Jonathan Corbett v. TSA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted October 13, 2021 Decided December 10, 2021

No. 21-1074

JONATHAN CORBETT,

PETITIONER

v.

TRANSPORTATION SECURITY ADMINISTRATION AND DAVID P.

PEKOSKE, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF

THE TRANSPORTATION SECURITY ADMINISTRATION,

RESPONDENTS

On Petition for Review of Orders of the

Transportation Security Administration

Jonathan Corbett, pro se, was on the briefs for petitioner.

Brian M. Boynton, Acting Assistant Attorney General,

U.S. Department of Justice, and Jennifer L. Utrecht and Daniel

Tenny, Attorneys, were on the brief for respondents.

Before: HENDERSON and TATEL, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

2

Dissenting Opinion filed by Circuit Judge HENDERSON.

EDWARDS, Senior Circuit Judge: In January 2021, in

response to the ongoing COVID-19 pandemic, the

Transportation Security Administration (“TSA”) issued several

directives and an emergency amendment mandating that masks

be worn in airports, on commercial aircraft, and on surface

transportation such as buses and trains (“Mask Directives”). In

February 2021, pro se petitioner Jonathan Corbett (“Petitioner”

or “Corbett”), a frequent flyer, filed a petition for review

pursuant to 49 U.S.C. § 46110(a) to challenge the Mask

Directives. Corbett does not challenge the wisdom of a

government agency requiring face masks in airports and on

airplanes. Rather, he claims that TSA had no authority to issue

the Mask Directives.

In support of his claim, Corbett’s central argument is that

TSA’s statutory authority under the Aviation and

Transportation Security Act, Pub. L. No. 107-71, 115 Stat. 597

(2001) (codified in 49 U.S.C. § 114 and scattered sections of

49 U.S.C.) (“Act”), is limited to developing policies and

promulgating directives to protect against violent threats to

transportation and ensure the security of airports and other

transportation facilities against criminal attack. According to

Corbett, this authority does not empower TSA to require face

masks to prevent the spread of COVID-19. Corbett contends

that TSA’s Mask Directives purport to regulate general health

and safety, not transportation security. Therefore, in his view,

TSA’s Mask Directives are ultra vires.

Because we find no merit in Corbett’s claim, we deny the

petition for review. The COVID-19 global pandemic poses one

of the greatest threats to the operational viability of the

transportation system and the lives of those on it seen in

decades. TSA, which is tasked with maintaining transportation

3

safety and security, plainly has the authority to address such

threats under both sections 114(f) and (g) of the Aviation and

Transportation Security Act. See 49 U.S.C. § 114(f), (g).

I. BACKGROUND

In the wake of the deadly September 11, 2001, terrorist

attacks, Congress created TSA to safeguard this country’s civil

aviation security and safety. 49 U.S.C. § 114; see Alaska

Airlines, Inc. v. TSA, 588 F.3d 1116, 1117-18 (D.C. Cir. 2009)

(citing 49 U.S.C. § 114). The Act confers upon the agency

broad authority to “assess threats to transportation” and

“develop policies, strategies, and plans for dealing with” such

threats. 49 U.S.C. § 114(f)(2), (3). This authority extends to

“ensur[ing] the adequacy[] of security measures at airports and

other transportation facilities,” as well as “work[ing] in

conjunction with the . . . Federal Aviation Administration with

respect to any actions or activities that may affect aviation

safety or air carrier operations.” Id. § 114(f)(11), (13). “[T]o

carry out the functions of the [TSA],” the agency “is authorized

to issue, rescind, and revise such regulations as are necessary.”

Id. § 114(l)(1).

The global COVID-19 pandemic has, to date, resulted in

the deaths of more than 750,000 persons in the United States.

Centers for Disease Control and Prevention, COVID Data

Tracker Weekly Review, http://go.usa.gov/x6Zge (last visited

Nov. 22, 2021). When President Biden assumed office, he

issued an Executive Order directing agencies, including TSA,

to “immediately take action . . . to require masks to be worn”

in airports, on airplanes, and on buses and trains. Exec. Order

No. 13,998, 86 Fed. Reg. 7205, 7205 (Jan. 21, 2021), reprinted

in Supplemental Appendix (“S.A.”) 1 (“Executive Order”).

The President said that the action was critical “to save lives and

allow all Americans, including the millions of people

4

employed in the transportation industry, to travel and work

safely.” Id.

On January 27, 2021, the Acting Secretary of the

Department of Homeland Security determined that the

COVID-19 pandemic constitutes a “national emergency.” See

Determination of a National Emergency Requiring Actions to

Protect the Safety of Americans Using and Employed by the

Transportation System, 86 Fed. Reg. 8217, 8218, 8219 (Feb. 4,

2021), reprinted in S.A. 5-6. This determination reaffirmed

determinations that had been made by the Executive Branch

dating back to March 2020. Id. at 8218. The January 2021

determination found that the pandemic was “a threat to our

health and security” and “a threat to transportation.” Id. at

8218, 8219. The Secretary directed TSA “to take actions

consistent with the authorities in [the Act] . . . to implement the

Executive Order to promote safety in and secure the

transportation system.” Id. at 8218. This included any measures

“necessary to protect the transportation system . . . from

COVID-19 and to mitigate [its] spread . . . through the

transportation system.” Id. at 8218-19.

