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

NO. __________

IN THE

Supreme Court of the United States

_______________

JONATHAN CORBETT,

Petitioner

V.

TRANSPORTATION SECURITY ADMINISTRATION,

DAVID P. PEKOSKE, IN HIS OFFICIAL CAPACITY

AS ADMINISTRATOR OF THE TRANSPORTATION

SECURITY ADMINISTRATION.

Respondents

_______________

Petition for Writ of Certiorari to the United States Court

of Appeals for the District of Columbia Circuit

_______________

APPENDIX

_______________

JONATHAN CORBETT, ESQ.

PETITIONER (ATTORNEY PROCEEDING PRO SE)

958 N. WESTERN AVE. #765

HOLLYWOOD, CA 90029

PHONE: (310) 684-3870

E-MAIL: JON@CORBETTRIGHTS.COM

TABLE OF CONTENTS

APPENDIX A – D.C. Circuit Opinion ...................... 2a

APPENDIX B – Order Denying Rehearing ........... 30a

APPENDIX C – Order Denying Rehearing En Banc

................................................................................. 32a

APPENDIX D – Statutes & Regulations ............... 34a

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APPENDIX A – D.C. Circuit Opinion

IN THE 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

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EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

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

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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 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).

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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 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

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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, 1542-2101, 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. 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

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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

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

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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 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. 1317; and Emergency Amendment No. 1546-21-01, reprinted

in S.A. 27-31. The initial Mask Directives expired May 11,

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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. 1542-2101B, 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. Therefore, we will limit our

review of Petitioner's claims to TSA's mask requirements

in airports and on airplanes.

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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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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 [112 S.Ct. 2130, 119 L.Ed.2d 351] (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 the rules that govern them

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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, 112 S.Ct. 2130.

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, 112 S.Ct. 2130 (emphasis in original). Rather,

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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

[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, 87 S.Ct. 1507, 18

L.Ed.2d 681 (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, 87 S.Ct. 1507 (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,

127 S.Ct. 1438, 167 L.Ed.2d 248 (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- 12a -

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 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,

112 S.Ct. 2130 ).

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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

Under Chevron step one, we must first decide "whether

Congress has directly spoken to the precise question at

issue." Id. at 842, 104 S.Ct. 2778 ; see also Kingdomware

Techs., Inc. v. United States , 579 U.S. 162,171, 136 S.Ct.

1969, 195 L.Ed.2d 334 (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

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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,

104 S.Ct. 2778. "A precondition to deference under

Chevron is a congressional delegation of administrative

authority." Adams Fruit Co. v. Barrett , 494 U.S. 638, 649,

110 S.Ct. 1384, 108 L.Ed.2d 585 (1990) (citing Bowen v.

Georgetown Univ. Hosp. , 488 U.S. 204, 208, 109 S.Ct.

468, 102 L.Ed.2d 493 (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. FCC , 569 U.S. 290,

300-01, 133 S.Ct. 1863, 185 L.Ed.2d 941 (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

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"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, 103 S.Ct. 2856, 77 L.Ed.2d 443 (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 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, 103 S.Ct. 2856. 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

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are not ripe for review. See Texas v. United States , 523

U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (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, 105 S.Ct. 3325, 87 L.Ed.2d 409 (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.

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),

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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 COVID19 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, 134 S.Ct.

852, 187 L.Ed.2d 744 (2014). Decisions from this court

have consistently confirmed that TSA has "broad

statutory authority to protect civil aviation security."

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

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(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, 133 S.Ct.

1863. 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, 116

S.Ct. 1730, 135 L.Ed.2d 25 (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

- 18a -

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 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, 133 S.Ct. 1863. 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

- 19a -

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 3738. Transmission of COVID-19 to transportation workers

– from TSA agents to airline crew and airport personnel –

imperils 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 COVID19 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

- 20a -

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.

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

- 21a -

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, 127 S.Ct. 1438, 167 L.Ed.2d 248

(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.

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, 133 S.Ct. 1863. 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).

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Petitioner's invocation of Alabama Association of Realtors

v. Department of Health and Human Services , ––– U.S. –

–––, 141 S. Ct. 2485, 210 L.Ed.2d 856 (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 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,

- 23a -

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 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

- 24a -

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 responsibilities "during a national emergency." Id.

This includes the authority to "coordinate and oversee the

transportation-related responsibilities of other

- 25a -

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.

- 26a -

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, 112 S.Ct.

2130, 119 L.Ed.2d 351 (1992). I will stop at the first prong

as his challenge should end there.

