JONATHAN CORBETT, Petitioner, versus TRANSPORTATION SECURITY ADMINISTRATION, Respondent.
No. 15-15717
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
July 19, 2019
[PUBLISH] Non-Argument Calendar Agency No. 49 U.S.C. section 46110
Petition for Review of a Decision of the Transportation Security Administration
Before TJOFLAT, MARCUS and ROSENBAUM, Circuit Judges.
This is Jonathan Corbett‘s third pro se challenge to some aspect of the Transportation Security Administration‘s (“TSA“) airport scanner equipment using advanced imaging technology (“AIT“). On each occasion, he has claimed that TSA‘s airport screening procedures violated his right to be free from unreasonable searches and seizures, citing to the
This time Corbett challenges TSA‘s latest policies and orders that require certain airline passengers to pass through AIT screeners, eliminating for them the option of being screened by a physical pat-down. After careful review, however, we conclude that this Court is without jurisdiction to entertain Corbett‘s claims. Aspled, Corbett lacks the necessary standing to bring this petition, and, accordingly, we are required to dismiss it.
I.
A.
We review de novo questions concerning subject-matter jurisdiction, including standing. Elend v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006). When ruling on standing at the pleading stage, we “must accept as true all material allegations of the [pleading], and must construe [it] in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501 (1975). Moreover, if we have been presented with “facts beyond the four corners” of the pleading that are relevant to the question of standing, we may consider them. Cone Corp. v. Fla. Dep‘t of Transp., 921 F.2d 1190, 1206 n.50 (11th Cir. 1991). The party invoking federaljurisdiction bears the burden of establishing standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
B.
We begin with the relevant background and procedural history surrounding Corbett‘s petition. Congress vests responsibility for civil aviation security in the TSA Administrator.
Nonmetallic explosives and other nonmetallic threats pose a significant danger to aviation security. See Passenger Screening Using Advanced Imaging Technology, 81 Fed. Reg. 11,364, 11,365 (Mar. 3, 2016) (final rule); see also
In October 2010, TSA began using AIT scanners as a primary screening method at airport security checkpoints. Corbett I, 767 F.3d at 1174–75. Unlike conventional metal detectors, AIT scanners can detect both metallic and nonmetallic objects concealed on a passenger‘s body or in a passenger‘s clothing. Id.; see 78 Fed. Reg. at 18,297 (listing examples of potentially dangerous
When AIT scanners were first used, they displayed the actual contours of the scanned passengers’ bodies. They no longer do so -- each scanner instead now notifies TSA agents about potential concealed threats by highlighting those areas on a generic outline of a person, and that generic or stylized image is temporarily shown on a monitor. See Corbett I, 767 F.3d at 1175. The image of a screened individual is the same as the images provided for all other screened individuals.
Since TSA began using AIT technology, Corbett has brought at least five suits challenging the Administration‘s screening policies; two of them did not involve the AIT body scanners. In 2010, Corbett sued TSA in federal district court in Miami challenging the use of AIT scanners as a primary screening method at airport security checkpoints, and moved for a nationwide injunction barring TSA from implementing that or any AIT screening. See Order Granting Mot. to Dismiss, Corbett v. United States, No. 10-cv-24106, 2011 WL 2003529 (S.D. Fla. Apr. 29, 2011). The district court denied the motion and dismissed the action for want of jurisdiction because the procedures he sought to challenge constituted a TSA “order” pursuant to
Corbett later petitioned this Court to review TSA‘s use of AIT scanners as a primary screening method at airport security checkpoints, and again sought injunctive relief. A panel of this Court denied the application because it “fail[ed] to meet the applicable standard for granting injunctive relief.” Order, Corbett v. TSA, No. 12-15893 (11th Cir. Apr. 4, 2013). Thereafter, we dismissed the petition as untimely, and, in the alternative, denied the petition because the challenged screening methodology did not violate the
Meanwhile, in March 2012, Corbett filed another complaint in the United States District Court for the Southern District of Florida, this time arising out of a TSA screening experience he had at the Fort-Lauderdale-Hollywood International Airport, when he consented to a pat-down after refusing to go through a full-body scanner. Corbett v. TSA, 568 F. App‘x 690, 692 (11th Cir. 2014), cert. denied, 135 S. Ct. 1559 (2015). He lodged twenty-one claims against TSA, a TSA official, Broward County and the Broward County Sheriff‘s Office, including
Again, in 2015, Corbett filed another petition for review in this Court, this time challenging a TSA program that requires airline employees to ask certain passengers some questions before allowing them to board international flights bound for the United States. Order, Corbett v. TSA, No. 15-10757 (11th Cir. July 21, 2016). There, a panel of this Court concluded that the claim was not justiciable, reasoning that even if Corbett bought a ticket for an international flight, there was no assurance that he would actually be questioned. Id. at 4. The long and short of it was that his claim was speculative and speculative claims could not support constitutional standing. Id.
