Mehmet Ege v. Dept. of Homeland Security , 784 F.3d 791 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2014 Decided April 28, 2015
No. 13-1110
MEHMET EGE,
PETITIONER
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY
AND TRANSPORTATION SECURITY ADMINISTRATION,
RESPONDENTS
On Petition for Review of an Order of the
Transportation Security Administration
Charles A. Zdebski argued the cause and filed the briefs
for the petitioner.
Sharon Swingle, Attorney, United States Department of
Justice, argued the cause for the respondents. Stuart F.
Delery, Assistant Attorney General, Ronald C. Machen, Jr.,
United States Attorney, and Mark B. Stern, Attorney, were
with her on brief. Catherine H. Dorsey, Attorney, United
States Department of Justice, entered an appearance.
Before: HENDERSON, ROGERS and KAVANAUGH, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge HENDERSON.
Opinion concurring in the judgment filed by Circuit
Judge KAVANAUGH.
KAREN LECRAFT HENDERSON, Circuit Judge: Mehmet
Ege, a pilot for Emirates Airlines, petitions for review of an
order of the Transportation Security Administration (TSA)
that prohibits him from flying to, from or over the United
States. Ege believes the TSA’s prohibition is based on his
alleged inclusion on the “No-Fly List,” a subset of the
Terrorist Screening Database (TSDB) used by the TSA to
“deny boarding of individuals on commercial aircraft
operated by U.S. carriers or flying to, from, or over the United
States.” Resp’t’s Br. 7. 1 He seeks removal from the No-Fly
List or, at a minimum, a “meaningful opportunity to be
heard.” Pet’r’s Br. 23.
The problem, however, is that neither the TSA nor the
Department of Homeland Security (DHS)—the only two
respondent agencies—has “authority to decide whose name
goes on the No-Fly List.” Ibrahim v. DHS, 538 F.3d 1250,
1254 n.6 (9th Cir. 2008). Instead, the Terrorist Screening
Center (TSC), which is administered by the Federal Bureau of
Investigation (FBI), see About the Terrorist Screening Center,
FBI, http://www.fbi.gov/about-us/nsb/tsc/about-the-terrorist-
screening-center (last visited Apr. 26, 2015), is “the sole
entity with both the classified intelligence information” Ege
1
“As a matter of policy, the federal government does not confirm
or deny whether any particular individual is included in the TSDB
or on any of its subset lists,” including the No-Fly List. Resp’t’s
Br. 8. Nothing herein should be construed as indicating whether
Ege is, in fact, on any list or in any database maintained by the
Government.
3
wants and “the authority to remove” names from the No-Fly
List/TSDB. Latif v. Holder, 686 F.3d 1122, 1129 (9th Cir.
2012). And because we have no jurisdiction under 49 U.S.C.
§ 46110 to issue an order binding the TSC, we ipso facto
cannot redress Ege’s injury even if we were inclined to agree
with him. For this reason, we must dismiss his petition for
lack of standing.
After experiencing unspecified travel issues in 2009,2
Ege submitted an online inquiry to the DHS’s Traveler
Redress Inquiry Program (DHS TRIP), the administrative
review mechanism that allows an individual to seek assistance
if he believes he has “been improperly or unfairly delayed or
prohibited from boarding an aircraft.” 49 C.F.R.
3
§ 1560.205(a). Ege’s DHS TRIP inquiry was reviewed by
2
Although Ege refers to his 2006 removal from the Master Crew
List, a manifest that must be submitted to the TSA by every foreign
air carrier operating flights over the United States and that contains
identifying information for “all crew members . . . operating and
servicing” such flights, 19 C.F.R. § 122.49c(a), he never petitioned
for review of the administrative denial of that removal, which
denial occurred in 2008. We therefore limit our review to the
unspecified travel difficulty Ege experienced in 2009 that led him
to seek redress through DHS TRIP and that culminated in the 2013
TSA order, which he petitions that this Court review. We note,
however, that Ege believes his removal from the Master Crew List
also resulted from his alleged inclusion in the TSDB. See Pet’r’s
Br. 9 (“The Master Crew List operates similar to the Do-Not Fly
list. The TSA makes its determination of whether a pilot should
stay on the master crew list by cross-checking the information
with” the TSC). For that reason, our analysis would not change had
he challenged his Master Crew List removal in his petition for
review.
