Filed: Nov. 20, 2009
Latest Update: Feb. 22, 2020
Summary: Barker arrived several hours early for his flight.witnesses statements.$500 civil penalty.its legal authority by issuing the notice.therefore this Court lacks jurisdiction over Barkers claims.imminent injury.create Article III standing.TSAs decision to place the warning notice in Barkers TSA file.
Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2709
ANDREW BARKER,
Petitioner,
v.
TRANSPORTATION SECURITY ADMINISTRATION;
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
Respondent.
APPEAL FROM THE UNITED STATES TRANSPORTATION
SECURITY ADMINISTRATION
Before
Boudin, John R. Gibson,* and
Howard, Circuit Judges.
Mark C. O’Connor for petitioner.
Sarang V. Damle for respondent.
November 20, 2009
*
Of the Eighth Circuit, sitting by designation.
JOHN R. GIBSON, Circuit Judge. Andrew Barker seeks review of
action taken by the Transportation Safety Administration (“TSA”)
allegedly in violation of its lawful authority. Barker alleges
that his due process rights were violated by the TSA’s issuance of
a “warning notice” to him at the conclusion of its investigation
into whether he conveyed a false bomb threat in violation of 49
U.S.C. § 46302. He asserts that the TSA lacked legal authority to
issue such a notice. In the alternative, he argues that if the
agency was within its authority to issue the warning notice, that
it violated his due process rights by doing so without affording
him a full administrative hearing. He seeks rescission of the
warning notice and an injunction preventing the TSA from issuing
future warning notices in connection with actual, alleged, or
suspected violations of 49 U.S.C. § 46302. We conclude that Barker
lacks standing to bring these claims and we dismiss the petition
for review.
Background
On August 24, 2006, Andrew Barker was scheduled to travel from
Detroit Metropolitan Wayne County Airport (DMW) to New York’s
LaGuardia Airport on Northwest Airlines flight 538 departing at
7:19 p.m. Barker had traveled the previous day from Atlanta to
Detroit, on his way home to New York following a lengthy business
trip. Barker arrived several hours early for his flight. He
checked a single bag, received a boarding pass, and left the
-2-
airport to attend a meeting. At approximately 7:25 p.m., Barker
arrived at the departure gate for his flight and a Northwest
Airlines gate agent informed him that there was no longer a seat
available for him. A dispute arose between the gate agent and
Barker concerning whether he could still board the flight. Barker
eventually requested that his checked luggage be returned to him
and he was instructed that it could not be removed from the plane
and that he would have to wait for a supervisor to arrive. Several
witnesses then heard Barker make a reference to a bomb being in the
bag, although witness statements varied as to the precise language
used. A second gate agent overheard Barker’s statement and
instructed the first to contact the airport police. Barker then
attempted to retract the statement. The gate agent contacted the
DMW Airport Police and the Federal Bureau of Investigation was also
informed. Law enforcement officials arrived and Barker was taken
into custody. A subsequent search of Barker’s luggage revealed
that it did not contain a bomb and no charges were filed.
On September 12, 2006, the TSA sent Barker a written “letter
of investigation” informing him that it was investigating his
alleged violation of 49 U.S.C. § 463021 for conveying false
1
49 U.S.C. § 46302(a):
Civil Penalty.- A person that, knowing the
information to be false, gives, or causes to
be given, under circumstances in which the
information reasonably may be believed, false
information about an alleged attempt being
made or to be made to do an act that would
-3-
information and threats to Northwest Airlines personnel. The
letter informed Barker that, as part of the TSA’s investigation, he
was being afforded an opportunity to “submit, in writing, any
information regarding th[e] matter.” The following month, Barker’s
attorney submitted a letter on Barker’s behalf denying the
allegations and pointing out various inconsistencies in the
witnesses’ statements. In November, the TSA concluded its
investigation and the inspector assigned to the incident concluded
that Barker had violated 49 U.S.C. § 46302 by conveying false
information of a bomb threat and recommended that he be given a
$500 civil penalty. The agency did not follow that recommendation.
Instead, ten months later, it issued a “warning notice” informing
Barker that the investigation was complete and that a violation of
§ 46302 “may have occurred.” The warning notice set forth the
language of § 46302 and concluded: “At this time, the
Transportation Safety Administration has determined that this
Warning Notice adequately addresses the incident.”
After receiving the warning notice, Barker’s attorney wrote a
letter to the TSA arguing that the warning notice did not actually
“provide any ‘warning’” to Barker and that therefore, its only
purpose must have been to create a formal record against Barker
violate sections 46502(a), 46504, 46505, or
46506 of this title, is liable to the United
States Government for a civil penalty of not
more than $10,000 for each violation.
-4-
that could be used against him by the TSA in the future. The
letter also expressed concerns that the TSA had acted outside of
its legal authority by issuing the notice. The TSA replied,
assuring Barker that the warning notice was not a public record,
was not subject to Freedom of Information Act (FOIA) requests,2 and
that it would not result in Barker’s placement on a “no-fly” list.
The TSA also stated that it had the authority to issue the warning
notice and that it would not repeal its decision to do so.
Thereafter, on November 13, 2007, Barker filed the present petition
for review in this Court, invoking jurisdiction under 49 U.S.C. §
46110.
