Case: 23-10284       Document: 64-1     Page: 1    Date Filed: 07/22/2024




        United States Court of Appeals
             for the Fifth Circuit                              United States Court of Appeals
                                                                         Fifth Circuit
                             ____________                              FILED
                                                                   July 22, 2024
                              No. 23-10284
                                                                  Lyle W. Cayce
                             ____________
                                                                       Clerk

Adis Kovac; Bashar Aljame; Abraham Sbyti; Suhaib
Allababidi; Fadumo Warsame,

                                                     Plaintiffs—Appellants,

                                   versus

Christopher Wray, Director of the Federal Bureau of Investigation, in
his official capacity; Charles H. Kable, Director of the Terrorist
Screening Center, in his official capacity; Deborah Moore, Director,
Transportation Security Redress (OTSR), in her official capacity; Nicholas
Rasmussen, Director of the National Counterterrorism Center, in his official
capacity; David P. Pekoske, Administrator Transportation Security
Administration (TSA), in his official capacity; Kevin K. McAleenan,
Acting Commissioner United States Customs and Border Protection, in his
official capacity,

                                        Defendants—Appellees.
               ______________________________

               Appeal from the United States District Court
                   for the Northern District of Texas
                         USDC No. 3:18-CV-110
               ______________________________

Before Barksdale, Southwick, and Graves, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
      The Plaintiffs are a group of American citizens who complain they are
subject to enhanced screening measures at airport security because they have
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                                      No. 23-10284


been placed on a “terrorist watchlist.” They sued the heads of various fed-
eral agencies connected to the watchlist, asserting numerous constitutional
and statutory claims. The sole issue on appeal is whether the relevant agen-
cies have statutory authority to create, maintain, and administer the watch-
list. At summary judgment, the district court determined the agencies have
statutory authority. We AFFIRM.
             FACTUAL AND PROCEDURAL BACKGROUND
        The Plaintiffs are five Muslims who are United States citizens, four of
whom reside in Dallas, Texas, and the fifth resides in New Jersey. They al-
lege they have been put on what is officially called the Terrorist Screening
Dataset (“Watchlist”). The Watchlist contains two sub-lists: (1) the No-Fly
List, which automatically excludes individuals from flying; and (2) the Se-
lectee List, which contains individuals who are subject to “additional security
screening” before they may be permitted to board. Four of the Plaintiffs al-
lege they are on the Selectee List because they have been subject to enhanced
screening on multiple occasions, including prolonged interrogations, border
searches, and having “SSSS” printed on their boarding passes. 1 Plaintiff
Adis Kovac alleges he is on the No-Fly List because he has been prevented
from boarding a commercial flight and possibly the Selectee List because he
is frequently subject to enhanced screening.
        Each Plaintiff utilized the Department of Homeland Security’s
(“DHS”) Traveler Redress Inquiry Program (“TRIP”). This program al-
lows individuals who believe they have been improperly subjected to en-
hanced screening or prohibited from flying to obtain additional review of their
        _____________________
        1
          The “SSSS” designation indicates that enhanced screening is required. This
designation may appear on passengers’ boarding passes because they are on the Selectee
List, “ random selection,” or for “reasons unrelated to any status.” Ghedi v. Mayorkas, 

 (5th Cir. 2021).




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                                     No. 23-10284


status and to correct any errors or to alter their status based on new infor-
mation. See 

, .205. Because of security concerns, the
Government’s policy is to neither confirm nor deny a person’s Selectee List
status; those on the No-Fly List will be apprised of their status and may ob-
tain judicial review. 

