Petition for Writ of Certiorari — Jonathan Corbett, Petitioner v. Transportation Security Administration

APPENDIX A - Eleventh Circuit Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 15-15717 '

Non-Argument Calendar

Agency No. 49 U.S.C. section 46110

JONATHAN CORBETT

Petitioner,

versus

TRANSPORTATION SECURITY

ADMINISTRATION,

Respondent.

Petition for Review of a Decision of the

Transportation Security Administration

(July 19, 2019)

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Before TJO FLAT, MARCUS and ROSENBAUM,

Circuit Judges

MARCUS, Circuit Judge:

This is Jonathan Corbett's third pro se challenge

to some aspect of the Transportation Security

Administration's ("TSA") airport scanner equipment

using advanced imaging technology ("AIT"). On each

occasion, he has claimed that TSA's airport screening

procedures violated his right to be free from

unreasonable searches and seizures, citing to the

Fourth Amendment of the United States Constitution.

In an earlier lawsuit that wound up before this Court,

Corbett sought to reverse a decision of TSA,

challenging the Administration's previous policy that

gave passengers at airport security checkpoints the

option of obtaining security clearances through either

advanced imaging technology (AIT) body screeners or

alternative screening procedures, like a physical pat

down. A panel of this Court dismissed Corbett's

petition as being untimely, and, alternatively, held

that TSA's use of body scanners and pat-down

procedures did not violate the Fourth Amendment.

Corbett v. TSA. 767 F.3d 1171, 1182 (llth Cir. 2014)

("Corbett I"). We had little trouble concluding that the

substantial danger to life and property that could

result from airplane terrorism outweighed the

possible intrusion of TSA's AIT and pat-down

screening procedures on airline passengers. Id.

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This time Corbett challenges TSA's latest policies

and orders that require certain airline passengers to

pass through AIT screeners, eliminating for them the

option of being screened by a physical pat-down. After

careful review, however, we conclude that this Court

is without jurisdiction to entertain Corbett's claims.

As pled, Corbett lacks the necessary standing to bring

this petition, and, accordingly, we are required to

dismiss it.

In the absence of standing, the federal courts do

not have the power to opine in an advisory capacity

about the merits of these claims. We have repeatedly

held that "[sltanding is a threshold jurisdictional

question which must be addressed prior to and

independent of the merits of a party's claims." Bochese

v. Town of Ponce Inlet. 405 F.3d 964, 974 (llth Cir.

2005) (quotations omitted; citing, e.g.. Steel Co. v.

Citizens for a Better Env't. 523 U.S. 83, 102 (1998)).

The essential problem here is that Corbett has failed

to establish that he suffered an injury in fact, that is,

the invasion of a judicially cognizable interest that is

concrete and particularized and actual and imminent.

I.

A.

We review de novo questions concerning subjectmatter jurisdiction, including standing. Elend v.

Basham. 471 F.3d 1199, 1204 (llth Cir. 2006). When

ruling on standing at the pleading stage, we "must

accept as true all material allegations of the

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[pleading], and must construe [it] in favor of the

complaining party." Warth v. Seldin. 422 U.S. 490,

501 (1975). Moreover, if we have been presented with

"facts beyond the four corners" of the pleading that are

relevant to the question of standing, we may consider

them. Cone Corn, v. Fla. Den't of Transn.. 921 F.2d

1190, 1206 n.50 (llth Cir. 1991). The party invoking

federal jurisdiction bears the burden of establishing

standing. Lujan v. Defs. of Wildlife. 504 U.S. 555, 561

(1992).

B.

We begin with the relevant background and

procedural history surrounding Corbett's petition.

Congress vests responsibility for civil aviation

security in the TSA Administrator. 49 U.S.C. § 114(d).

The Administrator is required to "assess current and

potential threats to the domestic air transportation

system," take all necessary steps to protect the Nation

from those threats, and improve transportation

security in general. Id- §§ 44903(b), 44904(a), (e).

Among other things, the Administrator must ensure

that "all passengers and property" are screened before

boarding, to prevent passengers from "carrying

unlawfully a dangerous weapon, explosive, or other

destructive substance." Id. §§ 44901(a), 44902(a).

Nonmetallic explosives and other nonmetallic

threats pose a significant danger to aviation security.

See Passenger Screening Using Advanced Imaging

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

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(final rule); see also 49 U.S.C. § 44925(a) (directing

TSA to "give a high priority" to the development of

new technologies to detect such threats). The danger

caught this nation's attention when, on Christmas

Day, 2009, a terrorist affiliated with A1 Qaeda in the

Arabian Peninsula attempted to destroy a plane using

a nonmetallic explosive device hidden in his

underwear. Passenger Screening Using Advanced

Imaging Technology, 78 Fed. Reg. 18,287, 18,299

(Mar. 26, 2013) (notice of proposed rulemaking); see

also id. (describing similar attempts). The screening

procedures then in effect, which included the use of

metal detectors and pat-downs, could not detect the

Christmas Day bomber's device. IdIn October 2010, TSA began using AIT scanners as

a primary screening method at airport security

checkpoints. Corbett I. 767 F.3d at 1174-75. Unlike

conventional metal detectors, AIT scanners can detect

both metallic and nonmetallic objects concealed on a

passenger's body or in a passenger's clothing. Id.; see

78 Fed. Reg. at 18,297 (listing examples of potentially

dangerous items, including nonmetallic threat items,

that TSA has discovered using advanced imaging

technology). Indeed, TSA has determined that AIT

scanners are the "most effective technology currently

available" to repair this "critical weakness" in the

Nation's security infrastructure. 81 Fed. Reg. at

11,365.

When AIT scanners were first used, they displayed

the actual contours of the scanned passengers' bodies.

