Jonathan Corbett v. TSA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted October 13, 2021 Decided December 10, 2021
No. 21-1074
JONATHAN CORBETT,
PETITIONER
v.
TRANSPORTATION SECURITY ADMINISTRATION AND DAVID P.
PEKOSKE, IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF
THE TRANSPORTATION SECURITY ADMINISTRATION,
RESPONDENTS
On Petition for Review of Orders of the
Transportation Security Administration
Jonathan Corbett, pro se, was on the briefs for petitioner.
Brian M. Boynton, Acting Assistant Attorney General,
U.S. Department of Justice, and Jennifer L. Utrecht and Daniel
Tenny, Attorneys, were on the brief for respondents.
Before: HENDERSON and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
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Dissenting Opinion filed by Circuit Judge HENDERSON.
EDWARDS, Senior Circuit Judge: In January 2021, in
response to the ongoing COVID-19 pandemic, the
Transportation Security Administration (“TSA”) issued several
directives and an emergency amendment mandating that masks
be worn in airports, on commercial aircraft, and on surface
transportation such as buses and trains (“Mask Directives”). In
February 2021, pro se petitioner Jonathan Corbett (“Petitioner”
or “Corbett”), a frequent flyer, filed a petition for review
pursuant to 49 U.S.C. § 46110(a) to challenge the Mask
Directives. Corbett does not challenge the wisdom of a
government agency requiring face masks in airports and on
airplanes. Rather, he claims that TSA had no authority to issue
the Mask Directives.
In support of his claim, Corbett’s central argument is that
TSA’s statutory authority under the Aviation and
Transportation Security Act, Pub. L. No. 107-71, 115 Stat. 597(2001) (codified in 49 U.S.C. § 114 and scattered sections of
49 U.S.C.) (“Act”), is limited to developing policies and
promulgating directives to protect against violent threats to
transportation and ensure the security of airports and other
transportation facilities against criminal attack. According to
Corbett, this authority does not empower TSA to require face
masks to prevent the spread of COVID-19. Corbett contends
that TSA’s Mask Directives purport to regulate general health
and safety, not transportation security. Therefore, in his view,
TSA’s Mask Directives are ultra vires.
Because we find no merit in Corbett’s claim, we deny the
petition for review. The COVID-19 global pandemic poses one
of the greatest threats to the operational viability of the
transportation system and the lives of those on it seen in
decades. TSA, which is tasked with maintaining transportation
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safety and security, plainly has the authority to address such
threats under both sections 114(f) and (g) of the Aviation and
Transportation Security Act. See 49 U.S.C. § 114(f), (g).
I. BACKGROUND
In the wake of the deadly September 11, 2001, terrorist
attacks, Congress created TSA to safeguard this country’s civil
aviation security and safety. 49 U.S.C. § 114; see Alaska
Airlines, Inc. v. TSA, 588 F.3d 1116, 1117-18 (D.C. Cir. 2009)
(citing 49 U.S.C. § 114). The Act confers upon the agency
broad authority to “assess threats to transportation” and
“develop policies, strategies, and plans for dealing with” such
threats. 49 U.S.C. § 114(f)(2), (3). This authority extends to
“ensur[ing] the adequacy[] of security measures at airports and
other transportation facilities,” as well as “work[ing] in
conjunction with the . . . Federal Aviation Administration with
respect to any actions or activities that may affect aviation
safety or air carrier operations.” Id. § 114(f)(11), (13). “[T]o
carry out the functions of the [TSA],” the agency “is authorized
to issue, rescind, and revise such regulations as are necessary.”
Id. § 114(l)(1).
The global COVID-19 pandemic has, to date, resulted in
the deaths of more than 750,000 persons in the United States.
Centers for Disease Control and Prevention, COVID Data
Tracker Weekly Review, http://go.usa.gov/x6Zge (last visited
Nov. 22, 2021). When President Biden assumed office, he
issued an Executive Order directing agencies, including TSA,
to “immediately take action . . . to require masks to be worn”
in airports, on airplanes, and on buses and trains. Exec. Order
No. 13,998, 86 Fed. Reg. 7205, 7205 (Jan. 21, 2021), reprinted
in Supplemental Appendix (“S.A.”) 1 (“Executive Order”).
The President said that the action was critical “to save lives and
allow all Americans, including the millions of people
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employed in the transportation industry, to travel and work
safely.” Id.On January 27, 2021, the Acting Secretary of the
Department of Homeland Security determined that the
COVID-19 pandemic constitutes a “national emergency.” See
Determination of a National Emergency Requiring Actions to
Protect the Safety of Americans Using and Employed by the
Transportation System, 86 Fed. Reg. 8217, 8218, 8219 (Feb. 4,
2021), reprinted in S.A. 5-6. This determination reaffirmed
determinations that had been made by the Executive Branch
dating back to March 2020. Id. at 8218. The January 2021
determination found that the pandemic was “a threat to our
health and security” and “a threat to transportation.” Id. at
8218, 8219. The Secretary directed TSA “to take actions
consistent with the authorities in [the Act] . . . to implement the
Executive Order to promote safety in and secure the
transportation system.” Id. at 8218. This included any measures
“necessary to protect the transportation system . . . from
COVID-19 and to mitigate [its] spread . . . through the
transportation system.” Id. at 8218-19.
