Jonathan Corbett v. United States

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-12426 FEBRUARY 27, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK

D.C. Docket No. 1:10-cv-24106-MGC

JONATHAN CORBETT,

lllllllllllllllllllll Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

lllllllllllllllllllll Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(February 27, 2012)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.

PER CURIAM:

Jonathan Corbett, proceeding pro se, appeals the dismissal of his lawsuit for

lack of jurisdiction under 49 U.S.C. § 46110. On appeal, he argues that his suit
should not have been dismissed because: (1) § 46110 precludes district courts

from reviewing a challenge to an “order,” but the policies he challenged were not

orders; (2) even if he did challenge an order, the district court had jurisdiction

because he raised a broad constitutional challenge; and (3) dismissing his suit

under § 46110 violated his right to due process. For the reasons set forth below,

we affirm the district court’s dismissal of Corbett’s suit.

The Transportation Security Administration (“TSA”) revised its security

screening procedures for air passengers effective October 29, 2010. The revised

procedures were contained in a document titled Screening Checkpoint Standard

Operating Procedure (“SOP”), which was not publicly available. Specifically, the

SOP directed the use of advanced imaging technology (“AIT devices”) and revised

the procedures for pat-down searches. Passengers who refused to comply with the

security procedures set forth in the SOP would not be permitted to fly.

In November 2010, Corbett filed a complaint asserting that the use of the

AIT devices and pat-down searches were unreasonable searches under the Fourth

Amendment because they were conducted without probable cause or a warrant.

He further alleged that there were more effective and less invasive screening

techniques available. Corbett sought declaratory relief, injunctive relief for

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himself and air passengers generally, and the costs of the lawsuit.

The government filed a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(1), arguing that the district court lacked subject matter

jurisdiction over the case. According to the government, the SOP was a final

order under § 46110(a), which granted exclusive jurisdiction to the courts of

appeals to review final orders of the TSA. Even if Corbett was not directly

challenging the SOP, the government argued that the court would nonetheless lack

jurisdiction because Corbett’s claims stemmed from the policies set forth in the

SOP and thus were “inescapably intertwined” with the SOP. The government did

not file the SOP with the court because the SOP was sensitive security

information.

Corbett responded that the polices he challenged were not orders and to find

otherwise would violate his right to due process. Specifically, he argued that the

SOP set forth internal directives rather than orders. The SOP imposed obligations

on TSA employees, but not on passengers, as passengers were not allowed to read

the SOP. Additionally, there was no administrative record, there had been no

administrative factfinding, and Corbett had not had the opportunity to present

evidence supporting his claims. Next, Corbett argued that construing the SOP as

an order would violate his right to due process because he would not have the

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opportunity to gather facts or present evidence. Finally, he argued that broad

constitutional challenges to an order could be heard by the district court under

§ 46110.

The government replied that the SOP was an order, not an internal directive.

Courts had interpreted the word “order” to include final agency decisions that

imposed obligations, denied rights, or fixed legal relationships. TSA regulations

imposed obligations on passengers by requiring them to undergo security

screening before boarding a plane, and the SOP set forth procedures to enforce

that required security screening. The government also asserted that there was an

administrative record sufficient for judicial review, which the government had

filed in a District of Columbia Circuit case, Elec. Privacy Info. Ctr. v. U.S. Dep’t

of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011). Finally, the government argued

that § 46110 was not unconstitutional. Appellate courts were well equipped to

review constitutional claims, and appellate courts could order factual deficiencies

corrected where a factual record was insufficient.

The district court granted the government’s motion to dismiss, finding that

it did not have jurisdiction under § 46110 because Corbett was challenging a TSA

order. Corbett timely appealed.

II.

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We review de novo a dismissal under Rule 12(b)(1) for lack of subject

matter jurisdiction. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir.

2009). If the district court “lacks jurisdiction, we have jurisdiction on appeal, not

of the merits but merely for the purpose of correcting the error of the lower court

in entertaining the suit.” Green v. Brantley, 981 F.2d 514, 521 n.2 (11th Cir.

1993) (quotations omitted). Under 49 U.S.C. § 46110,

a person disclosing a substantial interest in an order issued by the
Secretary of Transportation . . . 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).

The term “order” in § 46110 is construed broadly, and courts of appeals

have jurisdiction over final orders. Green, 981 F.2d at 519.1 An order is final

when it “impose[s] an obligation, den[ies] a right or fix[es] some legal relationship

as a consummation of the administrative process.” Id. (quotations omitted). In

Green, a letter withdrawing a Pilot Examiner Certificate of Authority was a final

order because it denied a right or fixed a legal relationship, “was the definitive

statement on the subject matter it addressed,” and was final in that it withdrew the

1
At issue in Green was § 46110’s predecessor, 49 U.S.C. § 1486. Green, 981 F.2d at
518.

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appellee’s certificate. Id. (quotation omitted). Additionally, there must be an

adequate administrative record “to support judicial review.” Id. The

administrative record in Green consisted of an investigation into the appellee’s

misconduct and a number of letters. Id. That record was sufficient to “allow a

reviewing court to make an informed decision of the procedure afforded and the

reasons supporting the [Federal Aviation Administration’s] action.” Id.

“Where Congress has provided in the courts of appeals an exclusive forum

for the correction of procedural and substantive administrative errors, a plaintiff

may not bypass that forum by suing for damages in district court.” Green, 981

F.2d at 521. As a “collateral challenge to the agency order,” a claim for damages

is “inescapably intertwined with a review of the procedures and merits

surrounding the . . . order.” Green, 981 F.2d at 521.

