910 F.3d 538
D.C. Cir.2018Background
- Petitioner Nadia Pinkovitsch Matar, an Israeli-Belgian dual national, was told in 2013 by a Canadian official that her name appeared on a U.S. travel watchlist and cancelled a trip; she has not since traveled to the U.S.
- In April 2017 Matar submitted a TRIP redress request to TSA seeking removal or an explanation for any watchlist status.
- By letter dated July 28, 2017 (received in Israel Aug. 13, 2017), TSA sent a final Order stating it could "neither confirm nor deny" watchlist information but had corrected any record errors and that the letter was a final agency decision appealable under 49 U.S.C. § 46110 within 60 days.
- Matar filed a petition for review in this Court on Sept. 28, 2017 — 62 days after the Order’s date.
- TSA moved to dismiss as untimely under 49 U.S.C. § 46110(a); the court focused on whether the 60‑day clock runs from issuance (sent) or receipt and whether any "reasonable grounds" excused delay.
- The court concluded the Order was "issued" when sent (as dated July 28), Matar offered no reasonable grounds for her late filing, and therefore denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the 60‑day period under 49 U.S.C. § 46110 begin when notice is mailed privately? | "Issued" means date of receipt; timeliness should run from when petitioner actually receives the Order. | "Issued" means date the agency sends the order; filing period begins on the send/postmark date. | The court holds "issued" means sent; the 60‑day period starts on the date the order was mailed/sent. |
| Whether petitioner’s filing 62 days after the Order date is timely | Delay excused by mailing lag from U.S. to Israel and counsel’s communications with TSA; no adequate evidence of postmark. | No reasonable grounds; petitioner received the Order and was told of appeal deadline yet waited and produced no evidence of mail delay. | The court finds no reasonable grounds to excuse the late filing and deems the petition untimely. |
| Whether the court should address standing before timeliness | Standing should be considered first because it addresses Article III jurisdiction. | Timeliness under § 46110 is a nonjurisdictional threshold that can be resolved first. | The court declines to decide standing and resolves the case on the nonjurisdictional timeliness ground. |
| Whether attempts to contact TSA after receiving the Order justify delay | Post‑Order emails/faxes and belief TSA would fix errors without litigation made timely filing unnecessary. | Petitioner had notice the Order was final and appealable; outreach does not excuse delay absent agency representations to litigate later. | The court rejects the excuse; petitioner’s communications do not establish "reasonable grounds." |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (procedural rule on addressing jurisdictional issues)
- Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (permitting dismissal on nonmerits threshold grounds before jurisdictional rulings)
- Avia Dynamics, Inc. v. FAA, 641 F.3d 515 (D.C. Cir. 2011) (§ 46110 timeliness and literal reading of filing deadlines)
- Ruskai v. Pistole, 775 F.3d 61 (1st Cir. 2014) (holding "issued" means "sent" for § 46110 purposes)
- Citizens Ass’n of Georgetown v. FAA, 896 F.3d 425 (D.C. Cir. 2018) (narrow construction of § 46110 reasonable‑grounds exception)
- City of Phoenix v. Huerta, 869 F.3d 963 (D.C. Cir. 2017) (reasonable‑grounds exception where agency communicated ongoing internal consideration)
- Spannaus v. FEC, 990 F.2d 643 (D.C. Cir. 1993) (literal application of statutory filing deadlines)