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They no longer do so -- each scanner instead now

notifies TSA agents about potential concealed threats

by highlighting those areas on a generic outline of a

person, and that generic or stylized image is

temporarily shown on a monitor. See Corbett I. 767

F.3d at 1175. The image of a screened individual is the

same as the images provided for all other screened

individuals. 49 U.S.C. § 44901(1) . Moreover, the AIT

scanners in use at American airports do not collect

any personally identifiable information, they do not

display an individualized image every time a

passenger passes through them, and they are not

configured to store or to transmit any passengerspecific images. See 81 Fed. Reg. 11,373-82; Privacy

Impact Assessment Update for TSA Advanced

Imaging Technology, DHS/TSA/PIA-032(d), at 4 (Dec.

18, 2015).

Since TSA began using AIT technology, Corbett

has brought at least five suits challenging the

Administration's screening policies; two of them did

not involve the AIT body scanners. In 2010, Corbett

sued TSA in federal district court in Miami

challenging the use of AIT scanners as a primary

screening method at airport security checkpoints, and

moved for a nationwide injunction barring TSA from

implementing that or any AIT screening. See Order

Granting Mot. to Dismiss, Corbett v. United States.

No. 10-cv-24106, 2011 WL 2003529 (S.D. Fla. Apr. 29,

2011). The district court denied the motion and

dismissed the action for want of jurisdiction because

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the procedures he sought to challenge constituted a

TSA "order" pursuant to 49 U.S.C. § 46110. Petitioner

appealed and moved for interim injunctive relief. A

panel of this Court denied that motion, see Order,

Corbett v. United States. No. 11-12426 (llth Cir. July

27, 2011), and affirmed the district court's judgment,

see Corbett v.. United States. 458 F. App'x 866, 871

(llth Cir. 2012),

cert, denied, 133 S. Ct. 161 (2012).

i

Corbett later petitioned this Court to review TSA's

use of AIT scanners as a primary screening method at

airport security checkpoints, and again sought

injunctive relief. A panel of this Court denied the

application because it "fail[ed] to meet the applicable

standard for granting injunctive relief." Order,

Corbett v. TSA. No. 12-15893 (llth Cir. Apr. 4, 2013).

Thereafter, we dismissed the petition as untimely,

and, in the alternative, denied the petition because

the challenged, screening methodology did not violate

the Fourth Amendment. Corbett I. 767 F.3d at 1184.

Petitioner unsuccessfully sought certiorari review.

Corbett v. TSA. 135 S. Ct. 2867 (2015).

Meanwhile, in March 2012, Corbett filed another

complaint in the United States District Court for the

Southern District of Florida, this time arising out of a

TSA screening experience he had at the FortLauderdale-Hollywood International Airport, when

he consented to a pat-down after refusing to go

through a full-body scanner. Corbett v. TSA. 568 F.

App'x 690, 692 (llth Cir. 2014), cert, denied. 135 S.

Ct. 1559 (2015). He lodged twenty-one claims against

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\

I

I

i

TSA, a TSA official, Broward County and the Broward

County Sheriffs Office, including Fourth Amendment

claims against the TSA official at the airport, Federal

Tort Claims Act ("FTCA") claims against the United

States, PrivacyI Act claims against TSA, and a claim

against TSA i for unredacted records under the

Freedom of Information Act ("FOIA"). Id- at 695. After

the district court dismissed the majority of Corbett's

claims for failure to state a claim and granted

summary judgment on the remaining FOIA claims, a

panel of this Court affirmed. Id. at 692. We held that

the district court had not erred because, among other

things, the search of Corbett's bags by the TSA official

and TSA's detention of Corbett were reasonable under

the Fourth Amendment, the FTCA claims were barred

by sovereign immunity, Corbett had failed to allege

that he suffered any damages as required for his

Privacy Act claims, and FOIA allowed for the

redactions that had been made to documents TSA had

provided to Coirbett. Id. at 696-705.

Again, in 2015, Corbett filed another petition for

review in this Court, this time challenging a TSA

program thatj requires airline employees to ask

i

certain passengers some questions before allowing

them to board international flights bound for the

United States. Order, Corbett v. TSA. No. 15-10757

(llth Cir. July 21, 2016). There, a panel of this Court

concluded that the claim was not justiciable,

reasoning that even if Corbett bought a ticket for an

international flight, there was no assurance that he

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i

:

I

would actually be questioned. Id. at 4. The long and

short of it wajs that his claim was speculative and

speculative claims could not support constitutional

standing. Id. !

i

C.

!

Coming thfen to Corbett's instant petition, TSA

issued a noticb of proposed rulemaking on March 26,

2013. See 78 . Fed. Reg. 18,287. The proposal was

designed to "codif[y] the use of AIT to screen

individuals

!at

aviation

security

screening

checkpoints." Id. at 18,289. The final rule regarding

AIT screening! was promulgated in March 2016. See

81 Fed. Reg. 111,364. The final rule provides that

airport security checkpoints "may include the use of

[AIT]." Id. at 1|L,405. The preamble to the final rule for

the first timej codified that AIT screening will be

mandatory for some passengers as warranted by

security considerations. This rule reflected "current

DHS policy." lid. at 11,366. TSA declined to include a

i

passenger's ri^ht to opt-out of AIT screening, writing

that the agency "may require AIT use, without the

opt-out alternative, as warranted by security

considerations: in order to safeguard transportation

security." Id. ait 11,388-89. TSA explained publicly in

a Private Impjact Assessment Update that TSA had

changed its "operating protocol regarding the ability

of individuals jto . . . opt-out of AIT screening in favor

of physical screening." Privacy Impact Assessment

Update for TSA Advanced Imaging Technology,

DHS/TSA/PIA|032(d), at 1 (Dec. 18, 2015). "While

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passengers may generally decline AIT screening in

favor of physical screening, TSA may direct

I

mandatory AIT screening for some passengers as

warranted by security considerations in order to

safeguard transportation security." Id. at 3.

