[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-15893

________________________

D.C. Docket No. 1:10-cv-24106-MGC

JONATHAN CORBETT,

 Petitioner,

versus

TRANSPORTATION SECURITY ADMINISTRATION,

 Respondent.

________________________

Petition for Review of an Order of the

Transportation Security Administration

_______________________

(September 19, 2014)

Before MARCUS, WILLIAM PRYOR and MARTIN, Circuit Judges.

WILLIAM PRYOR, Circuit Judge: 

In this petition for review, Jonathan Corbett alleges that airport screening 

procedures violate his right to be free from unreasonable searches. U.S. Const. 

amend. IV. But before we decide the merits of that argument, we must decide

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whether the 60-day deadline for filing a petition in the court of appeals, 49 U.S.C. 

§ 46110(a), is jurisdictional and whether Corbett established a reasonable ground 

for filing his petition more than two years after the Transportation Security 

Administration deployed these screening procedures in airports nationwide. Even 

though our Court previously held that the 60-day deadline is “mandatory and 

jurisdictional,” see Greater Orlando Aviation Authority v. Fed. Aviation Admin., 

939 F.2d 954, 959 (11th Cir. 1991), a decision of the Supreme Court, Henderson v. 

Shinseki, ___ U.S. ___, ___, 131 S. Ct. 1197, 1206 (2011), together with an en 

banc decision of our Court, Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1362 

(11th Cir. 2013) (en banc), later abrogated that prior panel precedent. Those 

decisions make clear that the 60-day deadline is not “jurisdictional,” but is instead 

a claim-processing rule. Even though Corbett’s delay in filing his petition does not 

defeat our jurisdiction, his petition is nevertheless untimely because no “reasonable 

ground[]” excuses his delay. 49 U.S.C. § 46110(a). The Administration, the district 

court, and our Court informed Corbett that Congress vested exclusive jurisdiction 

to hear his petition in our Court. Alternatively, even if Corbett had timely filed his 

petition, the screening procedure employed by the Administration requires only a 

reasonable administrative search that does not violate the Fourth Amendment. We 

dismiss Corbett’s petition as untimely and, in the alternative, deny Corbett’s 

petition on the merits. We also grant a motion to seal filed by the Administration.

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I. BACKGROUND

We divide the background in two parts. First, we discuss the procedure 

issued by the Administration. Second, we discuss the procedural history of 

Corbett’s petitions and the pending motions and jurisdictional question that we 

carried with the case. 

A. The Standard Operating Procedure

Congress created the Administration, now an agency of the Department of 

Homeland Security, in response to the terrorist attacks of September 11, 2001, and 

charged the Administrator with ensuring civil aviation security. See 49 U.S.C. 

§ 114; 6 U.S.C. § 203(2). The Administrator, in conjunction with the Director of 

the Federal Bureau of Investigation, must “assess current and potential threats to 

the domestic air transportation system” and take “necessary actions to improve 

domestic air transportation security.” 49 U.S.C. § 44904(a), (e); see also id.

§ 44901. The Administration performs “the screening of all passengers and 

property” before boarding an aircraft to ensure that no passenger is “carrying 

unlawfully a dangerous weapon, explosive, or other destructive substance.” Id.

§§ 44901(a), 44902(a)(1); see also id. § 44903(b) (requiring the promulgation of 

“regulations to protect passengers and property on an aircraft” from “criminal 

violence or aircraft piracy”). And Congress has directed the Secretary of the 

Department to “give a high priority to developing, testing, improving, and 

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deploying, at airport screening checkpoints, equipment that detects nonmetallic, 

chemical, biological, and radiological weapons, and explosives . . . .” Id. 

§ 44925(a).

To fulfill these statutory mandates, the Administration issues standard 

operating procedures for security screening nationwide. On September 17, 2010, 

the Administration issued the procedure challenged in this petition, which it 

implemented on October 29, 2010. The procedure requires the use of advanced 

imaging technology scanners as the primary screening method at airport 

checkpoints. If a passenger declines the scanner or alarms a metal detector or 

scanner during the primary screening method, he receives a pat-down instead.

The scanners detect both metallic and nonmetallic objects. The

Administration instituted the procedure to remedy a weakness of walk-through and 

hand-held metal detectors. Unlike those earlier security mechanisms, the scanners 

also identify nonmetallic explosives and other nonmetallic items that pose a 

security threat. The Administration deemed the scanners “the most effective 

technology available to detect threat items concealed on airline passengers.” But 

even though the scanners and the new pat-down procedures significantly improve 

the detection of nonmetallic and concealed weapon devices, the Office of 

Intelligence of the Administration has concluded that the threat posed by improved 

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explosive devices and other weapons remains high and that terrorists continue to 

surveil and attempt to exploit security gaps in airport screening. 

When the Administration first implemented the procedures, it employed 

scanners that displayed the body contour of the passenger, but they did not store, 

export, or print the images. The Administration deleted the images after an officer 

viewed them, and the Administration prohibited security officers from bringing 

cameras, cell phones, or other electronic recording devices into the viewing rooms. 

