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H.R. 4930 (114th): TSARA

The text of the bill below is as of Apr 13, 2016 (Introduced).


I

114th CONGRESS

2d Session

H. R. 4930

IN THE HOUSE OF REPRESENTATIVES

April 13, 2016

(for himself and Mr. Nunes) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To ensure appropriate protections and redress for travelers, consistent with the transportation security and national security of the United States, and for other purposes.

1.

Short title

This Act may be cited as the Transportation Security and Redress Act or TSARA.

2.

Judicial review procedures for persons delayed or prohibited from boarding

(a)

Exclusive remedy

Except as provided in subsection (b), no court of the United States or of any State or political subdivision thereof shall have jurisdiction over any claim, including a constitutional claim, related to or arising out of a decision to delay or prohibit a person from boarding a commercial aircraft because such person has been identified as a threat by the Transportation Security Administration or the Terrorist Screening Center. Any petition filed under subsection (c) shall be the sole and exclusive judicial remedy for any claim described in this section against the United States, any United States Government department or agency, or any component or official of any such department or agency.

(b)

Exclusive jurisdiction and time of filing

(1)

Exclusive Jurisdiction of the United States Court of Appeals

Any petition for review under subsection (c), as well as any claims arising out of the same facts and circumstances that could have been set out in such petition, including any challenge to an individual’s identification as a threat by the Transportation Security Administration or the Terrorist Screening Center, shall be filed only 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 where such person’s principal place of business is located.

(2)

Scope of Review

The court of appeals in which the petition is filed shall have jurisdiction to decide all relevant questions of law. The court of appeals shall have exclusive jurisdiction to affirm, amend, modify, or set aside any part of the final decision under review, and may order the Transportation Security Administration or Terrorist Screening Center to conduct further proceedings.

(3)

Time for Filing

The petition filed under subsection (c), as well as any claims related to such petition, must be filed not later than 60 days after a final order or final decision is issued pursuant to the administrative redress process established by section 44903, 44909, or 44926 of title 49, United States Code. The court of appeals may allow the petition to be filed after the 60th day only if good cause is shown for not filing by the 60th day.

(c)

Petition for review

A petition for review may be filed by any person who challenges a final administrative redress decision by the Transportation Security Administration to delay or prohibit such person from boarding a commercial aircraft because such person has been identified as a threat by the Transportation Security Administration or the Terrorist Screening Center. No petition may be filed under this subsection unless and until the person filing such petition has exhausted the administrative redress process established by section 44903, 44909, or 44926 of title 49, United States Code.

(d)

Requirement for an administrative record and procedures for judicial review

Notwithstanding any other provision of law, the following procedures shall apply to a petition filed pursuant to subsection (c):

(1)

The United States shall file with the court of appeals an administrative record, which shall consist of the information the United States relied upon in support of the final decision under review, as well as any information the petitioner has submitted pursuant to the administrative redress process established by section 44903, 44909, or 44926 of title 49, United States Code.

(2)

All unclassified information contained in the administrative record that is not otherwise privileged or subject to statutory protections shall be provided to the petitioner, and no discovery shall be permitted.

(3)

The administrative record may include unclassified information subject to privilege or statutory protections, which the United States may submit in camera and ex parte.

(4)

Sensitive security information contained in the administrative record may only be provided to petitioner’s counsel pursuant to a protective order in accordance with the regulations and orders issued pursuant to section 114(r) of title 49, United States Code.

(5)

The administrative record may also include classified information, which the United States shall submit to the court ex parte and in camera. The United States shall provide an unclassified summary of the classified information to the petitioner’s counsel pursuant to a protective order, taking into account the circumstances of the case, including the petitioner’s ability to respond to the basis for the final order or final decision, unless the head of the department or agency whose classified information is at issue, or his designee, determines in his discretion that providing a summary could damage the national security of the United States.

(6)

The administrative record may also include information obtained or derived from orders issued pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended (50 U.S.C. 1801 et seq.), without regard to subsections (c), (e), (f), (g), and (h) of section 106, subsections (d), (f), (g), (h), and (i) of section 305, subsections (c), (e), (f), (g), and (h) of section 405, and section 706, of that Act. Whenever the United States intends to use such information against an aggrieved person, it shall provide an in camera and ex parte notice to the court concerning such use.

(7)

Whenever the court of appeals receives a notice pursuant to subsection (d)(6), the court shall review, in camera and ex parte, the application, order, and any other materials that may be submitted by the United States.

(8)

If the court determines that the order was not lawfully authorized, or the information was not obtained in conformity with the order, it shall exclude such information from consideration as part of the administrative record.

(9)

Any classified information, sensitive security information, law enforcement sensitive information, or information that is otherwise privileged or subject to statutory protections, that is part of the administrative record, or cited by the court in any decision, shall be treated by the court and the parties consistent with the provisions of this subsection, and shall remain under seal and preserved in the records of the court to be made available in the event of further proceedings. In no event shall such information be released as part of the public record.

(10)

After the expiration of the time to seek further review, or the conclusion of further proceedings, the court shall return the administrative record, including any and all copies, to the United States. All privileged information or other information in the possession of petitioner’s counsel that was provided by the United States pursuant to a protective order shall be returned to the United States, or the petitioner’s counsel shall certify its destruction, including any and all copies.

(e)

Scope of review

The court of appeals shall decide any petition for review filed under subsection (c) based solely on the administrative record submitted by the United States, including any information which may have been filed with the court in camera and ex parte, and any information submitted by the petitioner during the administrative redress process established by section 44903, 44909, or 44926 of title 49, United States Code. The court shall uphold a final decision issued pursuant to the administrative redress process by the Transportation Security Administration unless such decision was—

(1)

arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law;

(2)

contrary to constitutional right, power, privilege, or immunity;

(3)

in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;

(4)

lacking substantial support in the administrative record taken as a whole, including in the classified information submitted to the court; or

(5)

not in accord with procedures required by law.

(f)

Supreme court review

A decision by the court of appeals under this section may be reviewed by the Supreme Court under section 1254 of title 28, United States Code.

(g)

Rule of construction

Nothing in this section shall be construed as limiting, superseding, or preventing the invocation of, any privileges or defenses that are otherwise available at law or in equity to protect against the disclosure of information.

3.

Definitions

In this Act:

(1)

The term classified information means any information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security and any restricted data, as defined in paragraph r. of section 11 of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).

(2)

The term national security means the national defense and foreign relations of the United States.

(3)

The term sensitive security information shall have the meaning set forth in sections 114(r) and 40119 of title 49, United States Code, and the regulations and orders issued pursuant thereto.

(4)

The term aggrieved person shall have the meaning set forth in sections 1801(k), 1821(2), and 1841(3) of title 50, United States Code.

4.

Application to proceedings

(a)

Effective Date

The amendments made by this Act shall take effect on the date of the enactment of this Act, and shall apply to any pending claim by a person who challenges a final decision by the Transportation Security Administration to delay or prohibit such person from boarding a commercial aircraft because he has been identified as a threat by the Transportation Security Administration or the Terrorist Screening Center.

(b)

Conforming Amendment

The procedures set forth in section 2(d) shall also apply to any petition to review a final order entered pursuant to section 46110 of title 49, United States Code.