TSA has explained that the "enhanced screening"

procedures -- \yhich require the use of AIT machinery

without an opt-out alternative -- apply to individuals

designated as "selectees." Supp. App'x 90; see also

TSA,

Frequently

Asked

Questions,

https V/www.tsa.gov/travel/frequently-askedquestions (search "decline AIT screening") (last visited

June 27, 2019) (explaining that "some passengers will

be required to undergo AIT screening if their boarding

pass indicates that they have been selected for

enhanced screening"). There are several "[s]electee

categories, whfich differ based on the individual's []

known 0 derogatory and risk information." Supp.

App'x 901. One of these categories covers "[k]nown or

1 Congress has directed TSA to "prescribe regulations prohibiting

the disclosure of information obtained or developed in carrying

out security ... if [TSA] decides that disclosing the information

would ... be detrimental to the security of transportation." 49

U.S.C. § 114'(r)(l)(C). In response to that directive, TSA has

defined a body of|information as Sensitive Security Information

("SSI") that may not be disclosed except in certain limited

circumstances. 49 C.F.R. § 1520.5 (describing information that

constitutes SSI)J id. § 1520.9(a)(2) explaining that SSI may

generally be disclosed only to "covered persons who have a need

to know"); id. § 1520.7 (defining "[c]overed persons"); id. § 1520.11

(defining "need jto know"). In this case, TSA has filed a

Supplemental Appendix containing SSI materials, and has filed

a redacted version available for Corbett to review...

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!

suspected [terrorists," and includes individuals listed

in a "Terrorist Screening Database." Id- The other

categories have been redacted from the public version

of this document. Id. In addition to the categories of

selectees created based on risk information, TSA has

created an additional category of selectees, as of July

2016, which [is comprised of airline passengers

randomly chos'en as selectees for a particular trip. Id.

at 105-06. TSA explained that this policy was

designed to inform the general public that "enhanced

screening is conducted on a random basis," thereby

deterring "[ujnknown terrorists" without significantly

l

impeding checkpoint operations. Id. at 105. When

passengers arle designated as selectees subject to

enhanced screening - whether they were selected

randomly or f<j>r risk-based reasons -- their boarding

passes always| display an "SSSS" notation. See id. at

90. TSA has explained, however, that mandatory AIT

screening will |be required "in a very limited number

of circumstances," so it will not affect the "vast

majority of passengers." See TSA, Frequently Asked

Questions,

j https J/www.tsa.gov/travel/frequently

Since the filing of Corbett's petition, TSA moved this

Court to supplement the record with additional SSI materials,

also reproduced in TSA's Supplemental Appendix. Because the

materials contained therein are relevant to the questions before

us and will allow us to make a more informed decision as to

standing, we GRANT TSA's motion to supplement. See Schwarz

v. Millon Air. Incl. 341 F.3d 1220, 1225 n.4 (llth Cir. 2003); see

also Corbett I. 7fj7 F.3d at 1183 (granting TSA's motion to seal

SSI materials information because "Corbett has no statutory or

regulatory right tp access it").

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[

asked-questioris (search "decline AIT screening") (last

visited June l4, 2019).

This policy,-- which denies certain passengers the

right to opt-out -- is at the heart of Corbett's challenge.

He claims tb!at a screening policy banning any

opportunity to' opt-out of AIT screening violates the

Fourth Amendment and the Administrative

Procedure Actt Corbett says that the newly minted

mandatory policy violates the Fourth Amendment

l

because a physical pat-down would be equally

effective. TSA| in turn, argues that mandatory AIT

screening procedures for certain passengers is in fact

far more effective at detecting threats than the optout policy that it replaced. Finally, and, for our

purposes, most importantly, TSA urges that Corbett

lacks standing to challenge the mandatory screening

procedures and, therefore, that this Court is without

power to enterjtain Corbett's claims.

II.

"It by now axiomatic that the inferior federal

courts are courts of limited jurisdiction. They are

empowered to jrear only those cases falling within the

judicial power of the United States as defined by

Article III of the Constitution." Univ. of S. Alabama v.

Am. Tobacco Co.. 168 F.3d 405, 409 (llth Cir. 1999).

Article III, thbn, limits our power only to "cases or

controversies.Bowen v. First Family Fin. Servs.. Inc..

233 F.3d 1331-, 1339 (llth Cir. 2000). One essential

component of the "case or controversy" requirement is

i

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i

1

that the plaintiff must have standing to pursue his

claim in a federal court. Id. Indeed, standing is a

threshold question that must be explored at the outset

of any case. Bochese. 405 F.3d at 974. In its absence,

"a court is not free to opine in an advisory capacity

about the merits of a plaintiffs claim." Id. In fact,

standing is

"perhaps the

most important

jurisdictional" requirement, and without it, we have

no power to judge the merits. Id- (quotations

omitted)2.

The three prerequisites for standing are that: (l)

the plaintiff lias suffered an "injury in fact" -- an

invasion of a judicially cognizable interest, which is (a)

2 It may be that tjhere are also problems of ripeness and finality

lurking in Corbett's petition for review. The ripeness doctrine

examines "whether there is sufficient injury to meet Article Ill's

requirement of a base or controversy and, if so, whether the claim

is sufficiently mature, and the issues sufficiently defined and

concrete, to permit effective decision-making by the court." Elend

v. Basham. 471 F^3d 1999, 1210-11 (llth Cir. 2006). Whether an

agency action is "final" depends on if the agency's action has been

"consummated," | as opposed to being "tentative and

interlocutory," and if the action is one by which "rights and

obligations have been determined" or from which "legal

consequences will flow." Nat'l Parks Conservation Ass'n v.

