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Michael S. Roberts, et al v. Janet Napolitano

July 7, 2011


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


Plaintiffs Michael S. Roberts and Ann Poe bring this action against Secretary of Homeland Security Janet Napolitano and Administrator of the Transportation Safety Administration ("TSA") John S. Pistole, alleging that TSA's use of advanced imaging technology ("AIT") and aggressive pat-downs to screen airline pilots at airports violates the Fourth Amendment's ban on unreasonable searches and seizures. Before the Court is defendants' motion to dismiss [#8], which argues that, because the challenged screening procedures are employed pursuant to a TSA order, the U.S. courts of appeals have exclusive jurisdiction over plaintiffs' challenge thereto. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the motion must be granted.


A. TSA's Screening Procedures

Following the September 11, 2001 attacks, Congress created TSA "to prevent terrorist attacks and reduce the vulnerability of the United States to terrorism within the nation's transportation networks." Def.'s Mot. to Dismiss Ex. 1 ("Kair Decl.") ¶ 8. TSA's responsibilities include civil aviation security. See 49 U.S.C. §§ 114(d)(1), 44901 et seq. To aid in TSA's aviation security mission, Congress has directed the Secretary of Homeland Security to "give a high priority to developing, testing, improving, and deploying, at airport screening checkpoints, equipment that detects nonmetallic, chemical, biological, and radiological weapons, and explosives, in all forms, on individuals and in their personal property." Id. § 44925(a).

TSA's operations are guided in part by Standard Operating Procedures ("SOPs"), which provide "uniform procedures and standards" that TSA must follow. Kair Decl. ¶ 10. At issue here is TSA's Screening Checkpoint SOP, which "sets forth in detail the mandatory procedures that [Transportation Security Officers] must apply in screening passengers at all airport checkpoints, and which passengers must follow in order to enter the sterile area of any airport." Kair Decl. ¶ 10. The SOP was revised on September 17, 2010 to "direct[] the use of AIT machines as part of TSA's standard security screening procedures, as well as the use of revised procedures for the standard pat-down." Kair Decl. ¶ 11. Pursuant to the revised Screening Checkpoint SOP, TSA uses two types of AIT systems: backscatter X-ray machines and millimeter wave scanners. Kair Decl. ¶¶ 16--17. Because the SOP in question contains sensitive security information, it has not been publicly released and is not part of the record before the Court. See Def.'s Mem. in Supp. of Mot. to Dismiss ("Def.'s Mem.") at 5 n.4.

B. Plaintiffs' Allegations

Roberts is a pilot for ExpressJet Airlines. On October 15, 2010, Roberts was asked to enter an AIT scanner at the security checkpoint at Memphis International Airport. Am. Compl. ¶ 25. After he declined, TSA agents informed Roberts that he would have to undergo a pat-down. Am. Compl. ¶¶ 28--29. After Roberts refused the pat-down, airport police were summoned and Roberts was told to leave, preventing him from making his scheduled flight. Am. Compl. ¶ 30. Because of his refusal to submit to what he sees as unduly intrusive screening procedures, Roberts is now on unpaid administrative leave. Am. Compl. ¶ 32.

Poe is a pilot for Continental Airlines. On November 4, 2010, Poe passed through the security checkpoint at Fort Lauderdale-Hollywood International Airport. Poe, who has an artificial hip, triggered the walk-through metal detector. Am. Compl. ¶ 38. TSA officials then informed Poe that she would have to either undergo a pat-down or walk through an AIT scanner. Am. Compl. ¶¶ 40--43. Poe, concerned about her privacy and the radiation produced by AIT scanners, refused. Poe was then escorted out of the airport. Am. Compl. ¶ 47. Poe's refusal to submit to TSA's screening procedures has prevented her from flying since that time. Am. Compl. ¶ 50.

Plaintiffs filed this action on November 16, 2010, alleging that TSA's screening procedures violate the Fourth Amendment's ban on unreasonable searches and seizures. See U.S. CONST. amend. IV. Defendants now move to dismiss plaintiff's amended complaint, arguing that this court is without jurisdiction to hear plaintiffs' Fourth Amendment claims because the U.S. courts of appeals have exclusive jurisdiction over challenges to TSA orders.


Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint, or a claim therein, for lack of subject-matter jurisdiction. FED. R. CIV. P. 12(b)(1); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) ("Federal courts are courts of limited jurisdiction. . . . It is to be presumed that a cause lies outside this limited jurisdiction . . . ."). In response to such a motion, the plaintiff must establish that the Court has subject-matter jurisdiction over the claims in the complaint. See Shuler v. United States, 531 F.3d 930, 932 (D.C. Cir. 2008). If the plaintiff is unable to do so, the Court must dismiss the action. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (citing Ex parte McCardle, 7 U.S. 506, 514 (1868)). When resolving a motion made under Rule 12(b)(1), a court may consider material beyond the allegations in the plaintiff's complaint. Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253--54 (D.C. Cir. 2005).


The issue raised by defendants' motion to dismiss - whether this Court lacks jurisdiction to hear plaintiffs' claim because it challenges a TSA order - is identical to the issue recently decided by this Court in Durso v. Napolitano, 2011 WL 2634183 (D.D.C. July 5, 2011). There, as here, the plaintiffs challenged TSA's use of AIT scanners and aggressive pat-downs at airport security checkpoints. See id. at *1. And there, as here, defendants argued that the courts of appeals had exclusive jurisdiction over the plaintiffs' claim because it challenged a TSA order (the Screening Checkpoint SOP). Indeed, the same attorneys appear in both cases, and the two sets of briefs are largely identical. The only distinction between the two cases is that plaintiffs here are pilots, whereas the Durso plaintiffs were passengers; but that fact has no bearing on the Court's jurisdiction to hear a challenge to TSA's security procedures. Indeed, neither party argues that the Court should treat this case differently from Durso on the basis of plaintiffs' status as ...

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