Discussion
Barker alleges that the TSA’s issuance of a warning notice to
him following its investigation into his alleged violation of 49
U.S.C. § 46302 was outside the scope of the agency’s authority.
Barker argues that the statute provides only for the issuance of a
civil penalty, not a warning notice, and that although the TSA has
regulatory authority to issue a warning notice for alleged
violations of other statutes for which it has enforcement
responsibilities, it has no such authority with regard to
2
Specifically, the TSA indicated that “If [it] received a
request to release the warning notice under [FOIA] or otherwise,
the agency would excise all of Mr. Barker’s identifying information
on privacy grounds, so that document would not be attributable to
him.”
-5-
investigations under § 46302.3
In response to Barker’s petition, the TSA argues that Barker
has failed to allege any “cognizable legal or practical consequence
flowing from the TSA’s issuance of the Warning Notice” and
therefore this Court lacks jurisdiction over Barker’s claims.
More specifically, the TSA argues that this Court is without
jurisdiction “under either the rubric of Article III standing, or
principles of administrative law that require an order to be
‘final’ before it can be reviewed.” The TSA also addresses the
merits, arguing that its issuance of a warning notice was within
its lawful authority and comported with due process.
Because Article III standing is required for this Court to
exercise jurisdiction, we must determine its presence at the
outset. See Donahue v. City of Boston, 304 F.3d 110, 117 (1st Cir.
2002) (“[T]his Court must resolve questions pertaining to its
subject-matter jurisdiction before it may address the merits of a
case.”). “The doctrine of constitutional standing reflects the
fundamental limitation of judicial power to ‘Cases’ and
‘Controversies,’ under Article III of the Constitution.” Sutliffe
3
After oral argument in this case, the TSA revised its
regulations. See 74 Fed. Reg. 36,030 (July 21, 2009). The
regulations now provide that the TSA may issue a warning notice for
“a violation or an alleged violation” of any “TSA requirement.”
See 49 C.F.R. § 1503.301(a). Although we decide this case on the
basis of standing, we note that this change in the TSA’s
regulations would render moot Barker’s request to enjoin the TSA
from issuing such warning notices in the future.
-6-
v. Epping School Dist., 2009 WL 2973115, at * 8 (1st Cir. September
17, 2009) (internal quotation marks and citation omitted). To have
Article III standing, a plaintiff must establish: "(1) [he] has
suffered an ‘injury in fact' that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,
528 U.S. 167, 180-81 (2000) (quoting Lujan v. Defenders of
Wildlife,
504 U.S. 555, 560-561 (1992)). “The burden of stating
facts sufficient to support standing rests with the party seeking
to assert federal jurisdiction.” Sea Shore Corp. v. Sullivan,
158
F.3d 51, 54 (1st Cir.1998).
Here, Barker has failed to allege any concrete actual or
imminent injury. As to actual injury, Barker argues that having
received a letter that the TSA was unauthorized to send damaged his
“liberty interests.” Barker has not, however, identified what
“liberty interests” are supposedly affected. Indeed, Barker admits
that the warning notice “does not request or require . . . Mr.
Barker to take any corrective action or to comply with any
regulatory matter under the TSA’s jurisdiction.” This nebulous
argument is at best a claim of procedural error which does not
excuse the absence of an actual injury. “[D]eprivation of a
-7-
procedural right without some concrete interest that is affected by
the deprivation – a procedural right in vacuo – is insufficient to
create Article III standing." Summers v. Earth Island Inst., 129 S.
Ct. 1142, 1151 (2009). Barker has failed to allege any actual,
concrete interest that was affected by issuance of the letter.
The other consequences Barker suggests may stem from the
warning notice have yet to occur and are anything but imminent.
Barker argues that if he is ever the subject of another TSA
investigation, the warning notice will be in his file and may be
used against him. Such a consequence, however, is far too
speculative to meet the “injury in fact” requirement of Article
III. See Ctr. for Law and Educ. v. Dep’t of Educ., 396 F.3d 1152,
1161 (D.C. Cir. 2005) (no standing where “[a]ppellants alleged
direct injury styled as ‘increased risk,’ in the form of giving the
States the opportunity to injure Appellants’ interests”); see also
National Counsel of La Raza v. Gonzales,
468 F. Supp. 2d 429, 438-440
(E.D.N.Y. 2007) (rejecting claim of “heightened risk” of future
arrest by placement of plaintiff’s immigration data into the NCIC
database as too speculative to constitute an injury in fact).
Further, should such a future investigation occur, Barker could
assert due process claims in connection with those proceedings.
Barker also alleges that reputational harm may result from the
TSA’s decision to place the warning notice in Barker’s TSA file.
He has not, however, alleged that this confidential record has or
-8-
ever will be accessed by the public. In fact, Barker has received
assurances from the TSA to the contrary and it is Barker, not the
TSA, who made this matter public by filing this lawsuit. See id.
at 444 (“The speculation that at some point in the future some
unauthorized party may access plaintiffs' file in violation of a
plaintiff members' privacy right does not satisfy the requirement
that plaintiffs identify an ‘actual or imminent,’ ‘concrete and
particularized’ injury.”).
We conclude that Barker lacks Article III standing because he
has failed to allege an actual or imminent injury in fact.
Accordingly, this Court can not exercise jurisdiction over his
claims.
Conclusion
For the foregoing reasons, the Petition for Review is
dismissed.
-9-
