JONATHAN CORBETT v. TRANSPORTATION SECURITY ADMINISTRATION
No. 12-15893
United States Court of Appeals, Eleventh Circuit
September 19, 2014
D.C. Docket No. 1:10-cv-24106-MGC
Petition for Review of an Order of the Transportation Security Administration
(September 19, 2014)
Before MARCUS, WILLIAM PRYOR and MARTIN, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
In this petition for review, Jonathan Corbett alleges that airport screening procedures violate his right to be free from unreasonable searches.
We divide the background in two parts. First, we discuss the procedure issued by the Administration. Second, we discuss the procedural history of Corbett‘s petitions and the pending motions and jurisdictional question that we carried with the case.
A. The Standard Operating Procedure
Congress created the Administration, now an agency of the Department of Homeland Security, in response to the terrorist attacks of September 11, 2001, and charged the Administrator with ensuring civil aviation security. See
To fulfill these statutory mandates, the Administration issues standard operating procedures for security screening nationwide. On September 17, 2010, the Administration issued the procedure challenged in this petition, which it implemented on October 29, 2010. The procedure requires the use of advanced imaging technology scanners as the primary screening method at airport checkpoints. If a passenger declines the scanner or alarms a metal detector or scanner during the primary screening method, he receives a pat-down instead.
The scanners detect both metallic and nonmetallic objects. The Administration instituted the procedure to remedy a weakness of walk-through and hand-held metal detectors. Unlike those earlier security mechanisms, the scanners also identify nonmetallic explosives and other nonmetallic items that pose a security threat. The Administration deemed the scanners “the most effective technology available to detect threat items concealed on airline passengers.” But even though the scanners and the new pat-down procedures significantly improve the detection of nonmetallic and concealed weapon devices, the Office of Intelligence of the Administration has concluded that the threat posed by improved
When the Administration first implemented the procedures, it employed scanners that displayed the body contour of the passenger, but they did not store, export, оr print the images. The Administration deleted the images after an officer viewed them, and the Administration prohibited security officers from bringing cameras, cell phones, or other electronic recording devices into the viewing rooms.
Congress later enacted the FAA Modernization and Reform Act of 2012,
The Administration last updated the pat-down procedure in 2012. The Administration earlier modified the procedure in resрonse to the suicide bombing aboard a Russian aircraft in August 2004 and twice revised the policy after intelligence revealed that passengers could conceal contraband in certain areas of their bodies. Later testing revealed that some security officers failed to conduct sufficient pat-downs, which prompted the most recent revisions to the procedure. When a screener conducts a pat-down, he canvasses most of the passenger‘s body
B. Procedural History of Corbett‘s Petitions
Corbett, pro se, challenges the use of the “nude body scanners,” as he dubs them, and the pat-down procedure on the ground that they violate the Fourth Amendment. Corbett alleges that he has flown more than 100,000 miles on more than 100 domestic flights in the last 3 years and that each time he departs from a domestic airport he must undergo a security screening. He asserts that the security officers have denied him access three times because he refused to consent to the searches prescribed by the procedure. Corbett argues that substitute screening measures—canine sniff teams, metal detectors, and explosive trace detеctors—are less intrusive and more effective at identifying terrorist threats.
In November 2010, Corbett filed a petition in a district court in Florida challenging the procedure implemented a month earlier. As early as December 2010, the Administration notified Corbett that Congress vested exclusive jurisdiction over his petition in the court of appeals. After a magistrate judge also concluded that the court of appeals had exclusive jurisdiction, the district court
In March 2013, the Administration moved to file under seal certain portions of the administrative record and to file under seal and ex parte other portions of the record. The record contains five kinds of documents: public information; copyrighted and propriety material; “For Official Use Only” documents; documents designated as sensitive security information; and classified documents. In June 2013, our Court temporarily granted, in part, the motion to seal and carried the remainder of the motion with the case.
