Petition for Review of a Decision of the Transportation
Security Administration Agency No. 49 U.S.C. section 46110
TJOFLAT, MARCUS and ROSENBAUM, Circuit Judges.
MARCUS, CIRCUIT JUDGE
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 (11th 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.
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.
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 "[s]tanding 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 (11th 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.
review de novo questions concerning subject-matter
jurisdiction, including standing. Elend v. Basham,
471 F.3d 1199, 1204 (11th Cir. 2006). When ruling on standing
at the pleading stage, we "must accept as true all
material allegations of the [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 Corp. v. Fla.
Dep't of Transp., 921 F.2d 1190, 1206 n.50 (11th
Cir. 1991). The party invoking federal jurisdiction bears the
burden of establishing standing. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992).
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).
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) (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 Al 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
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.
AIT scanners were first used, they displayed the actual
contours of the scanned passengers' bodies. 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(l).
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 passenger-specific 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.
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 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, Co ...