Ruskai v. Pistole , 775 F.3d 61 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-1392
MARY BETH RUSKAI,
Petitioner,
v.
JOHN S. PISTOLE, Administrator,
Transportation Security Administration,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE TRANSPORTATION SECURITY ADMINISTRATION
Before
Lynch, Chief Judge,
Lipez and Kayatta, Circuit Judges.
Inga S. Bernstein, with whom Monica R. Shah, Naomi R.
Shatz, and Zalkind Duncan & Bernstein LLP were on brief, for
petitioner.
Sydney Foster, Attorney, U.S. Department of Justice Civil
Division, with whom Stuart F. Delery, Assistant Attorney General,
Mark B. Stern, and Sharon Swingle were on brief, for respondent.
December 23, 2014
KAYATTA, Circuit Judge. As someone with a metallic joint
replacement, Mary Beth Ruskai cannot pass through some security
checkpoints in U.S. airports under current Transportation Security
Administration ("TSA") security protocols without submitting to a
standard pat-down that includes security officials touching areas
around her groin and breasts to look for concealed metallic and
nonmetallic weapons. Having unsuccessfully petitioned TSA to
change its protocols, she asks this court to find that they violate
the Fourth Amendment and federal disability discrimination law, and
to set them aside. For the reasons that follow, we cannot so find.
I. Background
TSA is part of the U.S. Department of Homeland Security
("DHS"). 6 U.S.C. § 203(2). Congress created TSA in response to
the events of September 11, 2001, "and charged it with ensuring
civil aviation security, including the screening of all passengers
and property that move through U.S. airports." Redfern v.
Napolitano, 727 F.3d 77, 80 (1st Cir. 2013); see also 49 U.S.C.
§ 114(d); Field v. Napolitano, 663 F.3d 505, 508 (1st Cir. 2011).
One of TSA's principal jobs is to keep passengers from boarding a
plane with explosives, weapons, or other destructive substances
(hereafter, "weapons"). 49 U.S.C. § 44901.
There are roughly 500 commercial airports in the United
States that each serve over 2,500 passengers per year, with most
larger airports having multiple terminals and, often, multiple
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screening lines within terminals. See Fed. Aviation Admin., Report
to Congress: National Plan of Integrated Airport Systems (NPIAS)
2 0 1 3 - 2 0 1 7 , a t 4 , a v a i l a b l e a t
http://www.faa.gov/airports/planning_capacity/npias/reports/histo
rical/media/2013/npias2013Narrative.pdf. With more than 600
million passengers of all sorts carrying myriad items flying into
and out of these airports each year, see Passengers, Bureau of
T r a n s p . S t a t i s t i c s ,
http://www.transtats.bts.gov/Data_Elements.aspx?Data=1, TSA's job
is a challenging and ever-evolving task.
Planes blown out of the sky in Russia and attempted
bombings on U.S. airliners in recent years have warned TSA that its
screening procedures must be capable of detecting both metallic and
nonmetallic weapons. See 78 Fed. Reg. 18,287 - 18,291 (March 26,
2013). As anyone who frequently flies knows, TSA's primary
strategy for coping with this challenge has been to develop and use
technology: specifically, walk-through Advanced Imaging Technology
scanners ("AIT scanners") that can detect both metallic and
nonmetallic weapons on clothed passengers. Implementation of this
strategy remains a work in progress. In the fall of 2010, TSA
revised one of its Standard Operating Procedures ("SOPs"), called
the Screening Checkpoint SOP, to include additional procedures
aimed at detecting nonmetallic weapons. The new SOP authorized the
use of two types of AIT scanners as the primary methods of
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screening at U.S. airports1, and adopted as a secondary screen a
new "standard pat-down," which is an enhanced form of the
previously used pat-down. Redfern, 727 F.3d at 80. The primary
protocol requires anyone wanting to fly to go through an AIT
scanner or to submit to the new standard pat-down. Id.
The rollout of the new technology as the primary
screening method encountered significant resistance. The AIT
scanners were viewed by many as generating, in effect, a nude
picture of each passenger, many of whom were not inclined to pose
for such pictures as a price of flying. See, e.g., id. TSA worked
to develop privacy software (known as Automated Target Recognition,
or "ATR") for the AIT scanners, such that no screening agent had to
personally examine AIT images for weapons. Congress weighed in as
well, passing the FAA Modernization and Reform Act of 2012, Pub. L.
No. 112-95, § 826, 126 Stat. 11, 132, requiring TSA to ensure that
all passenger-screening AIT scanners employed ATR by June 2012
(later extended to May 2013). Redfern, 727 F.3d at 81.
TSA has continued to expand its use of AIT scanners. Its
efforts were set back when the manufacturer of one of the two types
of AIT scanners TSA had initially deployed, the so-called
backscatter scanner, was evidently unable to develop adequate ATR
1
TSA had begun using some AIT scanners as secondary
screening tools for selected passengers at some airports in 2007.
Redfern, 727 F.3d at 80.
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capability, so backscatter scanners have been removed from airport
operation. Id. Nevertheless, the government asserts in its brief
that TSA "has deployed more than 740 AIT machines at almost 160
airports and anticipates deploying approximately 80 additional
machines by 2015." Even so, there remain many screening points
that yet lack AIT scanners, or where they are not in use full-time.
Ruskai's challenge in this case concerns TSA's protocol for those
checkpoints.
The primary screening device at checkpoints lacking AIT
scanners is the walk-through metal detector ("WTMD"). In other
words, at those checkpoints, TSA effectively does not screen most
passengers' bodies for nonmetallic weapons, and will not do so
until AIT scanners are installed. Suffice it to say, TSA credibly
claims to be intent on reducing the number of such checkpoints.
There are several groups of passengers for whom TSA
relies on screening techniques other than (or in addition to) the
WTMD and AIT scanners, including people who cannot medically go
through an AIT scanner or WTMD, who alarm either primary screening
machine, or who are randomly selected for additional screening.
Many of those people are subject to the standard pat-down, which
Ruskai describes as involving a TSA agent touching around her
breasts, feeling inside her waistband, and running a hand up the
inside of each thigh until reaching the groin. Others (including
children, the elderly, individuals selected for random additional
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screening, and those screened by opposite-gender TSA personnel)
receive a modified, more limited, version of the standard pat-down.
Additionally, TSA has opted to impose more limited
screening burdens on passengers whom it confirms are part of TSA's
PreCheck program. As described in the briefing, PreCheck offers
passenger members "expedited screening in designated lanes if they
have been cleared for such screening based on certain background
checks conducted prior to their arrival at the airport[,]" and a
more limited pat-down in the event that the passenger alarms a
WTMD.
Ruskai, whose job requires her to fly frequently, has had
three joints replaced, and at least one of her replacement joints
is metal. As such, she triggers an alert when she walks through a
WTMD. If, while traveling, she proceeds through a PreCheck
screening lane, Ruskai, who is a PreCheck member, is supposed to
receive the more limited pat-down following her unsuccessful pass
through the WTMD. As discussed at greater length below, the
government now also claims that Ruskai may receive the more limited
pat-down, even in non-PreCheck lanes, if a boarding pass scanner
confirms her PreCheck status. (Ruskai disputes how limited these
"limited" pat-downs really are.) But if the checkpoint has no
PreCheck lane, or cannot verify Ruskai's PreCheck status, Ruskai is
subject to the standard pat-down. She objects to this procedure,
finding it "stressful," "invasive," and "extremely unpleasant."
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While many people may have less sensitivity to the indignities of
the search, certainly Ruskai is not unusual in finding it invasive
and disturbing, as has been made very clear to TSA at, among other
things, congressional hearings.
