Ege v. United States Department of Homeland Security

encounters intended to coerce “con- than to mits little more freedom possess they justify Terry stops sented” searches and to be skewered manner which elect the through purposive interpretation of citi- is ef- Fork.2 The outcome upon Morton’s “voluntary” questioning. They be zens’ reactions will fectively predetermined. they face is to “vol- The choice searched. questioned by the District’s Persons request officers’ acquiesce to the untarily” Recovery patrols may Gun Unit reason- the officers’ any reaction to or to have ably be at a loss as to how to react to these objectively of how inquiries regardless — Is there a means to react contacts. jus- predicate factual benign as the —serve nominally voluntary encounters that such See, e.g., Tran- Terry search. tifying prerog- might preserve their constitutional 80, at Hearing Motions United script of speak I this advice: to offi- atives? offer facts (finding articulable States v. Gross firmly, politely, respectfully. Tell cers Gross, Katz’s search of warranting Officer them, “I an encounter do not wish to have noticing after looked to the rear who right now. Am I free to police with the comply completely and failed to officers “no,” If the answer is then coer- leave?” voluntarily that he show his request with a masquerade cion will cease to as consent. shirt). waistband, only of his lifting part forced, last, at to direct- Our courts will be voluntary of consent guise reality With of the District’s ly grapple with the District’s away, reality of stripped involuntary and sei- policy of routinized road- rolling It is a regime is revealed. zures. up citizens at random sweeps

block that police in- subjects them to undesired

and culminating in a search of their

teractions effects. If the Fourth

persons and meaning- intended to offer

Amendment is Terry stops, ful in the context of protection EGE, Mehmet Petitioner voluntary exemption cannot be consent v. public members of the engage used to with DEPARTMENT OF STATES UNITED artic- en masse and at random to fabricate and Trans HOMELAND SECURITY virtually every citizen suspicions ulable Administration, Security portation patrol. encounter on officers Respondents. sacred, or is right “No is held more No. 13-1110. right ... than carefully guarded more to the and every possession of individual Appeals, of United States Court all person, own free from control Circuit. District Columbia others, or interference of unless restraint Sept. 2014. Argued unquestionable authority by clear April 2015. Decided 1868. Terry, law.” 392 U.S. S.Ct. however, safeguard precedents, fail to Our per- right,

this fundamental and instead dilemma, practical especially one in “Archbishop it is: a derives from Morton’s Fork Cardinal, Henry Canterbury, and Minister of ... disad- the choices available which both of levy- (supposed) VII John Morton’s method of vantage or discredit the chooser.” ing by arguing that who forced loans those Johnson, Fed.Appx. 145 n. States obviously pay, were rich could afford Cir.2012) (internal (6th punctuation marks frugally have amassed those who lived must omitted). and citations savings. extended and allusive use Hence in

Charles A. argued Zdebski the cause and filed the petitioner. briefs for the Swingle, Attorney, Sharon United States Justice, Department argued the cause respondents. for the Delery, Stuart F. General, Assistant Attorney Ronald C. Ma- chen, Jr., Attorney, United States Stern, Attorney, Mark B. were with her on Dorsey, brief. Catherine H. Attorney, Justice, United States en- appearance. tered an HENDERSON, Before: ROGERS and KAVANAUGH, Judges. Circuit Opinion for the Court filed Circuit Judge HENDERSON.