In response to the emergency determination, TSA issued
several security directives and an emergency amendment
mandating that masks be worn in airports, on commercial
aircraft, and on surface transportation such as buses and trains.
Security Directives Nos. 1582/84-21-01, 1542-21-01, 1544-
21-02, reprinted in S.A. 13-26; Emergency Amendment 1546-
21-01, reprinted in S.A. 27-31 (collectively, “Mask
Directives”). The Mask Directives instruct airport operators,
domestic aircraft operators, foreign air carriers, and surface
transportation operators to require passengers and employees
to wear a mask “covering the nose and mouth” “at all times”
while in transportation hubs and on conveyances. See, e.g.,
Security Directive No. 1542-21-01 at 2, reprinted in S.A. 19.
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Children under two, people with disabilities who cannot wear
a mask, or workers for whom a mask would create a risk to
workplace health or safety are exempt from the mandate. See,
e.g., id. at 3, reprinted in S.A. 20. In addition, the Mask
Directives provide exceptions to the mask requirement for
“eating, drinking, or taking oral medications for brief periods,”
“for identity verification purposes,” or “while communicating
with a person who is deaf or hard of hearing.” See, e.g., id. at
2-3, reprinted in S.A. 19-20.
Airport and aircraft operators are required to notify
passengers of the mask requirements and ask them to put on a
mask if they are not wearing one. See, e.g., id. at 2, reprinted
in S.A. 19. Passengers who refuse to comply must be denied
boarding, removed from the aircraft or airport, and reported to
TSA. See, e.g., id. at 2, 4, reprinted in S.A. 19, 21; Security
Directive No. 1544-21-02 at 2, 4, reprinted in S.A. 23, 25.
These passengers may face penalties of between $500 to
$1,000 for first-time offenders and $1,000 to $3,000 for
second-time offenders. See TSA, Penalty for Refusal to Wear
a Face Mask, https://www.tsa.gov/coronavirus/penalty-mask
(last visited Nov. 14, 2021).
In a separate action, the Centers for Disease Control and
Prevention (“CDC”) issued its own order that also requires
passengers and employees to wear face masks in and on the
transportation system. See Requirement for Persons To Wear
Masks While on Conveyances and at Transportation Hubs, 86
Fed. Reg. 8025, 8029 (Feb. 3, 2021) (“CDC Order”) reprinted
in S.A. 11. The CDC Order and TSA Mask Directives overlap
in some respects, but there are differences. For example, while
they both permit removing masks for “brief periods” to eat or
drink, TSA’s directives additionally specify that masks must be
worn “between bites and sips” of food and drink. See, e.g., id.
at 8027; Security Directive No. 1544-21-02 at 3, reprinted in
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S.A. 24. The TSA Mask Directives also require operators to
report incidents of noncompliance to TSA and carry the
potential for civil penalties. See, e.g., Security Directive No.
1544-21-02 at 2, 4, reprinted in S.A. 23, 25.
On February 26, 2021, Corbett filed a timely petition for
review of the TSA Mask Directives pursuant to 49 U.S.C.
§ 46110(a). Section 46110(a) permits any person with “a
substantial interest in an order” issued by TSA “with respect to
security duties and powers . . . [to] 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 or in the court of
appeals of the United States for the circuit in which the person
resides or has its principal place of business.” 49 U.S.C.
§ 46110(a). The reviewing court has “exclusive jurisdiction to
affirm, amend, modify, or set aside any part of the order.” Id.§ 46110(c).
Petitioner Jonathan Corbett is a frequent flyer who has
“flown several hundred thousands of miles in the past decade,
including at least a dozen flights during the ‘pandemic period’
of the last 12 months.” Corbett Affirmation, Br. of Pet’r, Ex.
A, at 1. Corbett “intend[s] to continue this rate of travel” and
has “a currently-booked flight in the near future.” Id.; Br. of
Pet’r 7. As a result of his frequent travel, Corbett says that he
is subject to the TSA Mask Directives “dozens of times
annually.” Br. of Pet’r 7. Corbett further alleges that, “[b]ut
for” the TSA Mask Directives, “[he] would wear a mask at
fewer times.” Corbett Affirmation 1.
The essence of Corbett’s petition for review is that TSA
has no statutory authority to address the threat that the COVID-
19 global pandemic poses to the nation’s transportation
systems. The petition for review challenges the three security
directives and one emergency amendment issued by TSA on
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January 31, 2021, with an effective date of February 1, 2021.
Br. of Resp’ts 3; see Security Directive No. 1542-21-01,
reprinted in S.A. 18-21; Security Directive No. 1544-21-02,
reprinted in S.A. 22-26; Security Directive No. 1582/84-21-01,
reprinted in S.A. 13-17; and Emergency Amendment No.
1546-21-01, reprinted in S.A. 27-31. The initial Mask
Directives expired May 11, 2021, but they have since been
extended multiple times. See Resp’ts’ 28(j) Letter (Aug. 30,
2021). The current Mask Directives that are under review here
are in effect through January 18, 2022. See Security Directive
Nos. 1542-21-01B, 1544-21-02B, and 1582/84-21-01B;
Emergency Amendment No. 1546-21-01B, reprinted in
Attach. to Resp’ts’ 28(j) Letter (Aug. 30, 2021). Corbett urges
the court to hold that the Mask Directives are ultra vires, i.e.,
beyond the scope of TSA’s lawful authority, and enjoin TSA
from enforcing them. Br. of Pet’r 18-19; see Fla. Health Scis.