C.
Coming then to Corbett‘s instant petition, TSA issued a notice of proposed rulemaking on March 26, 2013. See 78 Fed. Reg. 18,287. The proposal wasdesigned to “codif[y] the use of AIT to screen individuals at aviation security screening checkpoints.”
TSA has explained that the “enhanced screening” procedures -- which require the use of AIT machinery without an opt-out alternative -- apply to individualsdesignated as “selectees.” Supp. App‘x 90;1 see also
airline passengers randomly chosen as selectees for a particular trip.
This policy -- which denies certain passengers the right to opt-out -- is at the heart of Corbett‘s challenge. He claims that a screening policy banning any opportunity to opt-out of AIT screening violates the
II.
“It by now axiomatic that the inferior federal courts are courts of limited jurisdiction. They are empowered to hear only those cases falling within the judicial power of the United States as defined by
The three prerequisites for standing are that: (1) the plaintiff has suffered an “injury in fact” -- an invasion of a judicially cognizable interest, which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) there be a causal connection between that injury and the conduct complained of -- the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) it be likely, not merely speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560–61; see also 31 Foster Children v. Bush, 329 F.3d 1255, 1263 (11th Cir. 2003). “By insisting that a plaintiff show a substantial likelihood of future injury, in the absence of declaratory or injunctive relief, courts further one of the purposes of the constitutional standing requirement -- reserving limited judicial resources for individuals who face immediate, tangible harm absent the grant of declaratory or injunctive relief.” Bowen, 233 F.3d at 1340 (citing 13A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 3532.1, at 114 (2d ed. 1984)).
In order to satisfy the injury-in-fact requirement of standing, a plaintiff may show that he “has sustained or is immediately in danger of sustaining some direct injury.” Lynch v. Baxley, 744 F.2d 1452, 1456 (11th Cir. 1984) (quoting O‘Shea v. Littleton, 414 U.S. 488, 494 (1974)). “Plaintiffs must demonstrate a personal stake in the outcome in order to assure that concrete adverseness which sharpens the presentation of issues necessary for the proper resolution of constitutional questions.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (quotations omitted). “Abstract injury is not enough.” Id. A plaintiff need not wait for an injury to occur, so long as he “is immediately in danger of sustaining some direct injury” as a result of the challenged official conduct and the injury or threat of injury
The Supreme Court extensively explored the idea of future injury in City of Los Angeles v. Lyons. There, the plaintiff, Adolph Lyons, sought to enjoin Los Angeles police officers from using a certain chokehold technique in order to render arrestees unconscious. 461 U.S. at 97–98. Lyons claimed that he had been personally subjected to the challenged technique in the past, and that Los Angeles police officers “routinely appl[ied] chokeholds in situations where they are not threatened by the use of deadly force.” Id. at 105. In holding that Lyons lacked standing to sue, the Supreme Court explained that while Lyons “may have been illegally choked by the police” in the past, this “does nothing to establish a real and immediate threat that he would again be . . . illegally choke[d]” in the future. Id. The Supreme Court recognized that, “among the countless encounters between the police and the citizens of . . . Los Angeles, there will be certain instances in which strangleholds will be illegally applied.” Id. at 108. Nevertheless, “it is . . . no more than speculation to assert either that Lyons himself will again be involved in one of
those unfortunate instances, or that he will be arrested in the future and provoke the use of [the] chokehold” technique that Lyons challenged. Id. In other words, “even assuming that Lyons would again be stopped for a traffic or other violation in the reasonably near future, it is untenable to assert, and the complaint made no such allegation, that strangleholds are applied by the Los Angeles police to every citizen who is stopped or arrested regardless of the conduct of the person stopped.” Id.