Congress later enacted the FAA Modernization and Reform Act of 2012, 

Pub. L. No. 112-95, § 826, 126 Stat. 11, 133–32, which required the 

Administration to equip scanners with automated target recognition software. That 

software eliminates passenger-specific images and instead uses a generic body

contour. By May 16, 2013, the scanners distributed by the Administration were 

equipped with the updated software and displayed only a generic body contour. 

The Administration last updated the pat-down procedure in 2012. The 

Administration earlier modified the procedure in response to the suicide bombing 

aboard a Russian aircraft in August 2004 and twice revised the policy after

intelligence revealed that passengers could conceal contraband in certain areas of 

their bodies. Later testing revealed that some security officers failed to conduct 

sufficient pat-downs, which prompted the most recent revisions to the procedure. 

When a screener conducts a pat-down, he canvasses most of the passenger’s body 

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and uses the back of his hands for sensitive areas. A screener of the same gender as 

the passenger conducts the pat-downs, and a passenger may request that the patdown occur in a private location. A screener may conduct an opposite-gender patdown only in “extraordinary circumstances” as determined by a Federal Security 

Director.

B. Procedural History of Corbett’s Petitions

Corbett, pro se, challenges the use of the “nude body scanners,” as he dubs 

them, and the pat-down procedure on the ground that they violate the Fourth 

Amendment. Corbett alleges that he has flown more than 100,000 miles on more 

than 100 domestic flights in the last 3 years and that each time he departs from a 

domestic airport he must undergo a security screening. He asserts that the security 

officers have denied him access three times because he refused to consent to the 

searches prescribed by the procedure. Corbett argues that substitute screening 

measures—canine sniff teams, metal detectors, and explosive trace detectors—are 

less intrusive and more effective at identifying terrorist threats. 

In November 2010, Corbett filed a petition in a district court in Florida 

challenging the procedure implemented a month earlier. As early as December

2010, the Administration notified Corbett that Congress vested exclusive 

jurisdiction over his petition in the court of appeals. After a magistrate judge also 

concluded that the court of appeals had exclusive jurisdiction, the district court 

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dismissed Corbett’s petition for lack of jurisdiction in April 2011. We affirmed that 

dismissal. See Corbett v. United States, 458 F. App’x 866, 870 (11th Cir. 2012).

Corbett petitioned for a writ of certiorari, which the Supreme Court denied on 

October 1, 2012. Corbett v. United States, 133 S. Ct. 161 (2012). Exactly two years

after he commenced those proceedings in the district court, Corbett filed this

petition in our Court on November 16, 2012.

In March 2013, the Administration moved to file under seal certain portions 

of the administrative record and to file under seal and ex parte other portions of the 

record. The record contains five kinds of documents: public information;

copyrighted and propriety material; “For Official Use Only” documents; 

documents designated as sensitive security information; and classified documents. 

In June 2013, our Court temporarily granted, in part, the motion to seal and carried 

the remainder of the motion with the case. 

Corbett signed a nondisclosure agreement to receive access to the For 

Official Use Only administrative record. But in October 2013, the office of the 

clerk of the Court mistakenly uploaded Corbett’s unredacted brief to the public 

docket containing some of the For Official Use Only information. Corbett alleges 

that a third party obtained his brief when it was available online and linked it to a 

website, which includes a 16-minute interview with Corbett discussing this 

information in his brief. After that incident, Corbett filed a motion to unseal the 

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For Official Use Only information, which we temporarily denied and instructed 

him not to disclose, even if the information was already available to the public 

through the inadvertent disclosure by the Clerk. Corbett now urges our Court to

“release” him from its order barring disclosure of For Official Use Only 

Information documents. 

II. DISCUSSION

Before we can address the merits of this controversy, we have to decide 

whether we have jurisdiction over it. That is, we must first decide whether the 60-

day deadline, 49 U.S.C. § 46110(a), is a jurisdictional rule or a claim-processing 

rule. We then consider whether Corbett has offered a reasonable ground for his

two-year delay in filing his petition in our Court. We next explain that, even if it 

were timely, Corbett’s petition fails because the challenged screening procedure 

satisfies the requirements of an administrative search under the Fourth 

Amendment. We also grant the motion to seal filed by the Administration and deny 

Corbett’s motion to unseal. 

A. We Have Jurisdiction, But Dismiss Corbett’s Petition as Untimely.

Congress granted the courts of appeals exclusive jurisdiction to decide a 

petition like Corbett’s, id., and we have already decided in a separate action 

between these parties that the challenged procedure constitutes a final order.

Corbett, 458 F. App’x at 870–71; see also Blitz v. Napolitano, 700 F.3d 733, 739–

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40 (4th Cir. 2012); Durso v. Napolitano, 795 F. Supp. 2d 63, 67–69 (D.D.C. 2011).

But before we can address Corbett’s arguments about reasonable grounds for his 

two-year delay in filing his petition, we must decide whether the 60-day deadline is 

jurisdictional or whether it is a claim-processing rule.

