Ege v. United States Department of Homeland Security

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2014 Decided April 28, 2015

No. 13-1110

MEHMET EGE,

PETITIONER

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY

AND TRANSPORTATION SECURITY ADMINISTRATION,

RESPONDENTS

On Petition for Review of an Order of the

Transportation Security Administration

Charles A. Zdebski argued the cause and filed the briefs

for the petitioner.

Sharon Swingle, Attorney, United States Department of

Justice, argued the cause for the respondents. Stuart F.

Delery, Assistant Attorney General, Ronald C. Machen, Jr.,

United States Attorney, and Mark B. Stern, Attorney, were

with her on brief. Catherine H. Dorsey, Attorney, United

States Department of Justice, entered an appearance.

Before: HENDERSON, ROGERS and KAVANAUGH, Circuit

Judges.

2

Opinion for the Court filed by Circuit Judge HENDERSON.

Opinion concurring in the judgment filed by Circuit

Judge KAVANAUGH.

KAREN LECRAFT HENDERSON, Circuit Judge: Mehmet

Ege, a pilot for Emirates Airlines, petitions for review of an

order of the Transportation Security Administration (TSA)

that prohibits him from flying to, from or over the United

States. Ege believes the TSA’s prohibition is based on his

alleged inclusion on the “No-Fly List,” a subset of the

Terrorist Screening Database (TSDB) used by the TSA to

“deny boarding of individuals on commercial aircraft

operated by U.S. carriers or flying to, from, or over the United

States.” Resp’t’s Br. 7. 1 He seeks removal from the No-Fly

List or, at a minimum, a “meaningful opportunity to be

heard.” Pet’r’s Br. 23.

The problem, however, is that neither the TSA nor the

Department of Homeland Security (DHS)—the only two

respondent agencies—has “authority to decide whose name

goes on the No-Fly List.” Ibrahim v. DHS, 538 F.3d 1250,

1254 n.6 (9th Cir. 2008). Instead, the Terrorist Screening

Center (TSC), which is administered by the Federal Bureau of

Investigation (FBI), see About the Terrorist Screening Center,

FBI, http://www.fbi.gov/about-us/nsb/tsc/about-the-terrorist-

screening-center (last visited Apr. 26, 2015), is “the sole

entity with both the classified intelligence information” Ege

1

“As a matter of policy, the federal government does not confirm

or deny whether any particular individual is included in the TSDB

or on any of its subset lists,” including the No-Fly List. Resp’t’s

Br. 8. Nothing herein should be construed as indicating whether

Ege is, in fact, on any list or in any database maintained by the

Government.

3

wants and “the authority to remove” names from the No-Fly

List/TSDB. Latif v. Holder, 686 F.3d 1122, 1129 (9th Cir.

2012). And because we have no jurisdiction under 49 U.S.C.

§ 46110 to issue an order binding the TSC, we ipso facto

cannot redress Ege’s injury even if we were inclined to agree

with him. For this reason, we must dismiss his petition for

lack of standing.

After experiencing unspecified travel issues in 2009,2

Ege submitted an online inquiry to the DHS’s Traveler

Redress Inquiry Program (DHS TRIP), the administrative

review mechanism that allows an individual to seek assistance

if he believes he has “been improperly or unfairly delayed or

prohibited from boarding an aircraft.” 49 C.F.R.

3

§ 1560.205(a). Ege’s DHS TRIP inquiry was reviewed by

2

Although Ege refers to his 2006 removal from the Master Crew

List, a manifest that must be submitted to the TSA by every foreign

air carrier operating flights over the United States and that contains

identifying information for “all crew members . . . operating and

servicing” such flights, 19 C.F.R. § 122.49c(a), he never petitioned

for review of the administrative denial of that removal, which

denial occurred in 2008. We therefore limit our review to the

unspecified travel difficulty Ege experienced in 2009 that led him

to seek redress through DHS TRIP and that culminated in the 2013

TSA order, which he petitions that this Court review. We note,

however, that Ege believes his removal from the Master Crew List

also resulted from his alleged inclusion in the TSDB. See Pet’r’s

Br. 9 (“The Master Crew List operates similar to the Do-Not Fly

list. The TSA makes its determination of whether a pilot should

stay on the master crew list by cross-checking the information

with” the TSC). For that reason, our analysis would not change had

he challenged his Master Crew List removal in his petition for

review.