. As a result, the Selectee List Plain-
tiffs received no-confirm-no-deny letters from DHS. DHS confirmed, how-
ever, that Plaintiff Kovac was on the No-Fly List. 2
        In January 2017, the Plaintiffs sued the heads of various federal agen-
cies that maintain or use the Watchlist, in their official capacities (collec-
tively, “Government”). 3 The Plaintiffs allege violations of their Fifth
Amendment procedural and substantive due process and equal protection
rights, unlawful agency action under the Administrative Procedure Act
(“APA”), 

(2), and violations of the nondelegation doctrine.
On the Government’s motion to dismiss, the district court dismissed all
claims against CBP for failure to prosecute, the substantive and procedural
due process claims in part, the equal protection claims, and the nondelegation
claims against all Defendants. See Kovac v. Wray, 

, 747–
48, 762–63 (N.D. Tex. 2019) (“Kovac I”). In July 2019, Plaintiff Kovac was
notified that he was removed from the No-Fly List, and the district court dis-
missed his related claims as moot. Kovac v. Wray, 

, 654–
56 (N.D. Tex. 2020) (“Kovac II”). In November 2020, the district court
dismissed the Plaintiffs’ remaining constitutional claims, leaving only the


        _____________________
        2
        When the Plaintiffs filed their complaint, DHS had yet to respond to Kovac’s
TRIP request. This confirmation came in April 2018.
        3
         The agencies include: the Federal Bureau of Investigation (“FBI”), the Terrorist
Screening Center (“TSC”), the Transportation Security Administration (“TSA”), DHS,
the National Counterterrorism Center (“NCTC”), and the Customs and Border
Protection (“CBP”).




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                                       No. 23-10284


APA claims. Kovac v. Wray, No. 3:18-CV-110, 

, at *5 (N.D.
Tex. Nov. 6, 2020) (“Kovac III”). None of those decisions are before us.
        At summary judgment on the APA claims, the Plaintiffs argued both
that the major questions doctrine applies in this case and that the Govern-
ment exceeded its authority because Congress never clearly authorized the
Watchlist. The Government’s actions against the Plaintiffs, therefore, vio-
lated 

(2)(C). They also asserted their alleged placement on
the Selectee List was arbitrary and capricious. § 706(2)(A). Finally, they
maintained the TRIP process is arbitrary and capricious because it does not
provide a meaningful opportunity to correct erroneous information and dis-
tinguishes between the No-Fly and Selectee Lists. Id.
        The district court agreed that the major questions doctrine applied be-
cause of the Watchlist’s “vast political significance.” Kovac v. Wray, 

, 563–65 (N.D. Tex. 2023) (“Kovac IV”). Nevertheless, the
court concluded that Congress “clearly authorized” the Watchlist by analyz-
ing numerous factors, only some of which pertained to the relevant statutes.

 at 565–69. The court further determined that, even if the Plaintiffs had
been placed on the Watchlist, 4 the TRIP procedures were not arbitrary and
capricious. 

 at 569–72. The Plaintiffs timely appealed.
                                     DISCUSSION
        We review the grant of summary judgment de novo, “applying the
same standard as the district court.” Lamb v. Ashford Place Apartments LLC,

 (5th Cir. 2019) (citation omitted). Summary judgment
should be granted “if the movant shows that there is no genuine dispute as

        _____________________
        4
          The district court emphasized that “[n]othing in this opinion should be construed
as confirming or denying the [Plaintiffs’] status on or off the [W]atchlist.” 

 at 569 n.85.
Similarly, our opinion neither confirms nor denies the Plaintiffs’ status.




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                                  No. 23-10284


to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “Issues of statutory interpretation are also
reviewed de novo.” United States v. Arrieta, 

 (5th Cir. 2017)
(italics added). “This [c]ourt may affirm on grounds other than those relied
upon by the district court” when supported by the record. Lauren C. ex rel.
Tracey K. v. Lewisville Indep. Sch. Dist., 

 (5th Cir. 2018) (ci-
tation omitted).
       The sole issue on appeal is whether the Government has statutory au-
thority to create, maintain, and use the Watchlist to screen passengers board-
ing commercial aircraft. If we answer in the negative, then we must “hold
unlawful and set aside” the Government’s actions regarding the Watchlist as
they relate to the Plaintiffs. 