Ctr., Inc. v. Sec’y of Health & Hum. Servs., 830 F.3d 515, 522
(D.C. Cir. 2016) (holding that “[t]o challenge agency action on
the ground that it is ultra vires, [the complaining party] must
show a ‘patent violation of agency authority.’” (quoting Indep.
Cosmetic Mfrs. & Distribs. Inc. v. U.S. Dep’t of Health, Educ.
& Welfare, 574 F.2d 553, 555 (D.C. Cir. 1978))).
On the same day when he filed his petition for review,
Corbett filed an emergency motion for stay pending review of
the directives. Emergency Mot. for Stay Pending Review 10-
11. This court denied the motion for stay on March 26, 2021.
Order (Mar. 26, 2021).
Corbett’s petition challenges only the actions of TSA, not
the CDC. In addition, one of the directives that is referenced in
Corbett’s petition for review applies only to masking on
surface transportation services such as buses and trains. See
Security Directive No. 1582/84-21-01, reprinted in S.A. 13-17.
However, this directive is not challenged in Corbett’s briefs.
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Therefore, we will limit our review of Petitioner’s claims to
TSA’s mask requirements in airports and on airplanes.
II. ANALYSIS
A. Standing
In order to challenge a disputed government regulation, a
petitioner must satisfy “the irreducible constitutional minimum
of standing.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992). Corbett clearly does. As we explained in Bonacci v.
TSA, 909 F.3d 1155 (D.C. Cir. 2018):
To establish standing to seek review of [a TSA] action,
a petitioner bears the burden of proof “to show a
‘substantial probability’ that it has been injured, that
the defendant caused its injury, and that the court could
redress that injury.” Sierra Club v. EPA, 292 F.3d 895,
899 (D.C. Cir. 2002) (quoting Am. Petroleum Inst. v.
EPA, 216 F.3d 50, 63 (D.C. Cir. 2000) (per curiam)).
“The Supreme Court has stated,” however, that
“‘there is ordinarily little question’ that a regulated
individual or entity has standing to challenge an
allegedly illegal statute or rule under which it is
regulated.” State Nat’l Bank of Big Spring v. Lew, 795
F.3d 48, 53 (D.C. Cir. 2015) (quoting Lujan v. Defs.
of Wildlife, 504 U.S. 555, 561–62 (1992)). A
“petitioner’s standing to seek review of administrative
action is [usually] self-evident . . . if the complainant
is ‘an object of the action (or forgone action) at issue.
. . .’” Sierra Club, 292 F.3d at 899–900 (quoting
Lujan, 504 U.S. at 561); see also Nat’l Ass’n of Home
Builders v. EPA, 786 F.3d 34, 43 (D.C. Cir. 2015)
(explaining “regulated entities’ standing to challenge
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the rules that govern them is normally not an issue”)
(internal quotation marks omitted).
Bonacci, 909 F.3d at 1159-60.
As a directly regulated party, Corbett plainly has standing
to pursue his claims in this case. The Government does not
deny that, absent a permissible regulation compelling him to
do so, Corbett has every right to choose whether and when to
wear a face mask in an airport – just as he can choose what
clothing to wear in an airport. Each time Corbett flies, he is
forced to comply with the TSA directives to wear a mask
almost continuously. Because he is the target of the TSA
regulations, he faces the threat of enforcement and ensuing
penalties should he fail to comply. Corbett has made clear that,
were it not for the TSA regulations, he would not wear a mask
in accordance with the TSA requirements. Reply Br. of Pet’r
6. (Petitioner “would engage in conduct prohibited by the
order but for the order.”). In addition, Corbett’s injury is not
“conjectural” or “hypothetical”: he is a frequent flyer and he
currently has future travel booked where he will again face
compelled compliance with the Mask Directives under the
credible threat of enforcement. See Br. of Pet’r 7; Lujan, 504
U.S. at 560, 563-64.
Like the pilot in Bonacci, who had standing to challenge
TSA screening procedures that he was subject to, it is
undisputed that Corbett is regularly subject to the challenged
TSA Mask Directives. See Bonacci, 909 F.3d at 1160. Corbett
does not allege “unlawful regulation or lack of regulation of
someone else,” in which case “much more [would be] needed”
to establish standing. Lujan, 504 U.S. at 562 (emphasis in
original). Rather, he is within the regulated class of persons
covered by the disputed directives, and those directives are
plainly ripe for review. The Mask Directives are “directed at
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[Petitioner] in particular; [they] require[] [him] to make
significant changes in [his] everyday [travel] practices; [and]
if [he] fail[s] to observe the [TSA]’s rule [he is] quite clearly
exposed to the imposition of . . . sanctions.” Abbott Lab’ys v.
Gardner, 387 U.S. 136, 154 (1967). His claims are ripe for
review because “[e]ither [Corbett] must comply with [the
Mask Directives] . . . or [he] must follow [his] present course
and risk prosecution.” Id. at 152 (citation omitted).
