Case Information
*1 Before KING and FLOYD, Circuit Judges, and R. Bryan
HARWELL, United States District Judge for the District of South Carolina, sitting by designation.
Affirmed by published opinion. Judge King wrote the opin- ion, in which Judge Floyd and Judge Harwell joined. COUNSEL ARGUED: Jonathan Blitz, Durham, North Carolina, for Appellants. Sydney A.R. Foster, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appel- lees. ON BRIEF: Stuart F. Delery, Acting Assistant Attorney General, Mark B. Stern, Sharon Swingle, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Ripley Eagles Rand, United States Attorney, Greensboro, North Car- olina, for Appellees.
OPINION
KING, Circuit Judge:
Jonathan Blitz, his wife Marla Tuchinsky, and their minor child EB (collectively, the "Plaintiffs") appeal from the dis- trict court’s dismissal of their Complaint for declaratory and injunctive relief. In December 2010, the Plaintiffs initiated this proceeding in the Middle District of North Carolina against Janet Napolitano, as Secretary of Homeland Security, and John Pistole, as Administrator of the Transportation Security Administration (together, the "Defendants"), chal- lenging the use of advanced imaging technology ("AIT") scanners and invasive pat-downs at airport screening check- points in the United States. On September 12, 2011, the Defendants secured dismissal of the Complaint under Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction in the district court. See Blitz v. Napolitano , No. 1:10-cv-00930 (M.D.N.C. Sept. 12, 2011) (the "Dismissal Order"). [1] As the district court recognized, § 46110 of Title 49 The Dismissal Order is found at J.A. 117-19. (Citations herein to "J.A. ____" refer to the contents of the Joint Appendix filed by the parties in this appeal.) vests exclusive jurisdiction in an appropriate court of appeals with respect to a challenge to an order issued by the Adminis- trator of the Transportation Security Administration (the "TSA").
On appeal, the Plaintiffs maintain that the district court erred in so ruling because the TSA’s standard operating pro- cedures for checkpoint screening (the "Checkpoint Screening SOP") — which includes AIT scanners and passenger pat- downs — does not constitute an "order" under 49 U.S.C. § 46110. Alternatively, the Plaintiffs say, § 46110’s conferral of exclusive jurisdiction in a court of appeals deprives them of due process and contravenes the separation of powers rooted in the Constitution. As explained below, we reject the Plaintiffs’ contentions and affirm.
I.
A. The federal statutes relating to transportation and aviation are codified in Title 49 of the United States Code. The provi- sion at issue in this appeal is found at 49 U.S.C. § 46110, which, for our purposes, has two aspects: (1) it authorizes the filing, in an appropriate court of appeals, of a petition for review of an order issued by the TSA Administrator; and (2) it specifies that the court of appeals will possess exclusive jurisdiction to review the petition. [2] With this statutory predi- Section 46110 of Title 49 provides, in pertinent part, as follows: (a) Filing and venue. . . . [A] person disclosing a substantial inter- est in an order issued by the [TSA Administrator] in whole or in part under [a specified statute] may apply for review of the order by filing a petition for review in the [court of appeals for the D.C. Circuit] or in the court of appeals . . . for the circuit in which the person resides or has its principal place of business. . . . . . . .
4
cate in mind, we turn to the pertinent factual and procedural background of these proceedings.
B.
Following the events of September 11, 2001, the TSA was created by statute and vested with the primary responsibility for day-to-day security of air passenger traffic in this country. The TSA commenced its testing and evaluation of AIT scan- ners in 2007, and, in 2009, Congress appropriated funds for the TSA’s procurement and installation of such scanners and other explosives detection systems. On January 7, 2010, in response to an attempted Christmas Day bombing in Detroit, the President directed the Department of Homeland Security, as the TSA’s parent agency, to aggressively pursue the use of enhanced screening technology in aviation. To date, the TSA has approved two types of AIT scanners for operational use at airports: one utilizes backscatter x-ray technology; the other uses millimeter-length radio waves. Such modern technolo- gies are able to detect anomalies underneath an air passen- ger’s clothing, including small threat items and non-metallic explosive devices such as those concealed on the Christmas Day bomber. A passenger opting out of an AIT scan is sub- jected to a pat-down.
According to the declaration of TSA Administrator Pistole (the "Declaration"), see J.A. 46-68, the TSA has adopted the Checkpoint Screening SOP for use at all airports, but the details of those procedures have not been revealed publicly. The Declaration explained that, (c) Authority of court. . . . [T]he court has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order and may order the [TSA Administrator] to conduct further proceed- ings. . . .
