Corbett v. Transp. Sec. Admin.

• Decision Date: 19 July 2019
• Docket Number: No. 15-15717,15-15717
• Citation: 930 F.3d 1225
• Parties: Jonathan CORBETT, Petitioner, v. TRANSPORTATION SECURITY ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

930 F.3d 1225

Jonathan CORBETT, Petitioner,

v.TRANSPORTATION SECURITY ADMINISTRATION, Respondent.

No. 15-15717

United States Court of Appeals, Eleventh Circuit.

July 19, 2019

Jonathan Corbett, Pro Se.

Sharon Swingle, Michael Shih, U.S. Attorney General's Office, Washington, DC, Emily M. Smachetti, U.S. Attorney Service-SFL, Miami, FL, for Respondent.

Petition for Review of a Decision of the Transportation Security Administration, Agency No. 49 U.S.C. section 46110

Before TJOFLAT, MARCUS and ROSENBAUM, Circuit Judges.

MARCUS, Circuit Judge:

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 Fourth Amendment of the United States Constitution. In an earlier lawsuit that wound up before this Court, Corbett sought to reverse a decision of TSA, challenging the Administration’s previous policy that gave passengers at airport security checkpoints the option of obtaining security clearances through either advanced imaging technology (AIT) body screeners or alternative screening procedures, like a physical pat down. A panel of this Court dismissed Corbett’s petition as being untimely, and, alternatively, held that TSA’s use of body scanners and pat-down procedures did not violate the Fourth Amendment. Corbett v. TSA, 767 F.3d 1171, 1182 (11th Cir. 2014) (" Corbett I"). We had little trouble concluding that the substantial danger to life and property that could result from airplane terrorism outweighed the possible intrusion of TSA’s AIT and pat-down screening procedures on airline passengers. Id.

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. As pled, Corbett lacks the necessary standing to bring this petition, and, accordingly, we are required to dismiss it.

In the absence of standing, the federal courts do not have the power to opine in an advisory capacity about the merits of these claims. We have repeatedly held that "[s]tanding is a threshold jurisdictional question which must be addressed prior to and independent of the merits of a party’s claims." Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (quotations omitted; citing, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ). The essential problem here is that Corbett has failed to establish that he suffered an injury in fact, that is, the invasion of a judicially cognizable interest that is concrete and particularized and actual and imminent.

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, 95 S.Ct. 2197, 45 L.Ed.2d 343 (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 federal jurisdiction bears the burden of establishing standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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. 49 U.S.C. § 114(d). The Administrator is required to "assess current and potential threats to the domestic air transportation system," take all necessary steps to protect the Nation from those threats, and improve transportation security in general. Id. §§ 44903(b), 44904(a), (e). Among other things, the Administrator must ensure that "all passengers and property" are screened before boarding, to prevent passengers from "carrying unlawfully a dangerous weapon, explosive, or other destructive substance." Id. §§ 44901(a), 44902(a).

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 49 U.S.C. § 44925(a) (directing TSA to "give a high priority" to the development of new technologies to detect such threats). The danger caught this nation’s attention when, on Christmas Day, 2009, a terrorist affiliated with Al Qaeda in the Arabian Peninsula attempted to destroy a plane using a nonmetallic explosive device hidden in his underwear. Passenger Screening Using Advanced Imaging Technology, 78 Fed. Reg. 18,287, 18,299 (Mar. 26, 2013) (notice of proposed rulemaking); see also id. (describing similar attempts). The screening procedures then in effect, which included the use of metal detectors and pat-downs, could not detect the Christmas Day bomber’s device. Id.

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 items, including nonmetallic threat items, that TSA has discovered using advanced imaging technology). Indeed, TSA has determined that AIT scanners are the "most effective technology currently available" to repair this "critical weakness" in the Nation’s security infrastructure. 81 Fed. Reg. at 11,365.

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. 49 U.S.C. § 44901(l ). Moreover, the AIT scanners in use at American airports do not collect any personally identifiable information, they do not display an individualized image every time a passenger passes through them, and they are not configured to store or to transmit any passenger-specific images. See 81 Fed. Reg. 11,373 –82; Privacy Impact Assessment Update for TSA Advanced Imaging Technology, DHS/TSA/PIA-032(d), at 4 (Dec. 18, 2015).

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 49 U.S.C. § 46110. Petitioner appealed and moved for interim injunctive relief. A panel of this Court denied that motion, see Order, Corbett v. United States, No. 11-12426 (11th Cir. July 27, 2011), and affirmed the district court’s judgment, see Corbett v. United States, 458 F. App'x 866, 871 (11th Cir. 2012), cert. denied, 568 U.S. 819, 133 S. Ct. 161, 184 L.Ed.2d 33 (2012).

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 Fourth Amendment. Corbett I, 767 F.3d at 1184. Petitioner unsuccessfully sought certiorari review. Corbett v. TSA, ––– U.S. ––––, 135 S. Ct. 2867, 192 L.Ed.2d 897 (2015).

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, ––– U.S. ––––, 135 S. Ct. 1559, 191 L.Ed.2d 639 (2015). He lodged twenty-one claims against TSA, a TSA official, Broward County and the Broward County Sheriff’s Office, including Fourth Amendment claims against the TSA official at the airport, Federal Tort Claims Act ("FTCA") claims against the United States, Privacy Act claims against TSA, and a claim against TSA for unredacted records under the Freedom of Information Act ("FOIA"). Id. at 695. After the district court dismissed the majority of Corbett’s claims for failure to state a claim and granted summary judgment on the remaining FOIA claims, a panel of this Court affirmed. Id. at 692. We held that the district court had not erred because, among other things, the search of Corbett’s bags by the TSA official and TSA’s detention of...