Opinion concurring judgment filed Judge Circuit KAVANAUGH. HENDERSON, KAREN LECRAFT Judge: Circuit Ege, Mehmet Air- Emirates lines, petitions for review of an order of Center, FBI, Security http://www.fbi.gov/about-us/ Administra- Transportation (TSA) flying nsb/tsc/about-the-terrorist-scréening him from prohibits tion (last 26, 2015), Apr. center visited to, or over the United States. “the entity on sole with both the classified prohibition is based intelli the TSA’s believes List,” “No-Fly gence information” wants and “the authority Data- to remove” names from Screening Terrorist the No- a subset of the (TSDB) Holder, “deny Fly by the TSA to 686 F.3d base used List/TSDB. Latif v. (9th Cir.2012). 1122, on commercial air- And because we boarding of individuals jurisdiction no flying'to, carriers or have under 49 U.S.C. operated craft U.S. TSC, § from, binding States.” 46110 to issue an order or over the United No-Fly ipso Ege’s injury from the we cannot redress Br. 7.1 He seeks removal facto minimum, if or, “meaningful op- agree even we were inclined to with him. List at a reason, peti Pet’r’s Br. 23. For this we must dismiss his to be heard.” portunity tion lack standing. for of however, is that neither problem, experiencing unspecified of Homeland After travel is- nor the the TSA (DHS) 2009,2 respondent in submitted an online Security only two sues —the inquiry “authority to decide whose to the DHS’s Traveler Redress agencies —has (DHS TRIP), Inquiry No-Fly Program on the List.” Ibrahim the admin- goes name (9th DHS, 1250, 1254 n. 6 istrative review mechanism allows an 538 F.3d Cir.2008). Instead, assistance if he the Terrorist Screen- individual seek believes (TSC), unfairly improperly which is administered he has “been or de- ing Center Investigation layed prohibited boarding Bureau of or an air- by the Federal 1560.205(a).3 § (FBI), Screening Terrorist craft.” 49 C.F.R. see About the govern- Fly policy, the the Do-Not list. The TSA makes its deter- 1. "As a matter of federal deny any stay or whether mination of whether a should on the ment does not confirm by cross-checking particular in the TSDB master crew list the infor- individual is included lists,” reason, TSC). including For that our any its subset mation with” the or on change challenged Nothing analysis had he No-Fly Resp’t’s Br. 8. herein would List. indicating Master Crew List removal in his be construed as whether his should is, fact, any any in database for review. in on list or by the Government. maintained observes, concurring colleague our see 3.As 797-98, Op. DHS TRIP was created Although refers to his 2006 removal Concur. List, response congressional directive that a manifest that to a from the Master Crew process by every foreign timely and fair for in- the TSA it “establish must be submitted to they delayed flights dividuals who believe have been operating over the United air carrier boarding a identifying prohibited from commercial and that contains informa- States they wrongly operating were identified members ... aircraft because tion for "all crew § flights, a threat.” 49 U.S.C. But it servicing” 19 C.F.R. as such 122.49c(a), attempt petitioned § is axiomatic that the DHS’s to com- he never removal, Congress’s with the mandate in manner ply the administrative denial of that with the “constitutional elements in 2008. We therefore consistent which denial occurred jurisdiction,” jurisdiction is the "es- unspecified travel diffi- which limit our review to the ingredient separation equilib- culty Ege experienced in 2009 that led him to sential powers,” our inde- through ration of does not affect redress DHS TRIP and that cul- seek pendent obligation to determine whether a which he minated in the 2013 TSA note, controversy exists. Steel We case or petitions that this Court review. redressable Env’t, however, U.S. Co. v. a Better believes his removal from Citizens for (1998). 140 L.Ed.2d 210 resulted from his 118 S.Ct. the Master Crew List also DHS, interplay among alleged the TSDB. See Pet’r’s Br. And based on inclusion in ("The the TSC in the context of No- operates similar to the TSA and Master Crew List supplemental addressing was reviewed to submit inquiry TRIP briefs DHS TSA, by letter on March responded jurisdiction which whether this Court has under 24, 2011, him that his record had informing Ege’s challenge 46110 to hear any appropriate and that been reviewed the TSDB and or corrections had been made. changes parties complied, List. The persisted travel woes Apparently, Ege’s assuring injury that Ege’s both us is re- subsequently and he contacted dressable on section 46110 review. De- February the TSA complain. On agreement, their spite there is “[w]hen letter, stating that it had Ege another sent party’s doubt about a constitutional stand- any rec- applicable a review of “conducted doubt, ing,” we must “resolve the sua with other ords in consultation federal Summit, sponte if need be.” Lee’s Mo. v. appropriate” and “determined agencies, Bd., Transp. Surface or corrections war- changes [were] that no (D.C.Cir.2000); Co., see also Steel 523 U.S. time.” Br. 15. ranted at th[at] 95, at (“‘[E]very 118 S.Ct. 1003 federal February The 6 letter also informed TSA’s appellate special obligation court has a to ’ Ege administratively appeal that he could satisfy jurisdiction ... itself of its own ... initial its determination. though parties prepared even the are to 25, 2012, February Ege did so on sub- Maurer, (quoting concede it.” Mitchell v. mitting expressed a letter that his belief 237, 244, 162, 293 U.S. 55 S.Ct. 79 L.Ed. placed No-Fly that had been (1934) omitted))). (quotation 338 mark alleged List and that his inclusion was assessment, Based on our independent we an hampering employment his as interna- that requisite conclude we do not have the 2013, 22, pilot. January tional On the TSA jurisdiction III Ege’s Article to allow case upheld issued its final which proceed. to agency initial decision and told that “by he could seek review a United States irreducible constitutional “[T]he Appeals Court of under 49 U.S.C. minimum standing contains three ele 4, § Br. Ex. A. April 46110.” Pet’r’s On Lujan ments.” Wildlife, Defenders of 2013,4 Ege petitioned this Court review 555, 560, 2130, 504 U.S. 112 S.Ct. 119 46110, provides under which section this (1992). First, Ege L.Ed.2d 351 must have jurisdiction Court with to review orders Second, “injury suffered an in fact.” Id. DHS, issued the TSA and the Fed- injury “fairly his must be to the traceable (FAA). eral Aviation Administration 49 challenged DHS], of the action[s] [TSA 46110(a). § U.S.C. and not the independent result of the ac power adju tion of party Uncertain about our some third not before the (alterations omitted). Ege’s petition, parties dicate we asked court.” Id. And tion, Fly challenges, petitioner "only can- our function ... that is of an Lisl/TSDB not, standing consistent with constitutional nouncing dismissing the fact and the cause.” principles, No-Fly raise a chal- Co., 94, Lisl/TSDB Steel 523 U.S. at 118 S.Ct. 1003 lenge through pursuant to section McCardle, 506, (quoting parte Ex 74 U.S. 7 46110, notwithstanding compliance his with (1868)). Wall. L.Ed. 19 264 Ac process. the DHS TRIP cordingly, position we take no on whether grounds” demonstrated “reasonable concurring colleague correctly 4. Our observes untimely filing. excuse his 49 U.S.C. filed his for review after 46110; FAA, § Dynamics, see also Avia Inc. v. expiration 60-day prescribed of the time limit (D.C.Cir.2011) (section 519 Op. See Concur. jurisdic filing jurisdictional). 797-98. Because we lack Article III deadline not requires only to Article III that we “act third, likely, opposed as “it must be injury fairly can redress be traced to injury will be merely speculative, [his] agencies action of the” challenged be at decision.” Id. by a favorable redressed (ie., TSA), “and not fore us DHS (quotation marks omit- 112 S.Ct. 2130 injury independent that results from the ted). party

