Corbett v. Transp. Sec. Admin.

• Decision Date: 10 December 2021
• Docket Number: No. 21-1074,21-1074
• Citation: 19 F.4th 478
• Parties: Jonathan CORBETT, Petitioner v. TRANSPORTATION SECURITY ADMINISTRATION and David P. Pekoske, in His Official Capacity as Administrator of the Transportation Security Administration, Respondents
• Court: U.S. Court of Appeals — District of Columbia Circuit

19 F.4th 478

Jonathan CORBETT, Petitioner

v.TRANSPORTATION SECURITY ADMINISTRATION and David P. Pekoske, in His Official Capacity as Administrator of the Transportation Security Administration, Respondents

No. 21-1074

United States Court of Appeals, District of Columbia Circuit.

Submitted October 13, 2021

Decided December 10, 2021

Jonathan Corbett, pro se, was on the briefs for petitioner.

Brian M. Boynton, Acting Assistant Attorney General, U.S. Department of Justice, and Jennifer L. Utrecht and Daniel Tenny, Attorneys, were on the brief for respondents.

Before: Henderson and Tatel, Circuit Judges, and Edwards, Senior Circuit Judge.

Dissenting Opinion filed by Circuit Judge Henderson.

Edwards, Senior Circuit Judge:

In January 2021, in response to the ongoing COVID-19 pandemic, the Transportation Security Administration ("TSA") issued several directives and an emergency amendment mandating that masks be worn in airports, on commercial aircraft, and on surface transportation such as buses and trains ("Mask Directives"). In February 2021, pro se petitioner Jonathan Corbett ("Petitioner" or "Corbett"), a frequent flyer, filed a petition for review pursuant to 49 U.S.C. § 46110(a) to challenge the Mask Directives. Corbett does not challenge the wisdom of a government agency requiring face masks in airports and on airplanes. Rather, he claims that TSA had no authority to issue the Mask Directives.

In support of his claim, Corbett's central argument is that TSA's statutory authority under the Aviation and Transportation Security Act, Pub. L. No. 107-71, 115 Stat. 597 (2001) (codified in 49 U.S.C. § 114 and scattered sections of 49 U.S.C.) ("Act"), is limited to developing policies and promulgating directives to protect against violent threats to transportation and ensure the security of airports and other transportation facilities against criminal attack. According to Corbett, this authority does not empower TSA to require face masks to prevent the spread of COVID-19. Corbett contends that TSA's Mask Directives purport to regulate general health and safety, not transportation security. Therefore, in his view, TSA's Mask Directives are ultra vires .

Because we find no merit in Corbett's claim, we deny the petition for review. The COVID-19 global pandemic poses one of the greatest threats to the operational viability of the transportation system and the lives of those on it seen in decades. TSA, which is tasked with maintaining transportation safety and security, plainly has the authority to address such threats under both sections 114(f) and (g) of the Aviation and Transportation Security Act. See 49 U.S.C. § 114(f), (g).

I. BACKGROUND

In the wake of the deadly September 11, 2001, terrorist attacks, Congress created TSA to safeguard this country's civil aviation security and safety. 49 U.S.C. § 114 ; see Alaska Airlines, Inc. v. TSA , 588 F.3d 1116, 1117-18 (D.C. Cir. 2009) (citing 49 U.S.C. § 114 ). The Act confers upon the agency broad authority to "assess threats to transportation" and "develop policies, strategies, and plans for dealing with" such threats. 49 U.S.C. § 114(f)(2), (3). This authority extends to "ensur[ing] the adequacy[ ] of security measures at airports and other transportation facilities," as well as "work[ing] in conjunction with the ... Federal Aviation Administration with respect to any actions or activities that may affect aviation safety or air carrier operations." Id. § 114(f)(11), (13). "[T]o carry out the functions of the [TSA]," the agency "is authorized to issue, rescind, and revise such regulations as are necessary." Id. § 114(l )(1).

The global COVID-19 pandemic has, to date, resulted in the deaths of more than 750,000 persons in the United States. Centers for Disease Control and Prevention, COVID Data Tracker Weekly Review , http://go.usa.gov/x6Zge (last visited Nov. 22, 2021). When President Biden assumed office, he issued an Executive Order directing agencies, including TSA, to "immediately take action ... to require masks to be worn" in airports, on airplanes, and on buses and trains. Exec. Order No. 13,998, 86 Fed. Reg. 7205, 7205 (Jan. 21, 2021), reprinted in Supplemental Appendix ("S.A.") 1 ("Executive Order"). The President said that the action was critical "to save lives and allow all Americans, including the millions of people employed in the transportation industry, to travel and work safely." Id.