In response to the emergency determination, TSA issued

several security directives and an emergency amendment

mandating that masks be worn in airports, on commercial

aircraft, and on surface transportation such as buses and trains.

Security Directives Nos. 1582/84-21-01, 1542-21-01, 1544-

21-02, reprinted in S.A. 13-26; Emergency Amendment 1546-

21-01, reprinted in S.A. 27-31 (collectively, “Mask

Directives”). The Mask Directives instruct airport operators,

domestic aircraft operators, foreign air carriers, and surface

transportation operators to require passengers and employees

to wear a mask “covering the nose and mouth” “at all times”

while in transportation hubs and on conveyances. See, e.g.,

Security Directive No. 1542-21-01 at 2, reprinted in S.A. 19.

5

Children under two, people with disabilities who cannot wear

a mask, or workers for whom a mask would create a risk to

workplace health or safety are exempt from the mandate. See,

e.g., id. at 3, reprinted in S.A. 20. In addition, the Mask

Directives provide exceptions to the mask requirement for

“eating, drinking, or taking oral medications for brief periods,”

“for identity verification purposes,” or “while communicating

with a person who is deaf or hard of hearing.” See, e.g., id. at

2-3, reprinted in S.A. 19-20.

Airport and aircraft operators are required to notify

passengers of the mask requirements and ask them to put on a

mask if they are not wearing one. See, e.g., id. at 2, reprinted

in S.A. 19. Passengers who refuse to comply must be denied

boarding, removed from the aircraft or airport, and reported to

TSA. See, e.g., id. at 2, 4, reprinted in S.A. 19, 21; Security

Directive No. 1544-21-02 at 2, 4, reprinted in S.A. 23, 25.

These passengers may face penalties of between $500 to

$1,000 for first-time offenders and $1,000 to $3,000 for

second-time offenders. See TSA, Penalty for Refusal to Wear

a Face Mask, https://www.tsa.gov/coronavirus/penalty-mask

(last visited Nov. 14, 2021).

In a separate action, the Centers for Disease Control and

Prevention (“CDC”) issued its own order that also requires

passengers and employees to wear face masks in and on the

transportation system. See Requirement for Persons To Wear

Masks While on Conveyances and at Transportation Hubs, 86

Fed. Reg. 8025, 8029 (Feb. 3, 2021) (“CDC Order”) reprinted

in S.A. 11. The CDC Order and TSA Mask Directives overlap

in some respects, but there are differences. For example, while

they both permit removing masks for “brief periods” to eat or

drink, TSA’s directives additionally specify that masks must be

worn “between bites and sips” of food and drink. See, e.g., id.

at 8027; Security Directive No. 1544-21-02 at 3, reprinted in

6

S.A. 24. The TSA Mask Directives also require operators to

report incidents of noncompliance to TSA and carry the

potential for civil penalties. See, e.g., Security Directive No.

1544-21-02 at 2, 4, reprinted in S.A. 23, 25.

On February 26, 2021, Corbett filed a timely petition for

review of the TSA Mask Directives pursuant to 49 U.S.C.

§ 46110(a). Section 46110(a) permits any person with “a

substantial interest in an order” issued by TSA “with respect to

security duties and powers . . . [to] apply for review of the order

by filing a petition for review in the United States Court of

Appeals for the District of Columbia Circuit or in the court of

appeals of the United States for the circuit in which the person

resides or has its principal place of business.” 49 U.S.C.

§ 46110(a). The reviewing court has “exclusive jurisdiction to

affirm, amend, modify, or set aside any part of the order.” Id.

§ 46110(c).

Petitioner Jonathan Corbett is a frequent flyer who has

“flown several hundred thousands of miles in the past decade,

including at least a dozen flights during the ‘pandemic period’

of the last 12 months.” Corbett Affirmation, Br. of Pet’r, Ex.

A, at 1. Corbett “intend[s] to continue this rate of travel” and

has “a currently-booked flight in the near future.” Id.; Br. of

Pet’r 7. As a result of his frequent travel, Corbett says that he

is subject to the TSA Mask Directives “dozens of times

annually.” Br. of Pet’r 7. Corbett further alleges that, “[b]ut

for” the TSA Mask Directives, “[he] would wear a mask at

fewer times.” Corbett Affirmation 1.

The essence of Corbett’s petition for review is that TSA

has no statutory authority to address the threat that the COVID-

19 global pandemic poses to the nation’s transportation

systems. The petition for review challenges the three security

directives and one emergency amendment issued by TSA on

7

January 31, 2021, with an effective date of February 1, 2021.

Br. of Resp’ts 3; see Security Directive No. 1542-21-01,

reprinted in S.A. 18-21; Security Directive No. 1544-21-02,

reprinted in S.A. 22-26; Security Directive No. 1582/84-21-01,

reprinted in S.A. 13-17; and Emergency Amendment No.

1546-21-01, reprinted in S.A. 27-31. The initial Mask

Directives expired May 11, 2021, but they have since been

extended multiple times. See Resp’ts’ 28(j) Letter (Aug. 30,

2021). The current Mask Directives that are under review here

are in effect through January 18, 2022. See Security Directive

Nos. 1542-21-01B, 1544-21-02B, and 1582/84-21-01B;

Emergency Amendment No. 1546-21-01B, reprinted in

Attach. to Resp’ts’ 28(j) Letter (Aug. 30, 2021). Corbett urges

the court to hold that the Mask Directives are ultra vires, i.e.,

beyond the scope of TSA’s lawful authority, and enjoin TSA

from enforcing them. Br. of Pet’r 18-19; see Fla. Health Scis.