action of some third not before the .(ie., TSC), E. Ky. court” Simon v. jurisdictional deficiency doom 26, 41-42, Rights Org., 426 U.S. Welfare in failure to lies ing Ege’s petition (1976), S.Ct. 48 L.Ed.2d 450 we have ele and third satisfy the second power no to redress List/ ments, in Lujan. articulated See injury. also Fulani v. TSDB-related See 560-61, failure 112 S.Ct. 2130. His U.S. (D.C.Cir.1991) Brady, 935 F.2d due, turn, to the relief he seeks. is (“[T]his has denied where Court True, ... Ege would like to “board plaintiff change seeks to the defen “to, from, or over the fly and to plane” only dant’s behavior as a to alter means 797. But Op. States.” Concur. party, conduct third before the agrees, that his plain, makes and the TSA court, plain who is the direct source of the inclusion on the No- injury is his injury.” (quotation empha tiffs marks and precise and the Fly List and the TSDB omitted)). generally sis See Common them relief he seeks either removal from Biden, v. 748 Cause F.3d 1284 effectively ar opportunity or an to more (“To (D.C.Cir.2014) jurisdiction the invoke Reply Pet’r’s Br. 9 gue for removal. See courts, the ... a proper federal defen erred “when (arguing that DHS and TSA sued.”). dant be [must] Ege on Terrorist they included Mr. in It The Ninth Circuit is accord.6 has List”); Screening “No-Fly Database” and merely a observed that the “TSA is con- (Ege “appears Br. 8 to Resp’t’s see also challenge a duit for traveler’s wrongfully placed argue that he has been TSDB, in No-Fly on the” List and the List”).5 No-Fly in the TSDB and on the “simply passing] grievances along to TSC gives authority us to re- Section 46110 informing] travelers when TSC has TSA, from the DHS and FAA. Latif, view orders made a final determination.” 686 entity 46110. sole “[T]he F.3d at 1128. Because “TSC—not TSA— with. authority actually intelligence ... the to remove” names the classified reviews List/TSDB, however, No-Fly the is the information about travelers and decides at them from the List” Latif, TSC. See 686 F.3d 1129. Because whether to remove “ governing controversy’ policies limitation” of and “established the ‘case or 1253; 1127; Indeed, Latif, Arjmand parties at v. requested we 686 F.3d 5. even after briefing regarding DHS, (9th Cir.2014). supplemental to submit F.3d jurisdiction under section this Court's Because the TSC was before the court in attempt No-Fly to recast the made no cases, question was whether the those Supp. relief he See Pet’r's seeks. LisVTSDB '‘original jurisdiction” court had under sec- 1; Resp't’s Supp. Br. 2. Br. see also enjoin Arjmand, tion it. 745 F.3d however, Ege, did not name the TSC the difficul- 6. The Ninth Circuit characterized and, accordingly, jurisdic- respondent as a ty mounting No-Fly inherent in List/TSDB deficiency un- tional in his is better challenge 46110 as one of sub- under section III because derstood as no Article ject-matter jurisdiction rather than Article III authority because the TSC was named as a entity with the to redress the sole defendant/respondent each case in which injury missing. is Ibrahim, 538 F.3d at the issue arose. See id., process,” the redress we List and removed from the TSDB. See stage Second, cannot, p. supra 794-95 & n. 5. that we on section 46110 agree as. matter, practical proposal the TSA’s would review, in- to an individual provide relief good. no pilot do can board and No-Fly List or in the TSDB cluded on the and, airplane an for as commercial amending, modifying, setting or by “simply Airlines, pi- Emirates has boarded and directing aside TSA’s orders recently airplanes loted as October proceedings.” further Id. at 1129 conduct (Ege’s 2013. See Pet’r’s Br. Ex. H flight Arjmand, see also (emphases original); logs). problem is cannot (“[S]ince § 46110 does 745 F.3d at 1302 pilot flights board or destined the Unit- jurisdiction to re- grant not circuit courts alleged ed States. If his TSDB status orders, grant cannot view TSC the statute unchanged, possible remains it is that one jurisdiction seeking claims over removal agencies of “several” other federal could TSDB.”). from the prevent Ege use the TSDB to from cross- argue Ege and the TSA that the Both ing the U.S. border. See Br. 7. wrong but we got Ninth Circuit it are example, For of State —an persuaded. They insist chal- TSC, entity, like the FBI and the that is lenge to his List/TSDB grant not included in section 46110’s status intertwined” with “inescapably jurisdiction the TSDB to in- screen —uses he seeks TSA order which review. “apply dividuals who for ... visa[s].” Of- Inc., Shuttle, Merritt