Pl. Br. 27-28. In support of the

argument, he cites McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.

Ct. 888 (1991), in which the Supreme Court held that a provision of the

Immigration and Nationality Act restricting judicial review of the denial of an

alien’s request for “special agricultural worker” status to review of a final order of

exclusion or deportation did not bar federal-question jurisdiction over “an action

alleging a pattern or practice of procedural due process violations by the

Immigration and Naturalization Service (INS) in its administration of the [special

agricultural worker] program.” 498 U.S. at 493, 111 S. Ct. at 896-897.

The Supreme Court’s holding in McNary, however, was based on its

interpretation of the text of 8 U.S.C. § 1160(e) (1990), which provided that

“[t]here shall be no administrative or judicial review of a determination respecting

an application for adjustment of status under this section except in accordance

44

with this subsection.” See McNary, 498 U.S. at 492-493, 111 S. Ct. at 896-897;

Gen. Elec. Co. v. Jackson, 610 F.3d 110, 126 (D.C. Cir. 2010) (concluding that

McNary’s holding “rested entirely on the Court’s analysis of the jurisdictional

provision’s text”). The relevant text in that statute is wholly different from the

operative language in § 46110.

Furthermore, in construing the relevant provision of the INA not to

foreclose the plaintiff’s challenge, the McNary Court relied on the fact that

restrictions on the content of the administrative record and the statutory standard

of review would have foreclosed meaningful review of the constitutional claims if

they could only be raised in a challenge to a final order of exclusion or removal.

498 U.S. at 493, 111 S. Ct. at 896-897. In addition, for many aliens, no judicial

review of the claims would have been available unless they voluntarily

surrendered themselves for deportation. 498 U.S. at 496-497, 111 S. Ct. at 898.

Here, in contrast, a court of appeals would be perfectly capable of meaningfully

addressing the plaintiff’s constitutional challenge to the disputed screening

methods in a petition for review under § 46110. See Thunder Basin Coal Co. v.

Reich, 510 U.S. 200, 213-214, 114 S. Ct. 771, 780 (1994) (distinguishing McNary

where the “petitioner’s statutory and constitutional claims here can be

meaningfully addressed in the Court of Appeals”).

45

Indeed, the conclusion that the court of appeals is an adequate forum in

which to challenge the constitutionality of TSA’s use of AIT scanners and its

current pat-down procedures is inescapable from the D.C. Circuit’s decision in

EPIC, which adjudicated a § 46110 petition for review challenging the lawfulness

of TSA’s adoption of AIT scanners as a primary screening tool. In relevant part,

the EPIC Court considered and rejected on the merits a Fourth Amendment

challenge to TSA’s use of AIT scanners that was virtually identical to the

plaintiff’s challenge to AIT scanners in this case. The court ruled in EPIC that

requiring the use of AIT scanners as a primary screening device did not violate the

Fourth Amendment, in light of the “measures taken by the TSA to safeguard

personal privacy,” the acute need to search airline passengers to detect liquid or

powder explosives, and the fact that passengers could “opt-out of AIT screening in

favor of a patdown.” 2011 WL 2739752, at *8-*9. In the face of the D.C.

Circuit’s ruling in EPIC, it would make no sense to conclude that the plaintiff’s

constitutional challenge could not be adequately raised in a petition for review

under § 46110. See also Gilmore, 435 F.3d at 1133 & n.9, 1137-1139 (reviewing

and rejecting on the merits a Fourth Amendment challenge to screening

procedures on § 46110 review); Brantley, 981 F.2d at 520-521 (recognizing that a

constitutional claim against individual government officials can be subject to

§ 46110).

46

Notably, every court to have considered a constitutional challenge to

screening methods used at airport security checkpoints has agreed that § 46110

vests exclusive jurisdiction over the claim in the court of appeals. See Gilmore,

435 F.3d at 1133 & n.9; Durso, 2011 WL 2634183, at *1, *7 (Fourth Amendment

challenge to use of AIT scanners and pat-down procedures); Roberts, 2011 WL

2678950, at *1, *3-*4 (same); Redfern, 2011 WL 1750445, at *2, *6 (Fourth

Amendment, right-to-privacy, and right-to-travel challenges to AIT scanners and

pat-down procedures); Thomson, 2006 WL 770449, at *2, *5-*6 (Fourth

Amendment challenge to searches of disabled passenger); Green, 351 F. Supp. 2d

at 1122, 1125-1128 (Fourth and Fifth Amendment challenges to TSA’s adoption,

maintenance, and dissemination of No-Fly List and screening procedures applied

to passengers). The district court correctly reached the same conclusion here,

where the plaintiff challenges the substance of the agency’s order, a challenge that

must be brought in a petition for review under § 46110.

In arguing that his constitutional claim is outside the scope of § 46110, the

plaintiff also relies on Mace v. Skinner, 34 F.3d 854, 858-859 (9th Cir. 1994),

which held that § 46110’s predecessor statute did not apply to broad-based

constitutional claims challenging the FAA’s power to revoke licenses and other

agency practices. Pl. Br. 28. In Mace however, the court relied on the fact that the

plaintiff sought money damages, which were unavailable in the court of appeals.