Ctr., Inc. v. Sec’y of Health & Hum. Servs., 830 F.3d 515, 522

(D.C. Cir. 2016) (holding that “[t]o challenge agency action on

the ground that it is ultra vires, [the complaining party] must

show a ‘patent violation of agency authority.’” (quoting Indep.

Cosmetic Mfrs. & Distribs. Inc. v. U.S. Dep’t of Health, Educ.

& Welfare, 574 F.2d 553, 555 (D.C. Cir. 1978))).

On the same day when he filed his petition for review,

Corbett filed an emergency motion for stay pending review of

the directives. Emergency Mot. for Stay Pending Review 10-

11. This court denied the motion for stay on March 26, 2021.

Order (Mar. 26, 2021).

Corbett’s petition challenges only the actions of TSA, not

the CDC. In addition, one of the directives that is referenced in

Corbett’s petition for review applies only to masking on

surface transportation services such as buses and trains. See

Security Directive No. 1582/84-21-01, reprinted in S.A. 13-17.

However, this directive is not challenged in Corbett’s briefs.

8

Therefore, we will limit our review of Petitioner’s claims to

TSA’s mask requirements in airports and on airplanes.

II. ANALYSIS

A. Standing

In order to challenge a disputed government regulation, a

petitioner must satisfy “the irreducible constitutional minimum

of standing.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560

(1992). Corbett clearly does. As we explained in Bonacci v.

TSA, 909 F.3d 1155 (D.C. Cir. 2018):

To establish standing to seek review of [a TSA] action,

a petitioner bears the burden of proof “to show a

‘substantial probability’ that it has been injured, that

the defendant caused its injury, and that the court could

redress that injury.” Sierra Club v. EPA, 292 F.3d 895,

899 (D.C. Cir. 2002) (quoting Am. Petroleum Inst. v.

EPA, 216 F.3d 50, 63 (D.C. Cir. 2000) (per curiam)).

“The Supreme Court has stated,” however, that

“‘there is ordinarily little question’ that a regulated

individual or entity has standing to challenge an

allegedly illegal statute or rule under which it is

regulated.” State Nat’l Bank of Big Spring v. Lew, 795

F.3d 48, 53 (D.C. Cir. 2015) (quoting Lujan v. Defs.

of Wildlife, 504 U.S. 555, 561–62 (1992)). A

“petitioner’s standing to seek review of administrative

action is [usually] self-evident . . . if the complainant

is ‘an object of the action (or forgone action) at issue.

. . .’” Sierra Club, 292 F.3d at 899–900 (quoting

Lujan, 504 U.S. at 561); see also Nat’l Ass’n of Home

Builders v. EPA, 786 F.3d 34, 43 (D.C. Cir. 2015)

(explaining “regulated entities’ standing to challenge

9

the rules that govern them is normally not an issue”)

(internal quotation marks omitted).

Bonacci, 909 F.3d at 1159-60.

As a directly regulated party, Corbett plainly has standing

to pursue his claims in this case. The Government does not

deny that, absent a permissible regulation compelling him to

do so, Corbett has every right to choose whether and when to

wear a face mask in an airport – just as he can choose what

clothing to wear in an airport. Each time Corbett flies, he is

forced to comply with the TSA directives to wear a mask

almost continuously. Because he is the target of the TSA

regulations, he faces the threat of enforcement and ensuing

penalties should he fail to comply. Corbett has made clear that,

were it not for the TSA regulations, he would not wear a mask

in accordance with the TSA requirements. Reply Br. of Pet’r

6. (Petitioner “would engage in conduct prohibited by the

order but for the order.”). In addition, Corbett’s injury is not

“conjectural” or “hypothetical”: he is a frequent flyer and he

currently has future travel booked where he will again face

compelled compliance with the Mask Directives under the

credible threat of enforcement. See Br. of Pet’r 7; Lujan, 504

U.S. at 560, 563-64.

Like the pilot in Bonacci, who had standing to challenge

TSA screening procedures that he was subject to, it is

undisputed that Corbett is regularly subject to the challenged

TSA Mask Directives. See Bonacci, 909 F.3d at 1160. Corbett

does not allege “unlawful regulation or lack of regulation of

someone else,” in which case “much more [would be] needed”

to establish standing. Lujan, 504 U.S. at 562 (emphasis in

original). Rather, he is within the regulated class of persons

covered by the disputed directives, and those directives are

plainly ripe for review. The Mask Directives are “directed at

10

[Petitioner] in particular; [they] require[] [him] to make

significant changes in [his] everyday [travel] practices; [and]

if [he] fail[s] to observe the [TSA]’s rule [he is] quite clearly

exposed to the imposition of . . . sanctions.” Abbott Lab’ys v.

Gardner, 387 U.S. 136, 154 (1967). His claims are ripe for

review because “[e]ither [Corbett] must comply with [the

Mask Directives] . . . or [he] must follow [his] present course

and risk prosecution.” Id. at 152 (citation omitted).