Moreover, because Corbett is directly regulated by the
agency’s Mask Directives, he is not pursuing a “generalized
grievance” that would undercut his standing. The Supreme
Court has made it clear that “it does not matter how many
persons have been injured by [a] challenged action, [so long
as] the party bringing suit . . . show[s] that the action injures
him in a concrete and personal way.” Massachusetts v. EPA,
549 U.S. 497, 517 (2007). Corbett has himself been denied the
ability to choose whether and when to wear a mask in transit.
TSA contends that the Mask Directives have not caused
Petitioner’s injury because “[t]he obligation to wear a mask in
transportation hubs and on conveyances originates” not with
TSA, but with the CDC Order or local law. Br. of Resp’ts 27.
This argument borders on frivolous. TSA issued its own
mandate that it claims it is authorized to do under its own
statutory authority. However slight the differences may be, its
Mask Directives are not a one-for-one fit with the CDC Order
as far as scope, see Motion for Stay Pending Review 3, 4, n.3,
and they indisputably carry new and distinct penalties. Merely
because other agencies have similar regulations does not
preclude Corbett from challenging the TSA Mask Directives.
See Ibrahim v. Dep't of Homeland Sec., 669 F.3d 983, 993 (9th
Cir. 2012) (A challenger is “not required to solve all roadblocks
simultaneously and is entitled to tackle one roadblock at a
time.”). Setting aside the TSA Mask Mandates would provide
11
Petitioner clear relief and thus there is an injury that the court
can redress.
In sum, as an “object of the action . . . at issue,” there is
“little question” that the TSA directives “ha[ve] caused
[Corbett] injury, and that a judgment preventing . . . the action
will redress it.” Sierra Club v. EPA, 292 F.3d 895, 900 (D.C.
Cir. 2002) (quoting Lujan, 504 U.S. at 561-62).
B. Standard of Review
Our review of Petitioner’s claim is governed by Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). Under Chevron step one, we must first decide
“whether Congress has directly spoken to the precise question
at issue.” Id. at 842; see also Kingdomware Techs., Inc. v.
United States, 579 U.S. 162,171 (2016) (“[W]e begin with the
language of the statute. If the . . . language is unambiguous and
the statutory scheme is coherent and consistent . . . [t]he inquiry
ceases.” (second alteration in original) (internal quotation
marks and citation omitted)). If the statutory provisions in
question are “silent or ambiguous with respect to the specific
issue,” we then assess the matter pursuant to Chevron step two
to determine whether the agency’s interpretation “is based on a
permissible construction of the statute.” 467 U.S. at 843. “A
precondition to deference under Chevron is a congressional
delegation of administrative authority.” Adams Fruit Co. v.
Barrett, 494 U.S. 638, 649 (1990) (citing Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 208 (1988)). However, Chevron
directs courts to accept an agency’s reasonable resolution of an
ambiguity in a statute that the agency administers. And because
a “new application of a broad statutory term” can always “be
reframed” as an expansion of agency authority, “the question
in every case is, simply, whether the statutory text forecloses
the agency’s assertion of authority, or not.” City of Arlington v.
12
FCC, 569 U.S. 290, 300-01 (2013) (citing EDWARDS &
ELLIOTT, FEDERAL STANDARDS OF REVIEW 146 (2007)).
Two very important considerations come into play in our
review of TSA’s actions in this case. First, it is clear from the
terms of the Act that “Congress has entrusted TSA with broad
authority over ‘civil aviation security.’” Amerijet Int’l, Inc. v.
Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) (citing 49 U.S.C.
§§ 114(d)(1), (f)(10), (l)(1), 44901(f)); Bonacci v. TSA, 909
F.3d 1155, 1161 (D.C. Cir. 2018). The agency’s authority to
enforce its “safety and security obligations” is not rigidly
cabined. Olivares v. TSA, 819 F.3d 454, 462 (D.C. Cir. 2016)
(citing Suburban Air Freight, Inc. v. TSA, 716 F.3d 679, 683
(D.C. Cir. 2013)). Second, the directives at issue are the
product of “expert agency judgments,” id., regarding TSA’s
assessments of possible “threats to transportation,” 49 U.S.C.
§ 114(f)(2). Therefore, it is not the court’s role to second-guess
TSA’s judgments in carrying out its statutory mandate. See
Jifry v. FAA, 370 F.3d 1174, 1180 (D.C. Cir. 2004).
C. The Limits of Petitioner’s Challenge to TSA’s
Regulatory Authority
It is noteworthy that Petitioner does not contend that
TSA’s determinations regarding the seriousness of the threats
posed by COVID-19 are unreasonable. Nor does he contend
that TSA’s enforcement of its directives somehow runs afoul
of the arbitrary-and-capricious standard under the
Administrative Procedure Act. See Motor Vehicle Mfrs. Ass’n
of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29(1983). “Normally, an agency rule would be arbitrary and
capricious if the agency has [1] relied on factors which
Congress has not intended it to consider, [2] entirely failed to
consider an important aspect of the problem, [3] offered an
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explanation for its decision that runs counter to the evidence
before the agency, or [4] is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.” Id. at 43. Petitioner has not advanced any such
claims.
Therefore, any such challenges to the legality of the Mask
Directives as they might be applied in any particular case are
not before the court. Petitioner’s only claim in this case is that
TSA has no authority whatsoever to issue the Mask Directives.