1. The 60-Day Deadline Is Not Jurisdictional.

There is “a critical difference between a rule governing subject-matter 

jurisdiction and an inflexible claim-processing rule.” Kontrick v. Ryan, 540 U.S. 

443, 456, 124 S. Ct. 906, 916 (2004). “[A] court’s subject-matter jurisdiction 

cannot be expanded to account for the parties’ litigation conduct; a claimprocessing rule, on the other hand, even if unalterable on a party’s application, can 

nonetheless be forfeited if the party asserting the rule waits too long to raise the 

point.” Id. And “a rule should not be referred to as jurisdictional unless it governs a 

court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction.”

Henderson, 131 S. Ct. at 1202.

In Greater Orlando Aviation Authority v. Federal Aviation Administration, 

we held that the 60-day deadline for filing a petition challenging a final order is 

“mandatory and jurisdictional,” 939 F.2d at 959 (internal quotation marks omitted), 

but decisions of the Supreme Court and our Court sitting en banc have abrogated 

that prior panel precedent, see Henderson, 131 S. Ct. at 1204–06; Avila-Santoyo, 

713 F.3d at 1359–62. The Supreme Court has instructed that a deadline for judicial 

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review of an administrative decision is a nonjurisdictional claim-processing rule 

when Congress provides no “clear statement” that the rule is jurisdictional. 

Sebelius v. Auburn Reg’l Med. Ctr., ___ U.S. ___, ___, 133 S. Ct. 817, 824 (2013); 

see also Arbaugh v. Y & H Corp., 546 U.S. 500, 515–16, 126 S. Ct. 1235, 1245

(2006) (“If [Congress] clearly states that a threshold limitation on a statute’s scope 

shall count as jurisdictional, then courts and litigants will be duly instructed and 

will not be left to wrestle with the issue.” (footnote omitted)). To determine 

whether a provision is jurisdictional, we look to its “context, including [the 

Court’s] interpretation of similar provisions in many years past.” Reed Elsevier, 

Inc. v. Muchnick, 559 U.S. 154, 168, 130 S. Ct. 1237, 1248 (2010). 

In Henderson, the Supreme Court identified three factors that guided its 

conclusion that the 120-day deadline for seeking judicial review of a decision of 

the Board of Veterans’ Appeals was not jurisdictional: the text, the statutory 

context, and the degree of flexibility afforded to potential claimants. 131 S. Ct. at 

1204–06. The plain language of the statute in Henderson did “not suggest, much 

less provide clear evidence, that the [120-day] provision was meant to carry 

jurisdictional consequences.” Id. at 1204. Congress placed the deadline in a 

subchapter titled “Procedure” instead of the subchapters titled “Jurisdiction; 

finality of decisions” or “Organization and Jurisdiction,” which “suggest[ed that] 

Congress regarded the 120-day limit as a claim-processing rule.” Id. at 1205. And 

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when a veteran petitioned the Veterans Administration for benefits, those 

proceedings were “solicit[ous]” to veterans and far more “informal and 

nonadversarial” than ordinary civil litigation. Id. at 1205–06. For these three 

reasons, the Court concluded that Congress did not intend the 120-day limit “to 

carry the harsh consequences that accompany the jurisdiction tag.” Id. at 1206. 

Our Court, sitting en banc, applied Henderson in an immigration case when 

we overruled our precedent, Abdi v. U.S. Att’y Gen., 430 F.3d 1148 (11th Cir. 

2005), and held that the 90-day deadline to file a motion to reopen after a final 

order of removal, 8 U.S.C. § 1229a(c)(7)(C)(i), was not jurisdictional. AvilaSantoyo, 713 F.3d at 1362. We explained that Henderson had abrogated our

precedent in Abdi when we evaluated the statute under the clear statement rule 

used by the Supreme Court. Id. at 1359–60. The text of the statute gave no 

indication that the 90-day deadline carried jurisdictional consequences. Id. at 

1361. Congress placed the 90-day deadline within a section titled “Removal 

Proceedings,” which addressed various procedural and administrative aspects of a 

removal proceeding. Id. And the exceptions to the 90-day deadline suggested “a 

certain degree of flexibility that is inherently inconsistent with the jurisdictional 

label.” Id. at 1362 (internal quotation marks omitted). 

