[ PUBLISH ] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 1 2

- 15893

________________________ D.C. Docket No. 1:10

- cv - 24106

- MGC

JONATHAN CORBETT , Petitioner , versus

TRANSPORTATION SECURITY ADMINISTRATION , Respondent

.

________________________ Petitio n 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 t his petition for review , Jonathan Corbett alleges that airport screening procedure s violate his right to be free from unreasonable searches

. U.S. Const. amend. IV

. B ut b efore we decide the merits of that argument , w e must decide

Case: 12-15893 Date Filed: 09/19/2014 Page: 1 of 302 whether the 60

- day deadline for filing a petition in the court of appeals , 49 U.S.C. § 46110(a), is ju risdictional and whether Corbett establishe d a reasonable ground for filing his petition more than two years after the Transportation Secu rity Administration deployed the se 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 a n 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 abrogat ed that prior panel precedent

. Those decisions make clear that the 60

- day deadline is not “jurisdictional,” but is instead

a c laim

- 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 []” excuse s his delay . 49 U.S.C. § 46110(a). T he Administration, the district court, and our Court informed Corbett that Congress vested exclusive jurisdiction to hear his petition in our Court. Alterna tively, even if Corbett had timely filed his petition , the screening p rocedure employed by the Admin istration 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 motio n to seal filed by the Adm inistration

.

Case: 12-15893 Date Filed: 09/19/2014 Page: 2 of 303 I. BACKGROUND We divide the background in two parts. First, we discuss the p rocedure 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 Septe mber 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 Secret ary of the Department to “give a high priority to developing, testing, improving, and

Case: 12-15893 Date Filed: 09/19/2014 Page: 3 of 304 deploying, at airport screening checkpoints, equipment that detects nonmetallic, chemical, biological, and radiological weapons, and explosives

. . . . ” Id

. § 44925(a). To fulfill these statut ory mandates, the Administration issues standard operating p rocedures for security screening nationwide . On September 17, 2010, the Ad ministration issued the p rocedure challenged in this petition, which it implemented on October 29, 2010. The p rocedure req uire s the use of advanced imaging t echnology scanners as the primar y screening method at airport checkpoints. If a passenger decline s the scanner or alarms a metal detector or scanner during the primary screening method , he receive s a pat

- down instead

. Th e scanners detect both metallic and non metallic obj ects . Th e 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 non me tallic explosives and other non metallic items that pose a security threat

. The Administration deemed the scanners “the most effective technology available to detect threat items concealed on airline passeng ers. ” But even though the scanners and the new pat

- down p rocedures significantl y improve the detection of non metallic and concealed weapon devices , t he Office of Intelligence of the Administration has concluded that the threat posed by improved

Case: 12-15893 Date Filed: 09/19/2014 Page: 4 of 305 explosive devices and other weapons remains high and that t errorists continue to surveil and attempt to exploit security gaps in airport screening. When t he Adminis tration 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 . T he 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 t he FAA Modernization and Reform Act of 2012 , Pub. L. No. 112

- 95, § 826, 126 Stat. 11, 13 3

– 32 , which required the Adm inistration to equip scanners with a utomat ed t a rget r ecognition software. That software eliminates passenger - specific images and inste ad use s a generic body
contour

. By May 16, 2013, the scanners distributed by the Administration were equipped with the updated software and display ed only a generic body contour

. The Administration last updated the pat

- down procedure in 2012

. The Administration earlier modified the procedure in response to th e suicide bombing aboard a Russian aircraft in August 2004 and twice revised the policy after intelligence revealed that passenger s could conceal contraband in certain areas of their bodies . Later testing revealed that some security officers fail ed 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

Case: 12-15893 Date Filed: 09/19/2014 Page: 5 of 306 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 pat

down occur in a private location. A screener may conduct an o pposite

- gender pat

down only in “extraord inary circumsta nces” as determined by a Federa l Security Director

. B. Procedura l 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 Amendm ent

. 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 s ecurity screening . He asserts that the security officers have denied him access three times because he refused to consent to the searches pre scrib ed by the p rocedure. Corbett argues that substitute screening

measures

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

— are less intrusive and more effe ctive at identifying terrorist threats. In November 2010, C orbett 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 ex clusive jurisdictio n 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

Case: 12-15893 Date Filed: 09/19/2014 Page: 6 of 307 dismissed Corbett’s petition for lack of jur isdiction in April 2011

. We a ffirmed 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). E xactly 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, t he 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. T he record contai n s five kinds of documents: public information; copyrighted and propriety mat erial; “For Of ficial Use Only” documents; documents designated as s ensiti ve security i nformation; 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 non disclosure ag reement to receive access to the For Official U se 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 informa tion. Corbett alleges that a third party obtained hi s brief when it was available online and linked it to a

w ebsite, which includes a 16

- minute interv iew with Corbett discussing this information in his brief. After that incident, Corbett filed a motion to unseal the