Corbett signed a nondisclosure agreement to receive access to the For Official Use Only administrative record. But in October 2013, the office of the clerk of the Court mistakenly uploaded Corbett‘s unredacted brief to the public docket containing some of the For Official Use Only information. Corbett alleges that a third party obtained his brief when it was available online and linked it to a website, which includes a 16-minute interview with Corbett discussing this information in his brief. After that incident, Corbett filed a motion to unseal the
II. DISCUSSION
Before we can address the merits of this controversy, we have to decide whether we have jurisdiction over it. That is, we must first decide whether the 60-day deadline,
A. We Have Jurisdiction, But Dismiss Corbett‘s Petition as Untimely.
Congress granted the courts of appeals exclusive jurisdiction to decide a petition like Corbett‘s,
1. The 60-Day Deadline Is Not Jurisdictional.
There is “a critical difference between a rule governing subject-matter jurisdiction and an inflexible claim-processing rule.” Kontrick v. Ryan, 540 U.S. 443, 456, 124 S. Ct. 906, 916 (2004). “[A] court‘s subject-matter jurisdiction cannot be expanded to account for the parties’ litigation conduct; a claim-processing rule, on the other hand, even if unalterable on a party‘s application, can nonetheless be forfeited if the party asserting the rule waits too long to raise the point.” Id. And “a rule should not be referred to as jurisdictional unless it governs a court‘s adjudicatory capacity, that is, its subject-matter or рersonal jurisdiction.” Henderson, 131 S. Ct. at 1202.
In Greater Orlando Aviation Authority v. Federal Aviation Administration, we held that the 60-day deadline for filing a petition challenging a final order is “mandatory and jurisdictional,” 939 F.2d at 959 (internal quotation marks omitted), but decisions of the Supreme Court and our Court sitting en banc have abrogated that prior panel precedent, see Henderson, 131 S. Ct. at 1204–06; Avila-Santoyo, 713 F.3d at 1359–62. The Supreme Court has instructed that a deadline for judicial
In Henderson, the Supreme Court identified three factors that guided its conclusion that the 120-day deadline for seeking judicial review of a decision of the Board of Veterans’ Appeals was not jurisdictional: the text, the statutory context, and the degree of flexibility afforded to potential claimants. 131 S. Ct. at 1204–06. The plain language of the statute in Henderson did “not suggest, much less provide clear evidence, that the [120-day] provision was meant to carry jurisdictional consequences.” Id. at 1204. Congress placed the deadline in a subchapter titled “Procedure” instead of the subchapters titled “Jurisdiction; finality of decisions” or “Organization and Jurisdiction,” which “suggest[ed that] Congress regarded the 120-day limit as a claim-processing rule.” Id. at 1205. And
Our Court, sitting en banc, applied Henderson in an immigration case when we overruled our precedent, Abdi v. U.S. Att‘y Gen., 430 F.3d 1148 (11th Cir. 2005), and held that the 90-day deadline to file a motion to reopen after a final order of removal,
Like the 90-day deadline in Avila-Santoyo, the 60-day deadline that governs Corbett‘s petition is not jurisdictional. See Avia Dynamics, Inc. v. Fed. Aviation Admin., 641 F.3d 515, 519 (D.C. Cir. 2011). The text does not suggest that Congress intended the deadline to have jurisdictional consequences. See Arbaugh, 546 U.S. at 510, 126 S. Ct. at 1242 (“[W]e have clarified that time prescriptions, however emphatic, are not properly typed jurisdictional.” (internal quotation marks omitted)). That is, Congress did not phrase the 60-day deadline in jurisdictional terms when it instructed petitioners where and when to file:
[A] person disclosing a substantial interest in an order issued by the Secretary . . . may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. The petition must be filed no later than 60 days after the order is issued. The court may allow the petition to be filed after the 60th day only if there are reasonable grounds for not filing by the 60th day.
In the same way that Henderson abrogated our precedent in Abdi, Henderson also abrogated our precedent in Greater Orlando that would otherwise govern this appeal. See United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (“We may disregard the holding of a prior opinion only where that holding is overruled by thе Court sitting en banc or by the Supreme Court.” (internal quotation marks omitted)). The new rule announced in Henderson “actually abrogate[d] or directly conflict[ed] with, as opposed to merely weaken[ed], the holding of the prior panel.” Id. We now hold that the 60-day deadline is a claim-processing rule, not a limitation on our subject-matter jurisdiction.
