Matar v. Transp. SEC. Admin. , 910 F.3d 538 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2018 Decided December 7, 2018
No. 17-1213
NADIA PINKOVITSCH MATAR,
PETITIONER
v.
TRANSPORTATION SECURITY ADMINISTRATION,
RESPONDENT
On Petition for Review of a Final Order of
the Transportation Security Administration
L. Marc Zell argued the cause and filed the briefs for
petitioner.
Brad Hinshelwood, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief was
Sharon Swingle, Attorney. Nitin Shah, Trial Attorney, U.S.
Department of Justice, entered an appearance.
Before: H ENDERSON and SRINIVASAN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
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EDWARDS, Senior Circuit Judge: In 2013, before boarding
a flight from Canada to the United States, Nadia Pinkovitsch
Matar (“Petitioner”) was informed by a Canadian border
official that she was on a United States watch list and was
advised not to board her flight. Four years later, Petitioner, who
is a dual citizen of Israel and Belgium, submitted a petition to
the Transportation Security Administration (“TSA”). She
sought removal from the watch list or an explanation for her
presence on it. Several months later, TSA mailed a final
disposition to Petitioner at her home in Israel. See TSA Order
of July 28, 2017 (“Order”), reprinted in Joint Appendix
(“J.A.”) 40–41. The Order stated that TSA would “neither
confirm nor deny any information about [Petitioner] which
may be within federal watchlists or reveal any law enforcement
sensitive information.” Id. at 40. Petitioner then petitioned this
court, pursuant to 49 U.S.C. § 46110, for review of the Order.
Petitioner contends that TSA’s disposition of her inquiry
violated the Due Process Clause of the Fifth Amendment and
the Administrative Procedure Act (“APA”) because the agency
failed to explain whether or why she was still on a watch list.
Petitioner’s petition for review comes too late. Section
46110(a) provides that a petition for review of a disputed order
must be filed not later than 60 days after the order is issued
unless there are reasonable grounds for not filing by the 60th
day. Petitioner’s petition was filed after the statutory deadline
and there are no “reasonable grounds” justifying her untimely
filing. We therefore deny the petition for review.
I. BACKGROUND
TSA is tasked with ensuring safety in commercial airline
travel. See 49 U.S.C. § 114(d). In furtherance of that directive,
TSA maintains two watch lists as part of the Secure Flight
Program: a “No Fly” list and a “Selectee” list. See id.
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§ 44903(j)(2)(A), (C)(i)–(ii). Individuals on the No Fly list are
prohibited from boarding airplanes that are traveling to the
United States, while individuals on the Selectee list are subject
to more rigorous screening. “If an individual believes he or she
has been improperly or unfairly delayed or prohibited from
boarding an aircraft . . . as a result of [TSA’s] Secure Flight
program,” 49 C.F.R. § 1560.205(a), the individual may submit
a petition to the Traveler Redress Inquiry Program (“TRIP”),
id. § 1560.205(b). TRIP petitioners must submit personal
information and copies of identification documents, and TSA
may seek additional information from the traveler as it deems
necessary. See id. § 1560.205(c). Once it has gathered all the
information it deems necessary, “TSA, in coordination with the
[Terrorist Screening Center] and other appropriate Federal law
enforcement or intelligence agencies, if necessary, will review
all the documentation and information requested from the
individual, correct any erroneous information, and provide the
individual with a timely written response.” Id. § 1560.205(d).
An individual’s placement on the No Fly or Selectee list,
as well as any explanation for the placement, is “Sensitive
Security Information” that is restricted from public access. See
id. § 1520.5(b)(9)(ii). Therefore, TSA does not inform a TRIP
petitioner who is not a U.S. citizen or resident whether he or
she is on a watch list or provide any explanation regarding the
petitioner’s watch list status.
Petitioner is a dual Israeli-Belgian national who lives in
Israel. See Petitioner’s Br. at ii. She asserts that in 2013, before
boarding a flight from Canada to the United States, a Canadian
border official informed her “that her name appeared on a
United States travel ‘watchlist’ and advised her not to enter the
United States.” Id. at 11. Petitioner then cancelled her
reservation. She has not since attempted to travel to the United
States. Id.
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In April 2017, Petitioner filed a redress request with TRIP
“to determine whether her name was on the TSA’s No-Fly or
Selectee lists.” Id. By letter dated July 28, 2017, TSA informed
Petitioner:
[Department of Homeland Security] has researched
and completed our review of your case. DHS TRIP
can neither confirm nor deny any information about
you which may be within federal watchlists or reveal
any law enforcement sensitive information. However,
we have made any corrections to records that our
inquiries determined were necessary, including, as
appropriate, notations that may assist in avoiding
incidents of misidentification.