3
As our concurring colleague observes, see Concur. Op. 2, DHS
TRIP was created in response to a congressional directive that it
4
the TSA, which responded by letter on March 24, 2011,
informing him that his record had been reviewed and that any
appropriate changes or corrections had been made.
Apparently, Ege’s travel woes persisted and he subsequently
contacted the TSA to complain. On February 6, 2012, the
TSA sent Ege another letter, stating that it had “conducted a
review of any applicable records in consultation with other
federal agencies, as appropriate” and “determined that no
changes or corrections [were] warranted at th[at] time.”
Resp’t’s Br. 15. The TSA’s February 6 letter also informed
Ege that he could administratively appeal its initial
determination.
Ege did so on February 25, 2012, submitting a letter that
expressed his belief that he had been placed on the No-Fly
List and that his alleged inclusion was hampering his
employment as an international pilot. On January 22, 2013,
the TSA issued its final order, which upheld the initial agency
decision and told Ege that he could seek review “by a United
States Court of Appeals under 49 U.S.C. § 46110.”
“establish a timely and fair process for individuals who believe they
have been delayed or prohibited from boarding a commercial
aircraft because they were wrongly identified as a threat.” 49
U.S.C. § 44926(a). But it is axiomatic that the DHS’s attempt to
comply with the Congress’s mandate in a manner consistent with
the “constitutional elements of jurisdiction,” which jurisdiction is
the “essential ingredient of separation and equilibration of powers,”
does not affect our independent obligation to determine whether a
redressable case or controversy exists. Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 101 (1998). And based on the interplay
among the DHS, the TSA and the TSC in the context of No-Fly
List/TSDB challenges, a petitioner cannot, consistent with
constitutional standing principles, raise a No-Fly List/TSDB
challenge through review pursuant to section 46110,
notwithstanding his compliance with the DHS TRIP process.
5
Pet’r’s Br. Ex. A. On April 4, 2013, 4 Ege petitioned this
Court for review under section 46110, which provides this
Court with jurisdiction to review orders issued by the DHS,
the TSA and the Federal Aviation Administration (FAA). 49
U.S.C. § 46110(a).
Uncertain about our power to adjudicate Ege’s petition,
we asked the parties to submit supplemental briefs addressing
whether this Court has jurisdiction under 49 U.S.C. § 46110
to hear Ege’s challenge to his alleged inclusion in the TSDB
and on the No-Fly List. The parties complied, both assuring
us that Ege’s injury is redressable on section 46110 review.
Despite their agreement, “[w]hen there is doubt about a
party’s constitutional standing,” we must “resolve the doubt,
sua sponte if need be.” Lee’s Summit, Mo. v. Surface Transp.
Bd., 231 F.3d 39, 41 (D.C. Cir. 2000); see also Steel Co., 523
U.S. at 95 (“ ‘[E]very federal appellate court has a special
obligation to satisfy itself . . . of its own jurisdiction . . . ’ even
though the parties are prepared to concede it.” (quoting
Mitchell v. Maurer, 293 U.S. 237, 244 (1934) (quotation mark
omitted))). Based on our independent assessment, we
conclude that we do not have the requisite Article III
jurisdiction to allow Ege’s case to proceed.
4
Our concurring colleague correctly observes that Ege filed his
petition for review after expiration of the 60-day time limit
prescribed by 49 U.S.C. § 46110(a). See Concur. Op. 2. Because
we lack Article III jurisdiction, our “only function . . . is that of
announcing the fact and dismissing the cause.” Steel Co., 523 U.S.
at 94 (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)).
Accordingly, we take no position on whether Ege demonstrated
“reasonable grounds” to excuse his untimely filing. 49 U.S.C.
§ 46110; see also Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 519
(D.C. Cir. 2011) (section 46110 filing deadline not jurisdictional).