3

As our concurring colleague observes, see Concur. Op. 2, DHS

TRIP was created in response to a congressional directive that it

4

the TSA, which responded by letter on March 24, 2011,

informing him that his record had been reviewed and that any

appropriate changes or corrections had been made.

Apparently, Ege’s travel woes persisted and he subsequently

contacted the TSA to complain. On February 6, 2012, the

TSA sent Ege another letter, stating that it had “conducted a

review of any applicable records in consultation with other

federal agencies, as appropriate” and “determined that no

changes or corrections [were] warranted at th[at] time.”

Resp’t’s Br. 15. The TSA’s February 6 letter also informed

Ege that he could administratively appeal its initial

determination.

Ege did so on February 25, 2012, submitting a letter that

expressed his belief that he had been placed on the No-Fly

List and that his alleged inclusion was hampering his

employment as an international pilot. On January 22, 2013,

the TSA issued its final order, which upheld the initial agency

decision and told Ege that he could seek review “by a United

States Court of Appeals under 49 U.S.C. § 46110.”

“establish a timely and fair process for individuals who believe they

have been delayed or prohibited from boarding a commercial

aircraft because they were wrongly identified as a threat.” 49

U.S.C. § 44926(a). But it is axiomatic that the DHS’s attempt to

comply with the Congress’s mandate in a manner consistent with

the “constitutional elements of jurisdiction,” which jurisdiction is

the “essential ingredient of separation and equilibration of powers,”

does not affect our independent obligation to determine whether a

redressable case or controversy exists. Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 101 (1998). And based on the interplay

among the DHS, the TSA and the TSC in the context of No-Fly

List/TSDB challenges, a petitioner cannot, consistent with

constitutional standing principles, raise a No-Fly List/TSDB

challenge through review pursuant to section 46110,

notwithstanding his compliance with the DHS TRIP process.

5

Pet’r’s Br. Ex. A. On April 4, 2013, 4 Ege petitioned this

Court for review under section 46110, which provides this

Court with jurisdiction to review orders issued by the DHS,

the TSA and the Federal Aviation Administration (FAA). 49

U.S.C. § 46110(a).

Uncertain about our power to adjudicate Ege’s petition,

we asked the parties to submit supplemental briefs addressing

whether this Court has jurisdiction under 49 U.S.C. § 46110

to hear Ege’s challenge to his alleged inclusion in the TSDB

and on the No-Fly List. The parties complied, both assuring

us that Ege’s injury is redressable on section 46110 review.

Despite their agreement, “[w]hen there is doubt about a

party’s constitutional standing,” we must “resolve the doubt,

sua sponte if need be.” Lee’s Summit, Mo. v. Surface Transp.

Bd., 231 F.3d 39, 41 (D.C. Cir. 2000); see also Steel Co., 523

U.S. at 95 (“ ‘[E]very federal appellate court has a special

obligation to satisfy itself . . . of its own jurisdiction . . . ’ even

though the parties are prepared to concede it.” (quoting

Mitchell v. Maurer, 293 U.S. 237, 244 (1934) (quotation mark

omitted))). Based on our independent assessment, we

conclude that we do not have the requisite Article III

jurisdiction to allow Ege’s case to proceed.

4

Our concurring colleague correctly observes that Ege filed his

petition for review after expiration of the 60-day time limit

prescribed by 49 U.S.C. § 46110(a). See Concur. Op. 2. Because

we lack Article III jurisdiction, our “only function . . . is that of

announcing the fact and dismissing the cause.” Steel Co., 523 U.S.

at 94 (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)).

Accordingly, we take no position on whether Ege demonstrated

“reasonable grounds” to excuse his untimely filing. 49 U.S.C.

§ 46110; see also Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 519

(D.C. Cir. 2011) (section 46110 filing deadline not jurisdictional).

