United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 20, 2005 Decided November 29, 2005
No. 04-1295
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
PETITIONER
v.
TRANSPORTATION SECURITY ADMINISTRATION,
RESPONDENT
On Petition for Review of a Final Order of the
United States Department of Transportation
Katherine A. McDonough argued the cause for the
petitioner. Roland P. Wilder, Jr. was on brief.
Jeffrica Jenkins Lee, Attorney, United States Department of
Justice, argued the cause for the respondent. Peter D. Keisler,
Assistant Attorney General, and Michael Jay Singer, Attorney,
United States Department of Justice, were on brief.
Before: HENDERSON, BROWN and GRIFFITH, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The
International Brotherhood of Teamsters (IBT) filed this action
to challenge the “Legal Guidance on Criminal History Records
Checks” (2004 Guidance) issued by the Transportation Security
Administration (TSA) on May 28, 2004. The 2004 Guidance
2
addresses what constitutes a “conviction” under TSA
regulations, which prohibit airline and airport operators from
employing in specified positions an individual found to have
been convicted within the previous ten years of any one of
several listed crimes.1 The IBT argues that, because the 2004
Guidance defines “conviction” more broadly than did the TSA’s
original guidance, issued May 23, 2003 (2003 Guidance), the
TSA was required to promulgate the 2004 Guidance pursuant to
the notice and comment procedures of the Administrative
Procedure Act and to publish it in the Federal Register. See 5
U.S.C. §§ 552, 553. Because the TSA failed to do so, IBT
maintains, the 2004 Guidance must be set aside pending
compliance with the required procedures. We conclude that IBT
has not satisfactorily established its constitutional standing to
bring this action and therefore dismiss its petition for review.
In 2001 the Congress enacted the ATSA which created the
TSA with the statutory mandate to “require background checks
for airport security screening personnel, individuals with access
to secure areas of airports, and other transportation security
personnel.” 49 U.S.C. § 114(f)(12). The ATSA directs, inter
alia, that the TSA “shall require by regulation that an
employment investigation,” including a criminal history record
check and review of governmental and international agencies’
records, be conducted for any person employed or applying for
employment in a position with unescorted access authority either
to aircraft or to secured areas of airports. Id. § 44936(a), (b).
The ATSA further provides that airline and airport operators
“may not employ, or authorize or make a contract for the
services of” an individual in such a position if “the results of that
investigation establish that, in the 10-year period ending on the
1
The regulations were promulgated pursuant to the Aviation and
Transportation Security Act (ATSA), Pub. L. No. 107-71, 115 Stat.
597 (2001).
3
date of the investigation, the individual was convicted (or found
not guilty by reason of insanity) of” any of the criminal offenses
enumerated in the statute. Id. § 44936(b)(1)(B).
On February 22, 2002 the TSA promulgated regulations
implementing the statutory criminal investigation directive. See
67 Fed. Reg. 8340 (Feb. 22, 2002) (promulgating 49 C.F.R. §§
1542.209 (responsibilities of airport operators), 1544.229
(responsibilities of airline operators regarding cargo and
baggage handling employees) and 1544.230 (responsibilities of
airline operators regarding flight crew employees)). The
regulations disqualify an applicant or existing employee from
specified employment positions if the criminal investigation
discloses a “disqualifying criminal offense,” that is, if the
investigation reveals that the individual, after December 6, 1991,
“has been convicted, or found not guilty of by reason of
insanity, of any of the disqualifying crimes listed in [49 C.F.R.
§ 1542.209(d)(1)-(28))] in any jurisdiction during the 10 years
before the date of the individual's application for unescorted
access authority, or while the individual has unescorted access
authority.” 49 C.F.R. § 1542.209(d).
On May 23, 2003 the TSA issued the 2003 Guidance “to
ensure uniformity in the adjudication of background checks for
airport and air carrier workers.” 2003 Guidance at 1. It
included a nonexclusive list of scenarios the TSA considered to
be “convictions.” Id. at 2. On May 28, 2004 the TSA issued the
“updated” 2004 Guidance which expanded the list of conviction
scenarios to include the following: “Person enters a plea of nolo
contendere or guilty followed by a withheld adjudication where
the court places defendant on a period of probation.” 2004
Guidance at 2. According to the IBT’s opening brief, the
Teamsters Local 747 office received a copy of the 2004
Guidance attached to a letter dated June 17, 2004 from a lawyer
representing a Local 747 member who was suspended from his
position as flight engineer because a criminal investigation
4
revealed he had pleaded no contest to one of the offenses
enumerated in TSA regulation 1542.209(d) and had received a
withheld adjudication from a Florida state court. According to
IBT, someone at Teamsters Local 747 forwarded a copy of the
2004 Guidance to IBT’s counsel on July 23, 2004. Id. On
August 31, 2004, IBT filed a petition for review of the 2004
Guidance, challenging several of its provisions that differed
from the 2003 guidance on the ground that the 2004 Guidance
was unlawfully promulgated without notice and opportunity to
comment or publication. For the reasons set out below, we
conclude that IBT failed to establish standing under Article III
of the United States Constitution to bring this action and
therefore dismiss its petition.