6
“[T]he irreducible constitutional minimum of standing
contains three elements.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). First, Ege must have suffered an
“injury in fact.” Id. Second, his injury must be “fairly
traceable to the challenged action[s] of the [TSA or DHS],
and not the result of the independent action of some third
party not before the court.” Id. (alterations omitted). And
third, “it must be likely, as opposed to merely speculative,
that [his] injury will be redressed by a favorable decision.”
Id. at 561 (quotation marks omitted).
The jurisdictional deficiency dooming Ege’s petition lies
in his failure to satisfy the second and third standing elements,
as articulated in Lujan. See 504 U.S. at 560–61. His failure is
due, in turn, to the relief he seeks. True, Ege would like to
“board . . . a plane” and to fly “to, from, or over the United
States.” Concur. Op. 1. But Ege makes plain, and the TSA
agrees, that his injury is his alleged inclusion on the No-Fly
List and in the TSDB and the precise relief he seeks is either
removal from them or an opportunity to more effectively
argue for removal. See Pet’r’s Reply Br. 9 (arguing that DHS
and TSA erred “when they included Mr. Ege on Terrorist
Screening Database” and “No-Fly List”); see also Resp’t’s
Br. 8 (Ege “appears to argue that he has been wrongfully
placed in the TSDB and on the No-Fly List”). 5
Section 46110 gives us authority to review orders from
the TSA, DHS and FAA. 49 U.S.C. § 46110. “[T]he sole
entity with . . . the authority to remove” names from the No-
5
Indeed, even after we requested the parties to submit
supplemental briefing regarding this Court’s jurisdiction under
section 46110, Ege made no attempt to recast the No-Fly
List/TSDB relief he seeks. See Pet’r’s Supp. Br. 1; see also
Resp’t’s Supp. Br. 2.
7
Fly List/TSDB, however, is the TSC. See Latif, 686 F.3d at
1129. Because the “ ‘case or controversy’ limitation” of
Article III requires that we “act only to redress injury that
fairly can be traced to the challenged action of the” agencies
before us (i.e., DHS and TSA), “and not injury that results
from the independent action of some third party not before the
court” (i.e., the TSC), Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26, 41–42 (1976), we have no power to redress
Ege’s No-Fly List/TSDB-related injury. See also Fulani v.
Brady, 935 F.2d 1324, 1330 (D.C. Cir. 1991) (“[T]his Court
has denied standing where the plaintiff seeks to change the
defendant’s behavior only as a means to alter the conduct of a
third party, not before the court, who is the direct source of
the plaintiff’s injury.” (quotation marks and emphasis
omitted)). See generally Common Cause v. Biden, 748 F.3d
1280, 1284 (D.C. Cir. 2014) (“To invoke the jurisdiction of
the federal courts, . . . a proper defendant [must] be sued.”).
The Ninth Circuit is in accord. 6 It has observed that the
“TSA is merely a conduit for a traveler’s challenge to
inclusion on the” No-Fly List and in the TSDB, “simply
pass[ing] grievances along to TSC and inform[ing] travelers
6
The Ninth Circuit characterized the difficulty inherent in
mounting a No-Fly List/TSDB challenge under section 46110 as
one of subject-matter jurisdiction rather than Article III standing
because the TSC was named as a defendant/respondent in each case
in which the issue arose. See Ibrahim, 538 F.3d at 1253; Latif, 686
F.3d at 1127; Arjmand v. DHS, 745 F.3d 1300, 1302 (9th Cir.
2014). Because the TSC was before the court in those cases, the
question was whether the court had “original jurisdiction” under
section 46110 to enjoin it. Arjmand, 745 F.3d at 1302. Ege,
however, did not name the TSC as a respondent and, accordingly,
the jurisdictional deficiency in his petition is better understood as
no Article III standing because the sole entity with the authority to
redress his injury is missing.
8
when TSC has made a final determination.” Latif, 686 F.3d at
1128. Because “TSC—not TSA—actually reviews the
classified intelligence information about travelers and decides
whether to remove them from the List” and “established the
policies governing that stage of the redress process,” id., we
agree that we cannot, on section 46110 review, provide relief
to an individual included on the No-Fly List or in the TSDB
by “simply amending, modifying, or setting aside TSA’s
orders or by directing TSA to conduct further proceedings.”