Order, J.A. 40. The Order further stated that it constituted the
“final agency decision” on Petitioner’s redress request, and
informed Petitioner of her right to seek review of the Order
within sixty days under § 46110. Id. at 41. The letter
embodying the Order was dated July 28, 2017. Petitioner
acknowledges that she received the Order at her address in
Israel on August 13, 2017. See Petitioner’s Br. at 13. She filed
this petition challenging the disposition of her redress request
on September 28, 2017, sixty-two days after the letter’s date of
July 28, 2017.
Petitioner has received two other notifications from U.S.
Government officials. First, around the same time when
Petitioner received TSA’s Order responding to her redress
request, she received a notification from U.S. Customs and
Border Protection regarding the denial of her Electronic
System for Travel Authorization (“ESTA”) application. See
J.A. 44–45. ESTA determines whether a person qualifies to
travel to the United States pursuant to the Visa Waiver Program
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(“VWP”). Id. at 44. The VWP “is administered by DHS and
enables eligible citizens of certain countries to travel to the
United States for tourism or business for stays of 90 days or
less without obtaining a visa.” Id. However, Petitioner was
advised that “individuals who are found ineligible to travel to
the United States or those whose travel would pose a law
enforcement or security risk are refused a travel authorization.”
Id. The letter also said that if Petitioner wished to dispute the
ESTA denial, she could “make an appointment at the U.S.
Embassy and apply for a visa.” Id.
Second, in July 2018, Petitioner was denied a non-
immigrant visa on the ground that she had failed to demonstrate
that she had sufficient “ties [to] compel [her] to return to [her]
home country after [her] travel to the United States.” Letter of
Respondent, Exh. A, Matar v. TSA, No. 17-1213 (D.C. Cir.
Sept. 12, 2018). This determination cannot be appealed.
However, the letter that Petitioner received indicates that she
“may reapply at any time.” Id.
II. STANDING
TSA asserts that Petitioner lacks standing to bring her
claims. Normally, because standing involves the court’s Article
III jurisdiction, it must be addressed first before we address a
nonjurisdictional issue. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94–95 (1998). However, as this court
recently explained in Kaplan v. Central Bank of the Islamic
Republic of Iran, “Steel Co.’s rule of priority does not
invariably require considering a jurisdictional question before
any nonjurisdictional issue.” 896 F.3d 501, 513 (D.C. Cir.
2018). Instead, “courts may address certain nonjurisdictional,
threshold issues” so long as those issues “can occasion a
‘[d]ismissal short of reaching the merits.’” Id. (quoting
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Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S.
422, 431 (2007) (alteration in original)).
Timeliness under 49 U.S.C. § 46110 is a non-
jurisdictional, threshold requirement. Avia Dynamics, Inc. v.
FAA, 641 F.3d 515, 518–19 (D.C. Cir. 2011). It is a threshold
issue because the dismissal of a petition as untimely under
§ 46110 does not involve any consideration of the merits of the
Petitioner’s claims. Elec. Privacy Info. Ctr. v. FAA, 821 F.3d
39, 41 n.2 (D.C. Cir. 2016) (declining to engage in an
“arduous” standing inquiry where petitioner’s claim was
untimely under § 46110(a)). We will therefore proceed directly
to the question regarding the timeliness of the petition for
review.
III. TIMELINESS
A. The Petition for Review Is Untimely Under 49 U.S.C.
§ 46110
It is undisputed that § 46110 controls the disposition of
this case. That provision states, in relevant part, that:
[A] person disclosing a substantial interest in an order
issued by the Secretary of Transportation . . . may
apply for review of the order by filing a petition for
review in the United States Court of Appeals for the
District of Columbia Circuit . . . . The petition must be
filed not later than 60 days after the order is issued.
The court may allow the petition to be filed after the
60th day only if there are reasonable grounds for not
filing by the 60th day.
49 U.S.C. § 46110(a) (emphasis added). As is clear from the
terms of the statute, the time limit under § 46110 starts to run
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on the date when an order is “issued.” This court has never
previously decided how to determine when an order is issued
under § 46110 in a situation in which a petitioner receives
notice only via private mail.
The First, Fourth, and Eleventh Circuits have concluded
that “issued” means “sent.” See Ruskai v. Pistole, 775 F.3d 61,
65 (1st Cir. 2014) (looking to postmark date to calculate
timeliness); Skydive Myrtle Beach Inc. v. Horry Cty. Dep’t of
Airports, 735 F. App’x 810, 813–14 (4th Cir. 2018) (holding
that issuance date is date the order is sent); Norber v. FAA, 673
F. App’x 911, 913–14 (11th Cir. 2016) (“‘[I]ssued’ means
‘sent,’ not ‘actually received,’ for the purposes of [section
46110].”). We now join our sister circuits in this view: when a
petitioner receives notice of an order only by private mail, the
order is “issued” under 49 U.S.C. § 46110 on the date when the
order is sent.