47

34 F.3d at 858. The plaintiff in this case, in contrast, seeks only injunctive relief.

Dkt. 1, Complaint 4-5. Furthermore, the Ninth Circuit subsequently clarified in

Gilmore that the exception for broad-based constitutional claims recognized in

Mace does not apply where a plaintiff’s constitutional challenge is inescapably

intertwined with the merits of an order governed by § 46110. 435 F.3d at 1133

n.9; see also Merritt v. Shuttle, Inc., 245 F.3d 182, 187 (2d Cir. 2001). This Court

applies the same “inescapably intertwined” test adopted by the Ninth Circuit in

Gilmore. See Brantley, 981 F.2d at 520-521.

It is self-evident that, at a minimum, the plaintiff’s claims in this case are

inescapably intertwined with TSA’s revised SOP. The plaintiff challenges TSA’s

use of AIT scanners and pat-down procedures, which is mandated by the revised

checkpoint screening SOP. Dkt. 1, Complaint ¶¶ 9-15. The plaintiff seeks

declaratory relief establishing that these screening methods are unconstitutional

and an injunction barring their routine use. Dkt. 1, Complaint 4-5. The plaintiff

thus seeks, in essence, a declaration that the SOP is unconstitutional and an

injunction prohibiting the agency from applying it. Under § 46110, he must seek

that relief in the court of appeals. See Gilmore, 435 F.3d at 1133 n.9; Roberts,

2011 WL 2678950, at *1, *3-*4; Durso, 2011 WL 2634183, at *1, *5-*7.

The plaintiff also cites City of Los Angeles v. FAA, 239 F.3d 1033 (9th Cir.

2001), but § 46110 was inapplicable on its face in that case because the challenged

48

FAA policy did not involve air safety and was not issued under the relevant part of

Title 49. See id. at 1035-1036. Furthermore, the plaintiff’s constitutional

challenge in City of Los Angeles appeared to be directed at the statute itself, rather

than any order issued by the FAA. Id. at 1036-1037. In sum, none of the

plaintiff’s arguments takes his constitutional challenge outside the scope of

§ 46110.

E. Requiring The Plaintiff To Bring His Challenge In The Court OfAppeals Does Not Violate Due Process.

The plaintiff’s final argument for reversal of the district court’s dismissal

order is that requiring him to bring his challenge in the court of appeals under

§ 46110 would violate due process, by foreclosing meaningful judicial review of

TSA’s revised SOP for checkpoint screening. Pl. Br. 30-33.

No case supports the plaintiff’s argument that requiring him to bring his

challenge to agency action in a court of appeals violates due process. He cites

McNary, but — as we have pointed out — the decision in that case rested on the

Court’s construction of a statute, and is also readily distinguishable on its facts.

The plaintiff is simply wrong to assert that channeling review to the court of

appeals would foreclose his ability to bring a meaningful challenge to TSA’s

screening procedures. As an initial matter, the plaintiff’s argument is premature.

Because he did not properly file a petition for review, TSA has not yet produced

49

an agency record in this case. The plaintiff’s argument that his due-process rights

may be violated if the agency record is inadequate is purely speculative.

If a petition for review were properly filed and the agency record in the

court of appeals were inadequate, furthermore, a court of appeals could order the

agency to supplement the record to include additional evidence. See 49 U.S.C.

§ 46110(c) (authorizing the court of appeals to “order the * * * [TSA

Administrator] * * * to conduct further proceedings); Camp v. Pitts, 411 U.S. at

143, 93 S. Ct. at 1244; Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C.

Cir. 2008). A speculative assertion that an administrative record might be

incomplete or imbalanced does not demonstrate that channeling review to the

court of appeals is unconstitutional. See, e.g., Virginia v. United States, 74 F.3d

517, 524-525 (4th Cir. 1996) (rejecting similar argument that development of

factual record in district court was necessary to provide meaningful review of

constitutional claims). Every court to address the question has held that requiring

litigants to bring constitutional challenges to TSA’s use of AIT scanners and pat-

down procedures in the court of appeals does not violate due process. See Durso,

2011 WL 2634183, at *7-*8; Roberts, 2011 WL 2678950, at *4; Redfern, 2011

WL 1750445, at *7-*8. This Court should similarly reject the plaintiff’s challenge

to the requirement that he bring his claims in the court of appeals pursuant to 49

U.S.C. § 46110.

50

CONCLUSION

For the foregoing reasons, this Court should affirm the judgment of the

district court.

TONY WEST Assistant Attorney General

WIFREDO A. FERRER United States Attorney

DOUGLAS N. LETTER (202) 514-3602/s/ Sharon Swingle SHARON SWINGLE

(202) 353-2689 Attorneys, Appellate Staff Civil Division, Room 7250

Department of Justice 950 Pennsylvania Ave., N.W.

Washington, D.C. 20530-0001

OCTOBER 2011

51

CERTIFICATE OF COMPLIANCE

I hereby certified that this brief complies with the typeface requirements of

Fed. R. App. P. 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6)

because it has been prepared with Word Perfect 12 in a proportional typeface with

14 characters per inch in Times New Roman. The brief contains 12,318 words,

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

/s/ Sharon Swingle Sharon SwingleCounsel for Defendant-Appellee

the United States of America

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief Of Defendant-

Appellee United States of America were served on the following counsel by

electronic delivery on October 24, 2011:

Jonathan Corbett407 Lincoln Road, #11AMiami Beach, FL 33139jcorbett@fourtentech.com(646) 316-4524

/s/ Sharon Swingle Sharon SwingleCounsel for Defendant-Appellee

the United States of America