Jonathan Corbett v. Transportation Security Administration

767 F.3d 1171, 2014 U.S. App. LEXIS 17971, 2014 WL 4654479
Court of Appeals for the Eleventh Circuit·Decided September 19, 2014·No. 12-15893·Published·Cited by 28 cases

Opinions

WILLIAM PRYOR, Circuit Judge:

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 proce[1174]*1174dures 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, 562 U.S. 428, -, 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 Cor-bett’s petition on the merits. We also grant a motion to seal filed by the Administration.

I. BACKGROUND

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 [1175]*1175instituted 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.

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Jonathan Corbett v. Transportation Security Administration, 767 F.3d 1171, 2014 U.S. App. LEXIS 17971, 2014 WL 4654479 (11th Cir. 2014).

767 F.3d 1171 (Jonathan Corbett v. Transportation Security Administration) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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