As my colleagues note, Maj. Op. 481–82, 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

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falls.1 It is 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

1 Because Corbett brings a facial challenge, Maj. Op. 485–

86, he must show "that the [TSA mandate] injures him in

a concrete and particular way," see Massachusetts v. EPA

, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248

(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 millions of members of

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

504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007), Corbett's

generalized injury is likewise insufficient to invoke our

jurisdiction, see Ex parte Levitt , 302 U.S. 633, 633, 58

S.Ct. 1, 82 L.Ed. 493 (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.").

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

- 28a -

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, 99 S.Ct.

2301, 60 L.Ed.2d 895 (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, 112 S.Ct. 2447, 120 L.Ed.2d 174 (1992), resolves

Corbett's annoying waste of judicial 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/."

- 29a -

APPENDIX B – Order Denying Rehearing

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed on February 2, 2022

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

––––––––––––––––––––

BEFORE:

Henderson and Tatel, Circuit Judges; and Edwards, Senior

Circuit Judge

ORDER

Upon consideration of petitioner’s petition for panel

rehearing filed on January 24, 2022, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

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Mark J. Langer, Clerk

BY:

/s/Anya Karaman

Deputy Clerk

- 31a -

APPENDIX C – Order Denying Rehearing En Banc

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed on February 2, 2022

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

––––––––––––––––––––

BEFORE:

Srinivasan, Chief Judge; Henderson, Rogers, Tatel, Millett,

Pillard, Wilkins, Katsas, Rao, Walker, and Jackson, Circuit

Judges; and Edwards, Senior Circuit Judge

ORDER

Upon consideration of petitioner’s petition for rehearing en

banc, and the absence of a request by any member of the

court for a vote; and the motion for leave to file brief of

- 32a -

amicus curiae 13 disabled travelers & a former flight

attendant in support of petition for rehearing and the

lodged brief of amici curiae, it is

ORDERED that the motion for leave to file amicus brief be

denied. The Clerk is directed to note the docket accordingly.

It is

FURTHER ORDERED that the petition for rehearing en

banc be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/Anya Karaman

Deputy Clerk

- 33a -

APPENDIX D – Statutes & Regulations

49 U.S.C. § 114(d)

Functions.—The Administrator shall be responsible for

security in all modes of transportation, including—

(1)carrying out chapter 449, relating to civil aviation

security, and related research and development activities;

and

(2)security responsibilities over other modes of

transportation that are exercised by the Department of

Transportation.

49 U.S.C. § 114(g)(1)(B)

[Subject to the direction and control of the Secretary of

Homeland Security, the Administrator, during a national

emergency, shall have the following responsibilities:] To

coordinate and oversee the transportation-related

responsibilities of other departments and agencies of the

Federal Government other than the Department of Defense

and the military departments.

49 U.S.C § 41706(a)

Smoking Prohibition in Interstate and Intrastate Air

Transportation.— An individual may not smoke—

- 34a -

(1)in an aircraft in scheduled passenger interstate or

intrastate air transportation; or

(2)in an aircraft in nonscheduled passenger interstate or

intrastate air transportation, if a flight attendant is a

required crewmember on the aircraft (as determined by the

Administrator of the Federal Aviation Administration).

49 U.S.C. § 44901(h)(1)

In general.—

The Administrator of the Transportation Security

Administration shall order the deployment of law

enforcement personnel authorized to carry firearms at each

airport security screening location to ensure passenger

safety and national security.

49 U.S.C. § 44903(b)(3)(A)

[The Administrator shall prescribe regulations to protect

passengers and property on an aircraft operating in air

transportation or intrastate air transportation against an

act of criminal violence or aircraft piracy. When prescribing

a regulation under this subsection, the Administrator shall

to the maximum extent practicable, require a uniform

procedure for searching and detaining passengers and

property to ensure—] their safety; and

49 U.S.C. § 46110(a)

Filing and Venue.—

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Except for an order related to a foreign air carrier subject

to disapproval by the President under section 41307 or

41509(f) of this title, a person disclosing a substantial

interest in an order issued by the Secretary of

Transportation (or the Administrator of the Transportation

Security Administration with respect to security duties and

powers designated to be carried out by the Administrator of

the Transportation Security Administration or the

Administrator of the Federal Aviation Administration with

respect to aviation duties and powers designated to be

carried out by the Administrator of the Federal Aviation

Administration) in whole or in part under this part, part B,

or subsection (l) or (s) [1] of section 114 may apply for

review of the order by filing a petition for review in the

United States Court of Appeals for the District of Columbia

Circuit 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. The petition must be filed not later than

60 days after the order is issued. The court may allow the

petition to be filed after the 60th day only if there are

reasonable grounds for not filing by the 60th day.

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