Blitz v. Napolitano

• Decision Date: 30 November 2012
• Docket Number: No. 11–2283.,11–2283.
• Citation: 700 F.3d 733
• Parties: Jonathan BLITZ and Marla Tuchinsky, individually and as legal guardians of EB, their minor child, Plaintiffs–Appellants, v. Janet NAPOLITANO, in her official capacity as Secretary of Homeland Security; John S. Pistole, in his official capacity as the Administrator of the Transportation Security Administration, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

700 F.3d 733

Jonathan BLITZ and Marla Tuchinsky, individually and as legal guardians of EB, their minor child, Plaintiffs–Appellants,

v.Janet NAPOLITANO, in her official capacity as Secretary of Homeland Security; John S. Pistole, in his official capacity as the Administrator of the Transportation Security Administration, Defendants–Appellees.

No. 11–2283.

United States Court of Appeals,Fourth Circuit.

Argued: Oct. 25, 2012.

Decided: Nov. 30, 2012.

ARGUED: Jonathan Blitz, Durham, North Carolina, for Appellants. Sydney A.R. Foster, United States Department of Justice, Washington, D.C., for Appellees. 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 Carolina, for Appellees.

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 opinion, in which Judge FLOYD and Judge HARWELL joined.

OPINION

KING, Circuit Judge:

Jonathan Blitz, his wife Marla Tuchinsky, and their minor child EB (collectively, the “Plaintiffs”) appeal from the district 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”), challenging the use of advanced imaging technology (“AIT”) scanners and invasive pat-downs at airport screening checkpoints 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 vests exclusive jurisdiction in an appropriate court of appeals with respect to a challenge to an order issued by the Administrator 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 procedures 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 provisionat 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 predicate 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 scanners 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 technologies are able to detect anomalies underneath an air passenger'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 subjected 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.³ The Declaration explained that,

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 Standard Operating Procedures (SOP) for checkpoint screening, which was most recently revised on September 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 passenger 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 procedures.Id. 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. See49 U.S.C. § 114(r).⁵

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, Plaintiff Tuchinsky has opted out of AIT screenings on two occasions 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 produce 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 constitutionality of those practices.

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 Pistole'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 reasoning 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 Fed.Appx. 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 general 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 significance 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 finished with the case.’ ” Id. (quoting Hill v. Potter, 352 F.3d 1142, 1144 (7th Cir.2003)).

We are satisfied that, in this situation, the...