Michael Muir v. DHS

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2025 Decided July 25, 2025

No. 22-1318

MICHAEL MUIR,

PETITIONER

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND

TRANSPORTATION SECURITY ADMINISTRATION,

RESPONDENTS

On Petition for Review of Final Order

of the Transportation Security Administration

William R. Weaver, appointed by the court, argued the

cause and filed the briefs as amicus curiae in support of

appellant.

Michael Muir, pro se, argued the cause and filed the briefs

for appellant.

Joshua Waldman, Attorney, U.S. Department of Justice,

argued the cause for respondents. With him on the brief were

Brett A. Shumate, Acting Assistant Attorney General, and

Sharon Swingle, Attorney.

2

Before: PILLARD and CHILDS, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge CHILDS.

Opinion concurring in part and dissenting in part filed by

Senior Circuit Judge RANDOLPH.

CHILDS, Circuit Judge: Since childhood, Petitioner

Michael Muir alleges that he has lived with what he describes

as a congenital birth defect that presents as a hernia in his right

scrotum. Muir contends that his hernia causes him to

experience various problems ranging from severe pain to

potentially life-threatening partial strangulation of his

intestines. Muir filed a petition challenging the Transportation

Security Administration’s (TSA) Final Rule, which authorized

its use of scanners that use electromagnetic radiation—known

as Advanced Imaging Technology (AIT) scanners—to screen

airline passengers at airport security screening checkpoints.

See Passenger Screening Using Advanced Imaging

Technology, 81 Fed. Reg. 11,364, 11,365 (Mar. 3, 2016).

TSA posits that “AIT is the most effective technology

currently available to detect both metallic and non-metallic

threat items concealed on passengers.” Id. However, for Muir,

AIT scanners equipped with Automatic Target Recognition

(ATR) software inevitably flag his hernia as a threat object,

which requires TSA agents to perform pain-inducing and

potentially life-threatening pat-downs of his groin area.

Accordingly, Muir implores us to hold that the Final Rule and

TSA’s standard operating procedures (SOPs) are arbitrary and

capricious, contrary to TSA’s statutory authority, and violate

protections afforded under Section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794.

3

We grant Muir’s petition in part and remand the matter to

TSA for further proceedings to determine whether

implementation of Muir’s requested accommodation under the

Rehabilitation Act will impose an undue burden on the

agency.1 We deny the petition in all other respects.

I.

A.

The terrorist attacks of September 11, 2001, significantly

altered airport security measures. Soon afterward, Congress

established TSA, see Aviation and Transportation Security

Act, Pub. L. No. 107–71, 115 Stat. 597 (Nov. 19, 2001), and

made it responsible “for the screening of all passengers and

property” boarding passenger airplanes, 49 U.S.C. § 44901(a),

and developing regulations prohibiting airlines from

transporting passengers who refuse to consent to the screening,

id. § 44902(a)(1). As a result, Congress charged TSA with

ensuring that passengers did not board a commercial airline

flight carrying dangerous weapons, explosives, or destructive

substances. Id. §§ 44901(a), 44902(a)(1).

Three years later, Congress enacted the Intelligence

Reform and Terrorism Prevention Act of 2004, Pub. L. No.

108–458, 118 Stat. 3638 (Dec. 17, 2004), and directed TSA to

develop “a strategic plan to promote . . . deployment of

explosive detection equipment at airports to screen individuals

and their personal property . . . includ[ing] walk-through

explosive detection portals, document scanners, shoe scanners,

and backscatter x-ray scanners.” 49 U.S.C. § 44925(b)(1).

And after a spate of attempted terror attacks involving

1

Our colleague dissents only insofar as he would hold that we lack

jurisdiction to consider Muir’s request for an accommodation

pursuant to the Rehabilitation Act.

4

nonmetallic explosives, Congress further directed the

Department of Homeland Security (DHS), the Cabinet-level

department overseeing TSA, to “give a high priority to

developing, testing, improving, and deploying” a new

technology at airport screening checkpoints “that detects

nonmetallic, chemical, biological, and radiological weapons,

and explosives.” Id. § 44925(a). TSA responded to these

directives by prescribing the details of the screening process in

a set of SOPs2 and by barring any person from entering the

“sterile area”3 of an airport “or board[ing] an aircraft without

submitting to the screening and inspection of his or her person

. . . in accordance with the procedures being applied to control

access to that area or aircraft.” 49 C.F.R. § 1540.107(a).

In 2007, TSA initially deployed AIT scanners as

secondary screening measures, but by 2010 AIT scanners were

the primary method of screening. “AIT creates an image of the

full body that highlights objects that are on the body.” J.A.

196. TSA deploys AIT scanners that use “non-ionizing radio

frequency energy in the millimeter wave spectrum to generate

an image based on the energy reflected from the body,” J.A.

197, and “detect metallic and non-metallic objects on an

individual’s body or concealed in his clothing without physical

contact,” 81 Fed. Reg. at 11,365. An example of the image

generated by millimeter wave AIT appears below:

2

“TSA’s SOPs are internal documents that contain instructions for

[Transportation Security Officers (TSOs)] on how to operate

equipment and conduct screening. TSOs receive extensive training

to perform screening as described in the SOPs. These documents are

[Sensitive Security Information] and cannot be shared with the

public.” 81 Fed. Reg. at 11,386.

