Durso v. Napolitano

• Decision Date: 05 July 2011
• Docket Number: Civil Action No. 10–02066 (HHK).
• Parties: Adrienne DURSO, et al., Plaintiffs,v.Janet NAPOLITANO, in her official capacity as Secretary of Homeland Security, and John S. Pistole, in his official capacity as Administrator of the Transportation Safety Administration, Defendants.
• Court: U.S. District Court — District of Columbia

795 F.Supp.2d 63

Adrienne DURSO, et al., Plaintiffs,

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

Civil Action No. 10–02066 (HHK).

United States District Court, District of Columbia.

July 5, 2011.

John Daniel Victor Ferman, Drinker Biddle & Reath LLP, Washington, DC, for Plaintiffs.

Jesse Z. Grauman, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

HENRY H. KENNEDY, JR., District Judge.

Plaintiffs Adrienne Durso, D. Chris Daniels, and Michelle Nemphos (on behalf of her minor child C.N.) bring this action against Secretary of Homeland Security Janet Napolitano and Administrator of the Transportation Safety Administration (“TSA”) John S. Pistole, challenging TSA's use of advanced imaging technology (“AIT”) and aggressive pat-downs to screen airline passengers at airports. Plaintiffs allege that TSA's use of these measures violates the Fourth Amendment's ban on unreasonable searches and seizures. Before the Court is defendants' motion to dismiss [# 5], which argues that, because the challenged screening procedures are employed pursuant to a TSA order, the U.S. courts of appeals have exclusive jurisdiction over plaintiffs' challenge thereto. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the motion must be granted.

I. BACKGROUND

Following the September 11, 2001, attacks, Congress created TSA “to prevent terrorist attacks and reduce the vulnerability of the United States to terrorism within the nation's transportation networks.” Def.'s Mot. to Dismiss Ex. 1 (“Kair Decl.”) ¶ 8. TSA's responsibilities include civil aviation security. See 49 U.S.C. §§ 114(d)(1), 44901 et seq. To aid in TSA's aviation security mission, Congress has directed the Secretary of Homeland Security to “give a high priority to developing, testing, improving, and deploying, at airport screening checkpoints, equipment that detects nonmetallic, chemical, biological, and radiological weapons, and explosives, in all forms, on individuals and in their personal property.” Id. § 44925(a).

TSA's operations are guided in part by Standard Operating Procedures (“SOPs”), which provide “uniform procedures and standards” that TSA must follow. Kair Decl. ¶ 10. At issue here is TSA's Screening Checkpoint SOP, which “sets forth in detail the mandatory procedures that [Transportation Security Officers] must apply in screening passengers at all airport checkpoints, and which passengers must follow in order to enter the sterile area of any airport.” Kair Decl. ¶ 10. The SOP was revised on September 17, 2010 to “direct[ ] the use of AIT machines as part of TSA's standard security screening procedures, as well as the use of revised procedures for the standard pat-down.” Kair Decl. ¶ 11. Pursuant to the revised Screening Checkpoint SOP, TSA uses two types of AIT systems: backscatter x-ray machines, and millimeter wave scanners. Kair Decl. ¶¶ 16–17. Because the SOP in question contains sensitive security information, it has not been publicly released and is not part of the record before the Court. See Def.'s Mem. in Supp. of Mot. to Dismiss (“Def.'s Mem.”) at 4 n.2.

Each plaintiff alleges that he or she has been required to undergo AIT screening or the revised pat-down procedure at an airport checkpoint. Durso, who had undergone a mastectomy as part of breast cancer treatment, describes a humiliating and painful patdown in which a TSA agent “repeatedly and forcefully ... prodded” at her chest. Compl. ¶¶ 5, 24–36. Daniels experienced “an aggressive and invasive pat-down of his genitals,” an experience exacerbated by a childhood injury. Compl. ¶¶ 6, 37–54. And Nemphos asserts that C.N., her twelve-year-old daughter, was pulled out of the security screening line and forced to undergo an AIT scan without the knowledge or consent of her parents and without being given an opportunity to refuse. Compl. ¶¶ 8, 55–63. Nemphos alleges that this process violated her family's religious beliefs, by allowing a TSA agent to view an image of C.N.'s naked body, and exposed C.N. to dangerous radiation. Compl. ¶ 60. Plaintiffs filed this action on December 6, 2010, alleging that TSA's screening procedures violate the Fourth Amendment's ban on unreasonable searches and seizures. See U.S. CONST. amend. IV.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint, or a claim therein, for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (“Federal courts are courts of limited jurisdiction.... It is to be presumed that a cause lies outside this limited jurisdiction....”). In response to such a motion, the plaintiff must establish that the Court has subject-matter jurisdiction over the claims in the complaint. See Shuler v. United States, 531 F.3d 930, 932 (D.C.Cir.2008). If the plaintiff is unable to do so, the Court must dismiss the action. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citing Ex parte McCardle, 74 U.S. 506, 514, 7 Wall. 506, 19 L.Ed. 264 (1868)). When resolving a motion made under Rule 12(b)(1), a court may consider material beyond the allegations in the plaintiff's complaint. Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253–54 (D.C.Cir.2005).