Like the 90-day deadline in Avila-Santoyo, the 60-day deadline that governs 

Corbett’s petition is not jurisdictional. See Avia Dynamics, Inc. v. Fed. Aviation 

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Admin., 641 F.3d 515, 519 (D.C. Cir. 2011). The text does not suggest that 

Congress intended the deadline to have jurisdictional consequences. See Arbaugh, 

546 U.S. at 510, 126 S. Ct. at 1242 (“[W]e have clarified that time prescriptions, 

however emphatic, are not properly typed jurisdictional.” (internal quotation marks 

omitted)). That is, Congress did not phrase the 60-day deadline in jurisdictional 

terms when it instructed petitioners where and when to file:

[A] person disclosing a substantial interest in an order issued by the 

Secretary . . . 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 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. The petition must be filed no 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). Additionally, Congress placed the deadline in the subsection 

titled “Filing and venue.” To be sure, the first sentence of that subsection

references the subject-matter jurisdiction of the courts of appeals over these 

petitions so that petitioners would know where to file. Id. But in another 

subsection, “Authority of court,” Congress granted the courts of appeals exclusive 

jurisdiction over these kinds of petitions. Id. § 46110(c). Any reference to that 

exclusive jurisdiction in the “Filing and venue” subsection, id. § 46110(a), does not 

convince us that the 60-day deadline is part and parcel of the jurisdictional 

limitations announced in subsection 46110(c). See also cf. Avia-Dynamics, Inc., 

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641 F.3d at 518 (“Although we have characterized section 46110(a) as a 

jurisdictional statute, we have never held that the limitation portion of section 

46110(a)—set forth in the second and third sentences—is jurisdictional.” (citations 

omitted)). Moreover, the exception for “reasonable grounds for not filing by the 

60th day,” 49 U.S.C. § 49110(a), affords petitioners a “degree of flexibility” that 

does not suggest the deadline is jurisdictional. See Avila-Santoyo, 713 F.3d at 

1362.

In the same way that Henderson abrogated our precedent in Abdi,

Henderson also abrogated our precedent in Greater Orlando that would otherwise 

govern this appeal. See United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 

2009) (“We may disregard the holding of a prior opinion only where that holding 

is overruled by the Court sitting en banc or by the Supreme Court.”(internal 

quotation marks omitted)). The new rule announced in Henderson “actually 

abrogate[d] or directly conflict[ed] with, as opposed to merely weaken[ed], the 

holding of the prior panel.” Id. We now hold that the 60-day deadline is a claimprocessing rule, not a limitation on our subject-matter jurisdiction.

2. Corbett Failed To Establish a Reasonable Ground for his Delay.

Corbett’s dogged prosecution of his petition in the district court is not a 

reasonable ground to excuse his failure to file his petition on time in this Court. See 

Greater Orlando, 939 F.2d at 959–60 (ruling that petitioner’s pursuit of state court 

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remedies did not excuse failure to file before the 60-day deadline); Americopters, 

LLC v. Fed. Aviation Admin., 441 F.3d 726, 734 (9th Cir. 2006) (“[A] delay 

stemming from the filing of a petition or complaint with the wrong court is not, in 

general, a reasonable ground for delay.”); see also Sierra Club v. Skinner, 885 F.2d 

591, 594 (9th Cir. 1989) (dismissing for lack of subject-matter jurisdiction when

petitioner failed to file within 60 days and filing petition in a district court did not 

provide a reasonable ground for delay). Corbett’s “delay is even less excusable” 

because “the [Administration] advised [him] of the correct remedies or procedures 

to follow” and his “procedural missteps were based on a misapprehension of the 

law.” Americopters, 441 F.3d at 734. We have recommended that petitioners file 

concurrent petitions in multiple courts where jurisdiction is not clear. Greater 

Orlando, 939 F.2d at 959–60. Our dissenting colleague contends that Greater 

Orlando stands for the proposition that distinct claims must be filed in separate 

courts. (Dissent Op. at 28.) We did say as much in Greater Orlando, but our 

dissenting colleague fails to acknowledge that we also advised that “[a]dditionally, 

the [petitioner] could have filed both appeals concurrently, instead of pursuing 

state court remedies while jurisdiction was being lost” elsewhere. Greater 

Orlando, 939 F.2d at 959-60.

Corbett failed to heed that advice, despite admonitions by the 

Administration, a magistrate judge, the district court, and our Court that we had 

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exclusive jurisdiction over his petition. He instead pursued his Fourth Amendment 

challenge in the district court for nearly two years. Courts of appeals have excused 

a petitioner’s delay when the Administration caused a petitioner’s confusion, id. at 

960, or when a petitioner unsuccessfully attempted to exhaust administrative 

remedies, Reder v. Adm’r of Fed. Aviation Admin., 116 F.3d 1261, 1263 (8th Cir. 

1997), but Corbett has not alleged anything of the kind. His conduct—the

“quixotic pursuit of the wrong remedies”—cannot excuse his delay. Americopters, 

441 F.3d at 734.

B. Alternatively, the Screening Procedure Is a Reasonable Administrative Search.

Although the Supreme Court has mentioned only in dicta that airport 

screenings do not violate the Fourth Amendment, see Chandler v. Miller, 520 U.S. 