3

“Sterile area” is defined as the area of an airport “that provides

passengers access to boarding aircraft and to which the access

generally is controlled by TSA . . . through the screening of persons

and property.” 49 C.F.R. § 1540.5.

5

J.A. 198.

“If an anomaly is detected [during the scan of a passenger],

a pat-down of the area where the anomaly is located is usually

performed to determine if a threat is present.” 81 Fed. Reg. at

11,365. “A pat-down may include inspection of the head, neck,

arms, torso, legs, and feet[,]” as well as “sensitive areas such

as breasts, groin, and the buttocks.” Security Screening, TSA,

https://www.tsa.gov/travel/security-screening (last visited

Mar. 5, 2025) (“Pat-Down Screening” drop-down box). TSA

provides limited screening accommodations for those with

disabilities and medical conditions, but the agency emphasizes

that persons with such conditions must also “undergo screening

at the checkpoint.” Disabilities and Medical Conditions, TSA,

https://www.tsa.gov/travel/tsa-cares/disabilities-and-medical-

conditions (last visited Mar. 5, 2025). However, also, once an

individual has begun the screening process, with or without

accommodation, he or she must complete it. 81 Fed. Reg. at

11,382. “Individuals are not allowed to leave partway

through.” Ramsingh v. TSA, 40 F.4th 625, 629 (D.C. Cir.

2022).

B.

On July 15, 2011, in response to an earlier legal challenge

6

asserting that TSA failed to engage in rulemaking regarding the

decision to use AIT for primary screening, we remanded the

matter for TSA “to conduct a notice-and-comment

rulemaking.” Elec. Priv. Info. Ctr. v. DHS, 653 F.3d 1, 8 (D.C.

Cir. 2011). As TSA explained in the preamble to its resultant

proposed Rule, by that time Congress had responded to privacy

concerns about AIT scanner-generated passenger images in the

FAA Modernization and Reform Act of 2012, Public Law 112-

95, which imposed a further requirement on TSA

to ensure that all AIT used to screen passengers must

be equipped with and employ automatic target

recognition (ATR) software. 49 U.S.C. § 44901(l).

That software eliminates passenger-specific (i.e.,

individual) images and instead indicates the location

of potential threats on a generic outline. Since May

2013, all AIT units deployed by TSA have been

equipped with ATR capability.

81 Fed. Reg. at 11,365. The following is an image from an AIT

scanner using ATR:

J.A. 199.

As required by this Court, TSA issued a Notice of Public

7

Proposed Rulemaking regarding AIT on March 26, 2013.

Passenger Screening Using Advanced Imaging Technology, 78

Fed. Reg. 18,287 (Mar. 26, 2013). The proposal was designed

to “codif[y] the use of AIT to screen individuals at aviation

security screening checkpoints,” id. at 18,289, and account for

the additional requirement to use ATR. The Final Rule

regarding AIT screening with ATR was promulgated on March

3, 2016.4 81 Fed. Reg. 11,364.

C.

Muir asserts that he is “a qualified individual with a

disability under 42 U.S.C. § 12102 because” of his hernia. J.A.

109 ¶ 2. Muir claims that he is “symptomatic every day for at

least some part of the day.” J.A. 110 ¶ 3. Moreover, there is

no way for him to tell when this partial intestinal incarceration

is life-threatening.

On August 9, 2018, Muir alleges that he attempted to

board a flight departing from Phoenix-Mesa Gateway Airport

while symptomatic. The AIT scanner identified a potential

threat object located at Muir’s right groin. As a result, a TSA

agent allegedly performed a physical pat-down of Muir’s right

groin area despite his protestations causing him extreme mental

and physical pain and suffering. Three days later, on August

12, 2018, Muir allegedly experienced the same hardship

boarding a flight leaving General Wayne A. Downing Peoria

International Airport.

After his experiences in August 2018, Muir sent TSA a

proposal on November 1, 2019, requesting an informal

discussion pursuant to 28 C.F.R. § 14.6 about his security

4

We use “AIT scanners” or “AIT scanning” hereafter as a shorthand

for AIT scanners equipped with ATR software.

8

screening issues, which TSA subsequently denied on

November 19, 2019. Muir then filed a complaint with DHS’s

Office for Civil Rights and Civil Liberties (CRCL) on

December 15, 2019, alleging discrimination based on his

disability. On January 7, 2020, CRCL closed Muir’s complaint

and took no action.

On December 1, 2022, while standing in the security

screening line at St. Pete-Clearwater International Airport,

Muir contends that he realized that his hernia was not

reducible—meaning he could not return the displaced tissue to

its normal position—before passing through the AIT scanner.

Alyssa Pastorino & Amal A. Alshuqayfi, Strangulated Hernia,

Nat’l Libr. of Med., https://perma.cc/3HLU-28RN (last

updated Dec. 19, 2022). Faced with having to endure another

painful pat-down, Muir did not board his flight.