And any claims by Petitioner that TSA might act unreasonably
in enforcing the Mask Directives are not ripe for review. See
Texas v. United States, 523 U.S. 296, 300 (1998) (“A claim is
not ripe for adjudication if it rests upon ‘contingent future
events that may not occur as anticipated, or indeed may not
occur at all.’” (quoting Thomas v. Union Carbide Agric. Prods.
Co., 473 U.S. 568, 580-81 (1985))).
D. TSA’s Regulatory Authority
Petitioner does not question TSA’s authority to ensure
transportation and civil aviation security. Br. of Pet’r 11. His
principal contention is that the term “security,” as used by
Congress in the Aviation and Transportation Security Act, was
meant only to reference preventing “an act of criminal
violence, aircraft piracy, and the introduction of an
unauthorized weapon, explosive, or incendiary [onto] an
aircraft.” Id. at 13 (quoting 49 C.F.R. § 1542.101(a)(1)).
Petitioner argues that directives aimed at preventing or
mitigating the effects of COVID-19 involve only matters of
public health, i.e., matters related to “safety,” not “security.”
Id. at 12; Reply Br. of Pet’r 7-8. He maintains that TSA cannot
regulate to contain COVID-19 because doing so falls outside
the agency’s limited mandate to secure the transportation
system against violent attack.
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This extraordinarily narrow view of the Act does not
withstand scrutiny. Petitioner contends that “security” entails
only protection against intentional attack, while “safety” is
protection against natural or accidental causes. Reply Br. of
Pet’r 7. This framing is belied by the text of the Act, which uses
the terms in concert. See, e.g., 49 U.S.C. §§ 44903(b)(3)(A),
(e), (h)(3), (h)(4)(C), 44901(h), 44902(b), 44905(b), 46111(a).
The Act certainly does not limit TSA’s authority to “security”
concerns. For example, in defining TSA’s duties and powers,
the Act states that TSA shall “work in conjunction with the . . .
Federal Aviation Administration with respect to any actions or
activities that may affect aviation safety or air carrier
operations.” Id. § 114(f)(13). To the extent there is any
difference in the words, TSA has established that COVID-19
qualifies as a threat to both safety and security.
Furthermore, in describing its general functions, Congress
gave TSA “broad authority to assess potential risks to aviation
and national security” and respond to those risks. Olivares v.
TSA, 819 F.3d 454, 466 (D.C. Cir. 2016); 49 U.S.C. § 114(f)(2)
(stating that TSA shall “assess threats to transportation”), (3)
(stating that TSA shall “develop policies, strategies, and plans
for dealing with threats to transportation security”). In addition,
Congress conferred upon the agency an expansive power to act
in relation to the transportation system during a national
emergency. 49 U.S.C. § 114(g). In light of the language of the
Act, it cannot seriously be doubted that Congress’ delegations
of authority to TSA authorize the Mask Directives issued to
contain the spread of the COVID-19 virus.
The simple point here is that “Congress created the [TSA]
to assess and manage threats against air travel.” Air Wis.
Airlines Corp. v. Hoeper, 571 U.S. 237, 241 (2014). Decisions
from this court have consistently confirmed that TSA has
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“broad statutory authority to protect civil aviation security.”
Bonacci v. TSA, 909 F.3d 1155, 1157 (D.C. Cir. 2018)
(emphasis added). Fulfilling this mandate requires, at its core,
that TSA identify “threats to transportation” and take the
appropriate steps to respond to those threats. 49 U.S.C.
§ 114(f)(2), (3). Threats may include “security” issues,
narrowly defined, and/or “safety and security,” more broadly
construed. Olivares, 819 F.3d at 462 (explaining that TSA is
charged to address issues concerning “safety and security”).
In crafting the Act, Congress knew how to circumscribe
TSA’s authority in plain terms if that was the intent of the
legislature. City of Arlington, 569 U.S. at 296. However, as
indicated above, Congress instead used capacious terms to
define TSA’s authority. Rather than restricting TSA to
preventing violent attack, as Petitioner contends, Congress
selected broad language in its mandate to the agency. The Act
also emphasizes TSA’s ongoing duty to perform “research and
development activities” in relation to civil aviation security and
safety and “order[s] air carriers to modify training programs
. . . to reflect new or different security threats.” 49 U.S.C.
§§ 44918(a)(7), 114(d)(1), (f)(8).
If there is any ambiguity in this expansive grant of
authority to TSA, there is “a presumption that Congress . . .
desired the agency (rather than the courts) to possess whatever
degree of discretion the ambiguity allows.” Smiley v. Citibank
(S.D.), N.A., 517 U.S. 735, 740-41 (1996). The questions
regarding what constitutes “threats to transportation” and
“threats to transportation security,” 49 U.S.C. § 114(f)(2), (3),
are subject to TSA’s reasonable interpretation. TSA
determined that COVID-19 poses a serious threat to the
security and safety of the transportation system and that the
Mask Directives would help to curtail the spread of the virus
and mitigate its adverse effects. TSA’s actions adhered to the
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decisions of the President, the CDC, and the Acting Secretary
of Homeland Security regarding appropriate national policies
to address the COVID-19 threats. See, e.g., Security Directive
No. 1542-21-01, at 1, reprinted in S.A. 18. The only question
for this court is whether TSA’s action was “within the bounds
of reasonable interpretation.” City of Arlington, 569 U.S. at
296. There is no doubt that it was.
1. The Mask Directives Are a Reasonable and Permissible
Response to the Threats Posed by COVID-19
In issuing the Mask Directives, TSA relied on CDC
findings that the risk of transmission of COVID-19 is
particularly high in transportation hubs and on conveyances.