Ruskai's principal argument is, simply stated, as
follows: since the only reason she requires a follow-up search is
that she trips the WTMD, TSA should search her only for metal, and
it should conduct such a metal-only search using a hand-held metal
detector "wand" ("HHMD"), supplemented by inspection of her medical
documentation of the implant and a pat-down of only the area to
which the HHMD alerts. TSA's refusal to restrict its search in
this manner, she claims, constitutes an unreasonable search under
the Fourth Amendment, and violates section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794.
II. Jurisdiction and Timeliness
We begin by confirming that we have jurisdiction to
consider Ruskai's petition for review. Under 49 U.S.C. § 46110,
with certain exceptions,
a person disclosing a substantial interest in
an order issued by the Secretary of
Transportation (or the Under Secretary of
Transportation for Security with respect to
[certain] security duties and powers . . .) in
whole or in part under [Part A of subtitle VII
of Title 49 of the U.S. Code] may apply for
review of the order by filing a petition for
review . . . in the court of appeals of the
United States for the circuit in which the
person resides . . . .
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Neither party disputes that TSA's security protocol and
refusal to grant Ruskai's requested accommodation constitute a
final order reviewable by this court. We agree. See Blitz v.
Napolitano, 700 F.3d 733, 739-40 (4th Cir. 2012). Cf. Gilmore v.
Gonzales, 435 F.3d 1125, 1133 (9th Cir. 2006) (TSA security
directive is a reviewable "order"); Aviators for Safe & Fairer
Regulation, Inc. v. F.A.A., 221 F.3d 222, 225 (1st Cir. 2000)
(noting that the term "order" is read "expansively" in section
46110).
A petition for review "must be filed not later than 60
days after the order is issued[;]" late petitions are permitted
"only if there are reasonable grounds for not filing by the 60th
day." 49 U.S.C. § 46110(a). The final TSA letter denying Ruskai's
request was dated January 19, 2012, but postmarked February 3. She
filed for review on April 2--more than 60 days after the letter was
written, but less than 60 days after it was sent. We asked the
parties to brief whether Ruskai's petition was timely. They agree
that it was, and so do we. See, e.g., Avia Dynamics, Inc. v.
F.A.A., 641 F.3d 515, 519 (D.C. Cir. 2011) (concluding that
"issuing" means making a decision publicly available);
Americopters, LLC v. F.A.A., 441 F.3d 726, 733 & n.5 (9th Cir.
2006).
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III. The Record
We turn next to the record, which for three reasons is
somewhat unusual.
First, although this petition calls for review of an
agency order, the order here was the result of informal agency
action, not an administrative hearing or public notice and comment.
Starting in early 2011, Ruskai submitted a series of complaints to
TSA about being repeatedly subjected to pat-downs. She found TSA's
responses inadequate, and eventually filed a complaint with DHS's
Office for Civil Rights and Civil Liberties, claiming that the
searches violated her Fourth Amendment rights and discriminated
against her on account of her disability. Nearly nine months
later, DHS declined to open an investigation and directed any
further inquiries to TSA's Office of Disability Policy and
Outreach. On January 19, 2012, a TSA "policy advisor" wrote to
Ruskai, noting that TSA could not effectively investigate her
claims at that late date, but nonetheless rejecting her request
that she be offered modified security screening procedures.
Following that denial, Ruskai filed a petition for review with this
court. The parties have given the court an administrative record,
which, it seems, was largely compiled by TSA based on its records
at the time it rejected Ruskai's requests.
Second, much of the record is sealed, with some portions
unavailable even to Ruskai's counsel. Most of that sealing is
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because TSA exercised its authority to designate certain
information Sensitive Security Information, and so limit its
dissemination. See 49 C.F.R. pts. 15 and 1520.
Third, the underlying facts are not static, as TSA
continues to pursue its goal of expanding its use of AIT scanners
and its PreCheck program.
As a result of these factors, both parties have sought to
supplement the record before this court.
A. Ruskai's Motion to Supplement the Record
Before oral argument, Ruskai moved to supplement the
administrative record by adding an affidavit about her screening
experiences. Ruskai argues we should consider her statement
because her side of the story is not well reflected in the current
record only because TSA failed to investigate her initial
complaints. Cf. Cousins v. Sec'y of the U.S. Dep't of Transp., 880
F.2d 603, 610 (1st Cir. 1989) (noting that APA review is normally
limited to the administrative record, but petitioners are not
prejudiced as they may contribute to the administrative record
during the agency proceedings). The government declined to take a
position on her request, and has waived any objection by
affirmatively relying without objection on Ruskai's affidavit;
accordingly, we grant the motion. Cf. WildWest Inst. v. Bull, 547
F.3d 1162, 1176 (9th Cir. 2008) (maintaining that a court may
"consider extra-record materials (1) when necessary to determine
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whether the agency considered all relevant factors in making its
decision; (2) when the agency has relied on extra-record materials;
(3) when necessary to explain technical terms or complex subject
matter; or (4) when the agency has acted in bad faith"). Regarding
Ruskai's brief, however, we note that simply because information is
available on the internet, and cited in a brief, does not
automatically render it either evidence or part of the
administrative record.
B. The Government's Rule 28(j) Letter
After oral argument, the government filed a citation of
supplemental authority under Federal Rule of Appellate Procedure
28(j), informing us that TSA recently expanded the PreCheck
program. Essentially, the government claims that if a TSA official
confirms (using technology used to scan boarding passes) that a
passenger qualifies for TSA PreCheck for a given flight, they can
receive PreCheck security treatment even in normal screening lanes.
Ruskai objects both to the use of Rule 28(j) to introduce this new
evidence and to the government's characterization of the
information.
Rule 28(j) provides that "[i]f pertinent and significant
authorities come to a party's attention . . . after oral argument
but before decision . . . [the] party may promptly advise the
circuit clerk by letter . . . setting forth the citations." Fed.
R. App. P. 28(j). Generally, while 28(j) is not strictly limited
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to offering authorities that did not exist at the time of briefing
or oral argument, it should not be used to introduce new arguments
or new evidence. United States v. Rodriguez-Lozada, 558 F.3d 29,
38 n.4 (1st Cir. 2009); 16AA Charles Alan Wright, Arthur R. Miller
et al., Federal Practice and Procedure: Jurisdiction § 3974.6 (4th
ed.).
We have sometimes acknowledged such factual submissions,
however, at least where they raise a question of mootness. See,
e.g., Redfern, 727 F.3d at 83 (where both parties agreed in
substance to the facts in the government's Rule 28(j) letter,
seeing "no difficulty" in taking judicial notice of those facts and
finding the case moot); United States v. Brown, 631 F.3d 573, 580
(1st Cir. 2011) (considering mootness after the government informed
the court by Rule 28(j) letter that defendant was out on supervised
release). Cf. Pleasures of San Patricio, Inc. v. Mendez-Torres,
596 F.3d 1, 5 (1st Cir. 2010) (noting that the parties had not
filed a Rule 28(j) letter on the status of related litigation, and
so the court could not conclusively rule that the case before it
was moot). Although the parties do not address mootness, we are
obliged to consider the issue sua sponte. See Overseas Military
Sales Corp., Ltd. v. Giralt-Armada, 503 F.3d 12, 16 (1st Cir.
2007). Insofar as Ruskai seeks to enjoin TSA's SOP as applied to
her, any change in the protocol could materially impact her
entitlement to relief. The new SOP does not, however, moot the
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entire dispute, as it is unclear how many airports and individual
checkpoints are affected by the revised policy.
