Matar v. Transp. SEC. Admin.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 15, 2018 Decided December 7, 2018

No. 17-1213

NADIA PINKOVITSCH MATAR,

PETITIONER

v.

TRANSPORTATION SECURITY ADMINISTRATION,

RESPONDENT

On Petition for Review of a Final Order of

the Transportation Security Administration

L. Marc Zell argued the cause and filed the briefs for

petitioner.

Brad Hinshelwood, Attorney, U.S. Department of Justice,

argued the cause for respondent. With him on the brief was

Sharon Swingle, Attorney. Nitin Shah, Trial Attorney, U.S.

Department of Justice, entered an appearance.

Before: H ENDERSON and SRINIVASAN, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

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EDWARDS, Senior Circuit Judge: In 2013, before boarding

a flight from Canada to the United States, Nadia Pinkovitsch

Matar (“Petitioner”) was informed by a Canadian border

official that she was on a United States watch list and was

advised not to board her flight. Four years later, Petitioner, who

is a dual citizen of Israel and Belgium, submitted a petition to

the Transportation Security Administration (“TSA”). She

sought removal from the watch list or an explanation for her

presence on it. Several months later, TSA mailed a final

disposition to Petitioner at her home in Israel. See TSA Order

of July 28, 2017 (“Order”), reprinted in Joint Appendix

(“J.A.”) 40–41. The Order stated that TSA would “neither

confirm nor deny any information about [Petitioner] which

may be within federal watchlists or reveal any law enforcement

sensitive information.” Id. at 40. Petitioner then petitioned this

court, pursuant to 49 U.S.C. § 46110, for review of the Order.

Petitioner contends that TSA’s disposition of her inquiry

violated the Due Process Clause of the Fifth Amendment and

the Administrative Procedure Act (“APA”) because the agency

failed to explain whether or why she was still on a watch list.

Petitioner’s petition for review comes too late. Section

46110(a) provides that a petition for review of a disputed order

must be filed not later than 60 days after the order is issued

unless there are reasonable grounds for not filing by the 60th

day. Petitioner’s petition was filed after the statutory deadline

and there are no “reasonable grounds” justifying her untimely

filing. We therefore deny the petition for review.

I. BACKGROUND

TSA is tasked with ensuring safety in commercial airline

travel. See 49 U.S.C. § 114(d). In furtherance of that directive,

TSA maintains two watch lists as part of the Secure Flight

Program: a “No Fly” list and a “Selectee” list. See id.

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§ 44903(j)(2)(A), (C)(i)–(ii). Individuals on the No Fly list are

prohibited from boarding airplanes that are traveling to the

United States, while individuals on the Selectee list are subject

to more rigorous screening. “If an individual believes he or she

has been improperly or unfairly delayed or prohibited from

boarding an aircraft . . . as a result of [TSA’s] Secure Flight

program,” 49 C.F.R. § 1560.205(a), the individual may submit

a petition to the Traveler Redress Inquiry Program (“TRIP”),

id. § 1560.205(b). TRIP petitioners must submit personal

information and copies of identification documents, and TSA

may seek additional information from the traveler as it deems

necessary. See id. § 1560.205(c). Once it has gathered all the

information it deems necessary, “TSA, in coordination with the

[Terrorist Screening Center] and other appropriate Federal law

enforcement or intelligence agencies, if necessary, will review

all the documentation and information requested from the

individual, correct any erroneous information, and provide the

individual with a timely written response.” Id. § 1560.205(d).

An individual’s placement on the No Fly or Selectee list,

as well as any explanation for the placement, is “Sensitive

Security Information” that is restricted from public access. See

id. § 1520.5(b)(9)(ii). Therefore, TSA does not inform a TRIP

petitioner who is not a U.S. citizen or resident whether he or

she is on a watch list or provide any explanation regarding the

petitioner’s watch list status.

Petitioner is a dual Israeli-Belgian national who lives in

Israel. See Petitioner’s Br. at ii. She asserts that in 2013, before

boarding a flight from Canada to the United States, a Canadian

border official informed her “that her name appeared on a

United States travel ‘watchlist’ and advised her not to enter the

United States.” Id. at 11. Petitioner then cancelled her

reservation. She has not since attempted to travel to the United

States. Id.

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In April 2017, Petitioner filed a redress request with TRIP

“to determine whether her name was on the TSA’s No-Fly or

Selectee lists.” Id. By letter dated July 28, 2017, TSA informed

Petitioner:

[Department of Homeland Security] has researched

and completed our review of your case. DHS TRIP

can neither confirm nor deny any information about

you which may be within federal watchlists or reveal

any law enforcement sensitive information. However,

we have made any corrections to records that our

inquiries determined were necessary, including, as

appropriate, notations that may assist in avoiding

incidents of misidentification.