“Because Article III limits the constitutional role of the
federal judiciary to resolving cases and controversies, a showing
of standing ‘is an essential and unchanging’ predicate to any
exercise of our jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94
F.3d 658, 663 (1996) (en banc) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992); internal citation omitted).
“ ‘The “irreducible constitutional minimum of standing contains
three elements”: (1) injury-in-fact, (2) causation, and (3)
redressability.’ ” Rainbow/PUSH Coalition v. FCC, 396 F.3d
1235, 1240 (D.C. Cir. 2005) (quoting Rainbow/PUSH Coalition
v. FCC, 330 F.3d 539, 542 (D.C. Cir. 2003) (quoting Defenders
of Wildlife, 504 U.S. at 560-61)). Thus, to demonstrate standing,
a petitioner “ ‘must allege (1) a personal injury-in-fact that is (2)
fairly traceable to the defendant's conduct and (3) redressable by
the relief requested.’ ” Rainbow/Push Coalition, 396 F.3d at
1240 (quoting Microwave Acquisition Corp. v. FCC, 145 F.3d
1410, 1412 (D.C. Cir. 1998); additional quotations omitted).
Before us, the petitioner’s burden of production on standing is
“the same as that of a plaintiff moving for summary judgment in
the district court: it must support each element of its claim to
standing ‘by affidavit or other evidence,’ ” Sierra Club v. EPA,
292 F.3d 895, 899 (D.C. Cir. 2002) (quoting Defenders of
5
Wildlife, 504 U.S. at 561), and must thereby “show a ‘substantial
probability’ that it has been injured, that the defendant caused its
injury, and that the court could redress that injury,” id. (quoting
Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C. Cir. 2000)).
To satisfy this burden “the petitioner must either identify in [the]
record evidence sufficient to support its standing to seek review
or, if there is none because standing was not an issue before the
agency, submit additional evidence to the court of appeals.” Id.
(citing Amfac Resorts, L.L.C. v. DOI, 282 F.3d 818, 830 (D.C.
Cir. 2002)). Accordingly, in Sierra Club we declared:
[A] petitioner whose standing is not selfevident [sic]
should establish its standing by the submission of its
arguments and any affidavits or other evidence
appurtenant thereto at the first appropriate point in the
review proceeding. In some cases that will be in
response to a motion to dismiss for want of standing;
in cases in which no such motion has been made, it will
be with the petitioner's opening brief . . . .
Id. at 900.2 We further advised that “[a]bsent good cause
2
We reminded IBT of its obligation under Sierra Club in a briefing
order issued March 14, 2005. The court has proposed to codify Sierra
Club’s admonition by adding the following provision to District of
Columbia Circuit Rule 28:
8. Standing. In administrative review cases, a petitioner or
appellant who is not directly regulated by the agency action under
review must present in the opening brief the arguments and
evidence establishing its standing. See Sierra Club v. EPA, 292
F.3d 895, 900-01 (D.C. Cir. 2002).
Notice of Proposed Circuit Rule Change (D.C. Cir. issued Oct. 6,
2005). We note that violations of all Circuit rules are addressed by
District of Columbia Circuit Rule 38 (“When any party . . . or any
attorney . . . fails to comply with the FRAP or these rules, . . . the court
may . . . impose appropriate sanctions on the offending party, the
6
shown,” a party will not be afforded “opportunity to submit
post-argument affidavits further demonstrating [its] standing.”
Id. IBT failed to satisfy Sierra Club’s threshold requirement
because its standing was not self-evident on the record and it
offered no argument or additional evidence to demonstrate its
standing.3
IBT first addressed its standing at oral argument, in
response to questioning by the court. During opening argument,
IBT claimed representational standing on behalf of the
discharged flight engineer. This claim, however, finds no
support in the record. A trade union has representational
standing to bring suit on behalf of its members if “ ‘(a) its
members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the
organization's purpose; and (c) neither the claim asserted nor the
relief requested requires the participation of individual members
in the lawsuit.’ ” United Food & Commercial Workers Union
Local 751 v. Brown Group, Inc., 517 U.S. 544, 553 (1996)
(quoting Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S.
