ON PETITION FOR REVIEW OF AN ORDER OF THE TRANSPORTATION SECURITY ADMINISTRATION.
Inga S. Bernstein, with whom Monica R. Shah, Naomi R. Shatz, and Zalkind Duncan & Bernstein LLP were on brief, for petitioner.
Sydney Foster, Attorney, U.S. Department of Justice Civil Division, with whom Stuart F. Delery, Assistant Attorney General, Mark B. Stern, and Sharon Swingle were on brief, for respondent.
Before Lynch, Chief Judge, Lipez and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
As someone with a metallic joint replacement, Mary Beth Ruskai cannot pass through some security checkpoints in U.S. airports under current Transportation Security Administration (" TSA" ) security protocols without submitting to a standard pat-down that includes security officials touching areas around her groin and
breasts to look for concealed metallic and nonmetallic weapons. Having unsuccessfully petitioned TSA to change its protocols, she asks this court to find that they violate the Fourth Amendment and federal disability discrimination law, and to set them aside. For the reasons that follow, we cannot so find.
TSA is part of the U.S. Department of Homeland Security (" DHS" ). 6 U.S.C. § 203(2). Congress created TSA in response to the events of September 11, 2001, " and charged it with ensuring civil aviation security, including the screening of all passengers and property that move through U.S. airports." Redfern v. Napolitano, 727 F.3d 77, 80 (1st Cir. 2013); see also 49 U.S.C. § 114(d); Field v. Napolitano, 663 F.3d 505, 508 (1st Cir. 2011). One of TSA's principal jobs is to keep passengers from boarding a plane with explosives, weapons, or other destructive substances (hereafter, " weapons" ). 49 U.S.C. § 44901.
There are roughly 500 commercial airports in the United States that each serve over 2,500 passengers per year, with most larger airports having multiple terminals and, often, multiple screening lines within terminals. See Fed. Aviation Admin., Report to Congress: National Plan of Integrated Airport Systems (NPIAS) 2013-2017, at 4, available at http://www.faa.gov/airports/planning_capacity/npias/reports/histo rical/media/2013/npias2013Narrative.pdf. With more than 600 million passengers of all sorts carrying myriad items flying into and out of these airports each year, see Passengers, Bureau of Transp. Statistics, http://www.transtats.bts.gov/Data_Elements.aspx?Data=1, TSA's job is a challenging and ever-evolving task.
Planes blown out of the sky in Russia and attempted bombings on U.S. airliners in recent years have warned TSA that its screening procedures must be capable of detecting both metallic and nonmetallic weapons. See 78 Fed. Reg. 18,287 - 18,291 (March 26, 2013). As anyone who frequently flies knows, TSA's primary strategy for coping with this challenge has been to develop and use technology: specifically, walk-through Advanced Imaging Technology scanners (" AIT scanners" ) that can detect both metallic and nonmetallic weapons on clothed passengers. Implementation of this strategy remains a work in progress. In the fall of 2010, TSA revised one of its Standard Operating Procedures (" SOPs" ), called the Screening Checkpoint SOP, to include additional procedures aimed at detecting nonmetallic weapons. The new SOP authorized the use of two types of AIT scanners as the primary methods of screening at U.S. airports and adopted as a secondary screen a new " standard pat-down," which is an enhanced form of the previously used pat-down.
Redfern, 727 F.3d at 80. The primary protocol requires anyone wanting to fly to go through an AIT scanner or to submit to the new standard pat-down. Id.
The rollout of the new technology as the primary screening method encountered significant resistance. The AIT scanners were viewed by many as generating, in effect, a nude picture of each passenger, many of whom were not inclined to pose for such pictures as a price of flying.
See, e.g., id. TSA worked to develop privacy software (known as Automated Target Recognition, or " ATR" ) for the AIT scanners, such that no screening agent had to personally examine AIT images for weapons. Congress weighed in as well, passing
the FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 826, 126 Stat. 11, 132, requiring TSA to ensure that all passenger-screening AIT scanners employed ATR by June 2012 (later extended to May 2013).
Redfern, 727 F.3d at 81.