6

“[T]he irreducible constitutional minimum of standing

contains three elements.” Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992). First, Ege must have suffered an

“injury in fact.” Id. Second, his injury must be “fairly

traceable to the challenged action[s] of the [TSA or DHS],

and not the result of the independent action of some third

party not before the court.” Id. (alterations omitted). And

third, “it must be likely, as opposed to merely speculative,

that [his] injury will be redressed by a favorable decision.”

Id. at 561 (quotation marks omitted).

The jurisdictional deficiency dooming Ege’s petition lies

in his failure to satisfy the second and third standing elements,

as articulated in Lujan. See 504 U.S. at 560–61. His failure is

due, in turn, to the relief he seeks. True, Ege would like to

“board . . . a plane” and to fly “to, from, or over the United

States.” Concur. Op. 1. But Ege makes plain, and the TSA

agrees, that his injury is his alleged inclusion on the No-Fly

List and in the TSDB and the precise relief he seeks is either

removal from them or an opportunity to more effectively

argue for removal. See Pet’r’s Reply Br. 9 (arguing that DHS

and TSA erred “when they included Mr. Ege on Terrorist

Screening Database” and “No-Fly List”); see also Resp’t’s

Br. 8 (Ege “appears to argue that he has been wrongfully

placed in the TSDB and on the No-Fly List”). 5

Section 46110 gives us authority to review orders from

the TSA, DHS and FAA. 49 U.S.C. § 46110. “[T]he sole

entity with . . . the authority to remove” names from the No-

5

Indeed, even after we requested the parties to submit

supplemental briefing regarding this Court’s jurisdiction under

section 46110, Ege made no attempt to recast the No-Fly

List/TSDB relief he seeks. See Pet’r’s Supp. Br. 1; see also

Resp’t’s Supp. Br. 2.

7

Fly List/TSDB, however, is the TSC. See Latif, 686 F.3d at

1129. Because the “ ‘case or controversy’ limitation” of

Article III requires that we “act only to redress injury that

fairly can be traced to the challenged action of the” agencies

before us (i.e., DHS and TSA), “and not injury that results

from the independent action of some third party not before the

court” (i.e., the TSC), Simon v. E. Ky. Welfare Rights Org.,

426 U.S. 26, 41–42 (1976), we have no power to redress

Ege’s No-Fly List/TSDB-related injury. See also Fulani v.

Brady, 935 F.2d 1324, 1330 (D.C. Cir. 1991) (“[T]his Court

has denied standing where the plaintiff seeks to change the

defendant’s behavior only as a means to alter the conduct of a

third party, not before the court, who is the direct source of

the plaintiff’s injury.” (quotation marks and emphasis

omitted)). See generally Common Cause v. Biden, 748 F.3d

1280, 1284 (D.C. Cir. 2014) (“To invoke the jurisdiction of

the federal courts, . . . a proper defendant [must] be sued.”).

The Ninth Circuit is in accord. 6 It has observed that the

“TSA is merely a conduit for a traveler’s challenge to

inclusion on the” No-Fly List and in the TSDB, “simply

pass[ing] grievances along to TSC and inform[ing] travelers

6

The Ninth Circuit characterized the difficulty inherent in

mounting a No-Fly List/TSDB challenge under section 46110 as

one of subject-matter jurisdiction rather than Article III standing

because the TSC was named as a defendant/respondent in each case

in which the issue arose. See Ibrahim, 538 F.3d at 1253; Latif, 686

F.3d at 1127; Arjmand v. DHS, 745 F.3d 1300, 1302 (9th Cir.

2014). Because the TSC was before the court in those cases, the

question was whether the court had “original jurisdiction” under

section 46110 to enjoin it. Arjmand, 745 F.3d at 1302. Ege,

however, did not name the TSC as a respondent and, accordingly,

the jurisdictional deficiency in his petition is better understood as

no Article III standing because the sole entity with the authority to

redress his injury is missing.

8

when TSC has made a final determination.” Latif, 686 F.3d at

1128. Because “TSC—not TSA—actually reviews the

classified intelligence information about travelers and decides

whether to remove them from the List” and “established the

policies governing that stage of the redress process,” id., we

agree that we cannot, on section 46110 review, provide relief

to an individual included on the No-Fly List or in the TSDB

by “simply amending, modifying, or setting aside TSA’s

orders or by directing TSA to conduct further proceedings.”

