Redfern v. Napolitano

United States Court of Appeals
For the First Circuit

No. 11-1805

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.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before
Torruella, Lipez and Howard,
Circuit Judges.

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.

July 11, 2013
 TORRUELLA, Circuit Judge. Pro se 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

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

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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.

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 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

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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 cause."

The appellees moved to dismiss the complaint under Rule

12(b)(1) for lack of subject matter jurisdiction, arguing that the

2010 SOP detailing the new screening measures was an "order" under

49 U.S.C. § 46110, and therefore only reviewable by federal courts

of appeals.1 The district court agreed that the SOP was an order

subject to review only by the federal courts of appeals and

determined that appellants' constitutional claims were inescapably

intertwined with the 2010 SOP. Finding that the application of

§ 46110 to the 2010 SOP would not deny appellants meaningful

review, and that they could properly bring their claims before this

1
Said statute provides as follows:

[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 or the Administrator of the
Federal Aviation Administration with respect to aviation
duties and powers designated to be carried out by the
Administrator) . . . 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.

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court, the district court dismissed appellants' complaint.

Appellants timely appealed from this decision.

After the appeal was docketed and the parties briefed the

jurisdictional issue, we entered an order scheduling the case for

oral argument and directing the parties to also brief the merits of

appellants' constitutional claims. We took no stance on the

jurisdictional question presented by the appeal. In its brief

addressing the merits, dated December 26, 2012, appellees informed

us that the TSA had recently developed privacy software for

millimeter-wave scanners "that eliminates passenger-specific images

and instead indicates the location of potential threats on [a]

generic human figure." Appellees claimed that this software,

called "Automatic Target Recognition" (ATR),2 had been installed on

"all" millimeter-wave scanners currently being used for passenger

screening.

A few months later, on March 19, 2013, appellees

informed us, via a Federal Rule of Appellate Procedure 28(j)

letter, that Rapiscan, the manufacturer of the backscatter

scanners, had "been unable to develop effective ATR software for

use in its backscatter machines," and that as a result, TSA had

decided to terminate its contract with them. This move was the

2
49 U.S.C. § 44901(l)(1)(C) defines ATR as "software installed on
an advanced imaging technology that produces a generic image of the
individual being screened that is the same as the images produced
for all other screened individuals."

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result of a new law passed by Congress, the FAA Modernization and

Reform Act of 2012, Pub. L. No. 112-95, § 26, 126 Stat. 11, 132

(Feb. 14, 2012), which required the TSA to ensure that all AIT

scanners being used for passenger screening be equipped with ATR

software by June 1, 2012, a deadline which was further extended by

the TSA to May 31, 2013. An attachment to appellees' Rule 28(j)

letter also stated that "[a]ll Rapiscan AIT units currently

operational at checkpoints around the country, as well as those

stored at the TSA Logistics Center, will be removed by Rapiscan at

their expense and stored until they can be redeployed to other

mission priorities within the government." As a result, appellees

represented that all backscatter scanners were going to be removed

from passenger screening checkpoints by May 31, 2013, leaving only

millimeter-wave scanners equipped with ATR technology in their

stead.

Given the TSA's representation that appellants, at least

in the context of air travel, are no longer to be subjected to

scanning equipment that generates revealing images of their bodies

-- thus considerably allaying their privacy concerns -- we issued

an order requesting the parties to express themselves as to whether

this appeal, or any portion thereof, became moot. The order also

requested the parties to address the issue of whether the

information contained in appellees' March 19, 2013 letter,

regarding the TSA's plans to remove all backscatter scanners from

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checkpoints, could be appropriately considered by the court at this

time. After the parties briefed their positions on these issues,

on June 17, 2013, the government filed another Rule 28(j) letter

informing us that the TSA had indeed removed all backscatter

scanners from passenger screening checkpoints, and that, as of May

16, 2013, "all AIT units deployed by TSA are equipped with ATR

capability."

II. Discussion

This appeal calls on us to resolve two jurisdictional

issues: (1) whether the 2010 SOP is an "order" under 49 U.S.C.

§ 46110, such that jurisdiction did not lie with the district

court; and (2) whether, given recent events, this appeal has become

moot, such that we are no longer with jurisdiction to entertain it

under Article III of the United States Constitution. Because we do

in fact conclude that this appeal is moot and that entering into an

analysis on whether the 2010 SOP is an "order" under § 46110 would

serve no useful purpose, we will bypass that issue altogether, and

proceed to explain our reasoning.

Although an appellate court must normally "satisfy itself

both of its own subject-matter jurisdiction and of the

subject-matter jurisdiction of the trial court before proceeding

further," Royal Siam Corp. v. Chertoff, 484 F.3d 139, 142 (1st Cir.

2007), both Supreme Court and circuit precedent allow us to

sidestep certain jurisdictional issues in select circumstances.

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The Supreme Court in Steel Co. v. Citizens for Better Environment,

523 U.S. 83, 94 (1998), established the general principle that

federal courts are "required to determine whether Article III

jurisdiction exists prior to proceeding to the merits of the case."