305, 323, 117 S. Ct. 1295, 1305 (1997) (“[W]here the risk to public safety is 

substantial and real, blanket suspicionless searches calibrated to the risk may rank 

as ‘reasonable’—for example, searches now routine at airports . . . .”); see also

City of Indianapolis v. Edmond, 531 U.S. 32, 47–48, 121 S. Ct. 447, 456 (2000), 

other courts of appeals have held that screening passengers at an airport is an 

“administrative search” because the primary goal is to protect the public from a 

terrorist attack, see, e.g., Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 

653 F.3d 1, 10–11 (D.C. Cir. 2011); United States v. Aukai, 497 F.3d 955, 962–63 

(9th Cir. 2007) (en banc); United States v. Hartwell, 436 F.3d 174, 178 (3d Cir. 

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2006). We now join their ranks and conclude, in the alternative, that the challenged

procedure is a reasonable administrative search under the Fourth Amendment.

The Fourth Amendment permits the warrantless search of “closely 

regulated” businesses; “special needs” cases such as schools, employment, and 

probation; and “checkpoint” searches such as airport screenings under the 

administrative search doctrine. Hartwell, 436 F.3d at 178. Because administrative 

searches primarily ensure public safety instead of detect criminal wrongdoing, they 

do not require individual suspicion. Elec. Privacy Info. Ctr., 653 F.3d at 10 (citing 

Edmond, 531 U.S. at 41, 47–48, 121 S. Ct. at 450). Whether suspicionless 

checkpoint searches at airports are reasonable depends on “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.” Brown v. 

Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 2640 (1979). 

The scanners at airport checkpoints are a reasonable administrative search

because the governmental interest in preventing terrorism outweighs the degree of

intrusion on Corbett’s privacy and the scanners advance that public interest. Id. 

Corbett argues that the scanners are not narrowly tailored to aviation security 

needs, that the scanners are ineffective for their intended purpose, and that the 

Administration has misled the public as to the likelihood of the threat. But “[t]he 

need to search airline passengers ‘to ensure the public safety can be particularly 

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acute,’ and, crucially, an [advanced imaging technology] scanner, unlike a 

magnetometer, is capable of detecting, and therefore of deterring, attempts to carry 

aboard airplanes explosives in liquid or powder form.” Elec. Privacy Info. Ctr., 

653 F.3d at 10 (quoting Edmond, 531 U.S. at 47–48, 121 S. Ct. at 457). 

“[T]here can be no doubt that preventing terrorist attacks on airplanes is of 

paramount importance.” Hartwell, 436 F.3d at 179; see United States v. Marquez, 

410 F.3d 612, 618 (9th Cir. 2005) (“It is hard to overestimate the need to search air 

travelers for weapons and explosives before they are allowed to board the 

aircraft. . . . [T]he potential damage and destruction from air terrorism is 

horrifically enormous.”); Singleton v. Comm’r of Internal Revenue, 606 F.2d 50, 

52 (3d Cir. 1979) (“The government unquestionably has the most compelling 

reasons[—]the safety of hundreds of lives and millions of dollars worth of private 

property[—]for subjecting airline passengers to a search for weapons or explosives 

that could be used to hijack an airplane.”); see also United States v. Yang, 286 F.3d 

940, 944 n.1 (7th Cir. 2002). Corbett argues that the Administration has misled the 

public as to the severity of the threat that terrorism poses to commercial airplanes,

but that suggestion borders on the absurd and the record refutes it. For example, on 

December 25, 2009, a terrorist attempted to detonate a nonmetallic explosive 

device hidden in his underwear while aboard an American aircraft flying over the 

United States, for which Al Qaeda claimed credit. Passenger Screening Using 

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Advanced Imaging Technology, 78 Fed. Reg. 18,287, 18,299 (Mar. 26, 2013). 

Numerous other publicly known incidents of aviation terrorism have involved 

nonmetallic explosives. Id. These reported instances, not to mention those 

incidents unknown to the public, establish that the Administration has reasonably

assessed the threat of aviation terrorism. In any event, the validity of a screening 

program does not “turn[] on whether significant numbers of putative air pirates are 

actually discovered by the searches conducted under the program.” Nat’l Treasury 

Emp. Union v. Von Raab, 489 U.S. 656, 675 n.3, 109 S. Ct. 1384, 1395–96 n.3 

(1989); see Cassidy v. Chertoff, 471 F.3d 67, 83 (2d Cir. 2006) (explaining that the 

government “need not adduce a specific threat” to the ferry system before 

engaging in suspicionless searches). Instead, “[w]hen the Government’s interest 

lies in deterring highly hazardous conduct, a low incidence of such conduct, far 

from impugning the validity of the scheme for implementing this interest, is more 

logically viewed as a hallmark of success.” Von Raab, 489 U.S. at 676 n.3, 109 S. 

Ct. at 1396 n.3.