In any event, the government has previously and
consistently maintained that Ruskai's is a "shrinking problem,"
because TSA is trying both to expand the PreCheck program and to
increase the number of passengers screened through AIT scanners,
subject to resource and process constraints. This new information
is merely consistent with those prior representations. Also,
Ruskai does not challenge the bare fact that PreCheck is being
expanded. We therefore accept the government's representation,
though it itself is of little relevance to our review because the
government has offered few details on implementation.
C. Ruskai's Second Motion to Supplement
Ruskai more recently filed a second motion to supplement
the record. In this second motion, she includes her own
supplemental affidavit and the affidavit of an observer who
witnessed her proceed through security. She asserts that, on six
trips that she took since January 2014 (when oral argument was held
in this case), she was in fact able to access PreCheck entry, but
on four of those occasions (when AIT scanners were unavailable) she
was still subjected to a pat-down that, she claims, was more
invasive than previous PreCheck limited pat-downs she had received,
and which made her "very uncomfortable." Accordingly, she now
claims, "there is little distinction" between PreCheck limited pat-
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downs and standard pat-downs. The government takes no position on
this motion. We allow its filing, again while recognizing its
limited relevance because the agency decision on review in this
case includes no challenge by Ruskai to the limited pat-down used
under the PreCheck program.
IV. Standard of Review
In assessing Ruskai's challenge to TSA's security
procedures, our review is limited to objections she raised before
the agency, unless she can show "a reasonable ground for not making
the objection" to TSA first. 49 U.S.C. § 46110(d). TSA's findings
of fact are conclusive "if supported by substantial evidence." Id.
§ 46110(c). Because section 46110 does not specify a standard of
review for non-factual determinations, the Administrative
Procedures Act ("APA") fills that gap, such that we review
questions of law de novo and set aside TSA's decision if it is
"arbitrary and capricious." 5 U.S.C. § 706(1). Under that
standard, we assess whether the "agency has examined the pertinent
evidence, considered the relevant factors, and articulated a
satisfactory explanation for its action including a rational
connection between the facts found and the choice made." Penobscot
Air Servs., Ltd. v. F.A.A., 164 F.3d 713, 719 (1st Cir. 1999)
(internal quotation and alteration marks omitted). We also set
aside an agency decision if it is "contrary to constitutional
right, power, privilege or immunity" or "otherwise not in
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accordance with law." 5 U.S.C. § 706 (1), (2). Ruskai's arguments
to us predominantly invoke these latter tests. She asserts that
the Screening Checkpoint SOP accords with neither the Fourth
Amendment nor the Rehabilitation Act.
V. Analysis
A. Fourth Amendment
The Fourth Amendment provides that "[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause." U.S. Const.
amend. IV. In most cases, reasonableness "requires a showing of
probable cause," but that standard "is peculiarly related to
criminal investigations and may be unsuited to determining the
reasonableness of administrative searches where the Government
seeks to prevent the development of hazardous conditions." Bd. of
Educ. v. Earls, 536 U.S. 822, 828-29 (2002) (citations and internal
quotation marks omitted); see also Vernonia Sch. Dist. 47J v.
Acton, 515 U.S. 646, 652-53 (1995) (warrantless searches may be
justified by needs beyond ordinary law enforcement); Nat'l Treas.
Emps. Union v. Von Raab, 489 U.S. 656, 667-68 (1989). The courts
of appeals treat transit security screenings as "administrative" or
"special needs" searches, which may be conducted, at least
initially, without individualized suspicion, a warrant, or probable
cause. See, e.g., Von Raab, 489 U.S. at 675 n.3; Elec. Privacy
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Info. Ctr. v. U.S. Dep't of Homeland Sec., 653 F.3d 1, 10 (D.C.
Cir. 2011); United States v. Aukai, 497 F.3d 955, 959-60 (9th Cir.
2007) (en banc); Cassidy v. Chertoff, 471 F.3d 67, 74-75 (2d Cir.
2006)(Sotomayor, J.); United States v. Hartwell, 436 F.3d 174, 177
(3d Cir. 2006)(Alito, J.); see also United States v. De Los Santos
Ferrer, 999 F.2d 7, 9 (1st Cir. 1993) (describing airport luggage
searches as administrative searches).
In a Fourth Amendment challenge to a search like that at
issue here,2 we assess the search's reasonableness by balancing
"the public interest in the [TSA's search] program against the
privacy concerns implicated by the" search. See Von Raab, 489 U.S.
at 679. Although different circuits have used variations on this
test,3 we focus on "the gravity of the public concerns," "the
2
The parties do not cross swords over whether the screening
process is one search or several, and generally seem to treat it as
one. We proceed accordingly. Cf. Hartwell, 436 F.3d at 177.
3
See, e.g., Elec. Privacy Info. Ctr., 653 F.3d at 10
(weighing "on the one hand, the degree to which [a search] intrudes
upon an individual's privacy and, on the other, the degree to which
it is needed for the promotion of legitimate governmental
interests"(quoting United States v. Knights, 534 U.S. 112, 118–19
(2001)); MacWade v. Kelly, 460 F.3d 260, 268-69 (2d Cir.
2006)(assessing property searches on the subway by weighing factors
including "(1) the weight and immediacy of the government interest;
(2) the nature of the privacy interest allegedly compromised by the
search; (3) the character of the intrusion imposed by the search;
and (4) the efficacy of the search in advancing the government
interest" (citations and internal quotation marks omitted));
Hartwell, 436 F.3d at 178-79 (weighing "the gravity of the public
concerns served by the seizure, the degree to which the seizure
advances the public interest, and the severity of the interference
with individual liberty" (citations and internal quotation marks
omitted)); United States v. Marquez, 410 F.3d 612, 616 (9th Cir.
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degree to which the [search] advances the public interest," and
"the severity of the interference with individual liberty."
Illinois v. Lidster, 540 U.S. 419, 427 (2004); see Hartwell, 436
F.3d at 178-79 (applying these considerations in the airport
checkpoint context). While we will not require the government to
adopt the least intrusive practicable alternative, there must be a
fairly close fit between the weight of the government's interest in
searching and the intrusiveness of the search--that is, the search
must be a "reasonably effective means" for furthering the important
government interest. See Earls, 536 U.S. at 837. With these
principles in mind, we turn to the relevant facts in this case.
1. Ruskai's Privacy Interest and the Intrusiveness of
the Search
Many of us have at some point found ourselves subject to
a TSA pat-down--including the standard pat-down challenged here.
Accepted as mildly annoying or uncomfortable for some, the standard
pat-down is experienced as quite an intrusive indignity by many
others, including petitioner Ruskai. The procedure she describes
being subjected to has many similarities to the Supreme Court's
description of a pat-down for weapons in Terry v. Ohio, 392 U.S. 1
(1968), involving an officer "feel[ing] with sensitive fingers
2005) amended 2005 WL 1661572 (9th Cir. July 18, 2005) (deeming an
airport search reasonable "if: (1) it is no more extensive or
intensive than necessary, in light of current technology, to detect
weapons or explosives; (2) it is confined in good faith to that
purpose; and (3) passengers may avoid the search by electing not to
fly" (citations and internal quotation marks omitted)).
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every portion of the prisoner's body . . . [including his] arms and
armpits, waistline and back, the groin and area about the
testicles, and entire surface of the legs down to the feet." Id.
at 17 n.13 (quoting L. L. Priar & T. F. Martin, Searching and
Disarming Criminals, 45 J. Crim. L., Criminology & Police Sci. 481
(1954)). The Court called the search "a serious intrusion upon the
sanctity of the person, which may inflict great indignity and
arouse strong resentment" which "is not to be undertaken lightly."