Moreover, because Corbett is directly regulated by the

agency’s Mask Directives, he is not pursuing a “generalized

grievance” that would undercut his standing. The Supreme

Court has made it clear that “it does not matter how many

persons have been injured by [a] challenged action, [so long

as] the party bringing suit . . . show[s] that the action injures

him in a concrete and personal way.” Massachusetts v. EPA,

549 U.S. 497, 517 (2007). Corbett has himself been denied the

ability to choose whether and when to wear a mask in transit.

TSA contends that the Mask Directives have not caused

Petitioner’s injury because “[t]he obligation to wear a mask in

transportation hubs and on conveyances originates” not with

TSA, but with the CDC Order or local law. Br. of Resp’ts 27.

This argument borders on frivolous. TSA issued its own

mandate that it claims it is authorized to do under its own

statutory authority. However slight the differences may be, its

Mask Directives are not a one-for-one fit with the CDC Order

as far as scope, see Motion for Stay Pending Review 3, 4, n.3,

and they indisputably carry new and distinct penalties. Merely

because other agencies have similar regulations does not

preclude Corbett from challenging the TSA Mask Directives.

See Ibrahim v. Dep't of Homeland Sec., 669 F.3d 983, 993 (9th

Cir. 2012) (A challenger is “not required to solve all roadblocks

simultaneously and is entitled to tackle one roadblock at a

time.”). Setting aside the TSA Mask Mandates would provide

11

Petitioner clear relief and thus there is an injury that the court

can redress.

In sum, as an “object of the action . . . at issue,” there is

“little question” that the TSA directives “ha[ve] caused

[Corbett] injury, and that a judgment preventing . . . the action

will redress it.” Sierra Club v. EPA, 292 F.3d 895, 900 (D.C.

Cir. 2002) (quoting Lujan, 504 U.S. at 561-62).

B. Standard of Review

Our review of Petitioner’s claim is governed by Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984). Under Chevron step one, we must first decide

“whether Congress has directly spoken to the precise question

at issue.” Id. at 842; see also Kingdomware Techs., Inc. v.

United States, 579 U.S. 162,171 (2016) (“[W]e begin with the

language of the statute. If the . . . language is unambiguous and

the statutory scheme is coherent and consistent . . . [t]he inquiry

ceases.” (second alteration in original) (internal quotation

marks and citation omitted)). If the statutory provisions in

question are “silent or ambiguous with respect to the specific

issue,” we then assess the matter pursuant to Chevron step two

to determine whether the agency’s interpretation “is based on a

permissible construction of the statute.” 467 U.S. at 843. “A

precondition to deference under Chevron is a congressional

delegation of administrative authority.” Adams Fruit Co. v.

Barrett, 494 U.S. 638, 649 (1990) (citing Bowen v. Georgetown

Univ. Hosp., 488 U.S. 204, 208 (1988)). However, Chevron

directs courts to accept an agency’s reasonable resolution of an

ambiguity in a statute that the agency administers. And because

a “new application of a broad statutory term” can always “be

reframed” as an expansion of agency authority, “the question

in every case is, simply, whether the statutory text forecloses

the agency’s assertion of authority, or not.” City of Arlington v.

12

FCC, 569 U.S. 290, 300-01 (2013) (citing EDWARDS &

ELLIOTT, FEDERAL STANDARDS OF REVIEW 146 (2007)).

Two very important considerations come into play in our

review of TSA’s actions in this case. First, it is clear from the

terms of the Act that “Congress has entrusted TSA with broad

authority over ‘civil aviation security.’” Amerijet Int’l, Inc. v.

Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) (citing 49 U.S.C.

§§ 114(d)(1), (f)(10), (l)(1), 44901(f)); Bonacci v. TSA, 909

F.3d 1155, 1161 (D.C. Cir. 2018). The agency’s authority to

enforce its “safety and security obligations” is not rigidly

cabined. Olivares v. TSA, 819 F.3d 454, 462 (D.C. Cir. 2016)

(citing Suburban Air Freight, Inc. v. TSA, 716 F.3d 679, 683

(D.C. Cir. 2013)). Second, the directives at issue are the

product of “expert agency judgments,” id., regarding TSA’s

assessments of possible “threats to transportation,” 49 U.S.C.

§ 114(f)(2). Therefore, it is not the court’s role to second-guess

TSA’s judgments in carrying out its statutory mandate. See

Jifry v. FAA, 370 F.3d 1174, 1180 (D.C. Cir. 2004).

C. The Limits of Petitioner’s Challenge to TSA’s

Regulatory Authority

It is noteworthy that Petitioner does not contend that

TSA’s determinations regarding the seriousness of the threats

posed by COVID-19 are unreasonable. Nor does he contend

that TSA’s enforcement of its directives somehow runs afoul

of the arbitrary-and-capricious standard under the

Administrative Procedure Act. See Motor Vehicle Mfrs. Ass’n

of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29

(1983). “Normally, an agency rule would be arbitrary and

capricious if the agency has [1] relied on factors which

Congress has not intended it to consider, [2] entirely failed to

consider an important aspect of the problem, [3] offered an

13

explanation for its decision that runs counter to the evidence

before the agency, or [4] is so implausible that it could not be

ascribed to a difference in view or the product of agency

expertise.” Id. at 43. Petitioner has not advanced any such

claims.