Approximately two weeks later, he filed pro se a petition for

review on December 14, 2022, asking us to set aside the Final

Rule as unlawful.5 Thereafter, we appointed amicus curiae to

present arguments on behalf of Muir.6

II.

We have jurisdiction over Muir’s petition. 49 U.S.C.

§ 46110. In reviewing a petition under § 46110, we uphold the

agency’s decision unless it is “‘arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law,’ or

unsupported by ‘substantial evidence.’” Suburban Air Freight,

Inc. v. TSA, 716 F.3d 679, 681 (D.C. Cir. 2013) (first quoting

5 U.S.C. § 706(2)(a); and then quoting 49 U.S.C. § 46110(c)).

5

Muir named both DHS and TSA in his petition. DHS is no longer

a party to this action after we dismissed all claims against it for lack

of standing.

6

We express our gratitude to William Weaver, Haley Tuchman, and

Michelle Li for their service.

9

The arbitrary and capricious standard requires that the agency

action be “reasonable and reasonably explained.” POET

Biorefining, LLC v. EPA, 970 F.3d 392, 409 (D.C. Cir. 2020)

(citation omitted). We will uphold the agency’s determination

if it “examine[d] the relevant data and articulate[d] a

satisfactory explanation for its action including a ‘rational

connection between the facts found and the choice made.’”

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington

Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).

III.

Muir, aided by appointed amicus, challenges the Final

Rule and TSA’s SOPs on several grounds. First, Muir contends

that TSA’s use of AIT scanners with ATR technology does not

comport with statutory requirements and is therefore contrary

to law. Second, amicus asserts that TSA’s failure to respond to

comments raising concerns with the use of AIT scanners on

travelers with disabilities renders the Final Rule arbitrary and

capricious. Third, amicus also claims that TSA’s failure to

provide alternative screening procedures for passengers with

internal disabilities is arbitrary and capricious. Finally, Muir

and amicus argue that the Final Rule and TSA’s SOPs, as

applied to Muir, violate Section 504 of the Rehabilitation Act

of 1973.

Before analyzing any of those issues, we address Muir’s

pending motion to supplement the administrative record with

additional documentation from a prior action in the United

States District Court for the District of Arizona. We deny this

motion as the supplemental information is unnecessary to our

decision. As to his other claims, we conclude that Muir’s

Rehabilitation Act claim succeeds, but all other challenges are

either forfeited or meritless.

10

A.

Before we consider the merits of his petition, Muir must

overcome an administrative exhaustion requirement. Under

§ 46110(d), we have jurisdiction to “consider an objection to

an order of the [TSA] . . . only if the objection was made in the

proceeding conducted by [TSA].” 49 U.S.C. § 46110(d). This

provision requires a petitioner to raise a rulemaking challenge

or point to where another party raised “the same objection[],”

during the notice-and-comment process. Vaughn v. FAA, 756

F. App’x 8, 12 (D.C. Cir. 2018) (citing § 46110(d)). Thus, we

in turn may only review those arguments the administrative

agency had the opportunity to consider in the first instance.

Advocs. for Highway & Auto Safety v. Fed. Motor Carrier

Safety Admin., 429 F.3d 1136, 1150 (D.C. Cir. 2005) (“[A]

party will normally forfeit an opportunity to challenge an

agency rulemaking on a ground that was not first presented to

the agency for its initial consideration.”); Omnipoint Corp. v.

FCC, 78 F.3d 620, 635 (D.C. Cir. 1996) (“As a general rule,

claims not presented to the agency may not be made for the

first time to a reviewing court.”).

1.

First, Muir contends that TSA did not have the statutory

authority to promulgate the Final Rule. He complains that the

Final Rule eliminated “the millimeter wave scanner[’s] . . .

‘visual image’” requirement in contradiction of 49 U.S.C.

§ 44901(l). Pet’r Br. 13. He next protests that it improvidently

replaced “human image operator agents with a narrow artificial

intelligence algorithm as the final decision-maker regarding

potential anomalies present in passenger screening data.” Id.

As to the former, Muir asserts that “Congress require[d] that

the millimeter wave scanner device [used in the screening of

11

passengers] create a visual image and the TSA removed the

capability of the device to create a visual image.” Id. at 23. As

to the latter, Muir argues that “there is nothing in § 44901(l) to

suggest that the TSA need[ed] to replace the human image

operator TSO with a narrow artificial intelligence algorithm to

analyze scanned data.” Id.

TSA asserts that Muir forfeited those statutory challenges

to the Final Rule by failing to either raise them during the

public rulemaking proceedings or provide a reasonable ground

for not making the objections. Muir responds that because

other parties articulated the very same objections he raises in

their public comments to TSA, our exercise of jurisdiction is

proper under 49 U.S.C. § 46110(d). Amicus further suggests

that it was reasonable for a person with Muir’s disability to not

monitor the Federal Register for notices of proposed

rulemakings with the potential to affect him.

Here, TSA did not have an opportunity to consider Muir’s

statutory arguments during rulemaking. It is undisputed that

Muir failed to personally raise the challenges, but his specific

claims were also not preserved by other public comments

during the notice and comment period. While some public

comments addressed technological issues, no commenter

raised the very objections that Muir has presented to us.