Id. at 17. While Ruskai fairly relies on Terry to label the
standard pat-down significantly intrusive, the comparison fits less
closely than she claims. Under TSA protocols, generally males
search males and females search females; parts of the search are
conducted with the back of the officer's hands rather than the
palms or open fingers; privacy is offered; and the administrative
nature of the search is much less accusatory, especially as members
of the traveling public have become inured to the conduct of
precautionary searches that rarely reveal any unlawful activity.
Cf. Hartwell, 436 F.3d at 180. We nevertheless certainly agree
that the search is objectively intrusive, although not everyone
will necessarily find it as objectionable as Ruskai does.
2. The Nature of the Government's Interest
On the other side of the balance, the government retains
two key interests implicated by Ruskai's challenge to its current
protocol.
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First, and most obviously, TSA asserts a critical
interest in keeping both metallic and nonmetallic weapons off
commercial flights. It observes that, in recent years, nonmetallic
explosives have become one of the greatest threats to aviation
security. 78 Fed. Reg. 18287-01, 18291 (March 26, 2013). For
example, on December 22, 2001, a terrorist attempted to detonate a
nonmetallic bomb concealed in his shoe. Id. In 2006, terrorists
in the United Kingdom plotted to bring liquid explosives onto an
aircraft where they would then construct and detonate a bomb while
in flight. Id. Three years later, an Al Qaeda plot to blow up an
American aircraft using a nonmetallic explosive device hidden in a
suicide bomber's underwear was foiled. Id. Worldwide, attempted
terrorist actions involving nonmetallic explosives have continued.
Id.
Second, TSA takes as its relevant starting point the
undisputed fact that, when a person triggers an alert at a WTMD,
TSA needs to search them in some manner, certainly to look for the
metal that triggered the alarm. Given that a search is required in
such situations, TSA suggests that it has an interest in using a
search protocol designed to identify both metallic and nonmetallic
weapons--a protocol that it also uses at AIT checkpoints when a
passenger declines to proceed through an AIT scanner. In adopting
the new screening checkpoint SOP, TSA highlighted the benefits of
streamlining its operations in a forward-looking manner that
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focuses training and resources on the types of searches that it
already uses to search for both metallic and nonmetallic weapons.
As a massive agency with roughly 60,000 employees and
responsibility for security at over 450 airports, What is TSA?,
Transp. Sec. Admin., http://www.tsa.gov/about-tsa/ideafactory (last
visited Oct. 16, 2014), TSA has a significant interest in adopting
protocols that can be uniformly and efficiently administered.4
3. Balancing the Interests
Reduced to their essence, Ruskai's Fourth Amendment
arguments largely hinge on four points: (1) TSA must limit its
search of Ruskai to a search for metallic weapons when she sets off
a WTMD; (2) TSA has means of advancing its interests other than by
patting down passengers who alarm a WTMD; (3) TSA cannot claim to
have a substantial need to pat down passengers for nonmetallic
weapons because it allows most passengers to board planes with just
a WTMD search when AIT scanners are unavailable (and does not
require pat-downs at foreign preclearance airports); and (4) the
method TSA uses to determine who receives a standard pat-down is
4
Ruskai criticizes TSA's reliance, in adopting the revised
protocols, on the idea that (largely) replacing HHMDs with standard
pat-downs helps TSA keep its procedures "streamlined and
effective," claiming that the efficiency rationale is unproven and
"insufficient to warrant the repeated use of the [standard] pat-
down on an extremely low-risk segment of the traveling public." In
our view, however, the efficiency and training advantages of aiming
to reduce the number of different screening protocols, and focusing
on those that will be of the most use in the future, are fairly
obvious.
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unreasonable. We address these arguments in turn.
a. Scope of the Search
Ruskai reasons that because she is pulled out of line for
a search only because her implants trigger the WTMD, TSA can search
her only for metal, which it can do adequately using a HHMD.
Otherwise, she claims, the search is not "reasonably related in
scope" to the circumstances giving rise to it. Terry, 392 U.S. at
20. In support of this argument, she relies most heavily on the
Second Circuit's opinion in United States v. Albarado, 495 F.2d 799
(2d Cir. 1974). In that case, when the defendant was patted down
after alarming a WTMD, officers uncovered a package of counterfeit
bills wrapped in aluminum foil. Id. at 802. The Second Circuit
concluded that the defendant should have had an opportunity to
divest himself of any metallic objects, be searched with a HHMD, or
be subjected to some other similarly less-intrusive procedure to
find the offending metal before he was patted down. Id. at 807-10.
That court insisted that a WTMD alarm does not afford a license to
search for anything, though it did acknowledge that officers may
sometimes investigate nonmetallic items, due to the risk of, e.g.,
plastic explosives. Id.
Forty years of experience diminish any persuasive force
we might have otherwise assigned to Albarado's Fourth Amendment
analysis of airport searches. Albarado rests on a presumption that
the principal risk is metallic weapons, and thus implies that
-21-
searches for nonmetallic weapons must be limited to situations in
which airport security otherwise "comes lawfully upon a container
which may conceal such items," id. at 809, or more generally when
"specific, articulable facts exist to support" a reasonable belief
that a danger exists, id. at 810. Taken to its logical conclusion,
those presumptions would mean that TSA could not search
administratively for nonmetallic weapons without individualized
suspicion, at least if there were no AIT technology available. We
doubt that the Albarado court itself would so hold if it had the
benefit of considering TSA's well-supported findings that
nonmetallic weapons are now the principal threat.
More recent precedent recognizes the threat of
"explosives in liquid or powder form." Elec. Privacy Info. Ctr.,
653 F.3d at 10. The Eleventh Circuit recently observed: "Numerous
. . . incidents of aviation terrorism have involved nonmetallic
explosives." Corbett v. Transp. Sec. Admin., 767 F.3d 1171, 1180
(11th Cir. 2014). "Metal detectors cannot alert officers to
nonmetallic explosives, and the United States enjoys flexibility in
selecting from among reasonable alternatives for an administrative
search." Id. at 1181.
Contrary to Ruskai's unsupported assertions, the fact
that a WTMD alerts TSA to Ruskai's metallic implants does not mean
that she is less likely to have a nonmetallic weapon (though the
record is equivocal on whether it makes it any more likely,
-22-
either). The WTMD alert thus does not, we conclude, limit the
number or type of TSA's interests in conducting a search. Instead,
the WTMD alarm explains why Ruskai is one of the passengers whom
TSA selects for a search sufficient to locate the principal weapons
with which it is concerned. Whether that selection criterion is a
reasonable one we discuss at greater length below.
b. Alternative Means
Ruskai urges that we find TSA's standard pat-down policy
unconstitutional because TSA could employ a less intrusive search
that still furthers its legitimate interests. Although Ruskai is
correct that courts sometimes consider alternatives to the
challenged search or seizure (as in Albarado, or, e.g., Blackburn
v. Snow, 771 F.2d 556, 566 (1st Cir. 1985) (noting the existence of
alternative adequate security measures in invalidating a blanket
policy of strip searching prison visitors)), the alternatives'
significance is circumscribed, as the "Supreme Court has repeatedly
stated that reasonableness under the Fourth Amendment does not
require employing the least intrusive means to accomplish the
government's ends." Cassidy, 471 F.3d at 80 (internal quotation
marks omitted). In any event, we are not convinced that Ruskai has
posited any truly workable alternative.
i. Modifications to PreCheck
Ruskai's first proposal is to modify TSA's PreCheck
program. She argues that even when a checkpoint lacks the
-23-
technology needed to confirm PreCheck status, she should be able to
show TSA personnel medical records confirming she has an implant.