2. Corbett Failed To Establish a Reasonable Ground for his Delay.
Corbett‘s dogged prosecution of his petition in the district court is not a reasonable ground to excuse his failure to file his petition on time in this Court. See Greater Orlando, 939 F.2d at 959–60 (ruling that petitioner‘s pursuit of state court
Corbett failed to heed that advice, despite admonitions by the Administration, a magistrate judge, the district court, and our Court that we had
B. Alternatively, the Screening Procedure Is a Reasonable Administrative Search.
Although the Supreme Court has mentioned only in dicta that airport screenings do not violate the Fourth Amendment, see Chandler v. Miller, 520 U.S. 305, 323, 117 S. Ct. 1295, 1305 (1997) (“[W]here the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable‘—for example, searches now routine at airports . . . .“); see also City of Indianapolis v. Edmond, 531 U.S. 32, 47–48, 121 S. Ct. 447, 456 (2000), other courts of appeals have held that screening passengers at an airport is an “administrative search” because the primary goal is to protect the public from a terrorist attack, see, e.g., Elec. Privacy Info. Ctr. v. U.S. Dep‘t of Homeland Sec., 653 F.3d 1, 10–11 (D.C. Cir. 2011); United States v. Aukai, 497 F.3d 955, 962–63 (9th Cir. 2007) (en banc); United States v. Hartwell, 436 F.3d 174, 178 (3d Cir. 2006). We now join their ranks and conclude, in the alternative, that the challenged procedure is a reasonable administrative search under the Fourth Amendment.
The Fourth Amendment permits the warrantless search of “closely regulated” businesses; “sрecial needs” cases such as schools, employment, and probation; and “checkpoint” searches such as airport screenings under the administrative search doctrine. Hartwell, 436 F.3d at 178. Because administrative searches primarily ensure public safety instead of detect criminal wrongdoing, they do not require individual suspicion. Elec. Privacy Info. Ctr., 653 F.3d at 10 (citing Edmond, 531 U.S. at 41, 47–48). Whether suspicionless checkpoint searches at airports are reasonable depends on “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 2640 (1979).
The scanners at airport checkpoints are a reasonable administrative search because the governmental intеrest in preventing terrorism outweighs the degree of intrusion on Corbett‘s privacy and the scanners advance that public interest. Id. Corbett argues that the scanners are not narrowly tailored to aviation security needs, that the scanners are ineffective for their intended purpose, and that the Administration has misled the public as to the likelihood of the threat. But “[t]he need to search airline passengers ‘to ensure the public safety can be particularly
“[T]here can be no doubt that prеventing terrorist attacks on airplanes is of paramount importance.” Hartwell, 436 F.3d at 179; see United States v. Marquez, 410 F.3d 612, 618 (9th Cir. 2005) (“It is hard to overestimate the need to search air travelers for weapons and explosives before they are allowed to board the aircraft. . . . [T]he potential damage and destruction from air terrorism is horrifically enormous.“); Singleton v. Comm‘r of Internal Revenue, 606 F.2d 50, 52 (3d Cir. 1979) (“The government unquestionably has the most compelling reasons[—]the safety of hundreds of lives and millions of dollars worth of private property[—]for subjecting airline passengers to a search for weapons or explosives that could be used to hijack an airplane.“); see also United States v. Yang, 286 F.3d 940, 944 n.1 (7th Cir. 2002). Corbett argues that the Administration has misled the public as to the severity of the threat that terrorism poses to commercial airplanes, but that suggestion borders on the absurd and the record refutes it. For example, on December 25, 2009, a terrorist attempted to detonate a nonmetallic explosive device hidden in his underwear while aboard an American aircraft flying over the United States, for which Al Qaeda claimed credit. Passenger Screening Using
Contrary to Corbett‘s assertion, the scanners effectively reduce the risk of air terrorism. See, e.g., Hartwell, 436 F.3d at 179–80. Although this proposition is self-evident, Corbett disputes it on the ground that he has circumvented the scanners and speculates that the rates of failure and false-positives are high. But the Fourth Amendment does not require that a suspiciоnless search be fool-proof
The Supreme Court has explained that the evaluation of effectiveness is “not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a sеrious public danger.” Michigan Dep‘t of St. Police v. Sitz, 496 U.S. 444, 453, 110 S. Ct. 2481, 2487 (1990). Choosing which technique best serves the government interest at stake should be left to those with “a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers.” Id. at 454. “[W]e need only determine whether the [scanner] is a reasonably effective means of addressing the government interest in deterring and detecting a terrorist attack” at airports. MacWade, 460 F.3d at 273 (internal quotation marks omitted). Common sense tells us that it is.