Therefore, Muir forfeited his statutory challenges to the Final

Rule.

2.

Next, court-appointed amicus asserts that TSA failed to

address publicly raised concerns “that (1) medically disabled

individuals are at a higher risk of triggering false positives by

the AIT scanner, and (2) the subsequent pat-down is simply not

safe for many of those travelers, because they can experience

12

severe pain or potentially fatal health complications.” Amicus

Reply Br. 4. Amicus further contends that while TSA

addressed medical issues generally, the agency failed to either

respond to comments or consider procedures for airline

passengers whose medical conditions cause consistent AIT

alerts resulting in pat-downs. In this regard, amicus contends,

TSA’s failure to address the comments concerning disabled

passengers supports the conclusion that the Final Rule was

arbitrary and capricious.

Here, again, there is no dispute regarding whether Muir

raised this two-part disabled passenger objection during

rulemaking, because he did not. However, while some

commenters did reference the profiling of the medically

disabled, see, e.g., J.A. 153, J.A. 160, J.A. 176, and others

complained about the risks associated with pat-downs, see J.A.

147, J.A. 149, J.A. 151, none addressed the distinct burdens on

disabled persons who are simultaneously affected by both.

Thus, TSA had no obligation to respond to Muir’s specific

circumstance when no comment raised anything materially

analogous to bring the issue to its attention. Cf. Unemployment

Comp. Comm’n of Alaska v. Aragon, 329 U.S. 143, 155 (1946)

(“A reviewing court usurps the agency’s function when it sets

aside the administrative determination upon a ground not

theretofore presented and deprives the Commission of an

opportunity to consider the matter, make its ruling, and state

the reasons for its action.”). We therefore hold that court-

appointed amicus’ first challenge to the Final Rule is forfeited

because no party raised the objection during the notice-and-

comment period.

B.

Court-appointed amicus also challenges the Final Rule

because it does not provide alternative screening procedures for

13

travelers with internal physical disabilities, even though TSA

routinely uses such alternatives for other categories of

passengers—like PreCheck®7 passengers, passengers carrying

an infant, child, or a small pet, passengers accompanied by

service animals, and at airports that lack AIT scanners. Amicus

argues that because TSA uses the combination of walk-through

metal detectors (WTMDs) and explosive trace detection swab

tests as alternatives for these travelers, it is arbitrary and

capricious to deny requests for alternative screening

procedures for passengers with internal physical disabilities.

TSA responds to amicus’ arguments by pointing out that

alternative screening measures are used for TSA PreCheck®

passengers, children, and the elderly because TSA pre-

determined them to be low-risk travelers. Moreover,

alternative screening measures are available to passengers for

whom AIT screeners cannot successfully produce an image,

because they cannot raise their arms as required, must remain

connected to medical equipment, or must remain accompanied

by service animals and pets. TSA further explained that the

difference between Muir and these passengers lies in the fact

that the latter have external characteristics that are immediately

apparent to TSOs and do not create verification or proof issues

that would be impracticable to administer at security

checkpoints nationwide.

In its explanation, TSA rationally connected the facts

before it to its decision to offer alternative screening

procedures for two categories of passengers—(1) those deemed

a lower security risk based on background checks or other

7

“TSA PreCheck® is an expedited screening program that makes

risk assessments about passengers prior to their arrival at an airport

checkpoint.” TSA PreCheck®, TSA, https://www.tsa.gov/news/pres

s/factsheets/tsa-precheck (last visited June 16, 2025)

14

available intelligence; and (2) those whose images AIT

scanners cannot successfully capture—while declining to

provide a similar process for passengers with internal

disabilities like Muir’s. Unlike the first group, passengers with

internal disabilities, like Muir, have not been determined, as a

class, to present a lower security risk. See J.A. 40. And unlike

the second group, passengers with internal disabilities going

through AIT scanners, do not impede the scanners’ ability to

function to produce images of those passengers. See J.A. 60.

Under 49 U.S.C. § 46110’s deferential standard of review, that

is enough to establish that TSA’s decision to exclude

alternative screening methods in the Final Rule for travelers

with internal physical disabilities is not arbitrary and

capricious. Accordingly, we deny court-appointed amicus’

second challenge to the Final Rule. As TSA noted, Muir’s

challenge is more “properly presented and resolved in a claim

under the Rehabilitation Act,” Resp’t Br. 28, to which we now

turn.

C.

Finally, we consider Muir’s claim that the Final Rule and

TSA’s SOPs, as applied to him, violate the Rehabilitation Act

of 1973, 29 U.S.C. §§ 701–797. The Rehabilitation Act

“empower[s] individuals with disabilities to maximize

employment, economic self-sufficiency, independence, and

inclusion and integration into society.” Id. § 701(b)(1). The

Act’s “basic tenet is that the Government must take reasonable

affirmative steps to accommodate the handicapped, except

where undue hardship would result.” Barth v. Gelb, 2 F.3d

1180, 1183 (D.C. Cir. 1993).