49 U.S.C. § 46110(a), (c). After submitting the Declaration in opposition to the Plaintiffs’ request
for interim injunctive relief, the Defendants relied on it in support of their 5 in January 2010, the TSA determined that AIT should be deployed as part of its primary screening program. This decision is reflected in TSA’s Stan- dard Operating Procedures (SOP) for checkpoint screening, which was most recently revised on Sep- tember 17, 2010, and implemented on October 29, 2010. Although the Checkpoint Screening SOP is not public, it sets forth the mandatory procedures that . . . passengers must follow in order for a pas- senger to enter the sterile area of the airport. I approve[d] the SOP prior to its issuance and the SOP constitutes TSA’s final agency decision requiring the use of AIT machines and implementing their use as a part of TSA’s standard security screening proce- dures. 53-54. The Declaration further explained that a passenger
choosing to opt out of an AIT scan will undergo a pat-down, and the Checkpoint Screening SOP mandates how such a pat- down is conducted. [4] The Checkpoint Screening SOP was not filed with the Declaration because, as Pistole averred therein, the specifics of the procedures constitute sensitive security information. See 49 U.S.C. § 114(r).
Rule 12(b)(1) dismissal motion. See Velasco v. Gov’t of Indonesia , 370 F.3d 392, 398 (4th Cir. 2004) ("[W]hen a defendant challenges subject matter jurisdiction via a Rule 12(b)(1) motion to dismiss, the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings . . . .").
[4] The Declaration specified that the device utilized in the Christmas Day bombing attempt near Detroit was hidden on a sensitive part of the terror- ist’s body. Partially in response to that incident, the standard TSA pat- down was modified to include an inspection of the passenger’s upper thigh and groin area. Although earlier pat-down procedures had used only the back of the hand, a TSA officer conducting the new pat-down is entitled to use the front of the hand in certain circumstances. Pursuant to 49 U.S.C. § 114(r), the TSA Administrator is obliged to
"prescribe regulations prohibiting the disclosure of information obtained The Plaintiffs’ two-count Complaint of December 3, 2010, alleges that the TSA’s use of AIT scanners and invasive pat- downs is unconstitutional. According to the Complaint, Plain- tiff Tuchinsky has opted out of AIT screenings on two occa- sions at Raleigh-Durham International Airport; on each of those occasions, she was subjected to a pat-down that was highly invasive and humiliating. The Complaint further alleges that AIT scanners emit radiation that damages human DNA and other cell components; that the invasive pat-downs and AIT scanner emissions are especially harmful to children; and that the Plaintiffs will suffer irreparable harm if they are subjected to AIT screenings or pat-downs prior to travelling by air. Finally, the Complaint asserts that AIT scanners pro- duce a near photographic quality image of a passenger’s naked body, and that the Defendants have misrepresented the health risks posed by AIT scanners as well as the storage and data transfer capabilities thereof.
The Complaint seeks a declaration from the district court that the TSA’s use of AIT scanners and invasive pat-downs violates the Fourth Amendment. The Complaint also requests injunctive relief barring the Defendants from subjecting the Plaintiffs to either AIT screenings or invasive pat-downs unless and until they are permitted to challenge the constitu- tionality of those practices.
or developed in carrying out security . . . under chapter 449 of [Title 49]." Chapter 449 of Title 49 contains, inter alia, the requirement that the TSA "provide for the screening of all passengers and property . . . that will be carried aboard a passenger aircraft." 49 U.S.C. § 44901(a). The pertinent regulations deem the following to be sensitive security information that may not be publicly released: TSA security directives or orders; the identi- ties of individuals on no-fly and selectee lists; and "[s]ecurity screening information," including "[a]ny procedures, . . . instructions, and imple- menting guidance pertaining thereto, for screening of persons . . . that is conducted by the Federal government or any other authorized person." See, e.g. , 49 C.F.R. §§ 15.5(b), 15.9, 1520.5(b), 1520.9.
C.
On February 7, 2011, the Defendants moved to dismiss the Complaint pursuant to Rule 12(b)(1), maintaining that the court lacked subject matter jurisdiction. The motion asserted that the Checkpoint Screening SOP constitutes an "order" issued by the TSA Administrator under 49 U.S.C. § 46110, and that a challenge to the order can be pursued only in an appropriate court of appeals. The Defendants relied on Pis- tole’s Declaration in support of their motion, but also offered to provide the Checkpoint Screening SOP to the district court for in camera review.