Applying Lyons, we‘ve held many times that a plaintiff failed to establish an injury in fact when the likelihood of future constitutional injury was too speculative. Thus, for example, in J W ex rel. Williams v. Birmingham Bd. of Educ., 904 F.3d 1248 (11th Cir. 2018), some Birmingham high school students sued the Birmingham school board and the City‘s police department, alleging that the defendants used excessive force in violation of the
also constitutes excessive force were even more rare,” with an estimated 0.003% chance per student. Id. at 1268 (emphases added). We did not suggest that Freeze +P would never be used against a student in an unconstitutional way by a police officer, but we concluded nevertheless that “the probability of future instances of unconstitutional spraying is [in]sufficient to provide standing to obtain declaratory and injunctive relief.” Id. For the same reasons, we extended the holding to bar the decontamination claims, where there was only an estimated 1.77% chance of a student being intentionally or unintentionally sprayed and improperly decontaminated. Id. at 1273.
We faced the same problem in Bowen v. First Family Financial Services, where the plaintiffs challenged a lender‘s practice of requiring customers to sign arbitration agreements. 233 F.3d at 1333. We did not address the merits of the plaintiffs’ claims that the practice violated the Truth in Lending Act (“TILA“) because we concluded that the plaintiffs lacked standing to pursue their TILA claims. Id. at 1341. The plaintiffs had not shown a “substantial likelihood that [the defendant] will take some action that at least arguably violates the TILA or some related law.” Id. at 1340. We went on to say that if the defendant were to violate TILA, “we would also have to find there was a substantial likelihood that the plaintiffs and [the defendant] would be unable to resolve any resulting dispute without litigation,” and “[t]he undeniable fact is that the vast majority of credit
transactions such as the ones in this case do not result in litigation.” Id. (emphasis added). Without more, “enforcement of the arbitration agreement against these plaintiffs” was not “certainly impending,” for purposes of the standing inquiry. Id.
Still again, a panel of this Court addressed the requirements of standing in Elend v. Basham, 471 F.3d 1199 (11th Cir. 2006). There, the plaintiffs had been protesting outside of the Sun Dome in Tampa, Florida during a political rally attended by President George W. Bush in 2002. Id. at 1202–03. The Secret Service ordered them to move to an authorized “protest zone,” which was further away. Id. The plaintiffs sought to enjoin the Secret Service from taking similar action in the future that they said would violate their First Amendment rights, and they claimed to have standing because they “fully intend[ed] to peacefully express their viewpoints in the future in a manner similar to their activities on November 2, 2002 in concert with presidential appearances at the . . . Sun Dome and at other locations around the country.” Id. at 1204. We affirmed the district court‘s dismissal of the claims because the plaintiffs’ intention to protest in a similar manner in the future was too speculative. “Other than the one instance in November 2002, we [we]re not even given a description of Plaintiffs’ past conduct from which to infer that they might act in a similar manner in the future,” and thus it was “entirely conjectural that President Bush would return to speak at a political rally at the Sun Dome.” Id. at 1209.