Section 504 of the Rehabilitation Act prohibits

discrimination against disabled persons by recipients of federal

funds. 29 U.S.C. § 794. We start by addressing two threshold

15

issues. First, Muir’s Rehabilitation Act claim is properly

before us because we, not the district courts, have exclusive

jurisdiction under § 46110(a) to review claims that TSA

“orders” are “not in accordance with law.” Suburban Air

Freight, 716 F.3d at 681. A TSA SOP is such an “order,”

Roberts v. Napolitano, 798 F. Supp. 2d 7, 10 (D.D.C. 2011),

aff’d, 463 F. App’x 4, 4–5 (D.C. Cir. 2012), which Muir asserts

is not in accordance with the Rehabilitation Act. Muir

challenges the SOP, as applied to him, that instructs TSOs to

conduct follow-up pat-downs of body parts flagged by AIT

scanners, a practice that, without appropriate accommodation,

allegedly excludes Muir from participation in TSA’s security

screening. Pet’r Br. 44.

Our dissenting colleague takes the position that we lack

jurisdiction because Muir did not specify any SOP in his

petition for review. He asserts that Muir has accordingly failed

to satisfy the requirements of the Federal Rules of Appellate

Procedure to “specify the order . . . to be reviewed” in the

petition. FED. R. APP. P. 15(a)(2)(C); see Partial Dissent at 1–

2. We disagree. It is true that Muir, a pro se litigant, did not

identify the relevant (nonpublic) SOP in his petition, but only

designated the Final Rule that authorizes it. See Pet. for

Review 1 (J.A. 32). “But a ‘mistaken or inexact specification

of the order to be reviewed’ is ‘not fatal,’ as long as the ‘intent

to seek review of a specific order [i] can be fairly inferred from

the petition for review or from other contemporaneous filings,

and [ii] the respondent is not misled by the mistake.’” Am.

Rivers v. FERC, 895 F.3d 32, 44 (D.C. Cir. 2018) (quoting

Entravision Holdings, LLC v. FCC, 202 F.3d 311, 313 (D.C.

Cir. 2000)) (alterations in original) (emphasis omitted).

Those conditions are met here. Muir’s petition explained

that he is not able to proceed through screening because “the

configuration of the AIT [scanner] . . . algorithmically

16

misidentifies [his] hernia as a threat object requiring a pat-

down to resolve.” Pet. for Review 2 (J.A. 33). That statement

sufficed to inform TSA that Muir challenged its direction to

security personnel to conduct follow-up pat-downs of any

potential threat object identified by an AIT scanner—a

direction Muir now knows is spelled out in an SOP. Notably,

TSA claims no prejudice from the petition’s failure to specify

an SOP. Those circumstances show that the petition meets the

requirements of Rule 15(a)(2). Accordingly, we do not believe

either Federal Appellate Rule of Procedure 15(a)(2)(C) or §

46111(a) preclude our exercise of jurisdiction over Muir’s

Rehabilitation Act claim.

Second, TSA suggests Muir’s challenge is foreclosed

because Muir “did not avail himself of the opportunity to bring

an administrative complaint alleging a violation of Section

504.” Resp’t Br. 47. But § 46110(d) excuses the failure to

raise a claim for an accommodation in a proceeding before the

agency “if there was a reasonable ground for not making the”

request. 49 U.S.C. § 46110(d). As discussed below, Muir’s

prior attempts at procuring an accommodation through the

available administrative process were exercises in futility that

excuse him from engaging in yet another such futile attempt.

See Tesoro Refin. & Mktg. Co. v. FERC, 552 F.3d 868, 874

(D.C. Cir. 2009) (observing that the futility exception to

exhaustion is “limited to situations ‘when resort to

administrative remedies [would be] “clearly useless.”’”)

(citation omitted). Although our dissenting colleague is correct

that the futility exception is used sparingly, Partial Dissent at

5, we find present the requisite “certainty of an adverse

decision,” id. (citation omitted), in TSA’s assertion that Muir’s

requested accommodation “would fundamentally alter the

nature of TSA’s security screening program,” Resp’t Br. 14.

See also J.L. v. SSA, 971 F.2d 260, 271 (9th Cir. 1992)

(“Exhaustion is futile where the agency’s position on an issue

17

‘appears already set,’ and it is ‘very likely’ what its result

would have been.”). We accordingly need not decide in this

case whether non-employee petitioners bringing Section 504

claims ordinarily must first exhaust their administrative

remedies. Cf. id. at 270 (“[W]e recognize that the

Rehabilitation Act does not require exhaustion of remedies in

all cases.”), rev’d on other grounds, Lane v. Pena, 518 U.S.

187 (1996). We thus proceed to consider the merits of Muir’s

Rehabilitation Act claim.

1.