Cf. Inspector Follow-up General, fice of the (2d (“statutes Cir.2001) such as Section Screening Audit of Terrorist Center 46110(c)” that are ‘inesca- include “claims (2007), http://www.justice.gov/ available at pably review of such or- intertwined’ with oig/reports/FBI/a0741/intro.htm; see also ders”). Although courts use the “inesca- (State Ibrahim, 669 F.3d at 989 Depart- pably intertwined” doctrine to review a ment “uses a subset of the TSDB to screen jurisdic- in a expressly claim not included applicants”). visa of no grant, tional we are aware case—and Ege’s alleged Because TSDB status party neither one—in which a court cites “to, from, prevent flying would him from “inescapably has used the intertwined” ” or over the United States even'if the TSA enjoin party doctrine to a not so included. pilot allowed him “to board or plane,” a unsurprising; This is were we able to use added), Op. Concur. 797 (emphasis it is “inescapably the intertwined” doctrine to “merely speculative” at best that injuries by parties, redress caused absent proposal remedy TSA’s Ege’s pur would routinely we would fundamental “offend[ ] ported injury. Lujan, 561, 112 504 U.S. at principles separation powers.” See omitted). (quotation S.Ct. 2130 marks We Co., Steel 118 S.Ct. 523 U.S. 1003. plainly need than more the TSA’s assur The suggests simply TSA we could issue given argument ance—first at oral —that injunction requiring an it to allow Ege the entire Executive Branch would allow an airplane, leaving board unaffected his Ege pilot plane to board or a and cross status regarding Supp. the TSDB. into the United States before we can con concurring colleague agrees. Br. 9. Our that Ege’s alleged injury clude is redressa — See Concur. But the Op. 797-98. TSA’s Bayer ble. Smith v. Corp., U.S. Cf. proposal —, for at least two 2368,2379, 180 falls short rea- 131 S.Ct. L.Ed.2d 341 (2011) First, matter, merely sons. as a (generally, threshold “a judgment court’s suit”). “boarding” plane Ege Instead, a not the relief only parties binds to a rather, No-Fly Ege he off the wants would need to add the TSC as a seeks— law, cannot do un- Under federal TSA controls access respondent something — planes. Ege TSA barred from piloting der section planes allegedly and Ege barred from jurisdic- as the Relying on section 46110 boarding planes. Congress has mandated review, Ege seeks re- tional basis of our timely that TSA “shall establish a and fair on the No- of his moval process delayed for individuals” who are or The Fly agencies and in the TSDB. List prohibited boarding planes from to “appeal are reviewable under section whose actions to the Transportation Security Administra- 46110, however, “authority have no to de- any tion the determination and correct er- goes name cide whose roneous information.” 6; Ibrahim, 538 F.3d at 1254 n. see List.” 44903(j)(2)(G)(i); § see also 49 U.S.C. 745 F.3d at 1303. Because Arjmand, also Ege appeals invoked that pro- Ege’s injury, we dismiss we cannot redress that Following appeals process, cess. standing. lack of petition affirming issued an order its decision that So ordered. allegedly Ege boarding planes. bars from Ege asks us to and a KAVANAUGH, Judge, Circuit barring Ege piloting similar order from concurring judgment: in the planes. Appellate Under Federal Rule of Ege pilot is a who flies for Mehmet 15(a), Ege properly Procedure named TSA Airline, headquartered Emirates which is respondent in his for review Ege in Dubai. is a dual citizen of Canada TSA, represented filed this Court. And Turkey. Transportation Security and Justice, says it could Administration, TSA, commonly known as would, if a final ordered court to, piloting plane a has barred decision, allow to board or from, or States. also over plane. Arg. Tr. of Oral at 12:51-13:43. See him from even claims that TSA has barred view, my need? In this What more do we to, from, or over boarding plane fact, readily injury cau- case meets United States. sation, redressability prongs of the Ege asks this to review TSA’s Court majority opinion doctrine. The January allegedly final order any Supreme does not cite case of the to, from, boarding plane bars him from suggesting Court this Court also com- or over the United States. redressability is a barri- prong final bar- plains about TSA’s 2008 order er to suit where an individual follows an to, from, or ring piloting plane him from a agency process review mandated Con- over the United States. agency’s final gress appeals and then with,-both Ege begin To Gov- order. agree Ege ernment that has said, Ege for here is problem That I