Order, J.A. 40. The Order further stated that it constituted the

“final agency decision” on Petitioner’s redress request, and

informed Petitioner of her right to seek review of the Order

within sixty days under § 46110. Id. at 41. The letter

embodying the Order was dated July 28, 2017. Petitioner

acknowledges that she received the Order at her address in

Israel on August 13, 2017. See Petitioner’s Br. at 13. She filed

this petition challenging the disposition of her redress request

on September 28, 2017, sixty-two days after the letter’s date of

July 28, 2017.

Petitioner has received two other notifications from U.S.

Government officials. First, around the same time when

Petitioner received TSA’s Order responding to her redress

request, she received a notification from U.S. Customs and

Border Protection regarding the denial of her Electronic

System for Travel Authorization (“ESTA”) application. See

J.A. 44–45. ESTA determines whether a person qualifies to

travel to the United States pursuant to the Visa Waiver Program

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(“VWP”). Id. at 44. The VWP “is administered by DHS and

enables eligible citizens of certain countries to travel to the

United States for tourism or business for stays of 90 days or

less without obtaining a visa.” Id. However, Petitioner was

advised that “individuals who are found ineligible to travel to

the United States or those whose travel would pose a law

enforcement or security risk are refused a travel authorization.”

Id. The letter also said that if Petitioner wished to dispute the

ESTA denial, she could “make an appointment at the U.S.

Embassy and apply for a visa.” Id.

Second, in July 2018, Petitioner was denied a non-

immigrant visa on the ground that she had failed to demonstrate

that she had sufficient “ties [to] compel [her] to return to [her]

home country after [her] travel to the United States.” Letter of

Respondent, Exh. A, Matar v. TSA, No. 17-1213 (D.C. Cir.

Sept. 12, 2018). This determination cannot be appealed.

However, the letter that Petitioner received indicates that she

“may reapply at any time.” Id.

II. STANDING

TSA asserts that Petitioner lacks standing to bring her

claims. Normally, because standing involves the court’s Article

III jurisdiction, it must be addressed first before we address a

nonjurisdictional issue. See Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94–95 (1998). However, as this court

recently explained in Kaplan v. Central Bank of the Islamic

Republic of Iran, “Steel Co.’s rule of priority does not

invariably require considering a jurisdictional question before

any nonjurisdictional issue.” 896 F.3d 501, 513 (D.C. Cir.

2018). Instead, “courts may address certain nonjurisdictional,

threshold issues” so long as those issues “can occasion a

‘[d]ismissal short of reaching the merits.’” Id. (quoting

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Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S.

422, 431 (2007) (alteration in original)).

Timeliness under 49 U.S.C. § 46110 is a non-

jurisdictional, threshold requirement. Avia Dynamics, Inc. v.

FAA, 641 F.3d 515, 518–19 (D.C. Cir. 2011). It is a threshold

issue because the dismissal of a petition as untimely under

§ 46110 does not involve any consideration of the merits of the

Petitioner’s claims. Elec. Privacy Info. Ctr. v. FAA, 821 F.3d

39, 41 n.2 (D.C. Cir. 2016) (declining to engage in an

“arduous” standing inquiry where petitioner’s claim was

untimely under § 46110(a)). We will therefore proceed directly

to the question regarding the timeliness of the petition for

review.

III. TIMELINESS

A. The Petition for Review Is Untimely Under 49 U.S.C.

§ 46110

It is undisputed that § 46110 controls the disposition of

this case. That provision states, in relevant part, that:

[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 . . . . The petition must be

filed not later than 60 days after the order is issued.

The court may allow the petition to be filed after the

60th day only if there are reasonable grounds for not

filing by the 60th day.

49 U.S.C. § 46110(a) (emphasis added). As is clear from the

terms of the statute, the time limit under § 46110 starts to run

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on the date when an order is “issued.” This court has never

previously decided how to determine when an order is issued

under § 46110 in a situation in which a petitioner receives

notice only via private mail.

The First, Fourth, and Eleventh Circuits have concluded

that “issued” means “sent.” See Ruskai v. Pistole, 775 F.3d 61,

65 (1st Cir. 2014) (looking to postmark date to calculate

timeliness); Skydive Myrtle Beach Inc. v. Horry Cty. Dep’t of

Airports, 735 F. App’x 810, 813–14 (4th Cir. 2018) (holding

that issuance date is date the order is sent); Norber v. FAA, 673

F. App’x 911, 913–14 (11th Cir. 2016) (“‘[I]ssued’ means

‘sent,’ not ‘actually received,’ for the purposes of [section

46110].”). We now join our sister circuits in this view: when a

petitioner receives notice of an order only by private mail, the

order is “issued” under 49 U.S.C. § 46110 on the date when the

order is sent.