Case: 12-15893 Date Filed: 09/19/2014 Page: 7 of 308 For Official Use Only information, which we temporarily denied and instructe d 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 ord er 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 mu st 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 d eny 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 p roc edure constitutes a final or der

. Corbett , 458 F. App’x at 870

– 71; see also Blitz v. Napolitano , 700 F. 3d 733, 739

–

Case: 12-15893 Date Filed: 09/19/2014 Page: 8 of 309 40 (4th Cir. 2012) ; Durso v. Napolitano , 795 F. S upp. 2d 63, 67

– 69 (D.D.C. 2011)

. B ut b efore 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 I s Not Jurisdictional

. T here 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, 9 16 (2004 ). “[A] court’s subject

- matter jurisdiction

can not be expanded to account for the parties’ litigation conduct; a claim

processing 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

. A nd “ 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. F ederal Aviation Administration ,
we held that the 60

- day deadline for filing a petition challenging a final order i s “mandatory and jurisdictional ,” 939 F.2d at 959 (internal quotation marks omitted) , but decision s of the Supreme Court and our Court sitting en banc have ab rogated 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

Case: 12-15893 Date Filed: 09/19/2014 Page: 9 of 3010 review of an administrative decision is a nonjurisdictional claim

- processing rule wh en 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, 51 5

– 16 , 126 S. Ct. 1235, 124 5 (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 provisi on is jurisdictional, we look to its “c ontext, including [the Court’s] interpretation of similar provi sions in many years past .” Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154, 168, 130 S. Ct. 1237, 1248 (2010). I n Henderson , the Supreme Court id entified 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 statut ory context, and the degree of flexibility afforded to poten tial claimants

. 131 S. Ct. at 1204

– 06. T he plain language of the statute in Henderson did “not suggest, much less provide clear evidence, that the [ 120

- day ] provision was meant to ca rry jurisdictional consequences. ” Id. at 1204. Congress placed the deadlin e in a subchapter ti tled “Procedure” instead of the subchapter s 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

Case: 12-15893 Date Filed: 09/19/2014 Page: 10 of 3011 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 th at 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 ov erruled 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

. Avila

Santoyo , 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

. T he text of the statute gave no indic ation that the 90

- day deadline carried jurisdictional consequences. Id. at 1361. Congress pla ced the 90

- day deadline within a section titled “Removal Proceedings,” which addressed various procedural and administrative aspects of a removal proceeding. Id. And t he exceptions to the 90

- day deadline suggested “a certain degree of flexibility that is i nherently 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 i s not jurisdictional. See Avia Dynami cs, Inc. v. F ed. Aviation Case: 12-15893 Date Filed: 09/19/2014 Page: 11 of 3012 Admin. , 641 F.3d 515, 519 (D.C. Cir. 2011). T he 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, how ever 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, t he 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

. I d

. But in another subsection, “Authority of court,” Congress grant ed the courts of appeals exclusive jurisdiction over these kinds of petitions. Id. § 46110(c). Any reference to th at 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 c f. Avia

- Dynamics, Inc. , Case: 12-15893 Date Filed: 09/19/2014 Page: 12 of 3013 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 flexibilit y” that does not sugg e st the deadline is jurisdictional

. See Avila

- Santoyo , 713 F.3d at 1362. In the same way that Henderso n abrogated our precedent in Abdi , Henderson also abrogated our precedent in Gr eater 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 claim

processing rule, not a limitation on our subject

- matter jurisdiction

. 2. Corbett Failed T o Establish a Reasonable Ground for his Delay

. Corb ett’s dogged prosecution of his petition in the district court is not a reasonable ground to excuse his fai lure to file his petition on time in this Court

. S ee Greater Orlando , 939 F.2d at 959

– 60 (ruling that petitioner’s pursuit of state court

Case: 12-15893 Date Filed: 09/19/2014 Page: 13 of 3014 remedies did not excuse failure to file before the 60

- day deadline ); Americopt ers, LLC v. F ed. 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, 59 4 (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 r emedies or procedures to follow” and hi s “ procedural missteps were based on a misapprehension of the law.” Americopters , 441 F.3d at 734

. W e have recommended that petitioners file concurrent petition s in multiple courts where jurisdiction is not clear

. Greater Orlando , 939 F.2d at 959

– 60. Our dissent ing colleague contends that Greater Orlando stands for the proposition that distinct claims must be filed in separate courts. (Dissent Op. at 2 8 .) 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 admoni tions by the Administration, a magistrate judge, the district court, and our Court that we had

Case: 12-15893 Date Filed: 09/19/2014 Page: 14 of 3015 exclusive jurisdiction over his petition. He instead p ursued his Fourth Amendment challenge in the district court for nearly two years. Courts of appeals have excused a petitioner’s delay when the Administration cause d 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 cond uct

— the “quixotic pursuit of the wrong r emedies”

— cannot excuse his delay. Americopters , 441 F. 3d at 734

.

