Appellate Court Gets First Grab at TSA Patdown Lawsuit - Civil Rights Law - U.S. Fourth Circuit
U.S. Fourth Circuit - The FindLaw 4th Circuit Court of Appeals Opinion Summaries Blog

Appellate Court Gets First Grab at TSA Patdown Lawsuit

A passenger has two options when he gets stuck in the advanced imaging technology (AIT) scanner line at the airport: Accept that the naked scanner has become a part of the travel process, or opt-out of the scanner and into a trés personal patdown. According to Jonathan Blitz, that's not really an option at all.

Blitz sued Secretary of Homeland Security Janet Napolitano and Transportation Security Administration (TSA) Administrator John Pistole, (collectively, “The Man”), challenging the AIT scanners and invasive pat-downs at airport screening checkpoints.

Last year, The Man secured dismissal of Blitz's complaint for lack of subject matter jurisdiction. Last week, the Fourth Circuit Court of Appeals agreed with the feds that Blitz should have filed his initial complaint in an appellate court.

Federal appellate courts have exclusive jurisdiction to review an order from a TSA Administrator under 49 U.S.C. §46110. On appeal, however, Blitz maintained that the TSA checkpoint screening procedure was not an "order" under §46110.

So what transforms an agency's policy or procedure into an order for jurisdictional purposes? In the Fourth Circuit, it has long been a question of whether the directive would be "capable of review on the basis of an administrative record." In the 2012 Elgin v. Department of Treasury ruling, the Supreme Court made the analysis even easier.

The Elgin Court explained that, "where Congress simply channels judicial review of a constitutional claim to a particular court," the appropriate inquiry is "whether Congress' intent to preclude district court jurisdiction [is] fairly discernible in the statutory scheme." To determine whether the jurisdictional bar is "fairly discernible," Elgin instructs courts to examine the text, structure, and purpose of §46110.

Here, the Fourth Circuit found that Congress clearly expressed its intention that any legal challenge to a §46110 order be brought in the first instance in a court of appeals.

If your client -- like Blitz -- wants to claim that TSA is illegally manhandling his jurisdiction, you must file the checkpoint screening process challenge in the proper appellate court.

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