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Blitz v. Napolitano, No. 11-2283

Decided: November 30, 2012

Jonathan Blitz, his wife Marla Tuchinsky, and their minor child EB (“Plaintiffs”) challenged the district court’s dismissal of their complaint for lack of subject matter jurisdiction. The Plaintiffs’ complaint challenged the use of advanced imaging technology (“AIT”) scanners and pat-downs at airport screening checkpoints. According to the district court, § 46110 of Title 49  vests exclusive jurisdiction to an appropriate court of appeals for challenges to “orders” issued by the Administrator of TSA. The Plaintiffs argued that the district court erred in dismissing their complaint because the TSA’s standard operating procedures (“SOP”) for checkpoint screening— which includes AIT scanners and passenger pat-downs— does not constitute an “order” under §46110. In the alternative, the Plaintiffs argued that §46110’s conferral of exclusive jurisdiction to a court of appeals is unconstitutional. The Court of Appeals rejected the Plaintiffs’ arguments and affirmed the district court’s dismissal of the Complaint.

In a 2010 declaration, TSA Administrator Pistole explained that the use of AITscanners constituted checkpoint screening SOP at all airports. The declaration also explained that a passenger choosing to opt out of an AIT scan must undergo a pat-down as a part of that checkpoint screening SOP. According to the Plaintiffs’ Complaint, Plaintiff Tuchinsky opted out of AIT screenings on two occasions at the Raleigh-Durham International Airport. Tuchinsky claimed that she was then subjected to pat-downs that were highly invasive and humiliating. On February 7, 2011, the Defendants moved to dismiss the Complaint under Rule 12(b)(1), arguing that the district court lacked subject matter jurisdiction. The Defendants maintained that the checkpoint screening SOP constituted an “order” issued by the TSA Administrator. The district court agreed and dismissed the Plaintiffs’  Complaint. This appeal followed.

On appeal, the Plaintiffs argued that the application of §46110 only applies to orders issued by the TSA Administrator after the completion of adjudicatory proceedings where affected persons have been accorded an opportunity to participate. Therefore, under the Plaintiffs’ narrow viewpoint of §46110, the checkpoint screening SOP would not constitute an “order.” However, the Court of Appeals rejected the Plaintiffs’ argument. The court noted that none of the other circuits had adopted such a narrow view of § 46110 and that the Plaintiffs’ interpretation of §46110 would violate the plain language of the statute and controlling precedent. Finally, the court also rejected the Plaintiffs’ constitutional claims. The court noted that “agency decisions are commonly subject to such jurisdiction channeling provisions, and final agency actions are generally reviewed in the courts of appeals.”

Full Opinion

-Graham Mitchell