Redfern v. Napolitano
2013 U.S. App. LEXIS 14074
1st Cir.2013Background
- Plaintiffs Redfern and Pradhan (pro se) sued DHS Secretary and TSA Administrator challenging TSA's 2010 Screening Checkpoint SOP, which authorized AIT scanners (backscatter x-ray and millimeter-wave) as primary screening and required enhanced pat-downs for those who declined scanning.
- Plaintiffs alleged AIT scanners produced revealing nude images and that TSA might save images, claiming Fourth Amendment and privacy violations and seeking declaratory and injunctive relief.
- The district court dismissed for lack of jurisdiction, holding challenges to the SOP were reviewable only in the courts of appeals under 49 U.S.C. § 46110; plaintiffs appealed to the First Circuit.
- While the appeal was pending, TSA deployed Automatic Target Recognition (ATR) software on all millimeter-wave units to produce generic outlines instead of passenger-specific images; TSA also removed all backscatter units from checkpoints by May 16, 2013.
- The First Circuit took judicial notice of TSA's representations and held that, because non-ATR backscatter scanners had been removed and plaintiffs abandoned claims as to ATR-equipped millimeter-wave units, the remaining claims were moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court had jurisdiction under 49 U.S.C. § 46110 to hear SOP challenge | District court could hear constitutional claims; plaintiffs originally filed there | SOP is an "order" under § 46110; exclusive review lies in courts of appeals | Court declined to decide statutory jurisdiction because mootness under Article III was dispositive |
| Whether the case is moot after TSA installed ATR on millimeter-wave units and removed backscatter scanners | Plaintiffs contended removal/redeployment is insufficient; risk of future scanning by redeployed backscatter units makes case capable of repetition yet evading review | TSA argued ATR deployment and removal of backscatter scanners eliminated the contested practice at checkpoints, mooting claims | Held moot: TSA's actions removed the challenged practice from checkpoints; plaintiffs failed to show a reasonable expectation of future non-ATR scanning by them |
| Applicability of "capable of repetition, yet evading review" exception | Plaintiffs asserted reasonable expectation of future scanning because machines may be redeployed to public sites | Government noted no specific plan to reuse scanners on traveling public; redeployment locations speculative | Exception not met: plaintiffs did not demonstrate a reasonable probability they'd face non-ATR backscatter screening again |
| Whether court may consider facts submitted in Rule 28(j) letters about TSA's changes | Plaintiffs argued Rule 28(j) normally not for new contested facts | Government cited obligation to notify courts of mootness developments and submitted verified information | Court took judicial notice of TSA's verified representations and considered the submissions for mootness analysis |
Key Cases Cited
- Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (federal courts must ensure Article III jurisdiction before reaching merits)
- FEC v. Wisconsin Right To Life, 551 U.S. 449 (standard for "capable of repetition, yet evading review")
- Spencer v. Kemna, 523 U.S. 1 (burden for mootness exceptions)
- Parella v. Retirement Bd. of R.I. Emps.' Ret. Sys., 173 F.3d 46 (1st Cir. 1999) (distinguishing Article III and statutory jurisdiction questions)
- Ramírez v. Sánchez-Ramos, 438 F.3d 92 (1st Cir. 2006) (mootness where intervening events remove challenged conduct)
- United States v. Brown, 631 F.3d 573 (1st Cir. 2011) (consideration of Rule 28(j) factual submissions when verified and relevant to mootness)