See, e.g., Security Directive No. 1542-21-01, at 1, reprinted in
S.A. 18. The CDC has established that the virus spreads “very
easily” through inhalation of or contact with “respiratory
droplets produced when an infected person coughs, sneezes, or
talks.” 86 Fed. Reg. 8025, 8028 (Feb. 3, 2021), reprinted in
S.A. 10. “Travel[] on multi-person conveyances increases” the
risk of spread “by bringing persons in close contact with others,
often for prolonged periods, and exposing them to frequently
touched surfaces.” Id. at 8029. In these settings, “[s]ocial
distancing may be difficult if not impossible.” Id. The spread
of COVID-19 in the transportation system, the CDC has
concluded, can aggravate the outbreak in the general
population, put passengers and workers at risk, and threaten the
“essential” movement of medical providers, the workforce, and
goods like food and medicine. Id.As TSA asserts, COVID-19 poses a threat to the
operational viability of the transportation system and thus
transportation security and safety. Br. of Resp’ts 37-38.
Transmission of COVID-19 to transportation workers – from
TSA agents to airline crew and airport personnel – imperils
17
transportation services. The uncontrolled spread of COVID-19
among passengers and these workers can lead to cuts in service
that threaten the essential movement of people and goods, and,
consequently, our national supply chains, the economy, and
national security. TSA has a clear mandate to secure the
transportation system against threats that endanger that
system’s very ability to function. Therefore, TSA is authorized
to “develop policies, strategies, and plans for dealing with”
COVID-19 to the extent it threatens to disrupt the
transportation system. 49 U.S.C. § 114(f)(3). Because the
Mask Directives seek to contain this threat, they are in line with
the agency’s core mission.
In addition, TSA has reasonably determined that COVID-
19 is a threat to transportation security and safety because it
endangers the lives of large numbers of passengers,
transportation workers, and the greater public. Br. of Resp’ts 2,
7-8, 22-23, 36-37. COVID-19 specifically spreads at high rates
on transportation, posing a direct and serious risk to many
passengers’ and workers’ lives. Moreover, uncontrolled spread
of the highly contagious disease in the transportation system
threatens the nation’s ongoing efforts to contain the pandemic.
For these reasons, we find it “self-evident that the [Mask
Directives] are related to the TSA’s . . . goals of improving the
safety of air travel.” Jifry v. FAA, 370 F.3d 1174, 1180 (D.C.
Cir. 2004). This is not to say that TSA can regulate anything
that causes illness or death. However, the scale of death
wrought by COVID-19, its established adverse effects on our
nation’s economy, its specific tendency to spread at high rates
in transportation areas, and its threats to persons employed to
operate transportation services (as well as to people who use
those services), make it a clear threat to transportation security
and safety.
18
Finally, in issuing the Mask Directives, TSA relied on the
CDC’s finding that appropriately worn masks reduce the
transmission of COVID-19. 86 Fed. Reg. at 8028-29; see, e.g.,
Security Directive No. 1542-21-01, at 1, reprinted in S.A. 18.
In the crowded, tight quarters of airports and aircrafts, face
masks “reduce the emission of virus-laden droplets” and
“reduc[e] inhalation of these droplets.” 86 Fed. Reg. at 8028.
The cumulative effect of universal masking, the CDC has
found, can “prevent the need for lockdowns” and “protect . . .
workers who frequently come into close contact with other
people (e.g., at transportation hubs).” Id. at 8029. Again,
Petitioner does not contest these facts.
Given the threat posed by COVID-19 to the security and
safety of the transportation system, it is entirely within TSA’s
authority to require that masks be worn to contain that threat.
To the extent such requirements are an imposition on
passengers, as Petitioner suggests, we decline to second-guess
TSA’s judgment. Br. of Pet’r 6-7; Corbett Affirmation, Ex. A,
at 1-2; see Jifry, 370 F.3d at 1180. “It is TSA’s job—not . . .
ours—to strike a balance between convenience and security.”
Suburban Air Freight, Inc. v. TSA, 716 F.3d 679, 683 (D.C. Cir.
2013).
Congress’ choice of “broad language” in the Act “reflects
an intentional effort to confer the flexibility necessary” for
TSA to address yet unknown threats to transportation security
and safety as they arise. See Massachusetts v. EPA, 549 U.S.
497, 532 (2007). Petitioner contends that the history of the Act,
along with TSA’s lack of prior regulation aimed at addressing
a threat to public health, indicate that the Mask Directives are
outside the scope of TSA’s authority. Br. of Pet’r 12-15. We
disagree.