“To prove a violation of section 504, [complainants] must

show that (1) they are disabled within the meaning of the

Rehabilitation Act, (2) they are otherwise qualified, (3) they

were excluded from, denied the benefit of, or subject to

discrimination under a program or activity, and (4) the program

or activity is carried out by a federal executive agency or with

federal funds.” Am. Council of the Blind v. Paulson, 525 F.3d

1256, 1266 (D.C. Cir. 2008). In addition, the disabled

individual “bears the ‘initial burden’ of showing that a

reasonable accommodation is possible” and “[o]nce that

showing is made, an [agency] may still avoid liability by

showing that the proposed accommodation would impose an

‘undue hardship’ on the [agency]’s operations.” Ali v. Regan,

111 F.4th 1264, 1269 (D.C. Cir. 2024) (citations omitted).

TSA does not dispute Muir’s ability to satisfy the liability

elements of a Section 504 claim, that is, he “is an ‘individual

with a disability’ as defined in 29 U.S.C. § 705(20), . . . he is

‘otherwise qualified’ to present to a TSA checkpoint and

receive security screening . . . [and] TSA’s security screening

activities are a ‘program or activity conducted by an[]

Executive agency’ under 29 U.S.C. § 794(a).” Resp’t Br. 44.

Rather, TSA argues that Muir’s requested accommodation is

18

not “reasonable” because it would fundamentally alter TSA’s

security screening program. Id. at 44–45. Against this

backdrop, we turn to assessing whether Muir establishes the

existence of a reasonable accommodation.

2.

The accommodation Muir seeks is for TSA to screen him

using a WTMD. He understands that if he causes the metal

detector to alert, he will be subjected to pat-down, and that at

TSA’s discretion he may also be subjected to Explosive Trace

Detection swabbing. Amicus asserts that use of this alternate

screening method is a reasonable accommodation because TSA

already uses WTMDs to screen “millions of passengers every

year” and, therefore, it “sufficiently protects airline security.”

Amicus Br. 21. To further stress the reasonableness of this

accommodation, Amicus observes that “[w]hile Mr. Muir can

use a WTMD without incident,” id. at 22, TSA continues to

subject him “to an invasive and painful pat down procedure

simply because its AIT systems erroneously categorize his

medical condition as a threat,” id. at 24.

TSA rejects any suggestion that Muir’s request for

screening by a WTMD is reasonable. TSA belabors that AIT

“provides the most effective and least intrusive means currently

available to detect both metallic and non-metallic threats

concealed under a person’s clothing.” Resp’t Br. 48 (quoting

81 Fed. Reg. at 11,367). Moreover, TSA posits that passengers

primarily screened by WTMDs rather than AIT scanners “are

either pre-determined by TSA to pose a lower security risk or

are categorically ineligible to be screened by AIT.” Resp’t Br.

13. In this regard, TSA emphasizes that Muir has neither

applied for PreCheck®, the program for low-risk, trusted

travelers who are primarily screened by WTMDs, nor shown

why he is ineligible for AIT scanning. Furthermore, it argues

19

any accommodation that requires either the granting of

PreCheck® status without undergoing the advance background

check or a pre-clearance determination of AIT ineligibility

would fundamentally alter the nature of TSA’s security

screening program.

At oral argument, Muir clarified that he does not view

PreCheck® as a reasonable accommodation because TSA

reserves the right to subject airline passengers in the

PreCheck® program to AIT screening, which in Muir’s case

would lead to a risky and excruciatingly painful pat-down. 81

Fed. Reg. at 11,380. We are persuaded that Muir has succeeded

in meeting the threshold requirement that he identify an

accommodation that is facially reasonable. Hill v. Assocs. for

Renewal in Educ., Inc., 897 F.3d 232, 237–38 (D.C. Cir. 2018)

(citing U.S. Airways v. Barnett, 535 U.S. 391, 401–02 (2002)).

TSA routinely provides WTMD screening to passengers

who are unable to proceed through AIT scanners because they

cannot raise their arms above their shoulders. On the existing,

admittedly incomplete administrative record, we disagree with

TSA that affording Muir the same accommodation would

fundamentally alter the security screening program simply

because Muir’s disability is not “immediately obvious and

readily observable” and would therefore require TSOs to

“identify and verify” his disability whenever he shows up at the

airport. Resp’t Br. 52. Although TSOs cannot invariably

visually identify a traveler’s inability to raise his arms, the

agency does not require those passengers to be prescreened or

provide verification of their disability.

On the available record, we are satisfied that Muir met his

burden to show that a reasonable accommodation is possible to

address his concerns regarding AIT scanners. However, the

record will not permit a determination of whether Muir’s

20

proposed reasonable accommodation imposes on TSA’s

operations an undue hardship. That assessment requires

information regarding the extent to which an accommodation

would create “financial and administrative burdens” for TSA,

which is currently not in the record. Sch. Bd. of Nassau Cnty.

v. Arline, 480 U.S. 273, 287 n.17 (1987) (citation omitted);

Taylor v. Rice, 451 F.3d 898, 908 (D.C. Cir. 2006) (“An

accommodation—even a reasonable one—imposes undue

hardship on an employer if it ‘requir[es] significant difficulty

or expense, when considered in light’ of several statutory

factors.”) (citing 42 U.S.C. § 12111(10)). Accordingly, a

remand to TSA is appropriate to determine if Muir’s proposed

accommodation would cause it undue hardship. Roberts, 463

F. App’x at 5 (“And if . . . the administrative record is

inadequately developed for appellate review, section 46110

expressly permits us to remand for further proceedings.”).

3.