The conclusion that we reach today is consistent with the

plain meaning of the word “issued.” See Avia Dynamics, 641

F.3d at 519 (“[W]here filing deadlines are concerned, a literal

reading of Congress’ words is generally the only proper

reading of those words.” (quoting Spannaus v. FEC, 990 F.2d

643, 644 (D.C. Cir. 1993) (internal quotation marks omitted))).

Black’s Law Dictionary, for example, defines “issue” in

relevant part as “[t]o send out or distribute officially.” Issue

(vb.), B LACK’ S LAW D ICTIONARY (10th ed. 2014). And, as we

have explained in Avia Dynamics, the date when a petitioner

receives actual notice is irrelevant for the purposes of the sixty-

day time period under 49 U.S.C. § 46110(a). Avia Dynamics,

641 F.3d at 519–20.

There is no direct evidence in this case as to when the

Order was postmarked. However, as noted above, the letter

embodying the Order was dated July 28, 2017. See Order, J.A.

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40. Petitioner speculates that the Order may have been sent on

a later date. See Petitioner’s Br. at 25. But Petitioner offers no

evidence – such as the postmark on the envelope in which she

received the Order – to support her speculation. And we have

no good reason to assume that the Order was mailed on a date

other than the date on the letter, i.e., July 28, 2017. Therefore,

Petitioner’s petition was untimely filed.

B. Petitioner Had No “Reasonable Grounds” for Her

Untimely Petition for Review

The petition for review was clearly untimely under

§ 46110(a) unless there were “reasonable grounds” justifying

Petitioner’s failure to file by the 60th day. On this record, we

hold that Petitioner has offered no reasonable grounds for her

untimely filing.

We have consistently construed the reasonable grounds

exception narrowly. See Citizens Ass’n of Georgetown v. FAA,

896 F.3d 425, 435 (D.C. Cir. 2018). Generally, the exception

has been applied when a petitioner is able to demonstrate that

the agency led it to believe that resort to litigation would not be

necessary to address its concern. See id.; City of Phoenix v.

Huerta, 869 F.3d 963, 970 (D.C. Cir. 2017) (applying

reasonable grounds exception where FAA “repeatedly

communicated” that it was “looking into” the issue in question

and “wanted to work with the City and others to find a

solution”); see also Avia Dynamics, 641 F.3d at 521 (“[W]e

have heretofore found ‘reasonable grounds’ only in cases in

which the petitioner attributes the delay to more than simply

ignorance of the order.”).

Petitioner argues that, after she received the Order from

TSA, she attempted to “exhaust her administrative remedies”

by emailing and faxing messages to the agency. See

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Petitioner’s Br. at 27–28. However, Petitioner points to no

“administrative remedies” that she was required to exhaust that

caused her tardy petition for review. Petitioner also

acknowledges that TSA did not respond to her fax and email

communications or otherwise give her any false impressions

that agency officials might address her concerns without resort

to litigation. Id. at 27. TSA’s Order plainly stated that it was

final and appealable. See Order, J.A. 41. That Petitioner

attempted to contact TSA via email and fax of her own volition

instead of filing a petition for review does not constitute

reasonable grounds for delay.

Petitioner also argues that it was reasonable for her to

believe that TSA would address her concerns without being

ordered to do so by a court because TSA allegedly violated its

own internal policies. See Petitioner’s Br. at 28–29. This is a

perplexing argument. If, as Petitioner claims, TSA somehow

violated its internal policies, that should have prompted her to

file a timely petition for review under § 46110, not to delay.

For this court to credit Petitioner’s argument would require us

to endorse an approach that would lead to the reasonable

grounds exception swallowing the sixty-day filing period rule.

We recognize that mail-related delays might, on some

occasions, constitute “reasonable grounds” for an untimely

filing under § 46110. This case, however, is not one of those

occasions. Petitioner – who was represented by counsel – had

approximately six weeks from the time she received the Order

from TSA to file a petition with this court. Yet, she failed to do

so. See Avia Dynamics, 641 F.3d at 521 (“Even if ignorance [of

an order] could establish ‘reasonable grounds,’ it would not

excuse Avia’s continued inaction during the forty-nine days

from . . . the date of Avia’s actual notice[] until the filing period

closed . . . .”). In addition, the Order expressly stated that it

constituted a final decision and that Petitioner had sixty days to

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seek review of the Order pursuant to § 46110. See Order, J.A.

41. Under these circumstances, Petitioner had no good excuse,

much less reasonable grounds, for her failure to file a petition

for review not later than 60 days after TSA issued the disputed

Order.

IV. CONCLUSION

For the reasons given above, the petition for review is

hereby denied.

So ordered.