Id. at 1129 (emphases in original); see also Arjmand, 745

F.3d at 1302 (“[S]ince § 46110 does not grant circuit courts

jurisdiction to review TSC orders, the statute cannot grant

jurisdiction over claims seeking removal from the TSDB.”).

Both Ege and the TSA argue that the Ninth Circuit got it

wrong but we are not persuaded. They insist that Ege’s

challenge to his alleged No-Fly List/TSDB status is

“inescapably intertwined” with the TSA order of which he

seeks review. Cf. Merritt v. Shuttle, Inc., 245 F.3d 182, 187

(2d Cir. 2001) (“statutes such as Section 46110(c)” include

“claims that are ‘inescapably intertwined’ with review of such

orders”). Although courts use the “inescapably intertwined”

doctrine to review a claim not expressly included in a

jurisdictional grant, we are aware of no case—and neither

party cites one—in which a court has used the “inescapably

intertwined” doctrine to enjoin a party not so included. This

is unsurprising; were we able to use the “inescapably

intertwined” doctrine to redress injuries caused by absent

parties, we would routinely “offend[] fundamental principles

of separation of powers.” See Steel Co., 523 U.S. at 94.

The TSA suggests we could simply issue an injunction

requiring it to allow Ege to board an airplane, leaving

unaffected his status regarding the TSDB. Resp’t’s Supp.

Br. 9. Our concurring colleague agrees. See Concur. Op. 1–

9

2. But the TSA’s proposal falls short for at least two reasons.

First, as a threshold matter, merely “boarding” a plane is not

the relief Ege seeks—rather, he wants off the No-Fly List and

removed from the TSDB. See supra p. 6 & n.5. Second, as a

practical matter, the TSA’s proposal would do Ege no good.

Ege can board and pilot an airplane and, as a commercial pilot

for Emirates Airlines, he has boarded and piloted airplanes as

recently as October 2013. See Pet’r’s Br. Ex. H (Ege’s flight

logs). The problem is that Ege cannot board or pilot flights

destined for the United States. If his alleged TSDB status

remains unchanged, it is possible that one of “several” other

federal agencies could use the TSDB to prevent Ege from

crossing the U.S. border. See Resp’t’s Br. 7. For example,

the Department of State—an entity, like the FBI and the TSC,

that is not included in section 46110’s grant of jurisdiction—

uses the TSDB to screen individuals who “apply for . . .

visa[s].” OFFICE OF THE INSPECTOR GENERAL, FOLLOW-UP

AUDIT OF THE TERRORIST SCREENING CENTER (2007),

available at http://www.justice.gov/oig/reports/FBI/a0741/

intro.htm; see also Ibrahim, 669 F.3d at 989 (State

Department “uses a subset of the TSDB to screen visa

applicants”).

Because Ege’s alleged TSDB status would prevent him

from flying “to, from, or over the United States” even if the

TSA allowed him “to board or pilot a plane,” Concur. Op. 1, 2

(emphasis added), it is “merely speculative” at best that the

TSA’s proposal would remedy Ege’s purported injury. Lujan,

504 U.S. at 561 (quotation marks omitted). We plainly need

more than the TSA’s assurance—first given at oral

argument—that the entire Executive Branch would allow Ege

to board or pilot a plane and cross into the United States

before we can conclude that Ege’s alleged injury is

redressable. Cf. Smith v. Bayer Corp., 131 S. Ct. 2368, 2379

(2011) (generally, “a court’s judgment binds only the parties

10

to a suit”). Instead, Ege would need to add the TSC as a

respondent—something he cannot do under section 46110.

Relying on section 46110 as the jurisdictional basis of

our review, Ege seeks removal of his alleged inclusion on the

No-Fly List and in the TSDB. The agencies whose actions

are reviewable under section 46110, however, have no

“authority to decide whose name goes on the No-Fly List.”

Ibrahim, 538 F.3d at 1254 n.6; see also Arjmand, 745 F.3d at

1303. Because we cannot redress Ege’s injury, we dismiss his

petition for lack of standing.