Muir also challenges the Government’s alleged failure to

provide him any kind of process to request an accommodation

to the SOPs. Specifically, under compliance procedures set

forth in 6 C.F.R. § 15.70, the CRCL must investigate

complaints alleging violation of Section 504 and notify the

complainant within 180 days of the results of the investigation,

including factfinding, statements of law, and a description of a

remedy for any violation. Id. § 15.70(g). Muir submitted

documentation showing that the CRCL did not follow those

procedures, but provided him an uninformative, boilerplate

response that only acknowledged receipt of his complaint.

Reply Br. Addendum 42–3.

Muir was entitled to an administrative process—as

outlined in 6 C.F.R. § 15.70—conducted by TSA. The agency

admitted as much in its brief, Resp’t Br. 47 (“DHS has

21

promulgated procedures for doing so, 6 C.F.R. § 15.70, which

apply to its component agencies such as TSA.”), and at oral

argument where counsel for TSA agreed that Muir’s complaint

warranted investigation. Had such process occurred here, the

case likely would have reached us on a more informative

factual record. Cf. GAO, TSA Should Assess Potential for

Discrimination and Better Inform Passengers of the Complaint

Process (Nov. 2022), https://perma.cc/678M-7SFE.

*****

For the foregoing reasons, we grant Michael Muir’s

petition for review insofar as it alleges a violation of Section

504 of the Rehabilitation Act. Accordingly, we remand the

matter to TSA to conduct the appropriate administrative

process to address implementation of Muir’s facially

reasonable accommodation. If TSA determines that Muir’s

preferred accommodation would pose an undue burden on the

agency, the parties should explore alternative reasonable

accommodations. We deny the balance of Muir’s petition for

review and his motion to supplement the record.

So ordered.

RANDOLPH, Senior Circuit Judge, concurring in part and

dissenting in part:

I join the majority opinion except for part III. C. I dissent

from that part because our court lacks jurisdiction to review

Muir’s contentions regarding the Rehabilitation Act, 29 U.S.C.

§ 701 et seq.

Muir’s petition for judicial review invoked 49 U.S.C.

§ 46110(a), a statute conferring jurisdiction on the federal courts

of appeals—direct review—over a person’s1 “petition for

review” of an “order” of the Transportation Security

Administration. The majority opinion declares that the

§ 46110(a) “orders” establishing our jurisdiction are TSA’s

Standard Operating Procedures, or “SOPs.”2 The opinion then

considers Muir’s arguments (and those of a court appointed

“amicus” attorney) regarding the Rehabilitation Act.

The majority has missed a step. It first should have noticed

that Muir’s § 46110(a) petition did not designate any TSA

Standard Operating Procedure as an “order” with respect to

which he sought judicial review. As a consequence, and as I will

explain, our court lacks jurisdiction to adjudicate Muir’s claims

about the Rehabilitation Act.

Rule 15(a)(2)(C) of the Federal Rules of Appellate

Procedure states: a petition for direct review of an agency

decision “must . . . specify the order or part thereof to be

reviewed.” Note the “must.” Muir, although representing

1

That is, “a person disclosing a substantial interest in an order” of the

Transportation Security Administration. 49 U.S.C. § 46110(a).

2

These are non-public directions to staff regarding screening

procedures. See Roberts v. Napolitano, 798 F. Supp. 2d 7, 9 (D.D.C.

2011), aff’d, 463 F. App’x 4 (D.C. Cir. 2012).

2

himself, cannot claim ignorance of this rule—he cited Rule 15

in his petition for judicial review. To repeat, Muir’s petition

never mentioned any SOPs.3

The law of our circuit is that a petitioner’s failure to specify

an “order” in compliance with Rule 15(a)(2)(C) deprives our

court of jurisdiction to review that order. See City of Benton v.

Nuclear Regul. Comm’n, 136 F.3d 824, 826 (D.C. Cir. 1998)

(per curiam); John D. Copanos & Sons, Inc. v. FDA, 854 F.2d

510, 527 (D.C. Cir.1988); Small Bus. in Telecomms. v. FCC, 251

F.3d 1015, 1022 (D.C. Cir. 2001). Our opinion in City of Benton

added that the “jurisdictional requirements of Rule 15(a) may

not be waived.” 136 F.3d at 826 (citing Gottesman v. INS, 33

F.3d 383, 388 (4th Cir. 1994)).

3

Muir’s “contemporaneous filings” also failed to notify the

government of the order being challenged. See Small Bus. in

Telecomm. v. FCC, 251 F.3d 1015, 1019 (D.C. Cir. 2001). Muir filed

his petition on December 14, 2022. Fifteen days later, on December

29, he filed the Docketing Statement, Statement of Issues, and

Underlying Decision from which Petition Arises. None of these filings

mentioned the SOPs. The filings merely reiterated Muir’s objection

to TSA’s promulgation of 49 C.F.R. § 1540.107(d) and DHS’s order

certifying the AIT devices.

The majority excuses Muir as a “pro se litigant” unable to

identify the “nonpublic” SOPs. Majority Op. at 15. But Muir knew of

the SOPs when he filed his petition in this court in December 2022.

In January 2021, the District Court for the Central District of Illinois

dismissed one of Muir’s suits because “TSA’s screenings are

conducted pursuant to [the SOP] . . . and challenges to the SOP . . . lie

within the exclusive jurisdiction of the courts of appeals.” Muir v.