Id. at 1129 (emphases in original); see also Arjmand, 745
F.3d at 1302 (“[S]ince § 46110 does not grant circuit courts
jurisdiction to review TSC orders, the statute cannot grant
jurisdiction over claims seeking removal from the TSDB.”).
Both Ege and the TSA argue that the Ninth Circuit got it
wrong but we are not persuaded. They insist that Ege’s
challenge to his alleged No-Fly List/TSDB status is
“inescapably intertwined” with the TSA order of which he
seeks review. Cf. Merritt v. Shuttle, Inc., 245 F.3d 182, 187
(2d Cir. 2001) (“statutes such as Section 46110(c)” include
“claims that are ‘inescapably intertwined’ with review of such
orders”). Although courts use the “inescapably intertwined”
doctrine to review a claim not expressly included in a
jurisdictional grant, we are aware of no case—and neither
party cites one—in which a court has used the “inescapably
intertwined” doctrine to enjoin a party not so included. This
is unsurprising; were we able to use the “inescapably
intertwined” doctrine to redress injuries caused by absent
parties, we would routinely “offend[] fundamental principles
of separation of powers.” See Steel Co., 523 U.S. at 94.
The TSA suggests we could simply issue an injunction
requiring it to allow Ege to board an airplane, leaving
unaffected his status regarding the TSDB. Resp’t’s Supp.
Br. 9. Our concurring colleague agrees. See Concur. Op. 1–
9
2. But the TSA’s proposal falls short for at least two reasons.
First, as a threshold matter, merely “boarding” a plane is not
the relief Ege seeks—rather, he wants off the No-Fly List and
removed from the TSDB. See supra p. 6 & n.5. Second, as a
practical matter, the TSA’s proposal would do Ege no good.
Ege can board and pilot an airplane and, as a commercial pilot
for Emirates Airlines, he has boarded and piloted airplanes as
recently as October 2013. See Pet’r’s Br. Ex. H (Ege’s flight
logs). The problem is that Ege cannot board or pilot flights
destined for the United States. If his alleged TSDB status
remains unchanged, it is possible that one of “several” other
federal agencies could use the TSDB to prevent Ege from
crossing the U.S. border. See Resp’t’s Br. 7. For example,
the Department of State—an entity, like the FBI and the TSC,
that is not included in section 46110’s grant of jurisdiction—
uses the TSDB to screen individuals who “apply for . . .
visa[s].” OFFICE OF THE INSPECTOR GENERAL, FOLLOW-UP
AUDIT OF THE TERRORIST SCREENING CENTER (2007),
available at http://www.justice.gov/oig/reports/FBI/a0741/
intro.htm; see also Ibrahim, 669 F.3d at 989 (State
Department “uses a subset of the TSDB to screen visa
applicants”).
Because Ege’s alleged TSDB status would prevent him
from flying “to, from, or over the United States” even if the
TSA allowed him “to board or pilot a plane,” Concur. Op. 1, 2
(emphasis added), it is “merely speculative” at best that the
TSA’s proposal would remedy Ege’s purported injury. Lujan,
504 U.S. at 561 (quotation marks omitted). We plainly need
more than the TSA’s assurance—first given at oral
argument—that the entire Executive Branch would allow Ege
to board or pilot a plane and cross into the United States
before we can conclude that Ege’s alleged injury is
redressable. Cf. Smith v. Bayer Corp., 131 S. Ct. 2368, 2379
(2011) (generally, “a court’s judgment binds only the parties
10
to a suit”). Instead, Ege would need to add the TSC as a
respondent—something he cannot do under section 46110.
Relying on section 46110 as the jurisdictional basis of
our review, Ege seeks removal of his alleged inclusion on the
No-Fly List and in the TSDB. The agencies whose actions
are reviewable under section 46110, however, have no
“authority to decide whose name goes on the No-Fly List.”
Ibrahim, 538 F.3d at 1254 n.6; see also Arjmand, 745 F.3d at
1303. Because we cannot redress Ege’s injury, we dismiss his
petition for lack of standing.
So ordered.