(2)(C); see also Loper Bright Enters.
v. Raimondo, 

, 2261 (2024) (“In addition to prescribing pro-
cedures for agency action, the APA delineates the basic contours of judicial
review of such action.” (citing 

)).
I.     Statutory interpretation and the major questions doctrine
       The district court started its analysis with the major questions doc-
trine and concluded that the doctrine applies because “the [W]atchlist has
vast political significance.” Kovac IV, 660 F. Supp. 3d at 565. As support,
the district court explained the Watchlist “consists of over a million people,”
the Government may add “an unlimited number of people” to it, “liberty
intrusions . . . flow from the [W]atchlist,” and the Watchlist can be distrib-
uted between federal and state agencies in numerous ways. Id. After apply-
ing its understanding of the elements of the doctrine, the district court deter-
mined that the Government acted properly. Id. at 565–69.
       We conclude that the district court should have started with the rele-
vant statutory texts, not with the doctrine about major questions. “[S]tatu-
tory interpretation must begin with, and ultimately heed, what a statute




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                                  No. 23-10284


actually says.” Groff v. DeJoy, 

 (2023) (quotation marks
and citation omitted). The analysis ends with the statutory text “if the text
is unambiguous.” BedRoc Ltd. v. United States, 

 (2004).
Only when there is ambiguity should other analytical steps be taken. See, e.g.,
Vitol, Inc. v. United States, 

 (5th Cir. 2022). Consequently,
before proceeding to the major questions doctrine, courts must first examine
the statutory text to discern if it is ambiguous as to the Government’s as-
serted authority. See West Virginia v. EPA, 

, 722–23 (2022). We
now examine the statutory text.
II.    Statutory text, structure, and history
       Before exploring the dense statutory landscape of this case, we iden-
tify what we are looking for. The Plaintiffs’ principal statutory discussion
pertains to TSA’s authority under 

 and 44903. They de-
scribe these statutes as “so vague as to barely warrant discussion.” The
Plaintiffs’ primary contention is that TSA’s statutory obligation to protect
airline passengers is not specific enough to authorize use of the Watchlist.
Where the statute is more specific, they argue it is still not enough because it
does not mention the word “watchlist.” See 

(h). Even if
TSA is authorized to use the Watchlist, the Plaintiffs maintain “TSA does
not create, administer, or maintain the [W]atchlist,” and the entity that does,
TSC, lacks statutory authority to do so. As to the other agencies, the Plain-
tiffs argue that statutes authorizing their general law-enforcement duties do
not confer sufficient authority to create, maintain, and use the Watchlist. See

; 

, 202; 

 et seq.
       Of course, statutes cannot be viewed in isolation, and statutory inter-
pretation requires considering the context and structure of the overall statu-
tory scheme. West Virginia, 

. Our analysis, therefore, goes




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                                  No. 23-10284


beyond the isolated statutes the Plaintiffs identify. As we go, we will highlight
where the Plaintiffs’ arguments falter.
       a.     Aviation and Transportation Security Act
       Immediately following the September 11, 2001, terrorist attacks, Con-
gress created TSA and included in its duties the oversight of passenger
screening operations at domestic airports. Aviation and Transportation Se-
curity Act, 

, 

 (2001) (codified at

). Congress instructed TSA to “enter into memoranda of
understanding with Federal agencies . . . to share or otherwise cross-check as
necessary data on individuals identified on Federal agency databases who may
pose a risk to transportation or national security.” § 101(h)(1) (codified at

(h)(1)) (emphasis added). Congress mandated TSA use in-
formation from government databases “to identify individuals on passenger
lists” that may pose a threat and, if necessary, “prevent the individual from
boarding an aircraft.” § 101(h)(3) (codified at 

(h)(3)). Con-
gress also required TSA to adopt “enhanced security measures” to “aid in
the screening of passengers . . . who are identified on any State or Federal se-
curity-related data base” and to coordinate amongst airport security forces.
§ 109(a)(5) (codified at 

 note (Enhanced Security Measures))
(emphasis added). TSA assesses security threats “jointly” with the FBI.

