727 F.3d 77 (1st Cir. 2013), 11-1805, Redfern v. Napolitano

Docket Nº:11-1805
Citation:727 F.3d 77
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:JEFFREY H. REDFERN; ANANT N. PRADHAN, Plaintiffs, Appellants, v. JANET NAPOLITANO, in her official capacity as Secretary of Homeland Security; JOHN S. PISTOLE, in his official capacity as Administrator of the Transportation Security Administration, Defendants, Appellees
Attorney:Jeffrey H. Redfern, pro se, with whom Anant N. Pradhan, Pro se, was on brief for appellants. Mahesha P. Subbaraman, with whom Robins, Kaplan, Miller & Ciresi, LLP, was on brief for Freedom to Travel USA, Amicus Curiae. Sharon Swingle, Attorney, Appellate Staff, Civil Division, U.S. Department of ...
Judge Panel:Before Torruella, Lipez and Howard, Circuit Judges.
Case Date:July 11, 2013
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 77

727 F.3d 77 (1st Cir. 2013)

JEFFREY H. REDFERN; ANANT N. PRADHAN, Plaintiffs, Appellants,

v.

JANET NAPOLITANO, in her official capacity as Secretary of Homeland Security; JOHN S. PISTOLE, in his official capacity as Administrator of the Transportation Security Administration, Defendants, Appellees

No. 11-1805

United States Court of Appeals, First Circuit

July 11, 2013

Page 78

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Denise J. Casper, U.S. District Judge.

Vacated and Remanded.

Jeffrey H. Redfern, pro se, with whom Anant N. Pradhan, Pro se, was on brief for appellants.

Mahesha P. Subbaraman, with whom Robins, Kaplan, Miller & Ciresi, LLP, was on brief for Freedom to Travel USA, Amicus Curiae.

Sharon Swingle, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, with whom Mark B. Stern, Sydney Foster, Douglas N. Letter, Attorneys, Appellate Staff, Tony West, Assistant Attorney General, Stuart F. Delery, Principal Deputy Assistant Attorney General, and Carmen M. Ortiz, United States Attorney, were on brief for appellees.

Before Torruella, Lipez and Howard, Circuit Judges.

OPINION

Page 79

TORRUELLA, Circuit Judge.

Pro S.E. plaintiff-appellants Jeffrey H. Redfern and Anant N. Pradhan filed an action in the district court challenging the constitutionality of the Transportation Security Administration's (TSA) use of Advanced Imaging Technology (AIT) body scanners and enhanced pat-downs as primary methods of passenger screening at U.S. airports. The district court dismissed appellants' claims for declaratory and injunctive relief on the ground that it was without jurisdiction to entertain them, because the case should have been filed directly with this court in accordance with 49 U.S.C. § 46110. Appellants appealed and we ordered the parties to conduct extensive briefing, both on the jurisdictional issue and on the merits of appellants' constitutional claims.

The government, however, has informed us that, as of May 16, 2013, the AIT scanners currently deployed at passenger screening checkpoints are no longer generating the revealing images of passengers' bodies that spawned this lawsuit; instead, they are displaying a generic outline of a person for all passengers. Given the potential impact of this new development on the justiciability of the case, we ordered the parties to conduct additional briefing

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addressing the question of whether appellants' claims have now become moot. Having reviewed the pertinent submissions, we conclude that the claims have indeed become moot, and we therefore vacate the judgment below and remand the case with instructions to dismiss based on mootness.

I. Background

Congress created the TSA in response to the September 11, 2001, terrorist attacks and charged it with ensuring civil aviation security, including the screening of all passengers and property that move through U.S. airports. See 49 U.S.C. § 114(d). The agency complies with this mandate in part by issuing Standard Operating Procedures (SOPs), which are approved by the TSA Administrator and set forth the uniform practices to be followed by TSA personnel. One such SOP, called the Screening Checkpoint SOP, specifies the procedures that govern the screening of passengers and property at all passenger screening checkpoints.

On September 17, 2010, the TSA issued a revised Screening Checkpoint SOP, which was to be implemented on October 29, 2010 (the " 2010 SOP" ). The government notes that this directive contains " updated procedures for detecting nonmetallic explosive devices and weapons," including the use of AIT scanners and enhanced pat-downs. The 2010 SOP authorizes the use of two types of AIT scanners (1) backscatter x-ray scanners (which use small amounts of x-rays) and (2) millimeter-wave scanners (which use radio waves). The TSA began using AIT scanners in 2007 to provide secondary screening for selected passengers, but the 2010 SOP for the first time authorizes their use as primary screening tools.

The 2010 SOP also provides that persons who prefer not to undergo an AIT scan may instead opt for an enhanced pat-down. According to appellants, this procedure is highly intrusive, involving " the touching of the genitals, buttocks, and . . . breasts of the individual being screened." In their view, this procedure, " if done non-consensually, would amount to a sexual assault in most jurisdictions." A traveler is not permitted to opt out of the enhanced pat-down and receive a standard pat-down or metal-detection inspection. Furthermore, a traveler who refuses to undergo one or the other of these new procedures will not be permitted to fly. 49 U.S.C. § 44902(a)(1).

Appellants commenced this action in federal district court in Massachusetts against Janet Napolitano, in her official capacity as Secretary of Homeland Security, and John Pistole, in his official capacity as Administrator of the TSA (collectively, the " appellees" ). In their complaint, appellants submit that they are " regular air travelers" who have been subjected to both AIT scanners and enhanced pat-downs during recent trips around the country, and that they foresee being subjected to the same procedures in future planned trips. They claim that AIT scanners " produce clear images of the nude body of the searched party" and that the TSA has provided them with no guarantee that the generated images will not be saved. They thus argue that the TSA's use of these screening procedures violates their rights under the Fourth Amendment against unreasonable searches and seizures, as well as their right to privacy and interstate travel. Their complaint seeks a declaratory judgment that the new screening procedures are unconstitutional and a permanent injunction against the use of such techniques " without reasonable suspicion or probable...

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