But the security risks of requiring TSA to simply accept medical
documentation as proof that Ruskai, or any other passenger, is not
carrying a weapon are obvious. Moreover, Ruskai is already a
PreCheck member, and did not clearly challenge the search protocol
for PreCheck passengers in the administrative proceeding, or in her
petition for review.5 As PreCheck expands, her cause for complaint
shrinks. And if a checkpoint is not able to confirm PreCheck
status, it would seem obvious that it could not confirm the
authenticity of whatever medical documents Ruskai might show.
Ultimately, the problem is that there is not yet PreCheck
capability at all checkpoints where there are no AIT scanners.
TSA, however, agrees with Ruskai that PreCheck should be more
widely available. Indeed, the agency represents that its current
5
At oral argument, Ruskai contended that the more limited
PreCheck pat-down is also unacceptable, and continued that theme in
her second motion to supplement the record. Her opening brief did
not distinguish between the standard and PreCheck pat-downs, and so
arguably encompassed both. However, in her reply brief, Ruskai
cited the more limited PreCheck pat-down as being an alternative
that is "more respectful of passengers' civil rights," and
responded to the government's argument about the more limited
PreCheck pat-down by asserting that "there is no reason why she
should not be able to show the card at every security lane . . .
and receive the same benefit that she would in a PreCheck lane."
Accordingly, we consider her objection to the PreCheck limited pat-
down raised for the first time at oral argument, and so forfeited.
See Fed. R. App. P. 28(a); Piazza v. Aponte Roque, 909 F.2d 35, 37
(1st Cir. 1990)("Except in extraordinary circumstances not present
here, a court of appeals will not consider an issue raised for the
first time at oral argument.").
-24-
screening program calls for continuous expansion of its use of AIT
scanners and PreCheck. TSA's current use of both techniques and
its ongoing efforts to expand their availability persuade us that
it would make no sense to require TSA also to develop a system for,
in effect, using medical documents in lieu of PreCheck.6
ii. Resuming Reliance on HHMDs
Ruskai suggests that TSA could simply use HHMDs (and
perhaps a limited follow-up pat-down) to confirm that the only
offending metal on her person is in her joints--just as it did
prior to 2010. In particular, she emphasizes that this must be a
reasonable alternative, because it is the screening approach taken
in several Canadian airports that the U.S. government has included
in the preclearance program.
As to the foreign preclearance airports, the government
contends that it has not yet fully completed the process of
certifying that the Canadian airports to which petitioner refers
provide a fully adequate level of security screening. (Of course,
the government seems to allow passengers to fly into the United
States after such screenings, and so must consider their procedures
at least minimally adequate.) Regardless, foreign airports involve
additional legal and political exigencies. In our view, in
deciding how to allocate its limited resources, TSA may reasonably
6
Of course, a different situation would be presented should
TSA change its program by abandoning its efforts to expand the use
of these tools.
-25-
choose not to require foreign airports to use all U.S. procedures
without compromising as a constitutional matter its ability to
require somewhat more stringent procedures domestically.
In any event, use of HHMDs is simply not an alternative
means of finding nonmetallic weapons. Rather, in proposing this
alternative, Ruskai is simply repeating her scope-of-search
argument that TSA has no legitimate reason to search her for
nonmetallic weapons. We have rejected that argument because TSA
has reason to search every passenger for nonmetallic weapons.
iii. Additional Suggested Modifications
As for the other modifications suggested by Ruskai,
including her specific requested revisions to the pat-down
protocol, we cannot address them at length without discussing
sealed material. Suffice it to say that we have reviewed the
record (public and otherwise) and are satisfied that Ruskai's
requested changes to the protocol are not so obviously practicable
and effective as to render unreasonable TSA's decision to reject
them. In each instance, moreover, the modifications Ruskai
proposes would undercut the efficiency and streamlining interests
cited by TSA. "[T]he United States enjoys flexibility in selecting
from among reasonable alternatives for an administrative search."
Corbett, 767 F.3d at 1181. In Michigan Dep't of State Police v.
Sitz, the Supreme Court explained that "Brown was not meant to
transfer from politically accountable officials to the courts the
-26-
decision as to which among reasonable alternative law enforcement
techniques should be employed to deal with a serious public
danger," and that "for purposes of Fourth Amendment analysis, the
choice among such reasonable alternatives remains with the
governmental officials who have a unique understanding of, and a
responsibility for, limited public resources." 496 U.S. 444, 453-
454 (1990); see also City of Ontario, Cal. v. Quon, 560 U.S. 746,
764 (2010) ("Even assuming there were ways that [the officers]
could have performed the search that would have been less
intrusive, it does not follow that the search as conducted was
unreasonable."). Moreover, Ruskai admits that some of her proposed
alternatives would not satisfy her own view of the Fourth Amendment
standard.
In any event, this is not a case in which the government
has two alternative methods of searching Ruskai for nonmetallic
weapons, and simply opts for the more intrusive. The current state
of affairs is that at many airport security checkpoints, TSA has no
choice on how to search for nonmetallic weapons (when it chooses to
do so--a point we address further below). It either uses a
pat-down, or it does not search for nonmetallic weapons at all.
c. Effectiveness and Underinclusiveness
Ruskai contends that the government cannot prove that the
new screening protocols are sufficiently effective even to warrant
their adoption. She notes that the Fourth Amendment requires the
-27-
search to be calibrated to the relevant risk, and that TSA is
required to use risk-informed evaluations of, and choices about,
transportation security. See generally, e.g., 49 U.S.C. § 114(s).
She maintains that TSA has not conducted sufficient studies to
demonstrate the effectiveness of the new protocols--nor can it even
collect the relevant data, because an individual alarming a WTMD
will pass through to the sterile area of an airport after a "clean"
pat-down, regardless of whether the underlying metal is found.
We acknowledge that there is not the same sort of
effectiveness data in the record here as courts have examined in,
e.g., sobriety checkpoint cases. Cf. Sitz, 496 U.S. at 453-55 (in
considering the lawfulness of seizing cars at a sobriety
checkpoint, emphasizing that "effectiveness" is part of the inquiry
into "the degree to which [a] seizure advances the public
interest," and describing as constitutional various checkpoints
with detection rates of .5% - 1.6%). Although we cannot discuss it
at length, there is more support in the record than that cited by
Ruskai for the government's claim that it does examine the
effectiveness of its security measures. (Moreover, an important
function of the standard pat-downs--deterrence--is notoriously
difficult to quantify. Cf. MacWade v. Kelly, 460 F.3d 260, 274-75
(2d Cir. 2006).) And as noted above, TSA is already taking steps
to implement a more risk-informed screening protocol. Finally,
Ruskai has adequately shown neither that section 114 is privately
-28-
enforceable nor why we should accept it as the relevant Fourth
Amendment standard.
A variation on the effectiveness theme is Ruskai's
argument that the screening SOP is, essentially, irrationally
underinclusive, and so cannot be considered a reasonably effective
tool for combating transit terrorism. If TSA were patting down
most every passenger when AIT scanners are not available, the
foregoing discussion would likely lead easily to the rejection of
Ruskai's Fourth Amendment claim. TSA does not, however, pat down
most passengers when AIT scanners are not available. To the
contrary, most passengers who clear the WTMDs, which search only
for metal, board airplanes without any further search of their
person. The resulting and significant underinclusiveness of TSA's
use of pat-downs raises two questions: Why does TSA not pat down
most passengers at checkpoints lacking AIT scanners or PreCheck?
And given that it does not, why does TSA pat down any passengers
(e.g., Ruskai)? These questions capture the core of Ruskai's
argument.