KAVANAUGH, Circuit Judge, concurring in the judgment:
Mehmet Ege is a pilot who flies for Emirates Airline, which is
headquartered in Dubai. Ege is a dual citizen of Canada and
Turkey. The Transportation Security Administration,
commonly known as TSA, has barred Ege from piloting a
plane to, from, or over the United States. Ege also claims that
TSA has barred him from even boarding a plane to, from, or
over the United States.
Ege asks this Court to review TSA’s January 22, 2013,
final order that allegedly bars him from boarding a plane to,
from, or over the United States. Ege also complains about
TSA’s 2008 final order barring him from piloting a plane to,
from, or over the United States.
To begin with, both Ege and the Government agree that
Ege has standing to bring this suit against TSA. I likewise
agree. The majority opinion nonetheless has sua sponte
denied standing to Ege. According to the majority opinion,
Ege’s complaint is not redressable by the Court because TSA
could not comply with a court order that directed the agency
to allow Ege to board or pilot a plane. I frankly do not
understand that.
Under federal law, TSA controls access to planes. TSA
barred Ege from piloting planes and allegedly barred Ege
from boarding planes. Congress has mandated that TSA
“shall establish a timely and fair process for individuals” who
are delayed or prohibited from boarding planes to “appeal to
the Transportation Security Administration the determination
and correct any erroneous information.” 49 U.S.C.
§ 44903(j)(2)(G)(i); see also 49 U.S.C. § 44926(a). Ege
invoked that appeals process. Following that appeals process,
TSA issued an order affirming its decision that allegedly bars
Ege from boarding planes. Ege asks us to review that order,
and a similar order barring Ege from piloting planes. Under
Federal Rule of Appellate Procedure 15(a), Ege properly
2
named TSA as respondent in his petition for review filed in
this Court. And TSA, represented by the Department of
Justice, says it could and would, if ordered by a final court
decision, allow Ege to board or pilot a plane. See Tr. of Oral
Arg. at 12:51-13:43. What more do we need? In my view,
this case readily meets the injury in fact, causation, and
redressability prongs of the standing doctrine. The majority
opinion does not cite any case of the Supreme Court or this
Court suggesting that the redressability prong of standing is a
barrier to suit where an individual follows an agency review
process mandated by Congress and then appeals the agency’s
final order.
That said, the problem for Ege here is that his petition for
review is untimely. Under Section 46110(a), a petitioner
must file a request for review of a TSA order “not later than
60 days after the order is issued.” 49 U.S.C. § 46110(a). This
Court may excuse a late filing “only if there are reasonable
grounds for not filing by the 60th day.” Id.
On January 22, 2013, TSA issued the final order that
allegedly bars Ege from boarding a plane to, from, or over the
United States. But Ege’s petition for review of that TSA
order was not filed until April 4, 2013. Ege’s petition was
thus filed 10 days after the 60-day period for seeking review
had expired. Moreover, TSA’s final order barring Ege from
piloting a plane to, from, or over the United States was issued
in 2008. So Ege is long past the time to challenge that order
as well.
Under this Court’s precedent, we must dismiss an
untimely petition for review under Section 46110(a) unless
there are reasonable grounds for delay. See Avia Dynamics,
Inc. v. FAA, 641 F.3d 515, 521 (D.C. Cir. 2011). In this case,
the record does not disclose any reasonable grounds for delay.
3
As to TSA’s 2008 order, Ege has offered no explanation for
his several-year delay in seeking review. As to TSA’s 2013
order, Ege claims that the date he received TSA’s order, his
geographic location, and his employment excuse his failure to
file his petition on time. It is true that Ege is an international
pilot living in Dubai, and that he allegedly became aware of
TSA’s January 22, 2013, order just 12 days before the 60-day
period for seeking review of that order expired. But that still
gave him 12 days to file a timely petition for review. He did
not do so.
I would therefore dismiss Ege’s petition as untimely. If
Ege seeks to travel on a plane flying to, from, or over the
United States, and TSA prevents him from doing so, the
Government has stated to the Court that Ege may bring a new
challenge at that time. See Tr. of Oral Arg. at 19:29-19:51.