Norton. 324 F.3d 1229, 1236 (llth Cir. 2003) (quotations

omitted). But because the standing issue before us is

straightforward, (because standing is paramount among our

jurisdictional, inquiries, and because the parties have not argued

ripeness or finality, we dismiss Corbett's petition on standing

grounds alone. As the Supreme Court has explained, "a federal

court has leeway :o choose among threshold grounds for denying

audience to a case on the merits." Sinochem Int'l Co. v. Malaysia

Int'l Shipping Corn.. 549 U.S. 422, 431 (2007) (citations and

quotations omitted). Indeed, "[tjhere is no mandatory sequencing

of jurisdictional issues." Id. (citation and quotations omitted).

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concrete and particularized, and (b) actual or

imminent, not conjectural or hypothetical; (2) there be

a causal connection between that injury and the

conduct complained of -- the injury must be fairly

traceable to the challenged action of the defendant,

and not the result of the independent action of some

third party no|t before the court; and (3) it be likely,

i'

not merely speculative, that the injury will be

redressed by a favorable decision. Lujan. 504 U.S. at

560-61; see also 31 Foster Children v. Bush. 329 F.3d

1255, 1263 (lllth Cir. 2003). "By insisting that a

plaintiff show a substantial likelihood of future injury,

in the absence of declaratory or injunctive relief,

courts further one of the purposes of the constitutional

standing requirement -- reserving limited judicial

resources for individuals who face immediate,

tangible harm absent the grant of declaratory or

injunctive relief." Bowen. 233 F.3d at 1340 (citing 13A

Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure, § 3532.1, at 114 (2d ed.

1984)).

In order to satisfy the injury-in-fact requirement of

standing, a plaintiff may show that he "has sustained

or is immediately in danger of sustaining some direct

injury." Lynch v. Baxley. 744 F.2d 1452, 1456 (llth

Cir. 1984) (quoting O’Shea v. Littleton. 414 U.S. 488,

494 (1974)). "Plaintiffs must demonstrate a personal

stake in the outcome in order to assure that concrete

adverseness which sharpens the presentation of

issues necessary for the proper resolution of

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constitutional questions." City of Los Angeles v.

Lyons. 461 U. 3. 95, 101 (1983) (quotations omitted).

"Abstract injury is not enough." Id. A plaintiff need

not wait for an injury to occur, so long as he "is

immediately in danger of sustaining some direct

injury" as a result of the challenged official conduct

and the injury or threat of injury is both "real and

immediate," not "conjectural" or "hypothetical." Id. at

101-02 (quotations omitted); see also Whitmore v.

Arkansas. 491: U.S. 149, 158 (1990) ("A threatened

injury must be certainly impending to constitute

injury in fact.") (quotations omitted); 31 Foster

Children. 329 F.3d at 1266-67 (noting that standing

for declaratory or injunctive relief requires that future

injury "proceei with a high degree of immediacy").

Immediacy requires that the anticipated injury occur

within some f xed period of time in the future. Fla.

State Conference of N.A.A.C.P. v. Browning. 522 F.3d

1153, 1161 (llth Cir. 2008). "When a plaintiff cannot

show that an injury is likely to occur immediately, the

plaintiff does not have standing to seek prospective

relief even if he has suffered a past injury." 31 Foster

Children. 329 F.3d at 1265. And even if the plaintiff

shows immediacy, the injury must still be

substantially 'ikely to actually occur, meaning that

the threatened future injury must pose a realistic

danger and cannot be merely hypothetical or

conjectural. Fla. State Conference of N.A.A.C.P.. 522

F.3d at 1161; see also Bowen. 233 F.3d at 1340

(observing tha,t a "perhaps or maybe chance" of an

injury occurring is not enough for standing).

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The Supreme Court extensively explored the idea

of future injury in City of Los Angeles v. Lyons. There,

the plaintiff, Adolph Lyons, sought to enjoin Los

Angeles police officers from using a certain chokehold

technique in order to render arrestees unconscious.

461 U.S. at 9'7-98. Lyons claimed that he had been

personally subjected to the challenged technique in

the past, an I that Los Angeles police officers

"routinely applied] chokeholds in situations where

they are not threatened by the use of deadly force." Id.

at 105. In holding that Lyons lacked standing to sue,

the Supreme Court explained that while Lyons "may

have been illegally choked by the police" in the past,

this "does nothing to establish a real and immediate

threat that he would again be . . . illegally choke[d]" in

the future. Id. The Supreme Court recognized that,

"among the countless encounters between the police

and the citizens of . . . Los Angeles, there will be

certain instances in which strangleholds will be

illegally appliesd." Id, at 108. Nevertheless, "it is . . . no

more than speculation to assert either that Lyons

himself will again be involved in one of those

unfortunate ir stances, or that he will be arrested in

the future and provoke the use of [the] chokehold"

technique that! Lyons challenged. Id. In other words,

"even assuming that Lyons would again be stopped for

a traffic or other violation in the reasonably near

future, it is uitenable to assert, and the complaint

made no suci allegation, that strangleholds are

applied by the Los Angeles police to every citizen who

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is stopped or arrested regardless of the conduct of the

person stopped." Id.

Applying Iiyons. we've held many times that a

plaintiff failed to establish an injury in fact when the

likelihood of future constitutional injury was too

speculative. Thus, for example, in J W ex rel. Williams

v. Birmingham Bd. of Educ.. 904 F.3d 1248 (llth Cir.