(a).
       Thus, the statutory authority for TSA to collect, share, and screen
identifying information about airline passengers, and to use that information
to prevent certain passengers from boarding or to conduct enhanced screen-
ing, is clear. They are not vague as the Plaintiffs argue. The Plaintiffs protest,
however, that Section 114 does not use the word “watchlist.” That word will
come, but it is worth noting the term “terrorist watchlist” is only the com-
mon term for the Watchlist. Its official name is the Terrorist Screening




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                                        No. 23-10284


Dataset, and it was previously named the Terrorist Screening Database.
Those words appear in Section 114(h) and its accompanying note, and similar
variations of those words are common in the overall scheme. We now return
to that discussion.
        b.       Homeland Security Act
        In 2002, Congress recognized the need for “Federal, State, and local
entities [to] share homeland security information to the maximum extent
practicable.”      Homeland Security Act of 2002, 

(c), 

 (codified at 

(c)). Accordingly, Con-
gress created DHS 5 and provided the President statutory authority to pre-
scribe procedures by which “all appropriate agencies . . . shall . . . share
“homeland security information” with appropriate Federal and State agen-
cies and personnel. 6 § 892(b)(1) (codified at 

(b)(1)). These
procedures applied to existing information-sharing systems and new ones
that may be created. § 892(b)(2), (4) (codified at 

(b)(2), (4)).
Congress also authorized DHS to access “broad categories of mate-
rial, . . . electronic databases, or both,” and to harmonize “relevant infor-
mation databases” across federal agencies. §§ 201(d)(15)(A), 202(b)(1)
(codified at 

(d)(12)(A), 122(b)(1)) (emphasis added). This is
where the Plaintiffs’ argument that DHS lacks clear statutory authority re-
lated to the Watchlist begins to fall apart.


        _____________________
        5
        In doing so, Congress transferred TSA from the Department of Transportation
to DHS. § 403(2) (codified at 

(2)).
        6
          “[H]omeland security information” is defined as “any information possessed by
a Federal, State, or local agency that — (A) relates to the threat of terrorist activity;
(B) relates to the ability to prevent, interdict, or disrupt terrorist activity; (C) would
improve the identification or investigation of a suspected terrorist or terrorist organization;
or (D) would improve the response to a terrorist act.” 

(f)(1).




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                                 No. 23-10284


       c.     HSPD-6 and the IRTPA
       Pursuant to the authority under the Acts discussed above, President
Bush in 2003 signed Homeland Security Presidential Directive 6 (“HSPD-
6”), which, along with an inter-agency memorandum of understanding, in-
structed the Attorney General to create the TSC under the administration of
the FBI. HSPD-6 sought “to consolidate the Government’s approach to ter-
rorism screening” through the Terrorist Threat Integration Center
(“TTIC”).     President Bush later incorporated TTIC into the NCTC
through an executive order. Exec. Order No. 13,354, 

(Aug. 27, 2004). The executive order directed the NCTC to create, inte-
grate, disseminate, and ensure intra- and inter-governmental access to data
and reports concerning terrorism information. 

       In the Intelligence Reform and Terrorism Prevention Act of 2004
(“IRTPA”), 

, § 119, 

 (codified
as amended at 

), Congress codified the NCTC and its duties
and authority. Today, as then, one of the NCTC’s duties is to “develop a
strategy for combining terrorist travel intelligence” and law enforcement ef-
forts to “intercept . . . and constrain terrorist mobility.”       Sec. 1021,
§ 119(f)(1)(F) (codified as amended at 

(f)(1)(F)). To sup-
port the NCTC’s efforts, the IRTPA authorized DHS to establish a program
regarding terrorist travel, “including the analysis, coordination, and dissemi-
nation of terrorist travel intelligence and operational information” with rele-
vant agencies, such as TSA and CBP. IRTPA § 7215 (codified at 

) (emphasis added); see also § 7201 (counterterrorist travel intelligence
strategy). Congress further sought to enhance the Government’s infor-
mation-sharing structure by creating an “information sharing environment.”
§ 1016 (codified at 

). This tool “facilitates the means for shar-
ing terrorism information” with relevant governmental entities, “connects
existing systems,” “ensures direct and continuous online electronic access to



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                                 No. 23-10284


information,” and “builds upon existing systems capabilities” used by the
Government. § 1016(b)(2) (codified at 

(b)(2)) (emphasis
added).
       The IRTPA also made significant changes to airport passenger screen-
ings. Congress charged DHS and TSA to implement “advanced passenger
prescreening” and specifically required the agencies “to assume the perfor-
mance of . . . comparing passenger information to the automatic selectee and
no fly lists and utilize all appropriate records in the consolidated and inte-
grated terrorist watchlist maintained by the Federal Government in perform-
ing that function.”     § 4012(a)(1) (codified as amended at 