The answer to the first question appears to be that the
prospect of patting down all or most passengers individually is
like the prospect of stopping all cars on all roads at sobriety
checkpoints: The scale of the operation generates collateral costs
that are not present when a subset of travelers is searched. In an
airport, that cost would naturally include a large expense in
-29-
manpower and much longer lines and delays.
As for the second, more difficult question, TSA has two
reasons to search those passengers who trigger a WTMD alert for
both metallic and nonmetallic weapons, even though it does not
search passengers who do not trigger a WTMD alert for nonmetallic
weapons. First, since it must search such passengers for metallic
weapons anyway, searching them for nonmetallic weapons as well
offers an incremental benefit with low incremental cost. Second,
TSA has an efficiency interest in training its personnel in a
limited number of techniques, and pat-downs are the primary
alternative to AIT scanners.
Ruskai does not argue that no one should be screened by
a standard pat-down. Rather, she says that the standard pat-down
should only be employed when there exists a suspicion that the
particular person to search may pose an atypical risk of having a
nonmetallic weapon. In our view, in the context of administrative
or special needs searches, the Supreme Court has not required the
degree of precision tailoring advocated by Ruskai. Take, for
example, Earls, 536 U.S. at 836-37. There, the Court rejected a
Fourth Amendment challenge to a requirement that middle and high
school students submit to a urine drug test in order to engage in
extracurricular activities.7 The Court rejected the argument that
7
Although the Court noted that "[u]rination is an excretory
function traditionally shielded by great privacy," the degree of
intrusion on one's privacy involved in taking such a sample depends
-30-
such tests could only be given on individualized suspicion, or
after the school demonstrated that there was a drug problem of some
type among the group chosen to be tested. Id. Rather, it relied
on the contention that "the safety interest furthered by drug
testing is undoubtedly substantial for all children," and concluded
that "testing students who participate in extracurricular
activities is a reasonably effective means of addressing the School
District's legitimate concerns in preventing, deterring, and
detecting drug use," notwithstanding the suggestion that the policy
may have been overinclusive. Id. at 836-38.
We acknowledge that Earls is not on all fours with this
case--there, the Court specifically relied on the custodial
responsibilities of a public school, and characterized the search
as negligibly intrusive. Id. at 830, 833; cf. Hartwell, 436 F.3d
at 178 n.7 (suggesting that the "special needs" search at issue in
Earls was distinct from administrative searches at airports). We
nonetheless find its guidance instructive, and note that while the
search here is undoubtedly more intrusive, given the scale of the
upon the collection procedures. Id. at 832 (internal quotation
marks omitted). In that case, a "faculty monitor wait[ed] outside
the closed restroom stall for the student to produce a sample and
[had to] listen for the normal sounds of urination in order to
guard against tampered specimens" and then sent the sample for
testing. Id. (internal quotation marks omitted). This procedure,
the Court concluded, constituted a "negligible" intrusion, and the
invasion of students' privacy was "not significant." Id. at 833-34.
But cf. id. at 841 (Breyer, J, concurring)(noting that not everyone
might find the procedure negligibly intrusive).
-31-
risk, the safety interests at stake are also dramatically more
acute. Cf. MacWade, 460 F.3d at 269 (discussing Earls and noting
that the Supreme Court "never has implied--much less . . .
held--that a reduced privacy expectation is a sine qua non of
special needs analysis" and so rejecting the proposition that a
search of baggage on the subway is only permissible where the
traveler has a diminished expectation of privacy). Moreover, since
the government "may deal with one part of a problem without
addressing all of it," Erznoznik v. City of Jacksonville, 422 U.S.
205, 215 (1975), "[t]he Supreme Court has been skeptical of
challenges to the constitutionality of searches under the Fourth
Amendment that suggest that a security policy's randomness or
insufficient thoroughness contributes to its constitutional
deficiencies." Cassidy, 471 F.3d at 86.
In sum, precedent teaches that a school can conduct
administrative searches for drugs by requiring urine tests of fewer
than all students who might be equally prone to use drugs, and
police may conduct sobriety checkpoints on one road while not
stopping drivers on most others. So too, here, the fact that TSA
searches only some passengers for nonmetallic weapons where it
lacks an AIT scanner does not render the searches unconstitutional.
And this is particularly so where TSA has a reasonable explanation
for why it searches for nonmetallic weapons on persons it must
search anyhow.
-32-
Clearly, neither Congress nor TSA finds the current
underinclusiveness in screening passengers for nonmetallic weapons
to be acceptable in the long run--hence TSA's ongoing expansion of,
among other things, AIT deployment. The cost being incurred to
install AIT scanners, for example, makes concrete the very
substantial weight assigned by Congress to the threat of
nonmetallic explosives. And, as discussed above, even though
pragmatic and efficiency considerations may outweigh (in TSA's
judgment) its interest in screening every non-AIT-screened
passenger for nonmetallic weapons, there is no dispute that TSA
will have to conduct some follow-up search on individuals who
cannot or do not pass through a WTMD without setting it off. TSA
thus adequately explains the underinclusive nature of its use of
standard pat-downs in a manner that does not belie the
justifications cited for conducting the search.8
d. Irrational and Unfair Selection
Of course, if the selection criteria for follow-up
searches is invidious, then an otherwise reasonable search might
8
Ruskai points out that TSA’s interest in streamlining must
not be too great because it does not use the standard pat-down on
all occasions, such as when it pats down a PreChecked passenger.
That TSA’s pursuit of an interest has limits does not, however,
mean that the interest is invalid or without weight. Specifically,
the intent in streamlining is not belied by having two levels of
pat-down searches, one for those with PreCheck clearance and one
for those without such clearance. Adding a third option would, by
definition, move TSA further away from its goal of reducing the
number of search protocols.
-33-
indeed be susceptible to challenge. We certainly do not reject the
possibility that conducting an otherwise reasonable administrative
search in an unlawfully discriminatory manner might violate the
Fourth Amendment. Cf. Wayne LaFave, 5 Search & Seizure § 10.6(b)
(5th ed.) (in discussing profiling, suggesting that a screening
"program involving some degree of nonrandom selectivity can pass
Fourth Amendment muster only if the selection criteria tend to
identify suspicious people," and noting that the "central
considerations" for assessing non-random criteria should be whether
(1) some selection criteria is necessary to avoid overwhelming the
system and (2) "it reasonably appears that any other basis of
selection is not likely to work at least as well" (citations and
internal quotation marks omitted)); Brown v. City of Oneonta, 235
F.3d 769, 776 (2d Cir. 2000) (Walker, C.J., concurring in denial of
rehearing en banc)(noting that Fourth Amendment doctrine in some
ways protects against discriminatory enforcement). After all, to
constitute a valid administrative search, the government's search
procedure must be a reasonable tool for furthering its interest.
But Ruskai has not adequately presented a discrimination-focused
argument as part of her Fourth Amendment claim.9 Accordingly, we
9
Certainly, Ruskai argued in her petition that TSA's policy
is both overinclusive and underinclusive in that many are not fully
searched, and individuals with implants are repeatedly patted down
despite posing no objectively greater risk of terrorist activity.
But a general overbreadth or underbreadth argument is not the same
as a claim of invidious discrimination, and an overbreadth claim
likewise fails under the rationale of Earls.
-34-
defer further consideration of this principle to the evaluation of
her claim under the Rehabilitation Act, discussed below. Cf. Whren
v. United States, 517 U.S. 806, 813 (1996) (emphasizing that, while
the "Constitution prohibits selective enforcement of the law based
on considerations such as race," the primary constitutional basis
for that objection is the Equal Protection Clause10).