On September 8, 2011, at the conclusion of a hearing on the Rule 12(b)(1) motion, and without having reviewed the Checkpoint Screening SOP, the district court announced that it would grant the Defendants’ dismissal request. Noting that its ruling was without prejudice to the Plaintiffs, the court observed that, "therefore, Mr. Blitz, I don’t believe you’ll be in any way barred from, refiling, — whether you choose to appeal my ruling or refile in the Circuit Court, I think you would be free to do that." J.A. 114. Four days thereafter, the court entered its Dismissal Order, expressly adopting the rea- soning of the district court for the District of Columbia in its dismissal of a similar case. See Durso v. Napolitano , 795 F. Supp. 2d 63 (D.D.C. 2011) (granting Rule 12(b)(1) motion and dismissing, on basis of 49 U.S.C. § 46110 , air passengers’ challenge to TSA’s implementation of AIT scanners and pat- downs), aff’d sub nom. Roberts v. Napolitano , 463 F. App’x 4 (D.C. Cir. 2012). The Plaintiffs have noticed a timely appeal of the judgment of dismissal, asserting appellate jurisdiction under 28 U.S.C. § 1291.
II.
Because the Complaint was dismissed without prejudice, we first assess the question of appellate jurisdiction. As a gen- eral proposition, a dismissal without prejudice by a district court is not an appealable order under 28 U.S.C. § 1291 if "the plaintiff could save his action merely by amending his complaint." Domino Sugar Corp. v. Sugar Workers Local Union 392 , 10 F.3d 1064, 1066-67 (4th Cir. 1993). The sig- nificance of the Domino Sugar principle is that we must "evaluate the particular grounds for dismissal . . . before either permitting or prohibiting appeals from dismissals without prejudice." GO Computer, Inc. v. Microsoft Corp. , 508 F.3d 170, 176 (4th Cir. 2007) (internal quotation marks omitted). As Judge Wilkinson has explained, "‘[t]he test for finality is not whether the suit is dismissed with prejudice or without prejudice. . . . The test is whether the district court has fin- ished with the case.’" (quoting Hill v. Potter , 352 F.3d 1142, 1144 (7th Cir. 2003)).
We are satisfied that, in this situation, the Dismissal Order qualifies as a final decision properly appealable under 28 U.S.C. § 1291. As explained heretofore, the district court con- cluded that the exclusive jurisdiction provision in 49 U.S.C. § 46110 required dismissal for lack of subject matter jurisdic- tion. And it is apparent that the court dismissed the Complaint without prejudice in order to permit the Plaintiffs, if they choose, to pursue relief by way of a petition for review in an appropriate court of appeals. Put simply, the filing of an amended complaint could not have solved the Plaintiffs’ juris- dictional problem in the district court. In these circumstances, we possess appellate jurisdiction under § 1291 to review the propriety of the Dismissal Order.
III.
We thus turn to the merits of the Dismissal Order, which we assess de novo. See Velasco v. Gov’t of Indonesia , 370 F.3d 392, 398 (4th Cir. 2004). In their opening brief, the Plaintiffs identify three issues for resolution:
• "A secret agency order, affecting fundamental rights promulgated unilaterally and internally, with no indicia of an administrative record, sub- ject only to deferential review in the Circuit Courts is inconsistent with due process and sepa- ration of powers";
• "The [Checkpoint Screening] SOP is not a ‘final order’ under 49 U.S.C. § 46110"; and • "The District Court erred in making a dispositive decision in applying the jurisdictional limitation in 49 U.S.C. § 46110, by finding a document [the Checkpoint Screening SOP] to be a ‘final order’ subject to the exclusive jurisdiction of the Court of Appeals without first reviewing the actual doc- ument."
See Br. of Appellants 7-8. Because the Plaintiffs’ second and third issues are nonconstitutional in nature, we evaluate them before turning to the Plaintiffs’ first, constitutional issue. See Ashwander v. Tenn. Valley Auth. , 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) ("It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." (internal quotation marks omitted)).
A.
1.
We initially address whether the district court erred by
applying 49 U.S.C. § 46110 to the Checkpoint Screening SOP
without reviewing the written procedures themselves. To
establish error, the Plaintiffs rely on
Kerns v. United States
,
The Plaintiffs persist, however, that Judge Ervin’s decision
in
City of Alexandria v. Helms
,
The Defendants did not file an administrative record in the
district court. They have, however, advised us that the TSA
produced an extensive administrative record in a similar D.C.
Circuit case,
Electronic Privacy Information Center v. United
States Department of Homeland Security
, 653 F.3d 1 (D.C.