On the record presented to this Court, Corbett‘s theory of standing is just as conjectural and speculative as the claims made by the plaintiffs in Lyons, in J W, in Bowen, and in Elend, if not more so. For starters, Corbett has not claimed that he has ever been subjected to mandatory AIT screening under the current TSA policy that he is challenging, nor that he represents a heightened security risk that
While we typically confine our standing analysis to the four corners of the complaint, we may look beyond it when we have before us facts in the record. Cone Corp., 921 F.2d at 1206 n.50; see also Elend, 471 F.3d at 1208 (“[I]n the context of a Rule 12(b)(1) challenge to standing, we are obliged to consider not only the pleadings, but to examine the record as a whole to determine whether we are empowered to adjudicate the matter at hand.” (quotations omitted)). So, in Elend, we found the plaintiffs’ future intentions insufficiently clear to establish standing
where the original allegedly unconstitutional incident had occurred many years before our decision without any suggestion that it had occurred again. 471 F.3d at 1209. We observed that “the injury alleged . . . remains wholly inchoate” where “[p]laintiffs’ intention . . . to protest ‘in concert with presidential appearances at the USF Sun Dome and at other locations around the country’ fail[ed] to provide any limitation on the universe of possibilities of when or where or how such a protest might occur.” Id. It was “entirely conjectural that President Bush would return to speak at a political rally at the Sun Dome,” and there was “no indication that he ha[d] done so again since November 2002 despite numerous presidential visits to Florida.” Id.
Here, both parties have submitted extensive materials since the filing of Corbett‘s petition, including the Petitioner‘s declarations about his travel experiences and plans and materials submitted by TSA. In light of these subsequent filings, it‘s telling that Corbett has never said, in his declarations or otherwise, that he has been subjected to the policy. Indeed, Corbett has told us that he flew no less than 150,000 miles on over 100 domestic flights from 2013 to 2015, and that because he “fl[ies] at least 50 times a year for both business and personal reasons, [he] will have at least 50 more opportunities to be randomly selected in 2016.” See Decl. of Jonathan Corbett at 1 (Dec. 24, 2015); Decl. of Jonathan Corbett at 3 (Sep. 19, 2016). But despite his declaration that he has flown and will continue to take, as best we
can tell, over 50 flights a year, he’s taken approximately 150 flights to date since 2016, without incident. Even in Lyons, J W and Elend, the plaintiffs claimed to have suffered some sort of injury as a result of the challenged policy in the past. See J W, 904 F.3d at 1253, 1264 (recognizing that “[p]ast wrongs serve as evidence of whether there is a real and immediate threat of future injury” and that “[a] number of Birmingham high school students . . . were sprayed with or exposed to Freeze +P in 2009, 2010, and 2011“); see also Lyons, 461 U.S. at 108 (“We note that five months elapsed between October 6, 1976, and the filing of the complaint, yet there was no allegation of further unfortunate encounters between Lyons and the police.“); Elend, 471 F.3d at 1209 (describing the plaintiffs’ “one instance in November 2002“). Corbett, however, has never said that he was subjected to the mandatory TSA policy, before his petition or since then, even though he has made numerous filings since he lodged his petition for review containing substantial information about his travel patterns and his interactions with TSA.
In the alternative, Corbett hypothesizes that, as a frequent flyer who intends to continue flying frequently, it is likely that he will be randomly chosen to be a selectee passenger in the future. See Pet. Opp. To MTD at 6; see also Decl. of Jonathan Corbett at 3 (Sep. 19, 2016). We recognize there’s a chance that he might be selected in the future, based on the random selection process, but that is not enough under our case law to show a substantial likelihood of future injury that is “real and immediate,” “actual and imminent,” and not “conjectural” or “hypothetical.” Lujan, 504 U.S. at 560 (quotations omitted); Lyons, 461 U.S. at 102 (quotations omitted). Notably, as TSA has explained, its AIT screening policy does not affect the “vast majority” of airline passengers. TSA, Frequently Asked Questions, http://www.tsa.gov/travel/frequently-asked-questions (last visited June 27, 2019). We used this exact phrase in Bowen, where we held that the plaintiffs lacked standing to make a TILA claim since the “vast majority of credit transactions” would not involve at least some arguable violation of TILA or a related law. Bowen, 233 F.3d at 1340 (emphasis added). The odds of something not happening the “vast majority” of times can be compared with the plaintiffs’ claims in Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1288 (11th Cir. 2010) (holding that a plaintiff’s First Amendment rights were “at imminent risk of invasion” because an agreement his employer entered into with a labor union “substantially increase[d] the likelihood” that he would be unionized against his will); Browning, 522 F.3d at 1163–64 (holding in an associational standing case that the 20,000-member organization had standing where it was “highly unlikely” that not a single member of the organization would be injured since “someone is certain to get injured in the end“); and GTE Directories Pub. Corp. v. Trimen Am., Inc., 67 F.3d 1563, 1569 (11th Cir. 1995) (concluding that the “practical likelihood” the contingencies would occur was “very high” and “almost inevitable“).