***
There is in this record admittedly some flavor of
bureaucratic inertia. Given the pertinent threats, however, it
seems that the inertia tends to result more in inadequate
screenings than in excessive screenings. In this regard, it is
remarkable that the administration and Congress have not yet
managed to achieve full AIT capability, and continue to allow large
numbers of passengers to board without any screening for
nonmetallic weapons. At the same time, though, TSA is a large
organization, and its task is daunting. Importantly, TSA itself
clearly finds the current status quo unacceptable, and assures us
that it is in the process of greatly reducing (though perhaps not
entirely eliminating) the aspects of its current program that
trouble Ruskai. Our review of how TSA conducts secondary searches
during this transition requires, in turn, some deference to TSA's
expertise regarding the nature of evolving threats, how people
10
Ruskai does not make an Equal Protection or selective
enforcement claim.
-35-
behave in airports, and the capabilities of TSA's workforce and
systems. Within reason, choosing which technique best serves the
government interest at stake should be left to those with a "unique
understanding of, and responsibility for, limited public
resources." Corbett, 767 F.3d at 1181 (quoting Sitz, 110 S. Ct. at
2487. And as the D.C. Circuit noted in assessing pre-ATR AIT
scanners, the Supreme Court has refused to declare only the least
intrusive practicable search reasonable under the Fourth Amendment,
and constitutional precedent does not demand that a search be
"minimally intrusive" in order to pass constitutional muster.
Elec. Privacy Info. Ctr., 653 F.3d at 10-11; see also Cassidy, 471
F.3d at 80.11
In sum, we conclude that the Fourth Amendment does not
prevent TSA from searching for both metallic and nonmetallic
weapons on passengers who trigger WTMD alarms just as it does on
passengers who decline to pass through AIT scanners. Accordingly,
Ruskai's Fourth Amendment claim fails.
B. Rehabilitation Act
Ruskai's next claim is that TSA's security screening
procedures discriminate against her in violation of section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794. Section 504(a)
provides that no otherwise qualified individual with a disability
11
We note, too, that TSA tested and rejected search techniques
more intensive than the standard pat-down.
-36-
"shall, solely by reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity" receiving federal
funds. At issue is whether TSA procedures subject her to
discrimination under the meaning of the Act.
Ruskai makes no claim that TSA discriminates against her
intentionally in using the WTMD to select her as someone who must
pass a secondary screening before entering beyond the security
checkpoint. Nor could she. The WTMD is a facially neutral device
aimed at detecting metal, not disabilities. Many disabled persons
pass through it without triggering an alert. Many non-disabled
persons trigger an alert. Ruskai relies, instead, on a theory of
unintentional discrimination, which she describes as "disparate
impact." She claims–-and TSA does not seem to deny-–that most
persons who have a large metallic implant are selected by the WTMD
for a secondary search, while most people who do not have such an
implant are not selected. TSA also does not challenge Ruskai's
claim that she has a disability within the meaning of the Act. And
it presumes that many people with metallic implants are similarly
viewed as disabled--not because the implant itself is a disability,
but rather because they may have had a disabling condition for
which the metal is a "mitigating measure." 29 C.F.R.
§ 1630.2(j)(1)(v).
In Alexander v. Choate, 469 U.S. 287 (1985), the Supreme
-37-
Court considered the question "whether proof of discriminatory
animus is always required to establish a violation of section 504
and its implementing regulations, or whether federal law also
reaches action by a recipient of federal funding that discriminates
against the handicapped by effect rather than by design." Id. at
292. The Court "assume[d] without deciding that section 504
reaches at least some conduct that has an unjustifiable disparate
impact upon the handicapped." Id. at 299. At the same time, it
"reject[ed] the boundless notion that all disparate-impact showings
constitute prima facie cases under section 504." Id. The balance
struck by the Court was to focus on whether the government action
denied meaningful access to the government benefit at issue in the
case. Id. at 301-02.
In the ensuing three decades, the Supreme Court has not
revisited the issue of whether and when a section 504 claim can be
maintained in the absence of discriminatory animus. We
nevertheless think it well established that what the Court assumed
to be so is so--proof of discriminatory animus is not always
required in an action under section 504. See Enica v. Principi,
544 F.3d 328, 339 (1st Cir. 2008) (noting that "a showing of
discriminatory intent or animus is not required in cases alleging
a failure to accommodate"); cf. Higgins v. New Balance Athletic
Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999) ("Unlike other
enumerated constructions of 'discriminate,' this construction does
-38-
not require that an employer's action be motivated by a
discriminatory animus directed at the disability . . . . [A]n
employer who knows of a disability yet fails to make reasonable
accommodations violates the [ADA], no matter what its intent,
unless it can show that the proposed accommodations would create
undue hardship for its business."). Indeed, DHS's own regulations
plainly provide that "[t]he Department may not . . . utilize
criteria or methods of administration the purpose or effect of
which would: (I) subject qualified individuals with a disability
to discrimination on the basis of disability." 6 C.F.R.
§ 15.30(b)(4). While acts of intentional discrimination certainly
occur, and are actionable, see Sumes v. Andres, 938 F. Supp. 9, 12
(D.D.C. 1996) (medical provider's failure to treat patient solely
because she was deaf constitutes discrimination under section 504),
the disability laws often have as their target action--or inaction-
-that "is primarily the result of apathetic attitudes rather than
affirmative animus." Alexander, 469 U.S. at 297. Thus, a classic
claim that an architectural barrier denies a disabled person
meaningful access to a public facility requires no proof of
discriminatory animus. See Ability Ctr. of Greater Toledo v. City
of Sandusky, 385 F.3d 901, 907-09 (6th Cir. 2004). Nor does it
require the type of sophisticated statistical evidence typical of
disparate impact claims in Title VII cases. Cf. Jones v. City of
Boston, 752 F.3d 38, 48-53 (1st Cir. 2014) (describing the use of
-39-
statistical analysis to show disparate racial impact as evidence of
employment discrimination).
When the Supreme Court assumed that a disparate impact
theory could apply in an action under section 504 in some
situations, the situation it identified was a case in which persons
with disabilities were denied meaningful access to a government
program or benefit. Alexander, 469 U.S. at 299. That exclusionary
situation may fairly be described as the primary target of section
504. Id. at 297. The problem for Ruskai is that she can point to
no government benefit, service, program, or facility to which TSA's
challenged conduct denies her meaningful access. Her complaint
trains only on those airport checkpoints that lack both AIT and
PreCheck capabilities. Even at these WTMD-only checkpoints, she
receives on each occasion full and complete access to the secure
side of the security checkpoints. She also receives full and
complete access to TSA's security screening program.
Additionally, Ruskai admits that TSA is certainly
entitled to require all passengers to walk through a WTMD, and that
it is entitled to conduct a secondary search of all who do not or
cannot pass through the WTMD without triggering an alarm. That is,
she does not challenge the selection device that inadvertently, by
detecting metal, generates the subset of passengers we assume to
include a disproportionate number of those who have disabilities.
Crucially, she also concedes that the secondary search itself does
-40-
not affect a person differently merely because the person has a
disability. In other words, the aspect of the secondary search to
which she objects is an aspect to which she would equally object if
she had no disability.
Ruskai points to no case law adopting the view that any
government conduct that affects a group that includes a
disproportionate number of persons with a disability (e.g., a group
of Medicare recipients, or hospital patients, or retirement resort
residents, etc.) must be free from any unpleasant effects, such as
dollar impact, waiting time, or lack of quality, unless those
effects are fundamental or necessary to the government's program.