On January 27, 2021, the Acting Secretary of the Department of Homeland Security determined that the COVID-19 pandemic constitutes a "national emergency." See Determination of a National Emergency Requiring Actions to Protect the Safety of Americans Using and Employed by the Transportation System, 86 Fed. Reg. 8217, 8218, 8219 (Feb. 4, 2021), reprinted in S.A. 5-6. This determination reaffirmed determinations that had been made by the Executive Branch dating back to March 2020. Id. at 8218. The January 2021 determination found that the pandemic was "a threat to our health and security" and "a threat to transportation." Id. at 8218, 8219. The Secretary directed TSA "to take actions consistent with the authorities in [the Act] ... to implement the Executive Order to promote safety in and secure the transportation system." Id. at 8218. This included any measures "necessary to protect the transportation system ... from COVID-19 and to mitigate [its] spread ... through the transportation system." Id. at 8218-19.

In response to the emergency determination, TSA issued several security directives and an emergency amendment mandating that masks be worn in airports, on commercial aircraft, and on surface transportation such as buses and trains. Security Directives Nos. 1582/84-21-01, 1542-21-01, 1544-21-02, reprinted in S.A. 13-26; Emergency Amendment 1546-21-01, reprinted in S.A. 27-31 (collectively, "Mask Directives"). The Mask Directives instruct airport operators, domestic aircraft operators, foreign air carriers, and surface transportation operators to require passengers and employees to wear a mask "covering the nose and mouth" "at all times" while in transportation hubs and on conveyances. See, e.g. , Security Directive No. 1542-21-01 at 2, reprinted in S.A. 19. Children under two, people with disabilities who cannot wear a mask, or workers for whom a mask would create a risk to workplace health or safety are exempt from the mandate. See, e.g. , id. at 3, reprinted in S.A. 20. In addition, the Mask Directives provide exceptions to the mask requirement for "eating, drinking, or taking oral medications for brief periods," "for identity verification purposes," or "while communicating with a person who is deaf or hard of hearing." See, e.g. , id. at 2-3, reprinted in S.A. 19-20.

Airport and aircraft operators are required to notify passengers of the mask requirements and ask them to put on a mask if they are not wearing one. See, e.g. , id. at 2, reprinted in S.A. 19. Passengers who refuse to comply must be denied boarding, removed from the aircraft or airport, and reported to TSA. See, e.g. , id. at 2, 4, reprinted in S.A. 19, 21; Security Directive No. 1544-21-02 at 2, 4, reprinted in S.A. 23, 25. These passengers may face penalties of between $500 to $1,000 for first-time offenders and $1,000 to $3,000 for second-time offenders. See TSA, Penalty for Refusal to Wear a Face Mask , https://www.tsa.gov/coronavirus/penalty-mask (last visited Nov. 14, 2021).

In a separate action, the Centers for Disease Control and Prevention ("CDC") issued its own order that also requires passengers and employees to wear face masks in and on the transportation system. See Requirement for Persons To Wear Masks While on Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025, 8029 (Feb. 3, 2021) ("CDC Order") reprinted in S.A. 11. The CDC Order and TSA Mask Directives overlap in some respects, but there are differences. For example, while they both permit removing masks for "brief periods" to eat or drink, TSA's directives additionally specify that masks must be worn "between bites and sips" of food and drink. See, e.g. , id. at 8027 ; Security Directive No. 1544-21-02 at 3, reprinted in S.A. 24. The TSA Mask Directives also require operators to report incidents of noncompliance to TSA and carry the potential for civil penalties. See, e.g. , Security Directive No. 1544-21-02 at 2, 4, reprinted in S.A. 23, 25.

On February 26, 2021, Corbett filed a timely petition for review of the TSA Mask Directives pursuant to 49 U.S.C. § 46110(a). Section 46110(a) permits any person with "a substantial interest in an order" issued by TSA "with respect to security duties and powers ... [to] 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." 49 U.S.C. § 46110(a). The reviewing court has "exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order." Id. § 46110(c).

Petitioner Jonathan Corbett is a frequent flyer who has "flown several hundred thousands of miles in the past decade, including at least a dozen flights during the ‘pandemic period’ of the last 12 months." Corbett Affirmation, Br. of Pet'r, Ex. A, at 1. Corbett "intend[s] to continue this rate of travel" and has "a currently-booked flight in the near future." Id. ; Br. of Pet'r 7. As a result of his frequent travel, Corbett says that he is subject to the TSA Mask Directives "dozens of times annually." Br. of Pet'r 7. Corbett further alleges that, "[b]ut for" the TSA Mask Directives, "[he] would wear a mask at fewer times." Corbett Affirmation 1.

The essence of Corbett's petition for review is that TSA has no statutory authority to address the threat that the COVID-19 global pandemic poses to the nation's transportation systems. The petition for review challenges the three security directives and one emergency amendment issued by TSA on...