It’s also worth noting that we’ve reviewed the unredacted sensitive security materials provided to the Court by TSA, and, after considering the actual percentage of passengers that TSA expects to randomly select for mandatory AIT screening, we have no doubt that Corbett does not risk a substantial likelihood of future injury. See Supp. App’x 105–06 (explaining that, under the selectee-designation regime currently in effect, no more than [REDACTED MATERIAL] airline passengers are randomly designated as selectees to whom the challenged policy would apply); see also Order, Corbett v. TSA, No. 15-15717 (11th Cir. June 6, 2016) (granting TSA’s request to file portions of the administrative record ex parte and under seal); Order, Corbett v. TSA, No. 15-15717 (11th Cir. Nov. 30, 2016) (granting TSA’s request to file a supplemental appendix ex parte and under seal); Order, Corbett v. TSA, No. 15-15717 (11th Cir. May 1, 2017) (denying Corbett’s request for reconsideration); see generally Corbett I, 767 F.3d at 1183 (granting TSA’s motion to seal SSI materials).
We do not deny that the “countless encounters between” TSA agents and airline passengers may well give rise to “certain instances in which” the mandatory AIT-screening policy will be applied to someone. Lyons, 461 U.S. at 108. But, as the Supreme Court said in Lyons, that fact does not make Corbett’s claim any less conjectural. See id. (finding no injury-in-fact despite recognizing “certain instances in which strangleholds will be illegally applied and injury and death unconstitutionally inflicted on the victim“). Indeed, even if Corbett sought to represent a class of people, at least one of whom would likely be affected -- and he has not sought class relief in this case -- that would not be enough to make his claim sufficiently likely. See J W, 904 F.3d at 1268, 1272 (finding no injury-in-fact for the class representative despite recognizing that the spray may be used against a student in an unconstitutional way “in the future” because “named plaintiffs who represent a class must allege and show that they personally have been injured“) (quotations omitted).
Corbett’s claim of future injury is weakened still further because, even accepting the small chance that Corbett may be randomly subjected to the new policy at some indeterminate time in the future, there’s an even smaller chance that his random selection for participation in the mandatory screening program will result in a constitutional injury. As we’ve said, sometimes our standing analysis requires us to take a “peek” at the merits of the underlying constitutional claim. Club Madonna, Inc. v. City of Miami Beach, 924 F.3d 1370, 1382 (11th Cir. May 24, 2019)). We explained in Club Madonna that while “standing in no way depends on the merits” of a plaintiff’s claim, “it often turns on the nature and source of the claim asserted,” and in some circumstances “weakness on the merits” informs the question of Article III standing. Id. (quotations omitted); id. at 1383 (holding that the Club lacked standing where, among other things, it could not “clear the low bar of demonstrating that the challenged provisions are at least arguably [unconstitutionally] vague as applied to it“). And in Lyons, the Supreme Court relied in part on the recognition that not every “traffic stop, arrest, or other encounter between the police and a citizen” will result in “the police [acting] unconstitutionally and inflict[ing] injury without provocation or legal excuse.” 461 U.S. at 108. Similarly, in J W, we relied in part on the realization that the “chance of being unconstitutionally sprayed” was “miniscule.” 904 F.3d at 1268 (emphasis added); see also Kerr v. City of West Palm Beach, 875 F.2d 1546, 1554 (11th Cir. 1989) (concluding that plaintiffs who had been seriously injured when bitten by police dogs in the course of their arrests by West Palm Beach police officers lacked standing where the police policy might “permit unconstitutional seizures in some circumstances,” but did “not require its officers to act unconstitutionally“).