Therefore, any such challenges to the legality of the Mask

Directives as they might be applied in any particular case are

not before the court. Petitioner’s only claim in this case is that

TSA has no authority whatsoever to issue the Mask Directives.

And any claims by Petitioner that TSA might act unreasonably

in enforcing the Mask Directives are not ripe for review. See

Texas v. United States, 523 U.S. 296, 300 (1998) (“A claim is

not ripe for adjudication if it rests upon ‘contingent future

events that may not occur as anticipated, or indeed may not

occur at all.’” (quoting Thomas v. Union Carbide Agric. Prods.

Co., 473 U.S. 568, 580-81 (1985))).

D. TSA’s Regulatory Authority

Petitioner does not question TSA’s authority to ensure

transportation and civil aviation security. Br. of Pet’r 11. His

principal contention is that the term “security,” as used by

Congress in the Aviation and Transportation Security Act, was

meant only to reference preventing “an act of criminal

violence, aircraft piracy, and the introduction of an

unauthorized weapon, explosive, or incendiary [onto] an

aircraft.” Id. at 13 (quoting 49 C.F.R. § 1542.101(a)(1)).

Petitioner argues that directives aimed at preventing or

mitigating the effects of COVID-19 involve only matters of

public health, i.e., matters related to “safety,” not “security.”

Id. at 12; Reply Br. of Pet’r 7-8. He maintains that TSA cannot

regulate to contain COVID-19 because doing so falls outside

the agency’s limited mandate to secure the transportation

system against violent attack.

14

This extraordinarily narrow view of the Act does not

withstand scrutiny. Petitioner contends that “security” entails

only protection against intentional attack, while “safety” is

protection against natural or accidental causes. Reply Br. of

Pet’r 7. This framing is belied by the text of the Act, which uses

the terms in concert. See, e.g., 49 U.S.C. §§ 44903(b)(3)(A),

(e), (h)(3), (h)(4)(C), 44901(h), 44902(b), 44905(b), 46111(a).

The Act certainly does not limit TSA’s authority to “security”

concerns. For example, in defining TSA’s duties and powers,

the Act states that TSA shall “work in conjunction with the . . .

Federal Aviation Administration with respect to any actions or

activities that may affect aviation safety or air carrier

operations.” Id. § 114(f)(13). To the extent there is any

difference in the words, TSA has established that COVID-19

qualifies as a threat to both safety and security.

Furthermore, in describing its general functions, Congress

gave TSA “broad authority to assess potential risks to aviation

and national security” and respond to those risks. Olivares v.

TSA, 819 F.3d 454, 466 (D.C. Cir. 2016); 49 U.S.C. § 114(f)(2)

(stating that TSA shall “assess threats to transportation”), (3)

(stating that TSA shall “develop policies, strategies, and plans

for dealing with threats to transportation security”). In addition,

Congress conferred upon the agency an expansive power to act

in relation to the transportation system during a national

emergency. 49 U.S.C. § 114(g). In light of the language of the

Act, it cannot seriously be doubted that Congress’ delegations

of authority to TSA authorize the Mask Directives issued to

contain the spread of the COVID-19 virus.

The simple point here is that “Congress created the [TSA]

to assess and manage threats against air travel.” Air Wis.

Airlines Corp. v. Hoeper, 571 U.S. 237, 241 (2014). Decisions

from this court have consistently confirmed that TSA has

15

“broad statutory authority to protect civil aviation security.”

Bonacci v. TSA, 909 F.3d 1155, 1157 (D.C. Cir. 2018)

(emphasis added). Fulfilling this mandate requires, at its core,

that TSA identify “threats to transportation” and take the

appropriate steps to respond to those threats. 49 U.S.C.

§ 114(f)(2), (3). Threats may include “security” issues,

narrowly defined, and/or “safety and security,” more broadly

construed. Olivares, 819 F.3d at 462 (explaining that TSA is

charged to address issues concerning “safety and security”).

In crafting the Act, Congress knew how to circumscribe

TSA’s authority in plain terms if that was the intent of the

legislature. City of Arlington, 569 U.S. at 296. However, as

indicated above, Congress instead used capacious terms to

define TSA’s authority. Rather than restricting TSA to

preventing violent attack, as Petitioner contends, Congress

selected broad language in its mandate to the agency. The Act

also emphasizes TSA’s ongoing duty to perform “research and

development activities” in relation to civil aviation security and

safety and “order[s] air carriers to modify training programs

. . . to reflect new or different security threats.” 49 U.S.C.

§§ 44918(a)(7), 114(d)(1), (f)(8).

If there is any ambiguity in this expansive grant of

authority to TSA, there is “a presumption that Congress . . .

desired the agency (rather than the courts) to possess whatever

degree of discretion the ambiguity allows.” Smiley v. Citibank

(S.D.), N.A., 517 U.S. 735, 740-41 (1996). The questions

regarding what constitutes “threats to transportation” and

“threats to transportation security,” 49 U.S.C. § 114(f)(2), (3),

are subject to TSA’s reasonable interpretation. TSA

determined that COVID-19 poses a serious threat to the

security and safety of the transportation system and that the

Mask Directives would help to curtail the spread of the virus

and mitigate its adverse effects. TSA’s actions adhered to the

16

decisions of the President, the CDC, and the Acting Secretary

of Homeland Security regarding appropriate national policies

to address the COVID-19 threats. See, e.g., Security Directive

No. 1542-21-01, at 1, reprinted in S.A. 18. The only question

for this court is whether TSA’s action was “within the bounds

of reasonable interpretation.” City of Arlington, 569 U.S. at

296. There is no doubt that it was.

1. The Mask Directives Are a Reasonable and Permissible

Response to the Threats Posed by COVID-19

In issuing the Mask Directives, TSA relied on CDC

findings that the risk of transmission of COVID-19 is

particularly high in transportation hubs and on conveyances.

