930 F.3d 1225
11th Cir.2019Background
- Jonathan Corbett, a frequent air traveler, repeatedly challenged TSA’s use of Advanced Imaging Technology (AIT) scanners; this is his third pro se petition raising Fourth Amendment and APA claims about TSA screening policies.
- TSA updated its procedures and, by regulation, allows mandatory AIT screening (no opt-out to a pat-down) for certain passengers designated as “selectees” for security reasons or by random selection; selectees are indicated by an “SSSS” on boarding passes.
- TSA represents the mandatory-AIT option applies to a very small subset of passengers and that AIT is more effective than prior alternatives at detecting nonmetallic threats.
- Corbett contends the mandatory-AIT policy (eliminating opt-out) violates the Fourth Amendment and the APA; he argues he faces future risk of being subject to mandatory AIT.
- The Eleventh Circuit considered jurisdictional materials (including Sensitive Security Information) and Corbett’s travel declarations showing extensive flying since 2013 but no instance in which he was subjected to the challenged mandatory-AIT policy.
- The court dismissed the petition for lack of Article III standing: Corbett failed to show a concrete, particularized, and imminent injury fairly traceable to TSA such that relief would redress it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing — injury in fact for prospective relief | Corbett asserts he faces a substantial likelihood of being randomly designated a selectee and forced to undergo mandatory AIT, creating an imminent injury. | TSA contends the chance Corbett will be selected is remote (policy affects a very small fraction of travelers) and Corbett has not been subjected to mandatory AIT. | Dismissed: Corbett lacks standing; future injury too speculative and not sufficiently imminent or substantial. |
| Causation / traceability | Corbett claims the challenged TSA policy causes the risk of unconstitutional searches. | TSA argues selection is random or risk-based and the likelihood Corbett will be selected is minimal; no past exposure to the new policy. | Held for TSA: Corbett failed to show a fairly traceable, imminent injury from TSA action. |
| Redressability / chilling effect | Corbett argues potential fines, loss of airfare, and chilling of travel establish harm and would be redressed by relief. | TSA and court note Corbett admitted he will not change travel; subjective fear and speculative costs cannot manufacture standing. | Held for TSA: speculative chilling and self-inflicted harms do not confer standing. |
| Merits (Fourth Amendment / APA) — entertained? | Corbett asserts mandatory AIT is unreasonable and arbitrary/capricious; pat-downs equally effective. | TSA defends AIT’s effectiveness, the rulemaking record, and that prior rulings upheld AIT. | Not reached on merits: court lacked jurisdiction to decide; noted prior panel held AIT constitutionally permissible in related context. |
Key Cases Cited
- Corbett v. TSA, 767 F.3d 1171 (11th Cir. 2014) (prior panel decision upholding AIT and discussing opt-out and pat-down alternatives)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing elements: injury-in-fact, causation, redressability)
- City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (future-injury/speculative harms insufficient for injunctive relief)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (plaintiffs cannot manufacture standing by self-inflicted harms based on speculative future injuries)
- Bochese v. Town of Ponce Inlet, 405 F.3d 964 (11th Cir. 2005) (standing is a threshold jurisdictional question)
- Elend v. Basham, 471 F.3d 1199 (11th Cir. 2006) (ripeness/standing analysis requires concrete plans and a real likelihood of future injury)
- Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331 (11th Cir. 2000) (speculative likelihood of future statutory violation insufficient for standing)
- J W ex rel. Williams v. Birmingham Bd. of Educ., 904 F.3d 1248 (11th Cir. 2018) (low probability of future unconstitutional conduct defeats standing for prospective relief)