B. Alternative ly , the Screening Procedure I s 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, 45 6 (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. 201 1 ) ; United Stat es v. Aukai , 497 F.3d 955, 962

– 63 (9th Cir. 2007) (en banc); United States v. Hartwell , 436 F.3d 174, 178 (3d Cir.

Case: 12-15893 Date Filed: 09/19/2014 Page: 15 of 3016 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 sch ools, employment, and probation; and “checkpoint” searches such as airport screenings under the administrative search doctrine

. Hartwell , 436 F.3d at 178. Bec ause administrative searches primarily ensure pu blic safety instead of detect criminal wrongdoing, th ey 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 s uspicionless 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 scann ers at airport check points are a reasonable administrative search because the governmental interest in preventing terrorism outweighs the degree of intrusion on Corbett’s privacy and the scanner s advance that public interest. Id

. Corbett ar gues that the sc anners 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 ‘t o ensure the public safety can be particular ly

Case: 12-15893 Date Filed: 09/19/2014 Page: 16 of 3017 acute,’ and, crucially, an [advanced imaging t echnology] scanner, un like a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder f orm.” 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. Mar quez , 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 an d millions of dollars worth of private property[

— ]for subjecting airline passengers to a search for weapons or explosives that could b e used to hijack an airplane.”); see also United States v. Yang , 286 F.3d 940, 944 n.1 (7th Cir. 2002)

. Corbett argues tha t the Administration has misled the
pu blic as to the severity of the threat that terrorism poses to commercial airplanes , b ut that suggestion borders on the absurd and the record refutes it. For example, o n December 25, 2009, a terrorist attempted to deton ate a non metallic 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

Case: 12-15893 Date Filed: 09/19/2014 Page: 17 of 3018 Advanced Imaging T echnology, 78 Fed. Reg. 18, 287, 18 , 299 (Mar. 26, 2013)

. Numerous other publicly known incidents of aviation terrorism have involved nonmetallic explosives. Id. T hese reported instances , not to mention those incidents unknown to the public, establish that the Administration has reasonably

asses sed the threat of aviation terrorism. I n 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 Raa b , 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 search es). 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.” V on Raab , 489 U.S. at 676 n.3, 109 S. Ct. at 1396 n.3

. Contrary to Corbett’s assertion, t he scanners effectively reduce the risk of a ir terrorism

. See, e.g. , Hartw ell , 436 F.3d at 179

– 80

. Although t his p roposition 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
t he Fourth Amendment does not requir e that a suspicionless search be fool

- proof

Case: 12-15893 Date Filed: 09/19/2014 Page: 18 of 3019 or yield exacting results. Se e Von Raab , 489 U.S. at 676, 109 S. Ct. at 1396 (rejectin g 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 v iolates the Fourth Amendment “because it is not sufficiently thorough”); MacWade v. Kelly , 460 F.3d 260, 27 4 (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 Suprem e 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 enfo rcement 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). C hoosing which techni que 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] i s a reasonably effective means of addressing the government interest in deterring and detecting a terrorist attack” at airports. MacWade , 460 F.3d at 2 73 (internal quotation marks omitted) . C ommon sense tells us that it i s. Case: 12-15893 Date Filed: 09/19/2014 Page: 19 of 3020 Corbett argue s that metal detec tors, 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 tha t it is confined in good faith to that purpose.” ( alteration and internal quotation marks omitted) )

. M etal detectors cannot alert officers to non metallic explosives, and the United States enjoys flexibility in selecting from among reasonable alternative s 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 ha ve been less intrusive, it does not follow that the search as conduc ted was unreasonable.”). T he scanners pose only a slight intrusion on an individual’s privacy, especially in the light of the automated target r ecognition software installed in
every sca nner. T he scanners now create only a generic outline of an individual , which greatly di minishes any invasion of privacy . Before t he age ncy incorporated that software , the D istrict 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 t o the

Case: 12-15893 Date Filed: 09/19/2014 Page: 20 of 3021 extent that Corbett’s petition challenges the use of scanner s without that software, h is petition is moot because those scanners no lo nger 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 backscat ter scanners”). Corbett also challenges the pat

- down procedure, but that procedure as a secondary screening technique is a reasonable adminis trative search. The pat

downs also promote the governmental interest in airport security because security

o fficer s physically touch most areas of passenger s ’ 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 int ensive 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 presen t during the search if he desires to have the security officer conduct the pat

- down in private; and the p rocedure requires a security of ficer to use the back of his hand while searching sensitive areas of the body.