See, e.g., Security Directive No. 1542-21-01, at 1, reprinted in

S.A. 18. The CDC has established that the virus spreads “very

easily” through inhalation of or contact with “respiratory

droplets produced when an infected person coughs, sneezes, or

talks.” 86 Fed. Reg. 8025, 8028 (Feb. 3, 2021), reprinted in

S.A. 10. “Travel[] on multi-person conveyances increases” the

risk of spread “by bringing persons in close contact with others,

often for prolonged periods, and exposing them to frequently

touched surfaces.” Id. at 8029. In these settings, “[s]ocial

distancing may be difficult if not impossible.” Id. The spread

of COVID-19 in the transportation system, the CDC has

concluded, can aggravate the outbreak in the general

population, put passengers and workers at risk, and threaten the

“essential” movement of medical providers, the workforce, and

goods like food and medicine. Id.

As TSA asserts, COVID-19 poses a threat to the

operational viability of the transportation system and thus

transportation security and safety. Br. of Resp’ts 37-38.

Transmission of COVID-19 to transportation workers – from

TSA agents to airline crew and airport personnel – imperils

17

transportation services. The uncontrolled spread of COVID-19

among passengers and these workers can lead to cuts in service

that threaten the essential movement of people and goods, and,

consequently, our national supply chains, the economy, and

national security. TSA has a clear mandate to secure the

transportation system against threats that endanger that

system’s very ability to function. Therefore, TSA is authorized

to “develop policies, strategies, and plans for dealing with”

COVID-19 to the extent it threatens to disrupt the

transportation system. 49 U.S.C. § 114(f)(3). Because the

Mask Directives seek to contain this threat, they are in line with

the agency’s core mission.

In addition, TSA has reasonably determined that COVID-

19 is a threat to transportation security and safety because it

endangers the lives of large numbers of passengers,

transportation workers, and the greater public. Br. of Resp’ts 2,

7-8, 22-23, 36-37. COVID-19 specifically spreads at high rates

on transportation, posing a direct and serious risk to many

passengers’ and workers’ lives. Moreover, uncontrolled spread

of the highly contagious disease in the transportation system

threatens the nation’s ongoing efforts to contain the pandemic.

For these reasons, we find it “self-evident that the [Mask

Directives] are related to the TSA’s . . . goals of improving the

safety of air travel.” Jifry v. FAA, 370 F.3d 1174, 1180 (D.C.

Cir. 2004). This is not to say that TSA can regulate anything

that causes illness or death. However, the scale of death

wrought by COVID-19, its established adverse effects on our

nation’s economy, its specific tendency to spread at high rates

in transportation areas, and its threats to persons employed to

operate transportation services (as well as to people who use

those services), make it a clear threat to transportation security

and safety.

18

Finally, in issuing the Mask Directives, TSA relied on the

CDC’s finding that appropriately worn masks reduce the

transmission of COVID-19. 86 Fed. Reg. at 8028-29; see, e.g.,

Security Directive No. 1542-21-01, at 1, reprinted in S.A. 18.

In the crowded, tight quarters of airports and aircrafts, face

masks “reduce the emission of virus-laden droplets” and

“reduc[e] inhalation of these droplets.” 86 Fed. Reg. at 8028.

The cumulative effect of universal masking, the CDC has

found, can “prevent the need for lockdowns” and “protect . . .

workers who frequently come into close contact with other

people (e.g., at transportation hubs).” Id. at 8029. Again,

Petitioner does not contest these facts.

Given the threat posed by COVID-19 to the security and

safety of the transportation system, it is entirely within TSA’s

authority to require that masks be worn to contain that threat.

To the extent such requirements are an imposition on

passengers, as Petitioner suggests, we decline to second-guess

TSA’s judgment. Br. of Pet’r 6-7; Corbett Affirmation, Ex. A,

at 1-2; see Jifry, 370 F.3d at 1180. “It is TSA’s job—not . . .

ours—to strike a balance between convenience and security.”

Suburban Air Freight, Inc. v. TSA, 716 F.3d 679, 683 (D.C. Cir.

2013).

Congress’ choice of “broad language” in the Act “reflects

an intentional effort to confer the flexibility necessary” for

TSA to address yet unknown threats to transportation security

and safety as they arise. See Massachusetts v. EPA, 549 U.S.

497, 532 (2007). Petitioner contends that the history of the Act,

along with TSA’s lack of prior regulation aimed at addressing

a threat to public health, indicate that the Mask Directives are

outside the scope of TSA’s authority. Br. of Pet’r 12-15. We

disagree.