TSA, 2021 WL 231733, at *11 (C.D. Ill. Jan. 22, 2021). Muir then

discussed the SOPs in his Seventh Circuit brief in 2021. See Brief for

the Appellant at 13, Muir v. TSA, 857 F. App’x 251 (7th Cir. 2021)

(No. 21-1312), ECF No. 15.

3

The next problem with part III.C of the opinion is this.

Section 46110(a)—the provision Muir invoked to establish our

jurisdiction—requires a petition for review to be filed within 60

days of issuance of the “order.” Our court has held that

“simpl[e] ignorance of the order” will not excuse

noncompliance. Matar v. TSA, 910 F.3d 538, 542 (D.C. Cir.

2018) (quoting Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 521

(D.C. Cir. 2011)). It is one thing if a person files his petition

challenging an order after the 60-day deadline expired. Section

46110(a) has an escape valve for those who have “reasonable

grounds” for delay. The built-in assumption of § 46110(a) is

that the person, at some time after the 60 days had run, filed a

petition for review of the “order.” Muir was not late in filing.

The problem for him—and the majority—is not with delay. It is

that he did not, and still has not, filed any § 46110(a) petition

objecting to an SOP.

The third jurisdictional defect in the majority’s analysis is

as follows. The majority excuses Muir from his failure to

exhaust administrative remedies because “Muir’s prior attempts

at procuring an accommodation . . . were exercises in futility.”

Majority Op. at 16. What “prior attempts”? The majority has

only one “attempt” in mind. That is the single complaint Muir

lodged with the DHS Office for Civil Rights and Civil Liberties

on December 15, 2019, three years before the events at the

Florida airport described in his petition for judicial review in this

case. Majority Op. at 8. This Office—CRCL—responded to

Muir’s complaint in a January 2020 letter. The letter stated that

after reviewing the information Muir “provided, CRCL has

recorded it in our database.” Muir Reply Br. Addendum at 42.

CRCL took no further action and Muir considered his complaint

as having been “denied.” Muir Reply Br. at 17.

The DHS regulation governing complaints like Muir’s—6

4

C.F.R. § 15.70(d)—requires claims of disability discrimination

to be filed within 180 days of the discriminatory conduct.

Muir’s complaint alleged discrimination at two airports in

August 2018. He did not file his complaint with CRCL until

November 1, 2019, many months out of time.

More important, CRCL’s letter was not “final agency

action” subject to judicial review. See Bennett v. Spear, 520

U.S. 154, 177–78 (1997); Magassa v. Mayorkas, 52 F.4th 1156,

1165 (9th Cir. 2022). It was only an intermediate determination.

If Muir was dissatisfied with CRCL’s response, he had a right to

take an administrative appeal within 60 days.4 In such an appeal,

it is “the Officer for Civil Rights and Civil Liberties, or

designee thereof, who will issue the final agency decision which

may include appropriate corrective action to be taken by the

Department.” 6 C.F.R. § 15.70(i) (emphasis added).

But Muir never filed an administrative appeal regarding his

November 2019 complaint. In other words, he did not then

exhaust his administrative remedies.5 And so the majority

opinion is clearly mistaken in excusing Muir from having to

present any administrative complaint whatsoever before

4

“Appeals of the findings of fact and conclusions of law or remedies

must be filed by the complainant not later than 60 days after receipt

from the Department of the letter” denying the complaint. 6 C.F.R.

§ 15.70(h).

5

See, e.g., Smith v. Blue Cross & Blue Shield, 959 F.2d 655, 659 (7th

Cir. 1992) (requiring litigants challenging agency action to “show that

it is certain that their claim will be denied on [administrative] appeal,

not merely that they doubt an appeal will result in a different

decision”). Our court cited this portion of Smith with approval in

Tesoro Refin. & Mktg. Co. v. FERC, 552 F.3d 868, 874 (D.C. Cir.

2009).

5

pursuing his Rehabilitation Act claim in this court. 6 There is no

telling how the CRCL Officer would have ruled in 2020 had

Muir appealed, and still less is there any way to know how he

would have been treated if he had filed an administrative

complaint in 2022. The majority therefore erred in applying the

futility exception of exhaustion. That exception is “quite

restricted,” Comm. of Blind Vendors of D.C. v. District of

Columbia, 28 F.3d 130, 133 n.5 (D.C. Cir. 1994), and is

confined to situations when resort to administrative remedies

would be “‘clearly useless,’” Randolph-Sheppard Vendors of

Am. v. Weinberger, 795 F.2d 90, 105 (D.C. Cir. 1986) (quoting

Baxter v. Claytor, 652 F.2d 181, 185 (D.C. Cir. 1981)); see also

Tesoro Refin. & Mktg. Co. v. FERC, 552 F.3d 868, 874 (D.C.

Cir. 2009).

6

49 U.S.C. § 46110(d) itself required Muir to exhaust his

administrative remedies. That section, and comparable provisions in

the judicial review statute of many agencies, cannot be waived. See

EEOC v. FLRA, 476 U.S. 19, 23 (1986).