2018), some Birmingham high school students sued

the Birmingham school board and the City's police

department, alleging that the defendants used

excessive force! in violation of the Fourth Amendment

by spraying Fteeze +P -- an incapacitating chemical

spray -- on students and by failing to adequately

decontaminate them. A panel of this Court held that

the student class representative lacked standing to

seek declaratory and injunctive relief barring the useof-spray claims because there was no "real and

immediate thieat that she would be subjected to

excessive forcej" by the use-of-spray policy. Id. at 1265.

Again, the "livelihood of future constitutional injury

[was] too speculative" because the intentional "use of

chemical spray in Birmingham high schools had been

infrequent." with an estimated 0.4% chance per

student, and "[alllegations of intentional chemical

spraying that also constitutes excessive force were

even more rare." with an estimated 0.003% chance per

student. Id. ar 1268 (emphases added). We did not

suggest that Freeze +P would never be used against a

student in an unconstitutional way by a police officer,

but we coneluc ed nevertheless that "the probability of

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future instances of unconstitutional spraying is

[in] sufficient to provide standing to obtain declaratory

and injunctive relief." Id. For the same reasons, we

extended the holding to bar the decontamination

claims, where there was only an estimated 1.77%

chance of a student being intentionally or

unintentionall y

sprayed

and

improperly

decontaminate d. Id. at 1273.

We faced the same problem in Bowen v. First

Family Financial Services, where the plaintiffs

challenged a binder's practice of requiring customers

to sign arbitration agreements. 233 F.3d at 1333. We

did not address the merits of the plaintiffs' claims that

the practice violated the Truth in Lending Act

("TILA") because we concluded that the plaintiffs

lacked standing to pursue their TILA claims. Id. at

1341. The plaintiffs had not shown a "substantial

likelihood that [the defendant] will take some action

that at least arguably violates the TILA or some

related law." la. at 1340. We went on to say that if the

defendant werb to violate TILA, "we would also have

to find there was a substantial likelihood that the

plaintiffs and [the defendant] would be unable to

resolve any resulting dispute without litigation," and

"[t]he undenbble fact is that the vast majority of

credit transactions such as the ones in this case do not

result in litigation." Id. (emphasis added). Without

more, "enforcement of the arbitration agreement

against thes

plaintiffs" was not "certainly

impending," for purposes of the standing inquiry. Id.

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Still again, a panel of this Court addressed the

requirements of standing in Elend v. Basham. 471

F.3d 1199 (lllh Cir. 2006). There, the plaintiffs had

been protesting outside of the Sun Dome in Tampa,

Florida during a political rally attended by President

George W. Buih in 2002. Id. at 1202-03. The Secret

Service ordered them to move to an authorized

"protest zone, which was further away. Id. The

plaintiffs sought to enjoin the Secret Service from

taking similai action in the future that they said

would violate their First Amendment rights, and they

claimed to have standing because they "fully

intend[ed] to peacefully express their viewpoints in

the future in a manner similar to their activities on

November 2, 2002 in concert with presidential

appearances at the . . . Sun Dome and at other

locations around the country." Id- at 1204. We

affirmed the cistrict court's dismissal of the claims

because the plaintiffs' intention to protest in a similar

manner in the Jfuture was too speculative, "Other than

the one instance in November 2002, we [we]re not

even given a jdescription of Plaintiffs' past conduct

from which to j infer that they might act in a similar

manner in thle future," and thus it was "entirely

conjectural thdt President Bush would return to speak

at a political rally at the Sun Dome." Id- at 1209.

On the record presented to this Court, Corbett's

theory of standing is just as conjectural and

speculative as the claims made by the plaintiffs in

Lyons, in JW, in Bowen, and in Elend. if not more so.

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For starters, Corbett has not claimed that he has ever

been subjected to mandatory AIT screening under the

current TSA policy that he is challenging, nor that he

represents a heightened security risk that would

trigger mandatory screening under the policy. Nor,

finally, has he claimed that his boarding pass has ever

had an "SSSS" notation on it. We recognize that the

mandatory AIT screening policy on review was not

fully in place until July 2016, after Corbett filed his

petition with us in December of 2015, which means

that Corbett may not have yet had a chance to make

these claims in his petition. Significantly, however,

since he filed his petition, Corbett has never said that

he has been selected for mandatory screening or that

he represents a heightened security risk.

While we typically confine our standing analysis to

the four corners of the complaint, we may look beyond

it when we have before us facts in the record. Cone

Corn.. 921 F.2d at 1206 n.50; see also Elend. 471 F.3d

at 1208 ("[I]n the context of a Rule 12(b)(1) challenge

to standing, we are obliged to consider not only the

pleadings, but to examine the record as a whole to

determine whether we are empowered to adjudicate

the matter at hand." (quotations omitted)). So, in

Elend. we found the plaintiffs' future intentions

insufficiently clear to establish standing where the

original allegedly unconstitutional incident had

occurred many years before our decision without any

suggestion that it had occurred again. 471 F.3d at

1209. We observed that "the injury alleged ... remains

-42-

wholly inchoate" where "[p] lain tiffs' intention ... to

protest 'in concert with presidential appearances at

the USF Sun Dome and at other locations around the

country' fail[ed] to provide any limitation on the

universe of possibilities of when or where or how such

a protest might occur." Id. It was "entirely conjectural

that President Bush would return to speak at a

political rally at the Sun Dome," and there was "no

indication that he ha[d] done so again since November

2002 despite numerous presidential visits to Florida."

Id.

Here, both parties have submitted extensive

materials since the filing of Corbett's petition,

including the Petitioner's declarations about his

travel experiences and plans and materials submitted

by TSA. In light of these subsequent filings, it's telling

that Corbett has never said, in his declarations or

otherwise, that he has been subjected to the policy.