Contrary to Corbett’s assertion, the scanners effectively reduce the risk of air 

terrorism. See, e.g., Hartwell, 436 F.3d at 179–80. Although this proposition is 

self-evident, Corbett disputes it on the ground that he has circumvented the 

scanners and speculates that the rates of failure and false-positives are high. But 

the Fourth Amendment does not require that a suspicionless search be fool-proof 

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or yield exacting results. See Von Raab, 489 U.S. at 676, 109 S. Ct. at 1396 

(rejecting the argument that drug-testing violates the Fourth Amendment because 

employees may attempt to deceive the test); Cassidy, 471 F.3d at 86 (rejecting the 

argument that screening of ferry passengers violates the Fourth Amendment 

“because it is not sufficiently thorough”); MacWade v. Kelly, 460 F.3d 260, 274

(2d Cir. 2006) (ruling that the deterrent effect of an antiterrorism screening 

program in the New York City subway system “need not be reduced to a quotient” 

to satisfy the Fourth Amendment).

The Supreme Court has explained that the evaluation of effectiveness is “not 

meant to transfer from politically accountable officials to the courts the decision as 

to which among reasonable alternative law enforcement techniques should be 

employed to deal with a serious public danger.” Michigan Dep’t of St. Police v. 

Sitz, 496 U.S. 444, 453, 110 S. Ct. 2481, 2487 (1990). Choosing which technique 

best serves the government interest at stake should be left to those with “a unique 

understanding of, and a responsibility for, limited public resources, including a

finite number of police officers.” Id. at 454, 110 S. Ct. at 2487. “[W]e need only 

determine whether the [scanner] is a reasonably effective means of addressing the 

government interest in deterring and detecting a terrorist attack” at airports.

MacWade, 460 F.3d at 273 (internal quotation marks omitted). Common sense tells 

us that it is. 

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Corbett argues that metal detectors, bomb-sniffing dogs, explosive trace 

portals, and explosive trace detectors would be better substitutes for security 

screening because those methods are less invasive, but we are unpersuaded that the 

Constitution requires these substitutes. Cf. Aukai, 497 F.3d at 962 (“A particular 

airport security screening search is constitutionally reasonable provided that it is no 

more extensive nor intensive than necessary, in the light of current technology, to 

detect the presence of weapons or explosives and that it is confined in good faith to 

that purpose.” (alteration and internal quotation marks omitted)). Metal detectors 

cannot alert officers to nonmetallic explosives, and the United States enjoys 

flexibility in selecting from among reasonable alternatives for an administrative 

search. See Sitz, 496 U.S. at 453–54, 110 S. Ct. at 2487; see City of Ontario, Cal. v. 

Quon, 560 U.S. 746, 764, 130 S. Ct. 2619, 2632 (2010) (“Even assuming there 

were ways that [officers] could have performed the search that would have been 

less intrusive, it does not follow that the search as conducted was unreasonable.”). 

The scanners pose only a slight intrusion on an individual’s privacy, 

especially in the light of the automated target recognition software installed in 

every scanner. The scanners now create only a generic outline of an individual, 

which greatly diminishes any invasion of privacy. Before the agency incorporated 

that software, the District of Columbia Circuit held that the scanners did not violate 

the Fourth Amendment. See Elec. Privacy Info. Ctr., 653 F.3d at 10–11. And to the 

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extent that Corbett’s petition challenges the use of scanners without that software, 

his petition is moot because those scanners no longer operate in any airport. See 

Redfern v. Napolitano, 727 F.3d 77, 84–85 (1st Cir. 2013) (vacating and 

remanding to the district court to dismiss as moot because the Administration 

removed from airport screening checkpoints all “non-ATR-equipped backscatter 

scanners”). 

Corbett also challenges the pat-down procedure, but that procedure as a 

secondary screening technique is a reasonable administrative search. The patdowns also promote the governmental interest in airport security because security 

officers physically touch most areas of passengers’ bodies. Corbett does not 

dispute that the pat-down procedures are effective, but argues that they are 

“extraordinarily intensive” and the “use of fingers to palpate the skin makes the 

TSA’s pat-down procedure the most intensive search ever conducted.” Undeniably, 

a full-body pat-down intrudes on privacy, but the security threat outweighs that

invasion of privacy. And the Administration reduces the invasion of privacy

through several measures: the pat-down is not a primary screening method; a 

member of the same sex ordinarily conducts it; a passenger may opt to have a 

witness present during the search if he desires to have the security officer conduct 

the pat-down in private; and the procedure requires a security officer to use the 

back of his hand while searching sensitive areas of the body. 

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The Fourth Amendment does not compel the Administration to employ the 

least invasive procedure or one fancied by Corbett. Airport screening is a 

permissible administrative search; security officers search all passengers, abuse is 

unlikely because of its public nature, and passengers elect to travel by air knowing 

that they must undergo a search. Hartwell, 436 F.3d at 180. The “jeopardy to 

hundreds of human lives and millions of dollars of property inherent in the pirating 

or blowing up of a large airplane” outweighs the slight intrusion of a generic body 

scan or, as a secondary measure, a pat-down. United States v. Edwards, 498 F.2d 

496, 500 (2d Cir. 1974) (quoting United States v. Bell, 464 F.2d 667, 675 (2d Cir.

1972) (Friendly, C.J., concurring)). 

As a final note, our dissenting colleague argues that a determination on the 

merits is unnecessary because we hold that Corbett’s petition was untimely. 