United Seniors Ass'n, Inc. v. Philip Morris USA, 500 F.3d 19, 23

(1st Cir. 2007). In Parella v. Retirement Board of Rhode Island

Employees' Retirement System, 173 F.3d 46, 57 (1st Cir. 1999), we

noted that the justices in Steel Co. distinguished between

jurisdictional issues that arise under Article III and those that

arise under federal statutes; "the former should ordinarily be

decided before the merits, but the latter need not be." Id.

Additionally, in subsequent cases we have held that appellate

courts remain free to bypass problematic jurisdictional issues

provided those issues do not implicate Article III's "case or

controversy" requirement. See, e.g., Kelley v. Marcantonio, 187

F.3d 192, 197 (1st Cir. 1999); Royal Siam Co., 484 F.3d at 144;

Aponte-Rosario v. Acevedo-Vilá, 617 F.3d 1, 6 (1st Cir. 2010).

The question whether the district court possessed

jurisdiction to hear this case under § 46110 is plainly an issue of

statutory jurisdiction which we may bypass. This issue does not

involve Article III's requirement of a "case" or "controversy," and

even if we were to resolve it in the government's favor, this court

would still have jurisdiction to hear the case in the first

instance. The question of whether this case is moot, however, does

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call into question our power to hear this case under Article III

and we are thus prohibited from sidestepping it under the above

case-law. Because we find that this case is moot and that we are

without Article III jurisdiction to entertain it, there is little

reason for us to address the statutory jurisdiction issue. We thus

proceed to explain why the instant case must be dismissed on

mootness grounds.3

Our first line of inquiry is to decide whether we are

able to take judicial notice of the TSA's consummated decision to

remove all backscatter machines from passenger screening

checkpoints. Appellants note that "it is inappropriate to consider

evidence relating to contested issues of fact when that evidence is

submitted in a 28(j) letter." In this case, the appellees

introduced new facts concerning the TSA's plans to remove all non-

ATR scanners from security checkpoints via its March 19, 2013 Rule

28(j) letter, and, in addition, appellees filed another Rule 28(j)

letter dated June 17, 2013, stating that they had in fact removed

said scanners from all checkpoints. Appellees maintain that their

letter was filed pursuant to the Supreme Court's mandate directing

attorneys "to bring to the federal tribunal's attention 'without

3
We must recognize that several courts around the country have
already resolved the statutory jurisdiction question in favor of
the government. See, e.g., Blitz v. Napolitano, 700 F.3d 733, 739-
40 (4th Cir. 2012); Roberts v. Napolitano, 463 Fed. App'x 4 (D.C.
Cir. 2012); Corbett v. United States, 458 Fed. App'x 866, 871 (11th
Cir. 2012) (all holding that courts of appeals have exclusive
jurisdiction to hear challenges against the 2010 SOP).

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delay,' facts that may raise a question of mootness." Arizonans

for Official English v. Arizona, 520 U.S. 43, 68 n.23 (1997)

(citing Bd. of License Comm'rs of Tiverton v. Pastore, 469 U.S.

238, 240 (1985))(emphasis in original).

Although appellants note that Rule 28(j) letters may not

normally be used to submit new evidence to an appeals court, they

do recognize that in United States v. Brown, 631 F.3d 573, 580 (1st

Cir. 2011), we considered new facts presented in one such letter

when those facts were verified and relevant to the question of

mootness. Although appellants claim they are not bound to accept

the new facts presented by appellees in their Rule 28(j) letters,

they are nevertheless willing to accept as true the following

facts: (1) "that the government presently intends to stop using the

non-ATR-equipped backscatter scanners in U.S. airports for

passenger screening after June 1, 2013," and (2) "that the

backscatter scanners will be redeployed outside of airports."

Because both parties agree that, as of June 1, 2013, appellants

will no longer be subjected to body scanners that are not equipped

with ATR technology at airport checkpoints, we find no difficulty

in taking judicial notice of the facts presented in the

government's Rule 28(j) letters.4 Having determined that these new

4
In addition, in a recent notice of proposed rulemaking, the TSA
manifested its intent to remove all non-ATR-equipped scanners from
security checkpoints by June 1, 2013. We may also take judicial
notice of this fact. Baur v. Veneman, 352 F.3d 625, 638 n.12 (2d
Cir. 2003) ("[T]he court of appeals may take judicial notice of a

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developments are appropriately before this court, we now proceed to

assess whether they have rendered appellants' claims moot.

Article III of the Constitution confines our jurisdiction

to those claims that involve actual "cases" or "controversies."

U.S. Const. art. III, § 2, cl. 1. It follows that federal courts

"lack constitutional authority to decide moot questions"; the fact

that a live controversy existed when the plaintiff brought suit is

not enough. Barr v. Galvin, 626 F.3d 99, 104 (1st Cir. 2010).