Indeed, Corbett has told us that he flew no less than

150,000 miles on over 100 domestic flights from 2013

to 2015, and that because he "fl[ies] at least 50 times

a year for both business and personal reasons, [he]

will have at least 50 more opportunities to be

randomly selected in 2016." See Decl. of Jonathan

Corbett at 1 (Dec. 24, 2015); Decl. of Jonathan Corbett

at 3 (Sep. 19, 2016). But despite his declaration that

he has flown and will continue to take, as best we can

tell, over 50 flights a year, he's taken approximately

150 flights to date since 2016, without incident. Even

in Lyons, J W and Elend, the plaintiffs claimed to have

-43-

suffered some sort of injury as a result of the

challenged policy in the past. See J W. 904 F.3d at

1253, 1264 (recognizing that "[plast wrongs serve as

evidence of whether there is a real and immediate

threat of future injury" and that "[a] number of

Birmingham high school students . . . were sprayed

with or exposed to Freeze +P in 2009, 2010, and

2011"); see also Lyons. 461 U.S. at 108 ("We note that

five months elapsed between October 6, 1976, and the

filing of the complaint, yet there was no allegation of

further unfortunate encounters between Lyons and

the police."); Elend. 471 F.3d at 1209 (describing the

plaintiffs' "one instance in November 2002"). Corbett,

however, has never said that he was subjected to the

mandatory TSA policy, before his petition or since

then, even though he has made numerous filings since

he lodged his petition for review containing

substantial information about his travel patterns and

his interactions with TSA.

Thus, Corbett is left to argue only that he might be

designated as a selectee under TSA's random selection

process. He first says it's likely he will be randomly

selected in the future because he "regularly gets the

'full treatment'" from TSA, and under its past

procedure, TSA randomly subjected him to "selectee"

screening on "at least 3 occasions" and to an

unspecified form of "elevated screening" on "several

more occasions." Pet. Br. at 2. Importantly, however,

Corbett recognizes that TSA's policy has changed, Pet.

Br. at 5, which makes his prior screening history

-44-

irrelevant. C£. Beta Unsilon Chi Unsilon Chanter at

the Univ. of Fla, v. Machen. 586 F.3d 908, 917 (llth

Cir. 2009) ("In cases where government policies have

been challenged, the Supreme Court has held almost

uniformly that voluntary cessation of the challenged

behavior moots the claim.").

In the alternative, Corbett hypothesizes that, as a

frequent flyer who intends to continue flying

frequently, it is likely that he will be randomly chosen

to be a selectee passenger in the future. See Pet. Opp.

To MTD at 6; see also Decl. of Jonathan Corbett at 3

(Sep. 19, 2016). We recognize there's a chance that he

might be selected in the future, based on the random

selection process, but that is not enough under our

case law to show a substantial likelihood of future

injury that is "real and immediate," "actual and

imminent," and not "conjectural" or "hypothetical."

Lujan. 504 U.S. at 560 (quotations omitted); Lyons.

461 U.S. at 102 (quotations omitted). Notably, as TSA

has explained, its AIT screening policy does not affect

the "vast majority" of airline passengers. TSA,

Frequently

Asked

Questions,

http7/www. tsa.gov/travel/frequentlyasked-questions

(last visited June 27, 2019). We used this exact phrase

in Bowen, where we held that the plaintiffs lacked

standing to make a TILA claim since the "vast

majority of credit transactions" would not involve at

least some arguable violation of TILA or a related law.

Bowen, 233 F.3d at 1340 (emphasis added). The odds

of something not happening the "vast majority" of

-45-

times can be compared with the plaintiffs' claims in

Mulhall v. UNITE HERE Local 355. 618 F.3d 1279,

1288 (llth Cir. 2010) (holding that a plaintiffs First

Amendment rights were "at imminent risk of

invasion" because an agreement his employer entered

into with a. labor union "substantially increase[d] the

likelihood" that he would be unionized against his

will); Browning. 522 F.3d at 1163-64 (holding in an

associational standing case that the 20,000-member

organization had standing where it was "highly

unlikely" that not a single member of the organization

would be injured since "someone is certain to get

injured in the end"); and GTE Directories Pub. Corn,

v. Trimen Am.. Inc.. 67 F.3d 1563, 1569 (llth Cir.

1995) (concluding that the "practical likelihood" the

contingencies would occur was "very high" and

"almost inevitable").

It's also worth noting that we've reviewed the

unredacted sensitive security materials provided to

the Court by TSA, and, after considering the actual

percentage of passengers that TSA expects to

randomly select for mandatory AIT screening, we

have no doubt that Corbett does not risk a substantial

likelihood of future injury. See Supp. App'x 105-06

(explaining that, under the selectee-designation

regime currently in effect, no more than [REDACTED

MATERIAL] airline passengers are randomly

designated as selectees to whom the challenged policy

would apply); see also Order, Corbett v. TSA, No. 1515717 (llth Cir. June 6, 2016) (granting TSA's

-46-

request to file portions of the administrative record ex

parte and under seal); Order, Corbett v. TSA, No. 1515717 (llth Cir. Nov. 30, 2016) (granting TSA's

request to file a supplemental appendix ex parte and

under seal); Order, Corbett v. TSA. No. 15-15717 (llth

Cir. May 1, 2017) (denying Corbett's request for

reconsideration); see generally Corbett I. 767 F.3d at

1183 (granting TSA's motion to seal SSI materials).

We do not deny that the "countless encounters

between" TSA agents and airline passengers may well

give rise to "certain instances in which" the

mandatory;AIT-screening policy will be applied to

someone. Lyons. 461 U.S. at 108. But, as the Supreme

Court said in Lyons, that fact does not make Corbett's

claim any less conjectural. See id- (finding no injuryin-fact despite recognizing "certain instances in which

strangleholds will be illegally applied and injury and

death unconstitutionally inflicted on the victim").