333, 343 (1977)). IBT fails the first prong of this test because
it has identified no record evidence whatsoever establishing the
flight engineer’s disqualification or even his membership in
IBT. IBT’s counsel cited as evidence of its standing a letter
attorney, or both. Sanctions include dismissal for failure to prosecute
. . . .). Should the proposed rule be adopted, we would analyze
violations under Rule 38 rather than the case law on which we base
our decision today. See, e.g., Barber v. Am. Sec. Bank, 841 F.2d 1159,
1162 (D.C. Cir. 1988) (holding that “egregious disregard of the court's
processes” warranted dismissal under Rule 38).
3
We also question whether IBT has prudential standing; its failure
to introduce evidence of its injury raises doubt whether it qualifies as
“a person disclosing a substantial interest” in the 2004 Guidance, as
required under 49 U.S.C. § 46110(a) (emphasis added).
7
appended to its opening brief alleged to have been sent to IBT
by the flight engineer’s lawyer but the heavily redacted copy of
the letter submitted makes no mention of the flight engineer or
his disqualification. See Pet’r Br. Addendum at 25.
On rebuttal counsel offered as an alternative standing theory
that IBT’s injury resulted from the TSA’s failure to provide
public notice of the 2004 Guidance, thereby depriving it of the
opportunity to comment thereon. This theory fails for the same
reason as its first. It is true that in a procedural rights case the
burden to show imminence and redressability of injury may be
lessened but the complainant must nonetheless show it has itself
“suffered personal and particularized injury.” Fla. Audubon
Soc'y v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (quoting
Defenders of Wildlife, 504 U.S. at 572 n.7). And the “mere
inability to comment effectively or fully, in and of itself, does
not establish an actual injury,” United States v. AVX Corp., 962
F.2d 108, 119 (1st Cir. 1992); see Fla. Audubon Soc'y, 94 F.3d
at 664 (“[T]he plaintiff must show that the government act
performed without the procedure in question will cause a
distinct risk to a particularized interest of the plaintiff. The mere
violation of a procedural requirement thus does not permit any
and all persons to sue to enforce the requirement.” (citing
Defenders of Wildlife, 504 U.S. at 572-73; Schlesinger v.
Reservists Comm. to Stop the War, 418 U.S. 208, 223 (1974);
Capital Legal Found. v. Commodity Credit Corp., 711 F.2d 253,
258-60 (D.C. Cir. 1983)). Thus, to establish standing based on
its inability to comment, an organization must show “that at
least one of [its] members is ‘suffering immediate or threatened
injury as a result of the challenged action.’ ” Id. (quoting Warth
v. Seldin, 422 U.S. 490, 511 (1975)). As noted, IBT made no
such showing when it filed its opening brief, as Sierra Club
requires if standing is not self-evident.
Following oral argument, IBT filed a motion to supplement
the appendix with additional documents attached, including the
flight engineer’s declaration. IBT argued its motion should be
8
granted because it had a “reasonable” belief that its standing was
self-evident, relying on this court’s decision in American
Library Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005). In
American Library Ass’n, the court concluded that the petitioners
“reasonably believed” their standing was self-evident based in
part on portions of the evidentiary record, which the petitioners
cited at oral argument and in a post-argument submission, and
which gave “some indications that petitioners’ members will
suffer concrete and particularized injuries” from the challenged
rule. 401 F.3d at 491. In this case, however, IBT could not have
reasonably believed its representational standing was self-
evident given the complete absence in the record of any
evidence of the flight engineer’s union membership or his
employment disqualification.4
For the foregoing reasons, the petition for review is
dismissed.
So ordered.
4
In any event, IBT’s post-argument proffer does not clear up the
standing issue. Cf. Communities Against Runway Expansion, Inc. v.
FAA, 355 F.3d 678, 685 (D. C. Cir. 2004) (supplemental declarations
submitted with reply brief made organization’s member’s injury
“patently obvious”). The additional documents aver that the flight
engineer “was a member of Teamsters Local 747. . . until [he] was
terminated by [his employer] on May 19, 2004,” Decl. of Juan Carlos
Diaz at 1, but are silent on whether he was a member of Teamsters
Local 747, much less of IBT, when IBT filed its petition for review
with the court on August 31, 2004. See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), 528 U.S. 167, 190 (2000) (“[I]f a
plaintiff lacks standing at the time the action commences,” it is not
entitled to a “federal judicial forum” (citing Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 109 (1998)).