The conclusion that we reach today is consistent with the
plain meaning of the word “issued.” See Avia Dynamics, 641
F.3d at 519 (“[W]here filing deadlines are concerned, a literal
reading of Congress’ words is generally the only proper
reading of those words.” (quoting Spannaus v. FEC, 990 F.2d
643, 644 (D.C. Cir. 1993) (internal quotation marks omitted))).
Black’s Law Dictionary, for example, defines “issue” in
relevant part as “[t]o send out or distribute officially.” Issue
(vb.), B LACK’ S LAW D ICTIONARY (10th ed. 2014). And, as we
have explained in Avia Dynamics, the date when a petitioner
receives actual notice is irrelevant for the purposes of the sixty-
day time period under 49 U.S.C. § 46110(a). Avia Dynamics,
641 F.3d at 519–20.
There is no direct evidence in this case as to when the
Order was postmarked. However, as noted above, the letter
embodying the Order was dated July 28, 2017. See Order, J.A.
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40. Petitioner speculates that the Order may have been sent on
a later date. See Petitioner’s Br. at 25. But Petitioner offers no
evidence – such as the postmark on the envelope in which she
received the Order – to support her speculation. And we have
no good reason to assume that the Order was mailed on a date
other than the date on the letter, i.e., July 28, 2017. Therefore,
Petitioner’s petition was untimely filed.
B. Petitioner Had No “Reasonable Grounds” for Her
Untimely Petition for Review
The petition for review was clearly untimely under
§ 46110(a) unless there were “reasonable grounds” justifying
Petitioner’s failure to file by the 60th day. On this record, we
hold that Petitioner has offered no reasonable grounds for her
untimely filing.
We have consistently construed the reasonable grounds
exception narrowly. See Citizens Ass’n of Georgetown v. FAA,
896 F.3d 425, 435 (D.C. Cir. 2018). Generally, the exception
has been applied when a petitioner is able to demonstrate that
the agency led it to believe that resort to litigation would not be
necessary to address its concern. See id.; City of Phoenix v.
Huerta, 869 F.3d 963, 970 (D.C. Cir. 2017) (applying
reasonable grounds exception where FAA “repeatedly
communicated” that it was “looking into” the issue in question
and “wanted to work with the City and others to find a
solution”); see also Avia Dynamics, 641 F.3d at 521 (“[W]e
have heretofore found ‘reasonable grounds’ only in cases in
which the petitioner attributes the delay to more than simply
ignorance of the order.”).
Petitioner argues that, after she received the Order from
TSA, she attempted to “exhaust her administrative remedies”
by emailing and faxing messages to the agency. See
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Petitioner’s Br. at 27–28. However, Petitioner points to no
“administrative remedies” that she was required to exhaust that
caused her tardy petition for review. Petitioner also
acknowledges that TSA did not respond to her fax and email
communications or otherwise give her any false impressions
that agency officials might address her concerns without resort
to litigation. Id. at 27. TSA’s Order plainly stated that it was
final and appealable. See Order, J.A. 41. That Petitioner
attempted to contact TSA via email and fax of her own volition
instead of filing a petition for review does not constitute
reasonable grounds for delay.
Petitioner also argues that it was reasonable for her to
believe that TSA would address her concerns without being
ordered to do so by a court because TSA allegedly violated its
own internal policies. See Petitioner’s Br. at 28–29. This is a
perplexing argument. If, as Petitioner claims, TSA somehow
violated its internal policies, that should have prompted her to
file a timely petition for review under § 46110, not to delay.
For this court to credit Petitioner’s argument would require us
to endorse an approach that would lead to the reasonable
grounds exception swallowing the sixty-day filing period rule.
We recognize that mail-related delays might, on some
occasions, constitute “reasonable grounds” for an untimely
filing under § 46110. This case, however, is not one of those
occasions. Petitioner – who was represented by counsel – had
approximately six weeks from the time she received the Order
from TSA to file a petition with this court. Yet, she failed to do
so. See Avia Dynamics, 641 F.3d at 521 (“Even if ignorance [of
an order] could establish ‘reasonable grounds,’ it would not
excuse Avia’s continued inaction during the forty-nine days
from . . . the date of Avia’s actual notice[] until the filing period
closed . . . .”). In addition, the Order expressly stated that it
constituted a final decision and that Petitioner had sixty days to
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seek review of the Order pursuant to § 46110. See Order, J.A.
41. Under these circumstances, Petitioner had no good excuse,
much less reasonable grounds, for her failure to file a petition
for review not later than 60 days after TSA issued the disputed
Order.
IV. CONCLUSION
For the reasons given above, the petition for review is
hereby denied.
So ordered.