Indeed, even if Corbett sought to represent a class of

people, at least one of whom would likely be affected - and he has not sought class relief in this case — that

would not be enough to make his claim sufficiently

likely. See JW, 904 F.3d at 1268, 1272 (finding no

injury-in-fact for the class representative despite

recognizing that the spray may be used against a

student in. an unconstitutional way "in the future"

because "named plaintiffs who represent a class must

allege and show that they personally have been

injured") (quotations omitted).

-47-

Corbett's claim of future injury is weakened still

further because, even accepting the small chance that

Corbett may be randomly subjected to the new policy

at some indeterminate time in the future, there's an

even smaller chance that his random selection for

participation in the mandatory screening program

will result in a constitutional injury. As we've said,

sometimes our standing analysis requires us to take a

"peek" at the merits of the underlying constitutional

claim. Club Madonna. Inc, v. City of Miami Beach. 924

F.3d 1370, 1382 (llth Cir. May 24, 2019)). We

explained in Club Madonna that while "standing in no

way depends on the merits" of a plaintiffs claim, "it

often turns on the nature and source of the claim

asserted," and in some circumstances "weakness on

the merits" informs the question of Article III

standing. Id. (quotations omitted); id. at 1383 (holding

that the Club lacked standing where, among other

things, it could not "clear the low bar of demonstrating

that the challenged provisions are at least arguably

[unconstitutionally] vague as applied to it"). And in

Lyons, the Supreme Court relied in part on the

recognition that not every "traffic stop, arrest, or other

encounter between the police and a citizen" will result

in "the police [acting] unconstitutionally and

inflicting] injury without provocation or legal

excuse." 461 U.S. at 108. Similarly, in J W. we relied

in part on the realization that the "chance of being

unconstitutionally sprayed" was "miniscule." 904 F.3d

at 1268 (emphasis added); see also Kerr v. City of

West Palm Beach. 875 F.2d 1546, 1554 (llth Cir.

-48-

1989) (concluding that plaintiffs who had been

seriously injured when bitten by police dogs in the

course of their arrests by West Palm Beach police

officers lacked standing where the police policy might

"permit

unconstitutional

seizures

in

some

circumstances," but did "not require its officers to act

unconstitutionally").

Here, Corbett has alleged that the TSA policy -which randomly selects certain passengers to undergo

mandatory AIT screening -- violates the Fourth

Amendment. Notably, however, a panel of this Court

has already held, when Corbett challenged the

previous TSA screening regime on Fourth

Amendment grounds, that the use of AIT scanners is

constitutional. See Corbett I. 767 F.3d at 1174. We

explained that "[t]he scanners at airport checkpoints

are a reasonable administrative search [under the

Fourth Amendment] because the governmental

interest in preventing terrorism outweighs the degree

of intrusion on Corbett's privacy and the scanners

advance that public interest." Id. at 1180; see also id.

at 1182 ("The jeopardy to hundreds of human lives

and millions of dollars of property inherent in the

pirating or blowing up of a large airplane outweighs

the slight intrusion of a generic body scan or, as a

secondary • measure, a pat-down.") (quotations

omitted). As we detailed, the AIT scanners, equipped

with automated target recognition

software

"effectively reduce the risk of air terrorism" while

"pos[ing] only a slight intrusion on an individual's

-49-

privacy." Id. at 1181. There, as here, the AIT scanners

do not collect any personally identifiable information,

nor do they display an individualized image every

time a passenger passes through them! rather, the

software temporarily overlays the location of potential

threats onto a generic and stylized figure. See id. at

11751 see also 81 Fed. Reg. 11,373-82; Privacy Impact

Assessment Update for TSA Advanced Imaging

Technology, DHS/TSA/PIA-032(d), at 4 (Dec. 18,

2015).

While Corbett I involved TSA's prior system which allowed passengers to opt-out of AIT screening

and choose a pat-down instead -- the opinion did not

turn on the opt-out option. To the contrary, Corbett

took issue with alternative pat-down procedures as

well. Corbett I, 767 F.3d at 1182. And in any event, we

explained that "the United States enjoys flexibility in

selecting from among reasonable alternatives for an

administrative search." Id. at 1181. "The Fourth

Amendment does not compel the Administration to

employ the least invasive procedure or one fancied by

Corbett." Id. at 1182.

Nor does the strength of his APA claims bolster his

standing arguments. Again, without drawing any

conclusions, despite Petitioner's suggestion that TSA

failed to use the notice-and-comment rulemaking

process to implement the challenged screening policy,

the policy was promulgated after a notice-andcomment rulemaking process that expressly invited

comment on "the ability of passengers to opt-out of

-50-

AIT screening." 78 Fed. Reg. at 18,294. And as for

Corbett's argument that the challenged policy is so

devoid of justification that it must be reversed as

arbitrary and capricious, we've already held in one of

Corbett's earlier cases that TSA's AIT body scanners

are a reasonable administrative search, and that "the

United States enjoys flexibility in selecting from

among reasonable alternatives for an administrative

search." Corbett I. 767 F.3d at 1180-81.

All of this is to say that Corbett has not shown a

substantial likelihood of a future injury that is "real

and immediate," "actual and imminent," and not

"conjectural" or "hypothetical." Lujan. 504 U.S. at 560

(quotations omitted); Lyons. 461 U.S. at 102

(quotations omitted). Just as in Lyons, where the

Supreme Court determined that the likelihood of

unconstitutional chokeholds was too remote, or as in

J W. where this Court found that the likelihood of

being unconstitutionally sprayed was too removed, we

cannot say that the likelihood of Corbett being

unconstitutionally scanned at the airport is

substantial enough. To be clear, we cannot and do not

hold that the mandatory AIT scanning now used by

TSA is constitutional; we can't reach that question

without the power to do so. See Bochese. 405 F.3d at

974. Nevertheless, we are able to say that based on

our holding in Corbett I that TSA's AIT scanning

regime as a general matter was not unconstitutional,

and more importantly, based on our reading of this

record, it's, entirely too speculative to assume that

-51 -

Corbett would-be subjected to TSA's new policy in an

unconstitutional manner3.