Cir. 2011), and represented that the TSA would submit the
relevant administrative record if the Plaintiffs file a petition in
an appropriate court of appeals. In these circumstances, we
have no trouble concluding that the Checkpoint Screening
SOP is "capable of review on the basis of an administrative
record."
City of Alexandria
,
Our City of Alexandria decision involved application of 49 U.S.C. § 1486, the statutory predecessor to § 46110. In 1994, § 1486 was recast into § 46110, with minor and nonsubstantive modifications. See Act of July 5, 1994, Pub. L. 103-272, 108 Stat. 745.
2.
Being satisfied that the record was sufficient to answer the jurisdictional question in the district court, we turn to the issue of whether the Checkpoint Screening SOP constitutes an order subject to 49 U.S.C. § 46110. The Plaintiffs appear to contend that the application of § 46110 is substantially limited — that is, it applies only to orders issued by the TSA Admin- istrator after the completion of adjudicatory proceedings where affected persons have been accorded an opportunity to participate. [7] None of our sister circuits have adopted such a narrow view of § 46110, however, and the adoption of the Plaintiffs’ interpretation would contravene the plain language of the statute and controlling precedent.
During the pendency of this appeal, the Supreme Court, in
Elgin v. Department of Treasury
,
Notably, the Plaintiffs in no way suggest that the TSA’s checkpoint procedures were not "issued by the [TSA Administrator] in whole or in part under [a specified statute]," as required by 49 U.S.C. § 46110(a). The statutes specified in § 46110(a) include 49 U.S.C. § 114(s) (since recast as § 114(r)) and § 44901(a). See supra note 5.
12
Our City of Alexandria decision further established that, for an order to be subject to review in a court of appeals, it must represent the "final disposition of the matter it addresses." See 728 F.2d at 646. Because the Checkpoint Screening SOP’s implementation on October 29, 2010, conclusively settled the agency’s position with respect to the use of AIT scanners and passenger pat-downs, those procedures represent the TSA’s final disposition of the matter. Accordingly, we are satisfied that the district court did not err in ruling that the Checkpoint Screening SOP constitutes an order of the TSA Administrator under § 46110.
B.
There being no merit in the Plaintiffs’ nonconstitutional issues, we move on to the question of whether the appellate review procedures mandated by 49 U.S.C. § 46110 are incon- sistent with due process and separation of powers. On appeal, the Plaintiffs focus on the theory that the provision of § 46110 channeling review to the courts of appeals would, for several reasons, contravene their due process rights. In support of their theory, the Plaintiffs offer little more than bald assertions that they cannot be forced to litigate in the first instance in a court of appeals.
1.
The Plaintiffs’ due process argument faces numerous insur- mountable hurdles. Under Article III of the Constitution, the district courts and the courts of appeals of the United States constitute those "inferior Courts" which possess only the jurisdiction granted them by Congress. See U.S. Const. art. Two important practical considerations further demonstrate that the Checkpoint Screening SOP is a "final order" for purposes of judicial review. Those procedures are in fact now being used by the TSA at air- ports throughout the United States, and Plaintiff Tuchinsky has been, as the Complaint alleges, personally subjected to invasive pat-downs. III, § 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."). In adopting § 46110, Congress has spoken — plainly and clearly — that a court of appeals is to hear, in the first instance, a challenge to an order of the TSA Administrator. Indeed, we have no authority or power to decide otherwise. See Cary v. Curtis , 44 U.S. 236, 245 (1845) (observing that Congress "possess[es] the sole power of creating the [inferior] tribunals . . . and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdic- tion from them in the exact degrees and character which to Congress may seem proper for the public good").
Tellingly, the Plaintiffs have presented us with no judicial
authority for the proposition that § 46110 — or any provision
channeling review to a particular court — contravenes the
Constitution. Indeed, we have consistently affirmed the pro-
priety of such statutes where statutory and constitutional
claims can be meaningfully addressed in the courts of appeals.
See Nat’l Taxpayers Union v. U.S. Soc. Sec. Admin.
, 376 F.3d
239, 243-44 (4th Cir. 2004);
GTE South, Inc. v. Morrison
, 199
F.3d 733, 742-43 (4th Cir. 1999);
Virginia v. United States
,
74 F.3d 517 (4th Cir. 1996). In
Virginia v. United States
,
Judge Michael specifically rejected Virginia’s contention that
the Commonwealth could not receive "‘meaningful judicial
review’ [in a court of appeals] unless it [could] develop a fac-
tual record in the district court." 74 F.3d at 524 (quoting
McNary v. Haitian Refugee Ctr., Inc.