TSA has continued to expand its use of AIT scanners. Its efforts were set back when the manufacturer of one of the two types of AIT scanners TSA had initially deployed, the so-called backscatter scanner, was evidently unable to develop adequate ATR capability, so backscatter scanners have been removed from airport operation. Id. Nevertheless, the government asserts in its brief that TSA " has deployed more than 740 AIT machines at almost 160 airports and anticipates deploying approximately 80 additional machines by 2015." Even so, there remain many screening points that yet lack AIT scanners, or where they are not in use full-time. Ruskai's challenge in this case concerns TSA's protocol for those checkpoints.
The primary screening device at checkpoints lacking AIT scanners is the walk-through metal detector (" WTMD" ). In other words, at those checkpoints, TSA effectively does not screen most passengers' bodies for nonmetallic weapons, and will not do so until AIT scanners are installed. Suffice it to say, TSA credibly claims to be intent on reducing the number of such checkpoints.
There are several groups of passengers for whom TSA relies on screening techniques other than (or in addition to) the WTMD and AIT scanners, including people who cannot medically go through an AIT scanner or WTMD, who alarm either primary screening machine, or who are randomly selected for additional screening. Many of those people are subject to the standard pat-down, which Ruskai describes as involving a TSA agent touching around her breasts, feeling inside her waistband, and running a hand up the inside of each thigh until reaching the groin. Others (including children, the elderly, individuals selected for random additional screening, and those screened by opposite-gender TSA personnel) receive a modified, more limited, version of the standard pat-down.
Additionally, TSA has opted to impose more limited screening burdens on passengers whom it confirms are part of TSA's PreCheck program. As described in the briefing, PreCheck offers passenger members " expedited screening in designated lanes if they have been cleared for such screening based on certain background checks conducted prior to their arrival at the airport[,]" and a more limited pat-down in the event that the passenger alarms a WTMD.
Ruskai, whose job requires her to fly frequently, has had three joints replaced, and at least one of her replacement joints is metal. As such, she triggers an alert when she walks through a WTMD. If, while traveling, she proceeds through a PreCheck screening lane, Ruskai, who is a PreCheck member, is supposed to receive the more limited pat-down following her unsuccessful pass through the WTMD. As discussed at greater length below, the government now also claims that Ruskai may receive the more limited pat-down, even in non-PreCheck lanes, if a boarding pass scanner confirms her PreCheck status. (Ruskai disputes how limited these " limited" pat-downs really are.) But if the checkpoint has no PreCheck lane, or cannot verify Ruskai's PreCheck status, Ruskai is subject to the standard pat-down. She objects to this procedure, finding it " stressful," " invasive," and " extremely unpleasant." While many people may have less sensitivity to the indignities of the search, certainly Ruskai is not unusual in
finding it invasive and disturbing, as has been made very clear to TSA at, among other things, congressional hearings.
Ruskai's principal argument is, simply stated, as follows: since the only reason she requires a follow-up search is that she trips the WTMD, TSA should search her only for metal, and it should conduct such a metal-only search using a hand-held metal detector " wand" (" HHMD" ), supplemented by inspection of her medical documentation of the implant and a pat-down of only the area to which the HHMD alerts. TSA's refusal to restrict its search in this manner, she claims, constitutes an unreasonable search under the Fourth Amendment, and violates section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
II. Jurisdiction and Timeliness
We begin by confirming that we have jurisdiction to consider Ruskai's petition for review. Under 49 U.S.C. § 46110, with certain exceptions,
a person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Under Secretary of Transportation for Security with respect to [certain] security duties and powers . . .) in whole or in part under [Part A of subtitle VII of Title 49 of the U.S. Code] may apply for review of the order by filing a petition for review . . . in the court of appeals of the United States for the circuit in which the person resides . . . .
Neither party disputes that TSA's security protocol and refusal to grant Ruskai's requested accommodation constitute a final order reviewable by this court. We agree. See Blitz v. Napolitano, 700 F.3d 733, 739-40 (4th Cir. 2012). Cf. Gilmore v. Gonzales, 435 F.3d 1125, 1133 (9th Cir. 2006) (TSA security directive is a reviewable " order" ); Aviators for Safe & Fairer Regulation, Inc. v. F.A.A., 221 F.3d 222, 225 (1st Cir. 2000) (noting that the term " order" is read " expansively" in section 46110).