As for Corbett's alternative argument that he has

standing based on the "chilling effect" that the policy

has on his travel because he faces an administrative

fine of up to $11,000 and the loss of his airfare if he

refuses to complete screening at a TSA checkpoint, we

remain unpersuaded. The Supreme Court has

explained that parties "cannot manufacture standing

merely by inflicting harm on themselves based on

their fears of .hypothetical future harm that is not

3 Corbett also claims that many of the injuryin-fact cases we rely

on, like Lyons.. are distinguishable, because no chain of

attenuated events must occur before Corbett will be randomly

subjected to mandatory AIT screening. But that is a distinction

without a difference. In either instance, be it through TSA's

random selection process or the steps involved in a police

interaction that may result in a chokehold, the resulting

probability of a future unconstitutional injury is too small to

constitute an injury in fact. Moreover, to the extent the courts

are more likely to confer standing where the plaintiffs' alleged

constitutional injuries are the result of involuntary conduct, see

J W. 904 F.3d at 1269 (noting that plaintiffs with standing in

other cases, "could not avoid exposure to the conduct they

challenged because their own behavior or situation, which drove

the challenged conduct, was involuntary"), Corbett cannot claim

that his conduct is involuntary. As we said in one of Corbett's

earlier challenges to TSA's screening process, being an airline

traveler is a voluntary pursuit, since "passengers elect to travel

by air knowing that they must undergo a search." Corbett I. 767

F.3d at 1182; see also J W. 904 F.3d at 1269 (rejecting the

standing argument that students were sprayed simply because

of their status as students since "[sltudents may misbehave or

act defiantly from time to time, but they can control their own

behavior"). So while we accept that cases like Lyons. J W. Elend

and Bowen do not map directly onto this case, they are

nevertheless instructive.

-52-

certainly impending." Clapper v. Amnesty Int'l USA,

568 U.S. 398, 416 (2013). Corbett cannot demonstrate

that the possible harm of maybe having to undergo

mandatory AIT screening at some indeterminate time

is impending, and his subjective fear of this harm is

not sufficient to create standing. And, in any event, we

cannot ignore Corbett's statement in several filings

that he "has not and has no intention of changing his

travel patterns." Reply Br. at 2; Pet. Opp. To MTD at

6; Decl. of Jonathan Corbett at 1 (Dec. 24, 2015). This

admission severely undermines the claim that TSA's

policy has had-a chilling effect on his travel plans.

His remaining arguments fare no better. He

suggests that because he has also brought claims

under the Administrative Procedure Act, we should

exercise jurisdiction because he has the "substantial

interest" required by 49 U.S.C. § 46110(a) -- the

statute that provides for judicial review of TSA orders.

But even if Corbett satisfies the statutory

requirement that he have a "substantial interest" in

the challenged screening policy, he must first

establish the. type of injury in fact that is a

prerequisite to maintaining suit under Article III of

the Constitution. See Illinois Den't of Transn. v.

Hinson. 122 F.3d 370, 371 (7th Cir. 1997) (explaining

that 49 U.S.C. § 46110(a)'s requirement that a person

have a "substantial interest" means "[a]t a minimum,

. . . someone who has the kind of interest that Article

III of the Constitution has been interpreted to make

prerequisite to maintaining a suit in any Article III

- 53 -

court"); see also Black Warrior Riverkeeper, Inc, v.

U.S. Army Corps of Eng'rs. 781 F.3d 1271, 1279 (llth

Cir. 2015) (recognizing that a plaintiff seeking to bring

suit under a federal statute must show both that he

has Article III standing and also that his injury in fact

"falls within the 'zone of interests' sought to be

protected by the statutory provision whose violation

forms the legal basis for his complaint."). And to the

extent Corbett points to this Court's exercise of

jurisdiction in Corbett I. it's also irrelevant because

there, he was challenging a different policy that

applied to all passengers, see Corbett I. 767 F.3d at

1174 (describing the challenged policy as "standard

operating procedures for security

screening

nationwide"), : whereas the policy Corbett now

challenges does not affect the "vast majority" of

passengers.

Finally,- it may be possible for Corbett to bring a

Fourth Amendment challenge to TSA's policy in the

future -- if, among other things, he is able to establish,

based on a new set of facts, that he has a substantial

likelihood of injury that is "real and immediate,"

"actual and imminent," and not "conjectural" or

"hypothetical." Lujan. 504 U.S. at 560 (quotations

omitted); Lyons. 461 U.S. at 102 (quotations omitted).

All we hold today - indeed all we could hold today -is that on this record, Corbett has not claimed a

sufficient injury in fact. He's not said that he's ever

been subjected to the TSA policy, let alone that he

suffers a greater likelihood of injury in the future than

-54-

the likelihood urged by the unsuccessful plaintiffs in

Lyons, or in J W. or in Elend — for purposes of our

standing inquiry. We are, therefore, required to

dismiss his petition.

PETITION DISMISSED.

-55-

APPENDIX B - U.S. CONST., Art. Ill, § 2, Cl. 1

The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made, or

which shall be made, under their Authority;—to all

Cases affecting Ambassadors, other public Ministers

and Consuls;—to all Cases of admiralty and maritime

Jurisdiction;—to Controversies to which the United

States shall be a Party;—to Controversies between

two or more States;— between a State and Citizens of

another State,—between Citizens of different

States,—between Citizens of the same State claiming

Lands under Grants of different States, and between

a State, or the Citizens thereof, and foreign States,

Citizens or Subjects.

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