19
The Supreme Court has been quite clear in saying that, in
applying Chevron, “the question in every case is, simply,
whether the statutory text forecloses the agency’s assertion of
authority, or not.” City of Arlington, 569 U.S. at 301. Thus,
“[w]hen Congress delegates broad authority to an agency to
achieve a particular objective, agency action pursuant to that
delegated authority may extend beyond the specific
manifestations of the problem that prompted Congress to
legislate in the first place.” Cablevision Sys. Corp. v. FCC, 649
F.3d 695, 707 (D.C. Cir. 2011). When creating TSA, “although
Congress may not have foreseen the [threat to transportation
posed by COVID-19], [section 114(f)]’s expansive language
suggests that it intended to give the [TSA] sufficient flexibility
. . . [to] pursue the statute’s objectives as [threats to
transportation] evolve[d].” Id. (internal quotations omitted).
Petitioner’s invocation of Alabama Association of
Realtors v. Department of Health and Human Services, 141 S.
Ct. 2485 (2021) (“Alabama Realtors”) (per curiam) in support
of his position is unpersuasive. See Pet’r’s 28(j) Letter (Sept.
14, 2021). There, the Supreme Court found that the CDC
lacked the authority to “impose[] a nationwide moratorium on
evictions in reliance on a decades-old statute that authorizes it
to implement measures like fumigation and pest
extermination.” Alabama Realtors, 141 S. Ct. at 2486. It
rejected the CDC’s contention that the provision allowed it to
act as “necessary” to stop the spread of disease. Id. at 2488-89.
The first sentence of the statutory provision at issue in Alabama
Realtors gives the CDC broad powers to stop the spread of
disease, while “the second sentence informs the grant of
authority by illustrating the kinds of measures that could be
necessary: inspection, fumigation, disinfection, sanitation, pest
extermination and destruction of contaminated animals and
articles.” Id. at 2488 (discussing 42 U.S.C. § 264(a)). The
eviction moratorium was “markedly different” from those
20
direct actions targeting disease Congress had listed in the
provision. Id. And allowing the CDC to promulgate whatever
measures it deemed “necessary,” the Court opined, “would
give the CDC a breathtaking amount of authority” such that
“[i]t is hard to see what measures this interpretation would
place outside the CDC’s reach.” Id.Petitioner likens Alabama Realtors to this case, arguing
that the broad grants of authority in 49 U.S.C. § 114(f) and (g)
are constrained by the statute’s discussion elsewhere of
passenger screening, baggage inspections, access control to
secure areas, and the like. Pet’r’s 28(j) Letter, at 2 (Sept. 14,
2021). Petitioner contends that TSA’s powers would be
“essentially unlimited” if it were allowed to promulgate
regulations on public health, “as virtually any regulation can be
framed as ‘for your safety.’” Id. This is a specious argument.
Petitioner’s argument fails for at least two reasons. First,
as discussed above, the Mask Directives are in service of both
transportation “security” and “safety” and cannot be construed
as solely public health regulations. Second, the grant of
authority to the CDC in Alabama Realtors was found in a
single provision, 42 U.S.C. § 264(a), that was controlled and
defined by reference to the types of action Congress listed in
that very provision. 141 S. Ct. at 2488. Petitioner turns the
holding in Alabama Realtors on its head by asking this court to
apply limiting constructions to provisions plainly granting TSA
broad authority to act by drawing on entirely separate
provisions that appear throughout 49 U.S.C. Chapter 449. See
Br. of Pet’r 11-13. There is no viable canon of construction that
endorses this interpretive approach. See Helicopter Ass’n Int’l,
Inc. v. FAA, 722 F.3d 430, 435 (D.C. Cir. 2013) (holding that
specific statutory provisions amplifying the FAA’s regulatory
authority merely indicated that Congress intended to address
21
the matters subject to regulation in several different ways, not
to limit the statute’s broad grant of authority).
Moreover, contrary to Petitioner’s suggestion, TSA will
not be at liberty to regulate in any way it deems “necessary” if
this court rejects his facial challenge to the Mask Directives.
Congress defined the outer bounds of what TSA can do through
its careful selection of terms in the Act. The fact that TSA has
the power to regulate to contain the threat COVID-19 does not,
as Petitioner asserts, give it the power to regulate “warning
label requirements for the purpose of preventing cancer” or set
speed limits into and out of the airport. Br. of Pet’r 12-13, 18.
The examples cited by Petitioner are frivolous because, unlike
COVID-19, these matters do not plausibly pose a threat to the
security and safety of transportation systems.
“[T]he Mask Directives at issue were designed as part of a
government-wide collaborative effort to implement and
support enforcement of the CDC’s Order in order to counteract
the spread of a contagious and life-threatening illness on the
nation’s planes, trains, buses, and transit systems.” Br. of
Resp’ts 22-23. The Mask Directives are well within TSA’s
delegated authority, limited, and reasonably designed to
address the “threats to transportation” posed by COVID-19.
See 49 U.S.C. § 114(f)(2). Therefore, we will not second-guess
TSA’s expert judgment in adopting the Mask Directives.
2. TSA Had Additional Delegated Authority to Adopt the
Mask Directives Pursuant to its National Emergency
Powers
TSA had additional delegated authority to adopt the Mask
Directives once the Secretary of Homeland Security declared a
national emergency. 49 U.S.C. § 114(g). Section 114(g) of the
Act expressly grants TSA expansive powers and
22
responsibilities “during a national emergency.” Id. This
includes the authority to “coordinate and oversee the
transportation-related responsibilities of other departments and
agencies” and to “carry out such other duties, and exercise such
other powers, relating to transportation during a national
emergency as the Secretary of Homeland Security shall
prescribe.” 49 U.S.C. § 114(g)(1)(B), (D). The Mask Directives
were properly promulgated pursuant to TSA’s section 114(g)
powers.