In contrast, in McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 111 S.Ct.

888, 112 L.Ed.2d 1005 (1991), the Supreme Court held that a district court had

jurisdiction over a class action asserting a constitutional challenge to immigration

practices. 498 U.S. at 491-94, 111 S.Ct. at 895-97. The statute at issue in McNary

required appellate courts to review the Immigration and Naturalization Service’s

denial of an alien’s application for an adjustment of status. Id. at 491-92, 111

S.Ct. at 896. Because the plaintiffs challenged unconstitutional practices and

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procedures utilized in making those determinations rather than a single act or

determination, jurisdiction was not limited to the appellate courts. Id. at 492, 111

S.Ct. at 896. The Court also noted that the administrative record would consist of

forms and documents related to an applicant’s immigration status, but that

information would not be relevant to the procedural and constitutional claims at

issue in the class action. Id. at 493, 111 S.Ct. at 896-97. Finally, the Court stated

that, under the statute at issue in that case, most aliens would have had to

“voluntarily surrender themselves for deportation” to receive review of their

claims in the appellate courts, which was “tantamount to a complete denial of

judicial review for most undocumented aliens.” Id. at 496-97, 111 S.Ct. at 898.

The Ninth Circuit in Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006),

recognized a similar principle, noting that “broad constitutional challenges” could

be heard in the district court under § 46110. 435 F.3d at 1133 n.9. In that case,

however, the plaintiff “squarely attack[ed] the orders issued by the TSA with

respect to airport security.” Id. Therefore, the claim was “inescapably intertwined

with a review of the procedures and merits surrounding the . . . the order,” and the

district court did not have jurisdiction over the claim. Id. (quotation omitted).

In Elec. Privacy Info. Ctr., the plaintiffs alleged that the SOP violated a

number of statutes and the Fourth Amendment and that the TSA erroneously

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enacted the SOP without first accepting public comment. 653 F.3d at 3. The

District of Columbia Circuit declined to vacate the SOP, but did remand the case

to the TSA because the TSA did not “conduct a notice-and-comment rulemaking.”

Id. at 8. Finally, the Court noted that a search method did not need to be the least

intrusive method practicable to be reasonable under the Fourth Amendment and

held that the use of AIT devices did not violate the Fourth Amendment. Id. at 10.

Finally, under 28 U.S.C. § 2347, we may: (1) remand a proceeding to an

agency to hold a hearing where one is required by law, (2) transfer certain cases to

a district court, or (3) order an agency to take additional evidence and

counterevidence. Id. § 2347(b)(1), (3), (c).

The district court did not err in dismissing Corbett’s complaint for lack of

jurisdiction. First, construing the term “order” broadly, the SOP was an order

under § 46110. See Green, 981 F.2d at 519. The SOP imposes obligations on air

passengers, not just on TSA employees. See id. That is, air passengers must

comply with the security screening procedures set forth in the SOP or they will not

be allowed to fly. Accordingly, even though passengers may not read the actual

SOP, it imposes security screening obligations on them if they wish to board their

planes. See Green, 981 F.2d at 519. Moreover, it appears that there is an adequate

administrative record for judicial review. See id. Corbett concedes that an

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administrative record has been filed in Elec. Privacy Info. Ctr. In that case, the

District of Columbia Circuit considered whether the use of the AIT devices

violated the Fourth Amendment, which indicates that the administrative record

was sufficient to rule on the merits of Corbett’s own Fourth Amendment claim.

See 653 F.3d at 10. Moreover, even if the record was insufficient, we could

remand the case to the TSA to take additional evidence and counterevidence.

See 28 U.S.C. § 2347(c).

Next, Corbett cannot escape the jurisdictional limitations of § 46110 by

claiming that he asserts a broad constitutional challenge. His claim is inextricably

intertwined with the SOP. See Green, 981 F.2d at 521. That is, to determine

whether the security screening procedures set forth in the SOP comply with the

Fourth Amendment, a court must necessarily review “the procedures and merits

surrounding the . . . order.” Id. Moreover, McNary is inapposite here. Unlike the

statute in McNary, § 46110’s grant of jurisdiction is broad, covering the review of

“orders.” Compare 49 U.S.C. § 46110(a), with McNary, 498 U.S. at 491-92, 111

S.Ct. at 896. Thus, under § 46110’s broad grant of jurisdiction, the courts of

appeals have jurisdiction over constitutional challenges. See 49 U.S.C.

§ 46110(a). The Court’s concern in McNary about irrelevant administrative

records is also not an issue in this case. See 498 U.S. at 493, 111 S.Ct. at 896-97.

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McNary is also distinguishable because § 46110 contains no provision similar to

the immigration statute that would have required most aliens to “voluntarily

surrender themselves for deportation” to receive appellate review. 498 U.S. at

496, 111 S.Ct. at 898. Thus, § 46110 does not deny Corbett judicial review. Cf.

id. at 496-97, 111 S.Ct. at 898.

Finally, applying § 46110 does not deprive Corbett of due process. Corbett

is concerned about his ability to present evidence, but we may remand a

proceeding to an agency to hold a hearing where one is required by law, transfer

certain cases to a district court, or order an agency to take additional evidence and

counterevidence. See 28 U.S.C. § 2347(b)(1)(3), (c). Thus, a court of appeals

would be able to address Corbett’s concern that the administrative record would

be incomplete or lacking evidence opposing the SOP.

For the foregoing reasons, we affirm the district court’s dismissal of

Corbett’s suit.

AFFIRMED.