Here, Corbett has alleged that the TSA policy -- which randomly selects certain passengers to undergo mandatory AIT screening -- violates the Fourth Amendment. Notably, however, a panel of this Court has already held, when Corbett challenged the previous TSA screening regime on Fourth Amendment grounds, that the use of AIT scanners is constitutional. See Corbett I, 767 F.3d at 1174. We explained that “[t]he scanners at airport checkpoints are a reasonable administrative search [under the Fourth Amendment] because the governmental interest in preventing terrorism outweighs the degree of intrusion on Corbett’s privacy and
While Corbett I involved TSA’s prior system -- which allowed passengers to opt-out of AIT screening and choose a pat-down instead -- the opinion did not turn on the opt-out option. To the contrary, Corbett took issue with alternative pat-down procedures as well. Corbett I, 767 F.3d at 1182. And in any event, we explained that “the United States enjoys flexibility in selecting from among reasonable alternatives for an administrative search.” Id. at 1181. “The Fourth Amendment does not compel the Administration to employ the least invasive procedure or one fancied by Corbett.” Id. at 1182.
Nor does the strength of his APA claims bolster his standing arguments. Again, without drawing any conclusions, despite Petitioner’s suggestion that TSA failed to use the notice-and-comment rulemaking process to implement the challenged screening policy, the policy was promulgated after a notice-and-comment rulemaking process that expressly invited comment on “the ability of passengers to opt-out of AIT screening.”
All of this is to say that Corbett has not shown a substantial likelihood of a future injury that is “real and immediate,” “actual and imminent,” and not “conjectural” or “hypothetical.” Lujan, 504 U.S. at 560 (quotations omitted); Lyons, 461 U.S. at 102 (quotations omitted). Just as in Lyons, where the Supreme Court determined that the likelihood of unconstitutional chokeholds was too remote, or as in J W, where this Court found that the likelihood of being unconstitutionally sprayed was too removed, we cannot say that the likelihood of Corbett being unconstitutionally scanned at the airport is substantial enough. To be clear, we cannot and do not hold that the mandatory AIT scanning now used by TSA is constitutional; we can’t reach that question without the power to do so. See Bochese, 405 F.3d at 974. Nevertheless, we are able to say that based on our holding in Corbett I that TSA’s AIT scanning regime as a general matter was not unconstitutional, and more importantly, based on our reading of this record, it’s entirely too speculative to assume that Corbett would be subjected to TSA’s new policy in an unconstitutional manner.3
As for Corbett’s alternative argument that he has standing based on the “chilling
His remaining arguments fare no better. He suggests that because he has also brought claims under the
And to the extent Corbett points to this Court’s exercise of jurisdiction in Corbett I, it’s also irrelevant because there, he was challenging a different policy that applied to all passengers, see Corbett I, 767 F.3d at 1174 (describing the challenged policy as “standard operating procedures
Finally, it may be possible for Corbett to bring a Fourth Amendment challenge to TSA’s policy in the future -- if, among other things, he is able to establish, based on a new set of facts, that he has a substantial likelihood of injury that is “real and immediate,” “actual and imminent,” and not “conjectural” or “hypothetical.” Lujan, 504 U.S. at 560 (quotations omitted); Lyons, 461 U.S. at 102 (quotations omitted). All we hold today -- indeed all we could hold today -- is that on this record, Corbett has not claimed a sufficient injury in fact. He’s not said that he’s ever been subjected to the TSA policy, let alone that he suffers a greater likelihood of injury in the future than the likelihood urged by the unsuccessful plaintiffs in Lyons, or in J W, or in Elend -- for purposes of our standing inquiry. We are, therefore, required to dismiss his petition.
PETITION DISMISSED.
Notes
Since the filing of Corbett‘s petition, TSA moved this Court to supplement the record with additional SSI materials, also reproduced in TSA‘s Supplemental Appendix. Because the materials contained therein are relevant to the questions before us and will allow us to make a more informed decision as to standing, we GRANT TSA‘s motion to supplement. See Schwarz v. Millon Air, Inc., 341 F.3d 1220, 1225 n.4 (11th Cir. 2003); see also Corbett I, 767 F.3d at 1183 (granting TSA‘s motion to seal SSI materials information because “Corbett has no statutory or regulatory right to access it“).