In the Department of Homeland Security’s emergency
determination, the Acting Secretary concluded that the
COVID-19 pandemic constituted a national emergency,
invoked section 114(g), and directed TSA “to take actions
consistent with the authorities in . . . sections 106(m) and
114(f), (g), (l), and (m) to implement the Executive Order to
promote safety in and secure the transportation system” against
the emergency posed by COVID-19. 86 Fed. Reg. 8217, 8218
(Feb. 4, 2021). The Acting Secretary further specified that TSA
should “support[] the CDC in the enforcement of any orders or
other requirements necessary to protect the transportation
system . . . from COVID-19.” Id. at 8218-19. These directions
from the Acting Secretary expressly authorized TSA to issue
the challenged Mask Directives, regardless of whether it
already had the power to do so.
III. CONCLUSION
We hold that the Mask Directives are reasonable and
permissible regulations adopted by TSA to promote safety and
security in the transportation system against threats posed by
COVID-19. We therefore reject Petitioner’s claim that TSA’s
Mask Directives are ultra vires, defer to the agency’s
interpretation of the Act, and deny the petition for review.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
On the merits, this petition for review is a slam dunk loser. Of
course the Transportation Security Administration (TSA),
charged with “develop[ing] policies, strategies, and plans for
dealing with threats to transportation security,” can require
individuals in airports and on airplanes to wear the partial face
masks we are all familiar with as a result of the coronavirus
scourge. 49 U.S.C. § 114(f)(3). But I believe Corbett is so
lacking in standing to sue that I would dispose of his petition
without reaching the merits.
The three prongs of Article III standing are almost
catechismal and Corbett most likely fails all three. He has (1)
no cognizable injury that is (2) caused by the TSA’s mask
mandate and (3) redressable by this court. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992). I will stop at the first
prong as his challenge should end there.
As my colleagues note, Maj. Op. 5, the CDC mandate and
the TSA mandate provide that masks need not be worn for
“brief periods” while eating and drinking. See 86 Fed. Reg.
8025, 8027 (Feb. 3, 2021); Security Directive No. 1542-21-01
at 3. The TSA mandate adds that “the mask must be worn
between bites and sips.” Security Directive No. 1542-21-01 at
3. Corbett hangs his injury hat on this added language, fearing
that sometime in the future a TSA agent may “swoop in to
make sure that he [does] not hesitate for too long in replacing
his mask after each bite” and asserting that but for the TSA
mask mandate, he “would wear a mask at fewer times.” But
unlike his mask, Corbett’s precariously hung hat falls.1 It is
1
Because Corbett brings a facial challenge, Maj. Op. 13, he
must show “that the [TSA mandate] injures him in a concrete and
particular way,” see Massachusetts v. EPA, 549 U.S. 497, 517
(2007). Although Corbett alleges he is a “frequent flyer,” Br. of Pet’r
at 7, it is far from clear when or if he will travel again and thus make
himself a specific “object of the [mandate]” any more than the
2
anyone’s guess whether Corbett faces “injury” based on any
difference between the CDC’s mandated “brief periods”—
which, significantly, Corbett does not challenge and would
follow—and the TSA’s mandated “between bites and sips.”
See Chamber of Com. of U.S. v. EPA, 642 F.3d 192, 200 (D.C.
Cir. 2011) (“[A]ny petitioner alleging only future injuries
confronts a significantly more rigorous burden to establish
standing.”) (quoting United Transp. Union v. ICC, 891 F.2d
908, 913 (D.C. Cir. 1989)). Corbett’s allegation that he faces a
bona fide threat of future enforcement in his pre-enforcement
challenge, see Babbitt v. United Farm Workers Nat’l Union,
442 U.S. 289, 298–99 (1979) (allowing for pre-enforcement
standing as long as “there exists a credible threat of
prosecution”), is even more fatuous in view of his total failure
to allege past enforcement against him or anyone else, see
Muthana v. Pompeo, 985 F.3d 893, 911 (D.C. Cir. 2021)
(“Preenforcement review is not a vehicle to settle questions of
statutory interpretation unconnected with matters of
constitutional right.”), petition for cert. filed, No. 21-489 (June
16, 2021).
De minimis non curat lex, the “venerable maxim” that
ensures the law does not concern itself with trifles, Wis. Dep’t
of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231
(1992), resolves Corbett’s annoying waste of judicial
millions of members of the general public who fly, see Lujan v. Defs.
of Wildlife, 504 U.S. 555, 561 (1992). Just as a taxpayer cannot
mount a challenge so general that his standing is only as a member
of the public, see Hein v. Freedom From Religion Found., Inc., 551
U.S. 587 (2007), Corbett’s generalized injury is likewise insufficient
to invoke our jurisdiction, see Ex parte Levitt, 302 U.S. 633, 633
(1937) (“[T]o invoke the judicial power . . . [an individual] must
show that he . . . is immediately in danger of . . . a direct injury . . .
and it is not sufficient that he has merely a general interest common
to all members of the public.”).
3
resources; as a lawyer and thus an officer of the court, he should
know better.2 I respectfully dissent.
2
I note that his website is “https://professional-
troublemaker.com/.”