, 498 U.S. 479, 496
(1991)). As Judge Michael explained, meaningful review is
available in a court of appeals because, inter alia, "the [stat-
ute] permits us to remand . . . for the development of what-
ever record we need to decide the issues before us on direct
review." at 525. Consistent with that view, the Seventh
Circuit has rejected the argument that factual development in
a district court is a necessary aspect of achieving meaningful
appellate review.
See St. John’s United Church of Christ v.
City of Chicago
,
Like our application of the Clean Air Act’s exclusive juris-
diction provision at issue in
Virginia v. United States
, we
would, in reviewing a § 46110 petition, have ample authority
to remand if the agency record is found inadequate.
See
49
U.S.C. § 46110(c) (authorizing court of appeals to order TSA
Administrator to conduct further proceedings);
Fla. Power &
Light Co. v. Lorion
, 470 U.S. 729, 744 (1985) ("[I]f the
reviewing court simply cannot evaluate the challenged agency
action on the basis of the record before it, the proper course
. . . is to remand to the agency for additional investigation or
explanation."). At least two of our sister circuits have also
concluded that § 46110 does not impair any due process rights
of litigants. Those rulings were largely predicated on the
proposition that a court of appeals possesses statutory author-
ity to secure any essential or helpful supplementation of the
record.
See Corbett v. United States
,
There is nothing unique in Congress’s adoption of § 46110, thereby vesting judicial review of orders of the TSA Adminis- trator in an appropriate courts of appeals. Indeed, agency decisions are commonly subject to such jurisdiction- channeling provisions, and final agency actions are generally 15 reviewed in the courts of appeals. See, e.g. , 28 U.S.C. § 2342 (vesting exclusive jurisdiction in courts of appeals to review orders of various federal agencies); see also 16 Charles Alan Wright et al., Federal Practice and Procedure § 3940 (2d ed. 1996) (explaining history of appellate review of administra- tive agencies).
In seeking to rally support for their due process theory, the
Plaintiffs invoke the Supreme Court’s rulings in
McNary v.
Haitian Refugee Center, Inc.
,
In their reply brief, the Plaintiffs invoke
Thunder Basin Coal Co. v.
Reich
,
2.
The Plaintiffs make three other assertions relevant to their due process claim. First, they argue that § 46110(a)’s require- ment that a petition for review be filed "not later than 60 days after the order is issued," absent "reasonable grounds" for a later filing, denies them due process. Relying on precedent from the D.C. Circuit, the district court in Durso v. Napoli- tano concluded that a TSA order has been "issued" only when it is "made public" and that, "if an order is kept secret, the sixty-day window period will be tolled until plaintiffs receive some notice of the order’s contents or effect." See 795 F. Supp. 2d at 69 (citing Avia Dynamics, Inc. v. FAA , 641 F.3d 515 (D.C. Cir. 2011)). In a proper proceeding — that is, if a petition for review is properly filed in an appropriate court of appeals — the Plaintiffs might well advance such a tolling argument.
Second, the Plaintiffs assert that the objection aspect of
§ 46110(d) contravenes their due process rights. Pursuant to
§ 46110(d), a court of appeals may consider an objection
"only if the objection was made" in proceedings before the
TSA Administrator, unless there was a "reasonable ground"
for not making it. Again, in a proper proceeding in a court of
appeals, the Plaintiffs could contend that their absence from
the agency’s decision-making process constitutes a "reason-
able ground" for the lack of an objection.
See Elec. Privacy
Info. Ctr. v. U.S. Dep’t of Homeland Sec.
,
Third, the Plaintiffs insist that application of the "substan-
tial evidence" standard of review in a court of appeals pro-
ceeding will render their challenge constitutionally inadequate
and offend due process. This contention is also premature. We
observe that in rejecting a challenge to AIT scanners in a
17
§ 46110 petition for review, the D.C. Circuit discussed Fourth
Amendment precedent and did not rely on the substantial evi-
dence standard.
See Elec. Privacy Info. Ctr.
,
IV.
Pursuant to the foregoing, the judgment of the district court is affirmed.
AFFIRMED
Finally, in their quest for initial judicial review in the district court, the
Plaintiffs maintain that the separation of powers concept rooted in our
Constitution is offended by the jurisdiction-channeling provision of
§ 46110. They specifically invoke Chief Justice Marshall’s admonition
that "[t]he very essence of civil liberty certainly consists in the right of
every individual to claim the protection of the laws, whenever he receives
an injury."
Marbury v. Madison
,