19

The Supreme Court has been quite clear in saying that, in

applying Chevron, “the question in every case is, simply,

whether the statutory text forecloses the agency’s assertion of

authority, or not.” City of Arlington, 569 U.S. at 301. Thus,

“[w]hen Congress delegates broad authority to an agency to

achieve a particular objective, agency action pursuant to that

delegated authority may extend beyond the specific

manifestations of the problem that prompted Congress to

legislate in the first place.” Cablevision Sys. Corp. v. FCC, 649

F.3d 695, 707 (D.C. Cir. 2011). When creating TSA, “although

Congress may not have foreseen the [threat to transportation

posed by COVID-19], [section 114(f)]’s expansive language

suggests that it intended to give the [TSA] sufficient flexibility

. . . [to] pursue the statute’s objectives as [threats to

transportation] evolve[d].” Id. (internal quotations omitted).

Petitioner’s invocation of Alabama Association of

Realtors v. Department of Health and Human Services, 141 S.

Ct. 2485 (2021) (“Alabama Realtors”) (per curiam) in support

of his position is unpersuasive. See Pet’r’s 28(j) Letter (Sept.

14, 2021). There, the Supreme Court found that the CDC

lacked the authority to “impose[] a nationwide moratorium on

evictions in reliance on a decades-old statute that authorizes it

to implement measures like fumigation and pest

extermination.” Alabama Realtors, 141 S. Ct. at 2486. It

rejected the CDC’s contention that the provision allowed it to

act as “necessary” to stop the spread of disease. Id. at 2488-89.

The first sentence of the statutory provision at issue in Alabama

Realtors gives the CDC broad powers to stop the spread of

disease, while “the second sentence informs the grant of

authority by illustrating the kinds of measures that could be

necessary: inspection, fumigation, disinfection, sanitation, pest

extermination and destruction of contaminated animals and

articles.” Id. at 2488 (discussing 42 U.S.C. § 264(a)). The

eviction moratorium was “markedly different” from those

20

direct actions targeting disease Congress had listed in the

provision. Id. And allowing the CDC to promulgate whatever

measures it deemed “necessary,” the Court opined, “would

give the CDC a breathtaking amount of authority” such that

“[i]t is hard to see what measures this interpretation would

place outside the CDC’s reach.” Id.

Petitioner likens Alabama Realtors to this case, arguing

that the broad grants of authority in 49 U.S.C. § 114(f) and (g)

are constrained by the statute’s discussion elsewhere of

passenger screening, baggage inspections, access control to

secure areas, and the like. Pet’r’s 28(j) Letter, at 2 (Sept. 14,

2021). Petitioner contends that TSA’s powers would be

“essentially unlimited” if it were allowed to promulgate

regulations on public health, “as virtually any regulation can be

framed as ‘for your safety.’” Id. This is a specious argument.

Petitioner’s argument fails for at least two reasons. First,

as discussed above, the Mask Directives are in service of both

transportation “security” and “safety” and cannot be construed

as solely public health regulations. Second, the grant of

authority to the CDC in Alabama Realtors was found in a

single provision, 42 U.S.C. § 264(a), that was controlled and

defined by reference to the types of action Congress listed in

that very provision. 141 S. Ct. at 2488. Petitioner turns the

holding in Alabama Realtors on its head by asking this court to

apply limiting constructions to provisions plainly granting TSA

broad authority to act by drawing on entirely separate

provisions that appear throughout 49 U.S.C. Chapter 449. See

Br. of Pet’r 11-13. There is no viable canon of construction that

endorses this interpretive approach. See Helicopter Ass’n Int’l,

Inc. v. FAA, 722 F.3d 430, 435 (D.C. Cir. 2013) (holding that

specific statutory provisions amplifying the FAA’s regulatory

authority merely indicated that Congress intended to address

21

the matters subject to regulation in several different ways, not

to limit the statute’s broad grant of authority).

Moreover, contrary to Petitioner’s suggestion, TSA will

not be at liberty to regulate in any way it deems “necessary” if

this court rejects his facial challenge to the Mask Directives.

Congress defined the outer bounds of what TSA can do through

its careful selection of terms in the Act. The fact that TSA has

the power to regulate to contain the threat COVID-19 does not,

as Petitioner asserts, give it the power to regulate “warning

label requirements for the purpose of preventing cancer” or set

speed limits into and out of the airport. Br. of Pet’r 12-13, 18.

The examples cited by Petitioner are frivolous because, unlike

COVID-19, these matters do not plausibly pose a threat to the

security and safety of transportation systems.

“[T]he Mask Directives at issue were designed as part of a

government-wide collaborative effort to implement and

support enforcement of the CDC’s Order in order to counteract

the spread of a contagious and life-threatening illness on the

nation’s planes, trains, buses, and transit systems.” Br. of

Resp’ts 22-23. The Mask Directives are well within TSA’s

delegated authority, limited, and reasonably designed to

address the “threats to transportation” posed by COVID-19.

See 49 U.S.C. § 114(f)(2). Therefore, we will not second-guess

TSA’s expert judgment in adopting the Mask Directives.

2. TSA Had Additional Delegated Authority to Adopt the

Mask Directives Pursuant to its National Emergency

Powers

TSA had additional delegated authority to adopt the Mask

Directives once the Secretary of Homeland Security declared a

national emergency. 49 U.S.C. § 114(g). Section 114(g) of the

Act expressly grants TSA expansive powers and

22

responsibilities “during a national emergency.” Id. This

includes the authority to “coordinate and oversee the

transportation-related responsibilities of other departments and

agencies” and to “carry out such other duties, and exercise such

other powers, relating to transportation during a national

emergency as the Secretary of Homeland Security shall

prescribe.” 49 U.S.C. § 114(g)(1)(B), (D). The Mask Directives

were properly promulgated pursuant to TSA’s section 114(g)

powers.