The scanners pose only a slight intrusion on an individual‘s privacy, especially in the light of the automated target recognition software installed in every scanner. The scanners now create only a generic outline of an individual, which greatly diminishes any invasion of privacy. Before the agency incorporated that software, the District of Columbia Circuit held that the scanners did not violate the Fourth Amendment. See Elec. Privacy Info. Ctr., 653 F.3d at 10–11. And to the
Corbett also challenges the pat-down procedure, but that procedure as a secondary screening technique is a reasonable administrative search. The pat-downs also promote the governmental interest in airport security because security officers physically touch most areas of passengers’ bodies. Corbett does not dispute that the pat-down procedures are effective, but argues that they are “extraordinarily intensive” and the “use of fingers to palpate the skin makes the TSA‘s pat-down procedure the most intensive search ever conducted.” Undeniably, a full-body pat-down intrudes on privacy, but the security threat outweighs that invasion of privacy. And the Administration reducеs the invasion of privacy through several measures: the pat-down is not a primary screening method; a member of the same sex ordinarily conducts it; a passenger may opt to have a witness present during the search if he desires to have the security officer conduct the pat-down in private; and the procedure requires a security officer to use the back of his hand while searching sensitive areas of the body.
As a final note, our dissenting colleague argues that a determination on the merits is unnecessary because we hold that Corbett‘s petition was untimely. (Dissent Op. at 27.) But our dissenting colleague relies on opinions stating that constitutional rulings should be avoided where other outcomes could be reached on the merits. See, e.g., United States v. Charles, 722 F.3d 1319, 1332–35 (11th Cir. 2013) (Marcus, J., specially concurring) (concluding that it was unnecessary to answer a constitutional question where it was not required for the holding that there was no рlain error); Shaw v. Martin, 733 F.2d 304, 314 (4th Cir. 1984) (declining to rule on a constitutional question where the evidence would not support the claim even if the constitutional question were decided in petitioner‘s
We make our ruling on the merits because, as our dissenting colleague recognizes, the procedural question of timeliness is debatable, and it is not jurisdictional. Further, the parties have briefed and argued the merits, and we have a complete record. The answer on the mеrits is clear, as each circuit court to examine it has ruled. And the issue will almost certainly recur, perhaps even with the same petitioner. Our dissenting colleague‘s contention that we should not address the merits is odd because she suggests that Corbett did establish reasonable grounds for the untimeliness of his petition. (Dissent Op. at 28.) If so, then we would be obliged to address the merits of his petition. But our dissenting colleague fails to explain how the merits of this controversy should be resolved.
C. We Grant the Motion to Seal by the Administration and Deny the Motion to Unseal by Corbett.
Before oral argument, we carried with the case three issues raised by the motion to seal filed by the Administration: (1) whether the copyrighted materials should remain under seal; (2) whether Petitioner should havе access to the sensitive security information; and (3) whether Respondent should be required to
As to the copyrighted materials, Eleventh Circuit Rule 25-5 contemplates that parties may file under seal “proprietary or trade secret information.” 11th Cir. R. 25-5. And every court of appeals in which the Administration has submitted proprietary information about the scanner technology has ordered it sealed. See Order, Elec. Privacy Info. Ctr. v. U.S. Dep‘t of Homeland Sec., No. 10-1157 (D.C. Cir. Feb. 22, 2011); Order, Redfern v. Napolitano, No. 11-1805 (1st Cir. Aug. 14, 2012). The Administration filed under seal the proprietary information—an operations manual for an advanced imaging technology scanner—because the owner of the information marked the manual with the warning thаt customers “shall not disclose or transfer any of these materials or information to any third party” and that “[n]o part of this book may be reproduced in any form without written permission” from the company.