"When a case is moot -- that is, when the issues presented are no

longer live or when the parties lack a generally cognizable

interest in the outcome -- a case or controversy ceases to exist,

and dismissal of the action is compulsory." Maher v. Hyde, 272

F.3d 83, 86 (1st Cir. 2001) (quoting Cruz v. Farquharson, 252 F.3d

530, 533 (1st Cir. 2001)).

This case began with appellants challenging the TSA's use

of both millimeter-wave and backscatter scanners, as well as the

use of enhanced pat-downs as a mandatory alternative method of

screening for those passengers who opted out of AIT scanning. Once

appellees informed us of their plans to equip millimeter-wave

scanners with ATR technology, the appellants abandoned their claims

against the use of such scanners, and instead maintained that

backscatter scanners should also be equipped with ATR technology.

However, now that appellees have informed us that the backscatter

proposed rule published in the Federal Register . . . .").

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scanners have been removed from security screening checkpoints, and

that appellants will no longer be subjected to body scanners that

depict revealing images of their bodies, it is apparent that the

remainder of appellants' claims have become moot.5

Appellants seek to overcome the mootness issue by arguing

that the kind of searches perpetrated by the government in this

case are "capable of repetition, yet evading review." S. Pac.

Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). They maintain that,

although the government promised to remove all backscatter scanners

from passenger screening checkpoints, the government also intends

to redeploy such scanners to "other mission priorities within the

government." Appellants claim that it is therefore "reasonable to

expect that we could at some point in the future be scanned again,"

because "as attorneys and residents of San Francisco and

Washington, D.C., we are no strangers to mass transit and

government buildings." For the reasons that follow, we are not

persuaded by appellants' arguments.

The "capable of repetition, yet evading review" exception

to the mootness doctrine is well established, although it is

construed narrowly. Barr, 626 F.3d at 105-06. According to the

Supreme Court, the party arguing for the exception has the burden

5
At oral argument, appellant Redfern recognized that once all
backscatter scanners were removed from all checkpoints, appellants
would no longer have a free-standing claim against TSA's use of
enhanced pat-downs, as they do not intend to opt out of ATR-
equipped millimeter-wave scanners.

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of showing that "(1) the challenged action is in its duration too

short to be fully litigated prior to cessation or expiration; and

(2) there is a reasonable expectation or a demonstrated probability

that the same complaining party will be subject to the same action

again." FEC v. Wis. Right To Life, Inc., 551 U.S. 449, 462 (2007)

(citing Spencer v. Kemna, 523 U.S. 1, 17 (1998)) (internal

quotation marks omitted); see also Barr, 626 F.3d at 105-06. In

this case, even if we assume -- without examining the issue -- that

appellants could show the requisite short timing for the exception

to apply, they would clearly fail to meet their burden as to the

second prong of the test: that there be a reasonable expectation or

a demonstrated probability that they will be subjected to non-ATR-

equipped body scanners in the future.

Appellants argue that, although they do not yet know the

precise locations in which the government will choose to redeploy

the backscatter scanners, it is reasonable to suppose that they

will be scanned again in the future. However, the basis for their

argument rests on the threadbare assertion that, because they

reside in major metropolitan areas, they are "no strangers to mass

transit and government buildings," and therefore are likely to

confront backscatter scanners again. This statement is entirely

speculative and we find that it is insufficient to prevent this

case from becoming moot. See Doe No. 1 v. Reed, 697 F.3d 1235,

1239 (9th Cir. 2012) ("A moot case cannot be revived by alleged

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future harm that is so remote and speculative that there is no

tangible prejudice to the existing interests of the parties."

(internal quotation marks omitted)); Protestant Mem'l Med. Ctr.,

Inc. v. Maram, 471 F.3d 724, 732 (7th Cir. 2006) ("[P]ure

speculation as to future injury is not sufficient to meet the

exception to mootness." (internal quotation marks omitted)).

The truth of the matter is that the government has not

revealed where it plans to redeploy the decommissioned backscatter

machines, or whether it intends to reuse them on the traveling

public at all. There are a myriad of possibilities and it may very

well be that appellants will never be subjected to the backscatter

machines again. "[I]t is the original plaintiff, rather than some

other party, who must bear the onus of repeated exposure to the

challenged conduct in order to meet the 'capable of repetition'

standard." Ramírez v. Sánchez-Ramos, 438 F.3d 92, 101 (1st Cir.

2006). We thus find that, on this record, appellants have failed

to demonstrate that they remain at risk for the harm about which

they complain, namely, being scanned with non-ATR-equipped

backscatter machines in the future.

As appellants have been unable to establish the

applicability of the "capable of repetition" exception, it is clear

to us that no live case or controversy remains and that their

claims against the use of the backscatter machines must be

dismissed as moot. Ramírez, 438 F.3d at 100 (noting that, where

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"intervening events have wiped the slate clean, the case has become

moot.").

III. Conclusion

For the foregoing reasons, we vacate the judgment below

and remand with instructions to dismiss the case as moot. The

parties shall bear their own costs.

Vacated and Remanded.

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