In the Department of Homeland Security’s emergency

determination, the Acting Secretary concluded that the

COVID-19 pandemic constituted a national emergency,

invoked section 114(g), and directed TSA “to take actions

consistent with the authorities in . . . sections 106(m) and

114(f), (g), (l), and (m) to implement the Executive Order to

promote safety in and secure the transportation system” against

the emergency posed by COVID-19. 86 Fed. Reg. 8217, 8218

(Feb. 4, 2021). The Acting Secretary further specified that TSA

should “support[] the CDC in the enforcement of any orders or

other requirements necessary to protect the transportation

system . . . from COVID-19.” Id. at 8218-19. These directions

from the Acting Secretary expressly authorized TSA to issue

the challenged Mask Directives, regardless of whether it

already had the power to do so.

III. CONCLUSION

We hold that the Mask Directives are reasonable and

permissible regulations adopted by TSA to promote safety and

security in the transportation system against threats posed by

COVID-19. We therefore reject Petitioner’s claim that TSA’s

Mask Directives are ultra vires, defer to the agency’s

interpretation of the Act, and deny the petition for review.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:

On the merits, this petition for review is a slam dunk loser. Of

course the Transportation Security Administration (TSA),

charged with “develop[ing] policies, strategies, and plans for

dealing with threats to transportation security,” can require

individuals in airports and on airplanes to wear the partial face

masks we are all familiar with as a result of the coronavirus

scourge. 49 U.S.C. § 114(f)(3). But I believe Corbett is so

lacking in standing to sue that I would dispose of his petition

without reaching the merits.

The three prongs of Article III standing are almost

catechismal and Corbett most likely fails all three. He has (1)

no cognizable injury that is (2) caused by the TSA’s mask

mandate and (3) redressable by this court. See Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560–61 (1992). I will stop at the first

prong as his challenge should end there.

As my colleagues note, Maj. Op. 5, the CDC mandate and

the TSA mandate provide that masks need not be worn for

“brief periods” while eating and drinking. See 86 Fed. Reg.

8025, 8027 (Feb. 3, 2021); Security Directive No. 1542-21-01

at 3. The TSA mandate adds that “the mask must be worn

between bites and sips.” Security Directive No. 1542-21-01 at

3. Corbett hangs his injury hat on this added language, fearing

that sometime in the future a TSA agent may “swoop in to

make sure that he [does] not hesitate for too long in replacing

his mask after each bite” and asserting that but for the TSA

mask mandate, he “would wear a mask at fewer times.” But

unlike his mask, Corbett’s precariously hung hat falls.1 It is

1

Because Corbett brings a facial challenge, Maj. Op. 13, he

must show “that the [TSA mandate] injures him in a concrete and

particular way,” see Massachusetts v. EPA, 549 U.S. 497, 517

(2007). Although Corbett alleges he is a “frequent flyer,” Br. of Pet’r

at 7, it is far from clear when or if he will travel again and thus make

himself a specific “object of the [mandate]” any more than the

2

anyone’s guess whether Corbett faces “injury” based on any

difference between the CDC’s mandated “brief periods”—

which, significantly, Corbett does not challenge and would

follow—and the TSA’s mandated “between bites and sips.”

See Chamber of Com. of U.S. v. EPA, 642 F.3d 192, 200 (D.C.

Cir. 2011) (“[A]ny petitioner alleging only future injuries

confronts a significantly more rigorous burden to establish

standing.”) (quoting United Transp. Union v. ICC, 891 F.2d

908, 913 (D.C. Cir. 1989)). Corbett’s allegation that he faces a

bona fide threat of future enforcement in his pre-enforcement

challenge, see Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289, 298–99 (1979) (allowing for pre-enforcement

standing as long as “there exists a credible threat of

prosecution”), is even more fatuous in view of his total failure

to allege past enforcement against him or anyone else, see

Muthana v. Pompeo, 985 F.3d 893, 911 (D.C. Cir. 2021)

(“Preenforcement review is not a vehicle to settle questions of

statutory interpretation unconnected with matters of

constitutional right.”), petition for cert. filed, No. 21-489 (June

16, 2021).

De minimis non curat lex, the “venerable maxim” that

ensures the law does not concern itself with trifles, Wis. Dep’t

of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231

(1992), resolves Corbett’s annoying waste of judicial

millions of members of the general public who fly, see Lujan v. Defs.

of Wildlife, 504 U.S. 555, 561 (1992). Just as a taxpayer cannot

mount a challenge so general that his standing is only as a member

of the public, see Hein v. Freedom From Religion Found., Inc., 551

U.S. 587 (2007), Corbett’s generalized injury is likewise insufficient

to invoke our jurisdiction, see Ex parte Levitt, 302 U.S. 633, 633

(1937) (“[T]o invoke the judicial power . . . [an individual] must

show that he . . . is immediately in danger of . . . a direct injury . . .

and it is not sufficient that he has merely a general interest common

to all members of the public.”).

3

resources; as a lawyer and thus an officer of the court, he should

know better.2 I respectfully dissent.

2

I note that his website is “https://professional-

troublemaker.com/.”