III. ANALYSIS

Defendants move to dismiss this action on the ground that it challenges a final TSA order—namely, the Screening Checkpoint SOP—and thus, pursuant to 49 U.S.C. § 46110, falls within the exclusive jurisdiction of the U.S. courts of appeals. In relevant part, § 46110 provides that

a person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security with respect to security duties and powers designated to be carried out by the Under Secretary ...) ... may 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).¹ The court of appeals in which such a petition is filed “has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order and may order the Secretary, Under Secretary, or Administrator to conduct further proceedings.” Id. § 46110(c). Defendants contend that this language divests this Court of jurisdiction to adjudicate plaintiffs' Fourth Amendment claim.

Plaintiffs make a number of responses. First, they contend that the Screening Checkpoint SOP is not an “order” that is subject to § 46110. Second, they argue that § 46110 does not apply to this case because their constitutional challenge to TSA's procedures is distinct from a challenge to the SOP. And third, they contend that forcing them to proceed in a court of appeals would constitute a denial of due process. The Court addresses each issue in turn.

A. The Screening Checkpoint SOP is an Order Subject to § 46110

Although § 46110 does not define the term “order,” the D.C. Circuit has explained what constitutes an order thereunder:

To be deemed ‘final’ and thus reviewable as an order under 49 U.S.C. § 46110, an agency disposition ‘must mark the consummation of the agency's decisionmaking process,’ and it ‘must determine rights or obligations or give rise to legal consequences.’ As a general principle, ‘the term order in [section 46110] should be read expansively.’

Safe Extensions, Inc. v. FAA, 509 F.3d 593, 598 (D.C.Cir.2007) (quoting City of Dania Beach v. FAA, 485 F.3d 1181, 1187 (D.C.Cir.2007)) (alteration in original) (internal citation omitted); see City of Dania Beach, 485 F.3d at 1188 (holding an agency letter to be a final order where nothing therein “indicate[d] that the [agency's] statements and conclusions [we]re tentative, open to further consideration, or conditional on future agency action”).

Here, defendants contend that the Screening Checkpoint SOP meets both of these criteria. It is final, they aver, because it sets forth firm requirements that apply to TSA and airline passengers alike, with no further agency action required to trigger those requirements. Likewise, they contend that it “give [s] rise to legal consequences” because it lays out procedures that passengers must follow if they wish to gain access to the restricted areas of an airport terminal.

Plaintiffs do not dispute that the SOP gives rise to legal consequences. They do, however, assert that the SOP cannot constitute an order for three separate reasons: first, the SOP is not final; second, the SOP is not supported by an adequate administrative record; and third, TSA did not provide public notice of the SOP's issuance. The Court addresses each argument in turn.

1. Finality

Plaintiffs first contend that the Screening Checkpoint SOP cannot be an order reviewable under § 46110 because it is not final. See Safe Extensions, 509 F.3d at 598. In support of this argument, plaintiffs point to defendants' statement that the SOP can be “revised as necessary- and often upon short notice,” Kair Decl. ¶ 12, and to the fact that it has already been revised once since September 2010. Plaintiffs infer from the SOP's revisability that it is not final. The Court does not agree.

Simply put, plaintiffs provide no authority for the proposition that an otherwise-authoritative order is not final for the purposes of § 46110 simply because it is subject to revision. The rule that an order is not final unless it marks the “consummation” of the agency's decisionmaking process does not mean that an order must be set in stone to be considered final; rather, it must have immediate effect. See ...