In Corbett v. Transp. Sec. Admin., the Court of Appeals for the Eleventh Circuit dismissed plaintiff's complaint, holding that plaintiff lacked standing to allege the Transportation Security Administration's ("TSA") policies regarding the use of Advanced Imaging Technology ("AIT") screeners were unconstitutional and violated the Administrative Procedure Act ("APA").
Jonathan Corbett brought suit against the TSA, claiming its new policy requiring certain airline passengers to pass through AIT screeners, as opposed to giving the passengers the option of being screened by a physical pat-down, violated the Fourth Amendment and the APA. In reaching its holding that the plaintiff lacked standing, the Court noted that he had previously unsuccessfully sued the TSA for its use of AIT screeners. The Court then discussed the history of the TSA policies at issue in the case, noting that the TSA Administrator "is required to 'assess current and potential threats to the domestic transportation system,' take all necessary steps to protect the Nation from those threats, and improve transportation security in general."
The TSA issued a notice of proposed rulemaking, which was "designed to 'codif[y] the use of AIT to screen individuals at aviation security screening checkpoints.'" The preamble of the final rule "for the first time codified that AIT screening will be mandatory for some passengers as warranted by security considerations." (emphasis in original). Specifically, this new policy would apply to passengers that the TSA designated as "selectees." A passenger could be designated a "selectee" based on risk information. Other passengers could be randomly designated a "selectee" and be required to go through the mandatory AIT screening on a particular trip. The TSA has explained that "this policy was designed to inform the general public that 'screening is conducted on a random basis,' thereby deterring '[u]nknown terrorists' without significantly impeding checkpoint operations."
The TSA has also explained "that mandatory AIT screening will be required 'in a very limited number of circumstances,' so it will not affect the 'vast majority of passengers.'"
After analyzing the history of the policy, the Court concluded that Corbett lacked standing based on his complaint. The Court noted that "[t]he three prerequisites for standing are that (1) the plaintiff has suffered an 'injury in fact' – an invasion of a judicially cognizable interest, which is (a) 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 not before the court; and (3) it be likely, not merely speculative, that the injury will be redressed by a favorable decision." Ultimately, the Court ruled that Corbett lacked standing because, although the Court recognized that there was a chance he might be randomly selected in the future for AIT screening, he had failed to establish that that possibility would result in a "substantial likelihood of future injury that is 'real and immediate,' 'actual and imminent,' and not 'conjectural' or 'hypothetical.'" (emphasis in original).
As further support for its ruling, the Court noted that plaintiff's "claim of future injury is weakened still further, because, even accepting the small chance that [plaintiff] may be randomly subjected to the new policy at some indeterminate time in the future, there [is] an even smaller chance that his random selection for participation in the mandatory screening program will result in a constitutional injury." (emphasis in original). The Court had previously ruled in a different lawsuit that the use of the AIT screeners was constitutional "because the governmental interest in preventing terrorism outweighs the degree of intrusion on [plaintiff's] privacy[,] and the scanners advance that public interest." The Court also stated that previous court rulings also indicated plaintiff's APA claims would fail.
Accordingly, the Court held that Corbett lacked standing because he had not claimed a sufficient injury in fact. Corbett v. Transp. Sec. Admin., 930 F.3d 1225 (11th Cir. 2019)
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