Petition for Review of an Order of the Transportation Security Administration. D.C. Docket No. 1:10-cv-24106-MGC.
Jonathan Corbett, Petitioner, Pro se, Miami, FL.
For Transportation Security Administration, Respondent: Sharon Swingle, U.S. Department of Justice, Washington, DC; Janet Napolitano, Secretary Janet Napolitano, Department of Homeland Security, U.S. Department of Homeland Security, Washington, DC; Mark B. Stern, U.S. Department of Justice, Washington, DC.
Before MARCUS, WILLIAM PRYOR and MARTIN, Circuit Judges. MARTIN, Circuit Judge, dissenting.
WILLIAM PRYOR, Circuit
In this petition for review, Jonathan Corbett alleges that airport screening procedures violate his right to be free from unreasonable searches. U.S. Const. amend. IV. But before we decide the merits of that argument, we must decide whether the 60-day deadline for filing a petition in the court of appeals, 49 U.S.C. § 46110(a), is jurisdictional and whether Corbett established a reasonable ground for filing his petition more than two years after the Transportation Security Administration deployed these screening procedures
in airports nationwide. Even though our Court previously held that the 60-day deadline is " mandatory and jurisdictional," see Greater Orlando Aviation Authority v. Fed. Aviation Admin., 939 F.2d 954, 959 (11th Cir. 1991), a decision of the Supreme Court, Henderson v. Shinseki, U.S.,, 131 S.Ct. 1197, 1206, 179 L.Ed.2d 159 (2011), together with an en banc decision of our Court, Avila-Santoyo v. U.S. Att'y Gen., 713 F.3d 1357, 1362 (11th Cir. 2013) (en banc), later abrogated that prior panel precedent. Those decisions make clear that the 60-day deadline is not " jurisdictional," but is instead a claim-processing rule. Even though Corbett's delay in filing his petition does not defeat our jurisdiction, his petition is nevertheless untimely because no " reasonable ground" excuses his delay. 49 U.S.C. § 46110(a). The Administration, the district court, and our Court informed Corbett that Congress vested exclusive jurisdiction to hear his petition in our Court. Alternatively, even if Corbett had timely filed his petition, the screening procedure employed by the Administration requires only a reasonable administrative search that does not violate the Fourth Amendment. We dismiss Corbett's petition as untimely and, in the alternative, deny Corbett's petition on the merits. We also grant a motion to seal filed by the Administration.
We divide the background in two parts. First, we discuss the procedure issued by the Administration. Second, we discuss the procedural history of Corbett's petitions and the pending motions and jurisdictional question that we carried with the case.
A. The Standard Operating Procedure
Congress created the Administration, now an agency of the Department of Homeland Security, in response to the terrorist attacks of September 11, 2001, and charged the Administrator with ensuring civil aviation security. See 49 U.S.C. § 114; 6 U.S.C. § 203(2). The Administrator, in conjunction with the Director of the Federal Bureau of Investigation, must " assess current and potential threats to the domestic air transportation system" and take " necessary actions to improve domestic air transportation security." 49 U.S.C. § 44904(a), (e); see also id. § 44901. The Administration performs " the screening of all passengers and property" before boarding an aircraft to ensure that no passenger is " carrying unlawfully a dangerous weapon, explosive, or other destructive substance." Id. § § 44901(a), 44902(a)(1); see also id. § 44903(b) (requiring the promulgation of " regulations to protect passengers and property on an aircraft" from " criminal violence or aircraft piracy" ). And Congress has directed the Secretary of the Department 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 . . . ." Id. § 44925(a).
To fulfill these statutory mandates, the Administration issues standard operating procedures for security screening nationwide. On September 17, 2010, the Administration issued the procedure challenged in this petition, which it implemented on October 29, 2010. The procedure requires the use of advanced imaging technology scanners as the primary screening method at airport checkpoints. If a passenger declines the scanner or alarms a metal detector or scanner during the primary screening method, he receives a pat-down instead.
The scanners detect both metallic and nonmetallic objects. The Administration
instituted the procedure to remedy a weakness of walk-through and hand-held metal detectors. Unlike those earlier security mechanisms, the scanners also identify nonmetallic explosives and other nonmetallic items that pose a security threat. The Administration deemed the scanners " the most effective technology available to detect threat items concealed on airline passengers." But even though the scanners and the new pat-down procedures significantly improve the detection of nonmetallic and concealed weapon devices, the Office of Intelligence of the Administration has concluded that the threat posed by improved explosive devices and other weapons remains high and that terrorists continue to surveil and attempt to exploit security gaps in airport screening.
When the Administration first implemented the procedures, it employed scanners that displayed the body contour of the passenger, but they did not store, export, or print the images. The Administration deleted the images after an officer viewed them, and the Administration prohibited security officers from bringing cameras, cell phones, or other electronic recording devices into the viewing rooms.
Congress later enacted the FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 826, 126 Stat. 11, 133-32, which required the Administration to equip scanners with automated target recognition software. That software eliminates passenger-specific images and instead uses a generic body contour. By May 16, 2013, the scanners distributed by the Administration were equipped with the updated software and displayed only a generic body contour.
The Administration last updated the pat-down procedure in 2012. The Administration earlier modified the procedure in response to the suicide bombing aboard a Russian aircraft in August 2004 and twice revised the policy after intelligence revealed that passengers could conceal contraband in certain areas of their bodies. Later testing revealed that some security officers failed to conduct sufficient pat-downs, which prompted the most recent revisions to the procedure. When a screener conducts a pat-down, he canvasses most of the passenger's body and uses the back of his hands for sensitive areas. A screener of the same gender as the passenger conducts the pat-downs, and a passenger may request that the pat-down occur in a private location. A screener may conduct an opposite-gender pat-down only in " extraordinary circumstances" as determined by a Federal Security Director.
B. Procedural History of Corbett's Petitions
Corbett, pro se, challenges the use of the " nude body scanners," as he dubs them, and the pat-down procedure on the ground that they violate the Fourth Amendment. Corbett alleges that he has flown more than 100,000 miles on more than 100 domestic flights in the last 3 years and that each time he departs from a domestic airport he must undergo a security screening. He asserts that the security officers have denied him access three times because he refused to consent to the searches prescribed by the procedure. Corbett argues that substitute screening measures--canine sniff teams, metal detectors, and explosive trace detectors--are less intrusive and more effective at identifying terrorist threats.
In November 2010, Corbett filed a petition in a district court in Florida challenging the procedure implemented a month earlier. As early as December 2010, the Administration notified Corbett that Congress vested exclusive jurisdiction over his petition in the court of appeals. After a
magistrate judge also concluded that the court of appeals had exclusive jurisdiction, the district court dismissed Corbett's petition for lack of jurisdiction in April 2011. We affirmed that dismissal. See Corbett v. United States, 458 F.App'x 866, 870 (11th Cir. 2012). Corbett petitioned for a writ of certiorari, which the Supreme Court denied on October 1, 2012. Corbett v. United States, 133 S.Ct. 161, 184 L.Ed.2d 33 (2012). Exactly two years after he commenced those proceedings in the district court, Corbett filed this petition in our Court on November 16, 2012.
In March 2013, the Administration moved to file under seal certain portions of the administrative record and to file under seal and ex parte other portions of the record. The record contains five kinds of documents: public information; copyrighted and propriety material; " For Official Use Only" documents; documents designated as sensitive security information; and classified documents. In June 2013, our Court ...