Durso v. Napolitano
2011 U.S. Dist. LEXIS 71607
| D.D.C. | 2011Background
- After 9/11, Congress created TSA to enhance civil aviation security and deploy screening technology at checkpoints.
- SOPs guide TSA operations, including the Screening Checkpoint SOP revised Sept. 17, 2010 to include AIT and revised pat-downs.
- Plaintiffs allege Fourth Amendment violations from AIT scans and aggressive pat-downs experienced at airports.
- Plaintiffs filed Dec. 6, 2010, seeking relief for unconstitutional screening practices under the Fourth Amendment.
- Defendants move to dismiss under 49 U.S.C. § 46110, asserting exclusive appellate jurisdiction over the TSA order at issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Screening Checkpoint SOP is an order subject to § 46110 | SOP is not an 'order' under § 46110 | SOP is a final order triggering § 46110 review | SOP is an order under § 46110 |
| Whether the Fourth Amendment claim is inseparably intertwined with review of the SOP | Constitutional claim not contingent on SOP review | Claims intertwinable; court of appeals should decide constitutional issues | Claim is inescapably intertwined; jurisdiction in court of appeals |
| Whether § 46110 can apply without violating due process (public notice/record considerations) | Lack of public notice and record undermines review | Notice/record requirements do not bar § 46110 review; 60-day deadline not jurisdictional; reviewable despite informality | Application of § 46110 does not offend due process |
Key Cases Cited
- Safe Extensions, Inc. v. FAA, 509 F.3d 593 (D.C. Cir. 2007) (final order reviewable under § 46110; expansive reading of 'order')
- City of Dania Beach v. FAA, 485 F.3d 1181 (D.C. Cir. 2007) (order finality and scope for § 46110 review)
- Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) (inescapable intertwinement; broad constitutional challenges possible under § 46110)
- Merritt v. Shuttle, Inc., 245 F.3d 182 (2d Cir. 2001) (intertwinement; limits of direct challenge versus intertwined claims)
- Avia Dynamics, Inc. v. FAA, 641 F.3d 515 (D.C. Cir. 2011) (61-day petition window; notice not required for order review; § 46110 standards)