And it is precisely this type of effect--neither connected to any
denial of access nor motivated by discriminatory intent--that
Alexander treats as outside section 504's target. Alexander, 469
U.S. at 299, 301-02. Specifically, Alexander rejected "the
boundless notion that all disparate-impact showings constitute
prima facie cases under section 504." Id. at 299. The Court
expressed the concern that because "the handicapped typically are
not similarly situated to the nonhandicapped," straightforward
application of disparate impact theory "could lead to a wholly
unwieldy administrative and adjudicative burden." Id. at 298
(citing Note, Employment Discrimination Against the Handicapped and
Section 504 of the Rehabilitation Act: An Essay on Legal
Evasiveness, 97 Harv. L. Rev. 997, 1008 (1984)); see also Patton
-41-
v. TIC United Corp., 77 F.3d 1235 (10th Cir. 1996) ("A facially
neutral government restriction does not deny 'meaningful access' to
the disabled simply because disabled persons are more likely to be
affected by it.") The "disparate impact" of which Ruskai complains
appears to be just this type of effect deemed to be insufficient.
Ultimately, we need not rest our holding on the foregoing
analysis, concerning which the case law is sparse. Rather,
Ruskai's argument on this appeal still fails even if we assume that
one might maintain a section 504 claim for unintentional
discrimination based on the imposition of a burden that does not
result in a loss of meaningful access to a government benefit,
service, program, or facility, and the effect of which is not
enhanced by the disability.
Our decision in Theriault v. Flynn, 162 F.3d 46 (1st Cir.
1998), is instructive. Theriault addressed a challenge under
Title II of the ADA to the New Hampshire Department of Motor
Vehicles's decision to require an individual with cerebral palsy
(who operated his car through hand controls but whose hands were
visibly shaking when he went to renew his driver's license) to take
an additional road test. Id. at 47. He passed that test, and was
issued a renewal license. Id. We concluded that the ADA's demand
for "meaningful access" was "not directly at issue" "as it [could
not] reasonably be argued that Theriault was denied 'meaningful
access' to a government benefit or program" because he received a
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license and New Hampshire did not prohibit him from doing so. Id.
at 48. Instead, we noted, Theriault's claim challenged "the method
used to determine access to the government benefit, and his
contention is that the extra eligibility requirement imposed upon
him . . . constituted discrimination based on his disability." Id.
In determining whether the imposition of an extra test on Theriault
as a condition to renewing a driver's license constituted unlawful
discrimination, the court focused on "the state's obligation in
balancing the rights of the disabled with the responsibility to
ensure safety on the roads." Id. at 49. Writing for the majority,
Judge Coffin reasoned that when symptoms of a disability
"concededly and objectively raise a concern about
qualifications . . . the public entity may engage in individualized
inquiry into whether the person is nonetheless qualified without
shouldering the burden of defending its 'discrimination' as
'necessary'." Id. at 50. In response to Theriault's argument that
the state had other, less burdensome ways of assessing his
qualifications to drive, the court pointed to weaknesses in those
alternatives, and concluded that the state "cannot be faulted for
erring on the side of caution when safety is at issue, providing,
of course, that the triggering judgment is based not on stereotypes
but on observable, relevant circumstances." Id.
A similar analysis applies here. Indeed, it applies a
fortiori given that TSA's selection of Ruskai for a standard pat-
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down was made with no awareness that she was disabled at all. The
aim of the standard pat-down was not to determine whether Ruskai
had a disability, but rather to determine whether she carried a
weapon. And, for the reasons stated in Part V.A of this opinion,
we have found that the selection of a screen designed to detect
both metallic and nonmetallic weapons to be reasonable. The
aspects of that screen of which Ruskai complains affect persons
with and without disabilities alike. And, once TSA determined she
carried no weapon, that very determination gained her access
through the checkpoint irrespective of any aspects of her
disability. Collectively, all of these considerations eliminate
the footings upon which a section 504 claim can stand. As Judge
Coffin observed in Theriault, "when the safety of the public at
large is implicated, public entities must be permitted some
latitude in their judgments that individualized assessments of
qualifications are necessary." Id.
Ruskai also contends that in order for us to find TSA's
use of the standard pat-down permissible as the principal secondary
search technique at WTMD sites, we must find the use of that
protocol "fundamental" to TSA's program. To that contention, we
make two responses.
First, as in Theriault, because Ruskai has not been
denied access to any program, etc., one could indeed conclude that
the government here need not prove that the alterations to its
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search protocols sought by Ruskai would result in a "fundamental
change" in the program, or that its chosen approach is "necessary."
Reasonableness may well be enough.
Second, even if reasonableness is not enough, what Ruskai
seeks would indeed seem to require fundamental alterations to TSA's
security program. She can point to no additional reasonable
accommodation that TSA could make so as to eliminate the burden of
which she complains without adversely affecting TSA's efforts to
efficiently deploy its resources to maintain airport security as it
transitions to targeting nonmetallic weapons. TSA has been
installing AIT scanners at more and more checkpoints. It has ample
reason to do so entirely apart from this lawsuit. In the interim,
to eliminate the disparate impact of which Ruskai complains, TSA
would have to stop searching everyone who triggers an alert at a
WTMD--abled and disabled alike--for nonmetallic weapons. Such a
change would require TSA to expand rather than reduce the use of
HHMDs, reduce the number of persons searched for nonmetallic
weapons, and eliminate the benefits in standardization, training,
and flexible personnel assignments that are achieved by using the
same standard pat-down procedure for WTMD and AIT alerts. Given
the extraordinary safety concerns at issue here, we cannot find
that TSA's current refusal to implement such significant changes
violates the Rehabilitation Act.
Alternatively, Ruskai argues that TSA could establish a
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nationwide protocol allowing the display of satisfactory medical
documentation to justify refusal of a standard pat-down. TSA's
PreCheck program already offers a broader exemption from the
standard pat-down, and TSA is expanding that program. In any
event, developing a program that would both establish a secure and
acceptable form of medical documentation and develop procedures and
information systems to confirm the authenticity of such
documentation at checkpoints would be a fundamental change in TSA
practice that strikes us as not required by reason, and very
possibly unwise.
We stress, too, that our judgment regarding TSA's
position places great weight on the fact that TSA's current program
calls for expanded use of the techniques--AIT scanners and
PreCheck--for which Ruskai advocates. In this respect, TSA and
Ruskai want the same end result. Much of the air travel system in
this country has been converted along these lines, decreasing the
likelihood that anyone--including Ruskai--will receive a standard
pat-down.
TSA assures us that it will continue to expand its use of
the preferred techniques, and the record provides no reason for us
to conclude otherwise. It is based on this understanding of TSA's
ongoing efforts to streamline its physical search protocols and to
reduce its reliance on legacy search technologies and techniques
that we are able to conclude that ordering further accommodations
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to be made now would require fundamental alterations.
C. Failure to Investigate
Ruskai also objects that TSA failed to adequately and
timely investigate her complaints. She notes that the APA
authorizes this court to "compel agency action unlawfully withheld
or unreasonably delayed" and "hold unlawful and set aside" agency
actions that are "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." 5 U.S.C. § 706(1), (2).
Although there can be little dispute that the government's
performance in responding to petitioner's complaints was
unacceptably dismal, petitioner has made clear that she seeks
nothing from this portion of her petition (she affirmatively asks
us not to remand for reinvestigation, and only to address her claim
on the merits). Faced with the government's objection to her lack
of claim for relief, she merely reasserted that the agency action
was arbitrary and capricious, but again cited no relief that she
seeks. Accordingly, we address this claim no further.
VI. Conclusion
For the foregoing reasons, we deny Ruskai's petition asking
that we set aside the decision of the Transportation Security
Administration.
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