(Dissent Op. at 27.) But our dissenting colleague relies on opinions stating that

constitutional rulings should be avoided where other outcomes could be reached on 

the merits. See, e.g., United States v. Charles, 722 F.3d 1319, 1332–35 (11th Cir. 

2013) (Marcus, J., specially concurring) (concluding that it was unnecessary to 

answer a constitutional question where it was not required for the holding that 

there was no plain error); Shaw v. Martin, 733 F.2d 304, 314 (4th Cir. 1984)

(declining to rule on a constitutional question where the evidence would not 

support the claim even if the constitutional question were decided in petitioner’s 

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favor). These decisions do not stand for the proposition that a merits issue should 

not be reached if it involves a constitutional question. And here, there is no way to 

resolve the merits without ruling on the constitutional question, so the canon of 

constitutional avoidance is inapposite. 

We make our ruling on the merits because, as our dissenting colleague 

recognizes, the procedural question of timeliness is debatable, and it is not 

jurisdictional. Further, the parties have briefed and argued the merits, and we have 

a complete record. The answer on the merits is clear, as each circuit court to 

examine it has ruled. And the issue will almost certainly recur, perhaps even with 

the same petitioner. Our dissenting colleague’s contention that we should not 

address the merits is odd because she suggests that Corbett did establish reasonable 

grounds for the untimeliness of his petition. (Dissent Op. at 28.) If so, then we 

would be obliged to address the merits of his petition. But our dissenting colleague 

fails to explain how the merits of this controversy should be resolved. 

C. We Grant the Motion to Seal by the Administration and Deny the Motion to 

Unseal by Corbett.

Before oral argument, we carried with the case three issues raised by the 

motion to seal filed by the Administration: (1) whether the copyrighted materials 

should remain under seal; (2) whether Petitioner should have access to the 

sensitive security information; and (3) whether Respondent should be required to 

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file a redacted version of the classified documents or an index with summaries of 

those documents. We now grant that motion to seal. 

As to the copyrighted materials, Eleventh Circuit Rule 25-5 contemplates 

that parties may file under seal “proprietary or trade secret information.” 11th Cir. 

R. 25-5. And every court of appeals in which the Administration has submitted 

proprietary information about the scanner technology has ordered it sealed. See 

Order, Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., No. 10-1157 (D.C. 

Cir. Feb. 22, 2011); Order, Redfern v. Napolitano, No. 11-1805 (1st Cir. Aug. 14, 

2012). The Administration filed under seal the proprietary information—an 

operations manual for an advanced imaging technology scanner—because the 

owner of the information marked the manual with the warning that customers 

“shall not disclose or transfer any of these materials or information to any third 

party” and that “[n]o part of this book may be reproduced in any form without 

written permission” from the company. 

We also grant the motion to seal the sensitive security information because 

Corbett has no statutory or regulatory right to access it. Sensitive security 

information is “information obtained or developed in the conduct of security 

activities[,] . . . the disclosure of which TSA has determined would . . . [b]e 

detrimental to the security of transportation.” 49 C.F.R. § 1520.5(a)(3). The 

Administration may share Sensitive Security Information only with “[c]overed 

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persons” who have a “need to know” the information “to carry out transportation 

security activities.” Id. §§ 1520.7(j), 1520.11(a)(1). Congress has permitted the 

disclosure of sensitive security information during discovery to civil litigants in a

district court who demonstrate a substantial need for it, Department of Homeland 

Security Appropriations Act, 2007, Pub. L. No. 109-295, § 525(d), 120 Stat. 1355,

1382 (Oct. 4, 2006), but Corbett is not a litigant in a district court. We reject his 

suggestion that Congress surely intended to allow litigants in the courts of appeals 

access to sensitive security information because the plain text of the Act suggests 

otherwise. We need not address whether Corbett has established a “substantial 

need” to the information.

Finally, we grant the motion to seal the classified information and do not 

require the Administration to file a redacted version or index. The Classified 

Information Procedures Act “allows the district court to permit the government 

either to redact the classified information or to substitute a summary or a statement 

of factual admissions in place of the classified documents.” United States v. 

Campa, 529 F.3d 980, 995 (11th Cir. 2008) (describing 18 U.S.C. app. 3 § 4). 

Corbett fails to identify a corresponding statute for civil litigants. And, as a 

practical matter, Corbett did not need the classified information to argue his case.

We earlier entered a temporary order denying Corbett’s motion to release 

him from his nondisclosure agreement, and we now deny that motion permanently

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for two reasons. First, the Clerk of this Court caused the mishap that allowed the 

third party source to obtain the For Official Use Only information, and we do not 

prejudice the Administration for an error it did not commit. Second, Corbett likely 

breached his nondisclosure agreement by posting this privileged information on his 

blog and by sharing that information in an interview. 

III. CONCLUSION

We DISMISS Corbett’s petition for review as untimely. In the alternative, 

we DENY Corbett’s petition because the challenged screening procedure does not 

violate the Fourth Amendment. We also GRANT the motion to seal by the 

Administration and DENY the motion to unseal by Corbett.