So ordered.

KAVANAUGH, Circuit Judge, concurring in the judgment:

Mehmet Ege is a pilot who flies for Emirates Airline, which is

headquartered in Dubai. Ege is a dual citizen of Canada and

Turkey. The Transportation Security Administration,

commonly known as TSA, has barred Ege from piloting a

plane to, from, or over the United States. Ege also claims that

TSA has barred him from even boarding a plane to, from, or

over the United States.

Ege asks this Court to review TSA’s January 22, 2013,

final order that allegedly bars him from boarding a plane to,

from, or over the United States. Ege also complains about

TSA’s 2008 final order barring him from piloting a plane to,

from, or over the United States.

To begin with, both Ege and the Government agree that

Ege has standing to bring this suit against TSA. I likewise

agree. The majority opinion nonetheless has sua sponte

denied standing to Ege. According to the majority opinion,

Ege’s complaint is not redressable by the Court because TSA

could not comply with a court order that directed the agency

to allow Ege to board or pilot a plane. I frankly do not

understand that.

Under federal law, TSA controls access to planes. TSA

barred Ege from piloting planes and allegedly barred Ege

from boarding planes. Congress has mandated that TSA

“shall establish a timely and fair process for individuals” who

are delayed or prohibited from boarding planes to “appeal to

the Transportation Security Administration the determination

and correct any erroneous information.” 49 U.S.C.

§ 44903(j)(2)(G)(i); see also 49 U.S.C. § 44926(a). Ege

invoked that appeals process. Following that appeals process,

TSA issued an order affirming its decision that allegedly bars

Ege from boarding planes. Ege asks us to review that order,

and a similar order barring Ege from piloting planes. Under

Federal Rule of Appellate Procedure 15(a), Ege properly

2

named TSA as respondent in his petition for review filed in

this Court. And TSA, represented by the Department of

Justice, says it could and would, if ordered by a final court

decision, allow Ege to board or pilot a plane. See Tr. of Oral

Arg. at 12:51-13:43. What more do we need? In my view,

this case readily meets the injury in fact, causation, and

redressability prongs of the standing doctrine. The majority

opinion does not cite any case of the Supreme Court or this

Court suggesting that the redressability prong of standing is a

barrier to suit where an individual follows an agency review

process mandated by Congress and then appeals the agency’s

final order.

That said, the problem for Ege here is that his petition for

review is untimely. Under Section 46110(a), a petitioner

must file a request for review of a TSA order “not later than

60 days after the order is issued.” 49 U.S.C. § 46110(a). This

Court may excuse a late filing “only if there are reasonable

grounds for not filing by the 60th day.” Id.

On January 22, 2013, TSA issued the final order that

allegedly bars Ege from boarding a plane to, from, or over the

United States. But Ege’s petition for review of that TSA

order was not filed until April 4, 2013. Ege’s petition was

thus filed 10 days after the 60-day period for seeking review

had expired. Moreover, TSA’s final order barring Ege from

piloting a plane to, from, or over the United States was issued

in 2008. So Ege is long past the time to challenge that order

as well.

Under this Court’s precedent, we must dismiss an

untimely petition for review under Section 46110(a) unless

there are reasonable grounds for delay. See Avia Dynamics,

Inc. v. FAA, 641 F.3d 515, 521 (D.C. Cir. 2011). In this case,

the record does not disclose any reasonable grounds for delay.

3

As to TSA’s 2008 order, Ege has offered no explanation for

his several-year delay in seeking review. As to TSA’s 2013

order, Ege claims that the date he received TSA’s order, his

geographic location, and his employment excuse his failure to

file his petition on time. It is true that Ege is an international

pilot living in Dubai, and that he allegedly became aware of

TSA’s January 22, 2013, order just 12 days before the 60-day

period for seeking review of that order expired. But that still

gave him 12 days to file a timely petition for review. He did

not do so.

I would therefore dismiss Ege’s petition as untimely. If

Ege seeks to travel on a plane flying to, from, or over the

United States, and TSA prevents him from doing so, the

Government has stated to the Court that Ege may bring a new

challenge at that time. See Tr. of Oral Arg. at 19:29-19:51.