Elhady v. Pekoske, No. 18-3582

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtJANE B. STRANCH, Circuit Judge.
PartiesANAS ELHADY, et al., Petitioners, v. DAVID PEKOSKE, Administrator of the Transportation Security Administration (TSA), Respondent.
Decision Date17 November 2020
Docket NumberNo. 18-3970,No. 18-3799,No. 18-3582

ANAS ELHADY, et al., Petitioners,
DAVID PEKOSKE, Administrator of the
Transportation Security Administration (TSA), Respondent.

No. 18-3582
No. 18-3799
No. 18-3970


November 17, 2020

File Name: 20a0654n.06




STRANCH, J., delivered the opinion of the court in which NALBANDIAN, J., joined, and SUHRHEINRICH, J., joined in the result. NALBANDIAN, J. (pp. 7-9), delivered a separate concurring opinion.

JANE B. STRANCH, Circuit Judge. This consolidated petition for review grows out of litigation in a district court in Virginia over the federal government's Terrorist Screening Database, often called the "Watchlist." At issue in this appeal is whether Congress granted the Transportation Security Administration (TSA) authority under 49 U.S.C. § 114(r) to designate and withhold information as Sensitive Security Information (SSI) in response to discovery requests during civil litigation. Because we lack jurisdiction under 49 U.S.C. § 46110 to answer this question, we DISMISS the petition.

Petitioners, Michigan residents, brought suit in Virginia challenging their inclusion in and the constitutionality of the Watchlist. See Elhady v. Kable, No. 16-cv-375 (E.D. Va. 2016). They claimed that Respondents/Defendants—federal officials of various executive agencies, including

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the Terrorism Screening Center (TSC)—maintained Watchlist programs that violate the Administrative Procedure Act, the non-delegation doctrine, and procedural and substantive due process and equal protection under the Fifth Amendment. Petitioners seek a declaratory judgment that Respondents' policies violate their constitutional rights; they also seek an injunction requiring that Respondents provide notice of and the reasons for an individual's placement on the Watchlist, as well as a meaningful opportunity to contest their continued inclusion on the Watchlist.

On September 5, 2017, the district court in the underlying action dismissed Plaintiffs' claims on substantive due process, the Equal Protection Clause, and the non-delegation doctrine, but held that they had sufficiently pled their due process and APA claims. Elhady v. Piehota, 303 F. Supp. 3d 453, 468 (E.D. Va. 2017). The parties proceeded with discovery. Plaintiffs served discovery requests on the Defendants under Federal Rules of Civil Procedure 33 and 34, and subsequently filed three separate motions to compel under Rule 37. Relevant here, Plaintiffs seek evidence related to (1) the status of individuals on the various Watchlists; (2) criteria for selecting individuals for the Watchlists; and (3) statistics related to the effectiveness of Watchlists.

In defending against Plaintiffs' motions to compel, the TSC, which houses the materials sought, referred the documents responsive to the discovery requests to the TSA pursuant to 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.9 for review to determine whether the documents constitute SSI. The TSA reviewed the materials and issued three separate orders (the Final Orders) determining that many of the requested documents contain Sensitive Security Information. The Final Orders determined that the requested information fell within three categories of SSI: "[t]hreat information," 49 C.F.R. § 1520.5(b)(7); "[s]ecurity screening information" for procedures "for screening of persons," 1520.5(b)(9)(i); and "[s]ecurity screening information" for "[i]nformation and sources of information used by a passenger . . . screening program or system," 1520.5(b)(9)(ii).

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Because Plaintiffs/Petitioners reside in Michigan, the Final Orders were brought to this court for review. Our jurisdiction arises under 49 U.S.C. § 46110(a), which provides that "a person disclosing a substantial interest in an order issued by the [TSA] . . . may apply for review of the order by filing a petition for review in . . . the court of appeals of the United States for the circuit in which the person resides." 49 U.S.C. § 46110(a). Petitioners challenge the Final Orders as outside the authorization of 49 U.S.C. § 114(r). They do not challenge the SSI designation or the justifications for it; their argument is that during the course of civil litigation, the TSA does not have authority to collect documents responsive to discovery requests, then designate those materials as SSI and withhold them from production. Our first step is to ascertain whether we have jurisdiction to address that issue.

We begin with a brief explanation of the relationship among the applicable statutes. The TSA ensures aviation security and may withhold information under 49 U.S.C. § 114(r) and 49 C.F.R. § 1520.5. In 2002, Congress enacted the Homeland Security Act, 116 Stat. 2135, which provides that the TSA "shall prescribe regulations prohibiting the disclosure of information . . . if the Administrator decides that disclosing the information would . . . be detrimental to the security of transportation." 49 U.S.C. § 114(r)(1)(C); see also Final Rule, 67 Fed. Reg. 8340, 8342 (Feb. 22, 2002) (explaining that the agency's regulations protect from disclosure "[i]nformation that could help someone determine how to defeat [transportation] security systems"). Under this authority, the TSA promulgates rules defining and providing for the withholding of SSI.

TSA regulations define "sensitive security information" as, among other things, "[a]ny approved, accepted, or standard security program . . . and any comments, instructions, or implementing guidance pertaining thereto," as well as "[a]ny selection criteria used in any security screening process, including for persons, baggage, or cargo." 49 C.F.R....

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