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MARTIN, Circuit Judge, dissenting:

The majority does what the Supreme Court, our Court, and many other 

courts have cautioned not to do, and therefore I respectfully dissent.

The opinion finds that Mr. Corbett’s petition is untimely, and he failed to 

establish a reasonable ground for his delay in filing it. If that is true, the case is 

over. Instead the opinion continues on with an unnecessary holding “in the 

alternative,” Panel Op. at 2, which reaches the merits of Mr. Corbett’s petition, and 

finds no violation of the Fourth Amendment.

Long ago, the Supreme Court explained that courts should not “decide 

questions of a constitutional nature unless absolutely necessary to a decision of the 

case.” Burton v. United States, 196 U.S. 283, 295, 25 S. Ct. 243, 245 (1905); see 

also Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S. Ct. 152, 

154 (1944) (“If there is one doctrine more deeply rooted than any other in the 

process of constitutional adjudication, it is that we ought not to pass on questions 

of constitutionality . . . unless such adjudication is unavoidable.”). Other courts 

adhere to this maxim. See, e.g., Shaw v. Martin, 733 F.2d 304, 314 (4th Cir. 1984)

(“[W]e should not decide a constitutional question when a factual ground exists for 

our decision.”). And until now, our Court has generally followed this precept as 

well. See, e.g., United States v. Charles, 722 F.3d 1319, 1334 (11th Cir. 2013) 

(Marcus, J., specially concurring) (“Declining to address an unnecessary 

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constitutional question preserves the unique place and character, in our scheme, of 

judicial review of governmental action for constitutionality, and pays heed to 

considerations of timeliness and maturity, of concreteness, definiteness, certainty, 

and of adversity of interests affected.” (quotation marks omitted)). I do not 

understand why we ignore this established principle here.

1

I am also concerned by the majority’s conclusion that Mr. Corbett did not 

establish a reasonable ground for the timing of his filing. The opinion states: “We 

have recommended that petitioners file concurrent petitions in multiple courts 

where jurisdiction is not clear.” Panel Op. at 14. For support, it cites only one 

case, Greater Orlando Aviation Authority v. Federal Aviation Administration, 939 

F.2d 954 (11th Cir. 1991). And in citing that case, the majority says that I “fail[] to 

acknowledge” that in Greater Orlando, this Court “advised” the petitioner to file 

two appeals concurrently. But I do fully acknowledge that in Greater Orlando, this 

Court observed that the Greater Orlando Aviation Authority could have at the same 

time pursued (1) a state court appeal of a zoning board decision; and (2) an appeal 

in the 11th Circuit of a Federal Aviation Administration decision that ultimately 

 

1 The majority claims that the opinions cited here “stat[e]” that courts should only avoid 

ruling on constitutional grounds “where other outcomes could be reached on the merits.” Panel 

Op. at 22. None of the opinions make that statement. Nor do others. See, e.g., Ashwander v. 

Tennessee Valley Authority, 297 U.S. 288, 347, 56 S. Ct. 466, 483 (1936) (Brandeis, J., 

concurring) (“The Court will not pass upon a constitutional question although properly presented 

by the record, if there is also present some other ground upon which the case may be disposed 

of. . . . Thus, if a case can be decided on either of two grounds, one involving a constitutional 

question, the other a question of statutory construction or general law, the Court will decide only 

the latter.”).

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related to the location of a new airport in Orlando. What I absolutely do fail to 

acknowledge, however, is that this Court’s observation in the Greater Orlando

decision somehow stands for the proposition that here, Mr. Corbett should have 

known to file identical briefs, asserting identical claims in both the District Court 

and this Court at the same time. Greater Orlando simply does not sanction this 

practice and neither does this Court’s jurisprudence as a whole. 

To the contrary, we have cautioned against the possibility of “resources 

wasted when two courts unnecessarily proceed along the same track and at the 

same time.” Maharaj v. Sec. for Dep’t of Corr., 432 F.3d 1292, 1307 (11th Cir. 

2005); see also Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S. 

Ct. 400, 402 (1982) (“[A] federal district court and a federal court of appeals 

should not attempt to assert jurisdiction over a case simultaneously.”). 

Given Mr. Corbett’s pro se status, his active pursuit of this challenge was 

anything but “quixotic,” as the majority characterizes it at one point. Panel Op. at 

15 (quotation marks omitted). Cf. Sierra Club v. Skinner, 885 F.2d 591, 594 (9th 

Cir. 1989) (“We find it difficult to believe that someone among Sierra Club’s legal 

advisers did not sound a note of caution as to jurisdiction.”). Mr. Corbett’s pursuit 

appears to me to have been methodical and diligent. Shortly after the Supreme 

Court confirmed he chose the wrong forum, he immediately filed here. I do not 

believe he should be penalized for doing so. This is especially true where there is 

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no allegation of bad faith, the filing deadline is not jurisdictional, and there is no 

prejudice to the government.

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