We also grant the motion to seal the sensitive security information because Corbett has no statutory or regulatory right to access it. Sensitive security information is “information obtained or developed in the conduct of security activities[,] . . . the disclosure of which TSA has determined would . . . [b]e detrimental to the security of transportation.”
Finally, we grant the motion to seal the classified information and do not require the Administration to file a redacted version or index. The Classified Information Procedures Act “allows the district court to permit the government either to redact the clаssified information or to substitute a summary or a statement of factual admissions in place of the classified documents.” United States v. Campa, 529 F.3d 980, 995 (11th Cir. 2008) (describing
We earlier entered a temporary order denying Corbett‘s motion to release him from his nondisclosure agreement, and we now deny that motion permanently
III. CONCLUSION
We DISMISS Corbett‘s petition for review as untimely. In the alternative, we DENY Corbett‘s petition because the challenged screening procedure does not violate the Fourth Amendment. We also GRANT the motion to seal by the Administration and DENY the motion to unseal by Corbett.
The majority does what the Supreme Court, our Court, and many other courts have cautioned not to do, and therefore I respectfully dissent.
The opinion finds that Mr. Corbett‘s petition is untimely, and he failed to establish a reasonable ground for his delay in filing it. If that is true, the case is over. Instead the opinion continues on with an unnecessary holding “in the alternative,” Panel Op. at 2, which reaches the merits of Mr. Corbett‘s petition, and finds no violation of the Fourth Amendment.
Long ago, the Supreme Court explained that courts should not “decide quеstions of a constitutional nature unless absolutely necessary to a decision of the case.” Burton v. United States, 196 U.S. 283, 295, 25 S. Ct. 243, 245 (1905); see also Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S. Ct. 152, 154 (1944) (“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.“). Other courts adhere to this maxim. See, e.g., Shaw v. Martin, 733 F.2d 304, 314 (4th Cir. 1984) (“[W]e should not decide a constitutional question when a factual ground exists for our decision.“). And until now, our Court has generally followed this precept as well. See, e.g., United States v. Charles, 722 F.3d 1319, 1334 (11th Cir. 2013) (Marcus, J., specially concurring) (“Declining to address an unnecessary
I am also concerned by the majority‘s conclusion that Mr. Corbett did not establish a reasonable ground for the timing of his filing. The opinion states: “We have recommended that petitioners file concurrent petitions in multiple courts where jurisdiction is not clear.” Panel Op. at 14. For support, it cites only one case, Greater Orlando Aviation Authority v. Federal Aviation Administration, 939 F.2d 954 (11th Cir. 1991). And in citing that case, the majority says that I “fail[] to acknowledge” that in Greater Orlando, this Court “advised” the petitioner to file two appeals concurrently. But I do fully acknowlеdge that in Greater Orlando, this Court observed that the Greater Orlando Aviation Authority could have at the same time pursued (1) a state court appeal of a zoning board decision; and (2) an appeal in the 11th Circuit of a Federal Aviation Administration decision that ultimately
To the contrary, we have cautioned against the possibility of “resources wasted when two courts unnecessarily proсeed along the same track and at the same time.” Maharaj v. Sec. for Dep‘t of Corr., 432 F.3d 1292, 1307 (11th Cir. 2005); see also Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S. Ct. 400, 402 (1982) (“[A] federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously.“).
Given Mr. Corbett‘s pro se status, his active pursuit of this challenge was anything but “quixotic,” as the majority characterizes it at one point. Panel Op. at 15 (quotation marks omitted). Cf. Sierra Club v. Skinner, 885 F.2d 591, 594 (9th Cir. 1989) (“We find it difficult to believe that someone among Sierra Club‘s legal advisers did not sound a note of caution as to jurisdiction.“). Mr. Corbett‘s pursuit appears to me to have been methodical and diligent. Shortly after the Supreme Court confirmed he chose the wrong forum, he immediately filed here. I do not believe he should be penalized for doing so. This is especially true where there is