A petition for review " must be filed not later than 60 days after the order is issued[; ]" late petitions are permitted " only if there are reasonable grounds for not filing by the 60th day." 49 U.S.C. § 46110(a). The final TSA letter denying Ruskai's request was dated January 19, 2012, but postmarked February 3. She filed for review on April 2--more than 60 days after the letter was written, but less than 60 days after it was sent. We asked the parties to brief whether Ruskai's petition was timely. They agree that it was, and so do we. See, e.g., Avia Dynamics, Inc. v. F.A.A., 641 F.3d 515, 519, 395 U.S.App.D.C. 149 (D.C. Cir. 2011) (concluding that " issuing" means making a decision publicly available); Americopters, LLC v. F.A.A., 441 F.3d 726, 733 & n.5 (9th Cir. 2006).
III. The Record
We turn next to the record, which for three reasons is somewhat unusual.
First, although this petition calls for review of an agency order, the order here was the result of informal agency action, not an administrative hearing or public notice and comment. Starting in early 2011, Ruskai submitted a series of complaints to TSA about being repeatedly subjected to pat-downs. She found TSA's responses inadequate, and eventually filed a complaint with DHS's Office for Civil Rights and Civil Liberties, claiming that the searches violated her Fourth Amendment rights and discriminated against her on account of her disability. Nearly nine months later, DHS declined to open an investigation and directed any further inquiries to TSA's Office of Disability Policy and Outreach. On January 19, 2012, a TSA " policy advisor" wrote to Ruskai, noting that TSA could not effectively investigate her claims at that late date, but nonetheless
rejecting her request that she be offered modified security screening procedures. Following that denial, Ruskai filed a petition for review with this court. The parties have given the court an administrative record, which, it seems, was largely compiled by TSA based on its records at the time it rejected Ruskai's requests.
Second, much of the record is sealed, with some portions unavailable even to Ruskai's counsel. Most of that sealing is because TSA exercised its authority to designate certain information Sensitive Security Information, and so limit its dissemination. See 49 C.F.R. pts. 15 and 1520.
Third, the underlying facts are not static, as TSA continues to pursue its goal of expanding its use of AIT scanners and its PreCheck program.
As a result of these factors, both parties have sought to supplement the record before this court.
A. Ruskai's Motion to Supplement the Record
Before oral argument, Ruskai moved to supplement the administrative record by adding an affidavit about her screening experiences. Ruskai argues we should consider her statement because her side of the story is not well reflected in the current record only because TSA failed to investigate her initial complaints. Cf. Cousins v. Secretary of United States DOT., 880 F.2d 603, 610 (1st Cir. 1989) (noting that APA review is normally limited to the administrative record, but petitioners are not prejudiced as they may contribute to the administrative record during the agency proceedings). The government declined to take a position on her request, and has waived any objection by affirmatively relying without objection on Ruskai's affidavit; accordingly, we grant the motion. Cf. WildWest Inst. v. Bull, 547 F.3d 1162, 1176 (9th Cir. 2008) (maintaining that a court may " consider extra-record materials (1) when necessary to determine whether the agency considered all relevant factors in making its decision; (2) when the agency has relied on extra-record materials; (3) when necessary to explain technical terms or complex subject matter; or (4) when the agency has acted in bad faith" ). Regarding Ruskai's brief, however, we note that simply because information is available on the internet, and cited in a brief, does not automatically render it either evidence or part of the administrative record.
B. The Government's Rule 28(j) Letter
After oral argument, the government filed a citation of supplemental authority under Federal Rule of Appellate Procedure 28(j), informing us that TSA recently expanded the PreCheck program. Essentially, the government claims that if a TSA official confirms (using technology used to scan boarding passes) that a passenger qualifies for TSA PreCheck for a given flight, they can receive PreCheck security treatment even in normal screening lanes. Ruskai objects both to the use of Rule 28(j) to introduce this new evidence and to the government's characterization of the information.
Rule 28(j) provides that " [i]f pertinent and significant authorities come to a party's attention . . . after oral argument but before decision . . . [the] party may promptly advise the circuit clerk by letter . . . setting forth the citations." Fed. R. App. P. 28(j). Generally, while 28(j) is not strictly limited to offering authorities that did not exist at the time of briefing or oral argument, it should not be used to introduce new arguments or new evidence. United ...