bring against suit TSA. likewise this untimely. for review is petition that his majority opinion nonetheless agree. 46110(a), a must petitioner Under Section Ege. sponte has sua denied a order a for review of TSA request file According majority opinion, Ege’s to the days after the order is “not later than 60 by the complaint is not redressable Court This issued.” comply could not with a court because TSA filing “only a late if may excuse Court agency to allow order directed filing grounds are for not frankly I there reasonable Ege plane. to board or day.” the 60th Id. do not understand that. 22, 2013, issued the January TSA

On America, Appellee UNITED STATES allegedly Ege bars from final order that from, to, or over boarding plane Ege’s petition But for re- United States. until WILLIAMS, Appellant. order was filed

view of Ronald Ege’s petition was thus April 2013. No. 13-3059. 60-day days period for filed 10 after Moreover, expired. had seeking review Appeals, States Court barring Ege pilot- final from TSA’s order District of Columbia Circuit. to, from, or over the United ing plane Argued Nov. 2014. long in 2008. So States was issued challenge that order as past the time to 1,May Decided well. precedent, Under this Court’s we must untimely for petition

dismiss an 46110(a) there are

under Section unless delay. for See Avia grounds

reasonable FAA,

Dynamics, Inc. v.

(D.C.Cir.2011). case, In this record any grounds not disclose reasonable

does order, delay.

for As TSA’s for his explanation

has offered no several-

year delay seeking As to review. TSA’s order, Ege the date claims geographic loca-

received TSA’s

tion, employment and his excuse his failure It petition

to file his on time. is true that pilot living is an international in Du-

bai, allegedly that he aware of became January just days order

TSA’s 60-day period seeking

before the re- of that But that expired.

view order still

gave days timely petition him 12 to file a

for review. He did not do so.

I would therefore dismiss untimely. If seeks to travel on a to, from,

plane flying or over the United

States, him prevents doing and TSA

so, the Government has stated to the Ege may bring challenge

Court that a new Arg..

at that time. See Tr. of Oral

19:29-19:51.

Case Details

Case Name: Ege v. United States Department of Homeland Security

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 28, 2015

Citation: 784 F.3d 791

Docket Number: 13-1110

Court Abbreviation: D.C. Cir.