Case: 12-15893 Date Filed: 09/19/2014 Page: 21 of 3022 The Fourth Amendment does not compel the Administration to employ the least invasive procedure or one fancied by Corbett. A irport screening is a permissible a dministrative sea rch ; security officers search all passengers, abuse is unlikely because of its pu blic nature, and passengers elect to travel by air knowing that they mu st undergo a search

. Hartwell , 436 F.3d at 180. T he “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 ou r dissenting colleague relies o n 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, 133 2

– 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) (declin ing to rule on a constitutional question where the evidence would not support the claim even if the constitutional question were decided in petitioner’s

Case: 12-15893 Date Filed: 09/19/2014 Page: 22 of 3023 favor)

. The se decisions do not stand for the proposition that a merits issue should
not be reached if i t involves a constitutional question. And h ere, t here is no way to resolve the merits without ruling on the constitutional question , so the canon of constitutional avoidance is inapposite. W e make our ruling on the merits because, as our dissenting coll eague 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 t he 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 2 8 .) 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 con troversy should be resolved. C

. We Grant the Motion to Seal by the Administration and Deny the Motion to Unseal by Corbett. Before oral argument, w e 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 Petiti o ner should have access to the sensitive security information ; and (3) whether Respondent should be required to

Case: 12-15893 Date Filed: 09/19/2014 Page: 23 of 3024 file a redacted version of the classified documents or an index wit h summaries of those documents. We now grant that motion to sea l. As to the copyrighted materials, Eleventh Circuit Rule 25

- 5 contemplates that parties may file under seal “proprietary or trade secret in formation.” 11th Cir. R. 25

- 5 . And every court of appeals in which the Administration has submitted proprietary inf ormation 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. 1 1

- 1805 (1st Cir. Aug. 14, 2012) . The Administration f iled under seal the proprietary informati on

— an operations manual for an a dvanc ed imaging t echnology 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 inf ormation 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 als o grant the motion to seal the sensitive security i nformation because Corbett has no statutory or regulatory r ight to access it. Sensitive security i nformation 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. § 1 520. 5 (a)(3). The Administration may share Sensitive Security Information only with “ [ c ] overed

Case: 12-15893 Date Filed: 09/19/2014 Page: 24 of 3025 persons” who have a “need to know” the information “to carry out transportation security activities.” Id. §§ 1520.7(j), 1520.11(a)(1). Congress ha s permitted the disclosure of sensitive security i nformation during discovery to civil litigants in a district court who demonstrate a substantial need for it, Department of Homel and Security Appropriations Act, 2007, Pub . L. No. 109

- 295 , § 525(d), 120 Stat. 1355, 1382 (Oct. 4, 2006) , b ut Corbett is not a litigant in a district court. We reject his suggestion that Congress surely intended to allow litigants in t he courts of appeals access to sensitive security i nformation because the plai n text of the Act suggests otherw ise . W e need n ot address whether Corbett has establish ed a “substantial need” to the information. Finall y, we grant the motion to seal the classified information and do not require the Administration to file a redacted version or ind ex . The Classified Inf ormation 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 correspondi ng 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 den ying Corbett’s motion to release him from hi s nondisclosure agreement, and we now deny that motion permanently

Case: 12-15893 Date Filed: 09/19/2014 Page: 25 of 3026 for two reasons. First, the Clerk of this Court cause d the mishap that allowed the third party source to obtain the For Official Use Only information, and we do not
pr ejudice t he 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

. I II . 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.

Case: 12-15893 Date Filed: 09/19/2014 Page: 26 of 3027 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 respect fully 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 find s no violation of the Fourth Amendment. Long ago, the Supreme Court explained that courts should not “decide questions of a constitutional nature unless absolutely ne cessary 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 que stions 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

Case: 12-15893 Date Filed: 09/19/2014 Page: 27 of 3028 con stitutional 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 conclusi on 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

ac knowledge” 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 pursu ed (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 state ment . 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 ot her ground upon whi ch 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. ” ). Case: 12-15893 Date Filed: 09/19/2014 Page: 28 of 3029 related to the location of a new airport in Orlando. What I absolutely do fail to acknowledge, howe ver, 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 tim e. 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 Grigg s 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 shoul d 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 omit ted). 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

Case: 12-15893 Date Filed: 09/19/2014 Page: 29 of 3030 no allegation of bad faith, the filing d eadline is not jurisdictional, and there is no prejudice to the government.

Case: 12-15893 Date Filed: 09/19/2014 Page: 30 of 30