(j)(2)(C)) (emphasis added). While TSA has such authority for do-
mestic travel, CBP, as DHS’s designee, has essentially the same authority for
international arrivals. § 4012(a)(2)(B) (codified as amended at 

(c)(6)); see also 

 (Aug. 23, 2007) (final rule re-
quired under 

(c)(6)). The IRTPA further required DHS
to consult with TSC to establish procedures “for the collection, removal, and
updating of data maintained, or to be maintained, in the no fly and automatic
selectee lists.”   § 4012(a)(1) (codified as amended at 

(j)(2)(E)(iii)) (emphasis added). Congress also instructed DHS to
implement appeal procedures for those identified as a threat. 

 (codified as
amended at 

(j)(2)(G)).
       Through the combined effects of HSPD-6 and the IRTPA, the Gov-
ernment’s Watchlist authority begins to take shape. Along with statutorily
directed inter-agency memoranda of understanding, HSPD-6 and the IRTPA
created and codified, respectively, the TSC, TTIC, and NCTC and their
roles and powers in creating, administering, and maintaining the Watchlist,
building off existing systems with the goal of disseminating the information
with appropriate agencies for more effective use. In doing so, Congress cer-
tainly imagined, indeed required, that an agency like TSC would do this



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                                 No. 23-10284


work. Contrary to the Plaintiffs’ arguments, the agencies’ authority is not
solely derived from their general law enforcement statutes. We also see re-
peated invocation of the Plaintiffs’ magic words — “watchlist” or “terrorist
watchlist” — and specific directions to screen airline passengers against the
“selectee and no fly lists.”        

(j)(2)(C), (E)(iii),
44909(c)(6). Although the Plaintiffs take issue with these words not appear-
ing in some provisions that make up the statutory scheme, the provisions that
do use the term cannot be ignored. See Sturgeon v. Frost, 

, 438–
39 (2016). And there is still more to come.
       d.     9/11 Commission Act
       To further promote homeland security information sharing Congress
enacted the Implementing Recommendations of the 9/11 Commission Act of
2007, 

, 

 (codified in scattered provi-
sions of 6 U.S.C.). DHS was required to develop a homeland security advi-
sory system and “integrate” and “standardize” terrorism and homeland se-
curity information for greater dissemination and access. Sec. 501, §§ 203,
204 (codified as amended at 

, 124a). DHS was further in-
structed to establish “a comprehensive information technology network ar-
chitecture . . . that connects the various databases and related information
technology assets” to “promote internal information sharing.” Sec. 501, § 205
(codified as amended at 6 U.S.C. § 124b) (emphasis added). TSA was obli-
gated to develop and distribute a “Transportation Security Information
Sharing Plan” to enhance interagency coordination. 9/11 Commission Act
§ 1203(a) (codified at 

(t)).
       To provide a means for passengers to contend “they were wrongly
identified as a threat under the regimes utilized” by TSA, CBP, or other DHS
entities, Congress codified more robust appeal and redress procedures than
what was included in the IRTPA. § 1606(a) (codified at 

).




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                                       No. 23-10284


It established the Office of Appeals and Redress and regulated the records,
information, and handling of private information, such as requiring encryp-
tion and other security protections. 

 The Office of Appeals and Redress
is required to furnish necessary information to TSA, CBP, and other DHS
entities to “improv[e] their administration of the advanced passenger pre-
screening system and reduce the number of false positives.” 

 (codified at 

(b)(3)(B)) (emphasis added). 7
        The import of this Act is that based on the collective lessons learned
from the September 11 terrorist attacks, Congress determined more terror-
ism-related information sharing between appropriate agencies was necessary.
Further, working from experience, Congress recognized that many people
may be mistakenly swept under the broad authority it was conferring, so it
provided more robust redress procedures for those affected. This seriously,
if not fatally, undermines the Plaintiffs’ argument that Congress never in-
tended for relevant federal agencies to exercise such powers. It clearly did.
Congress’s more recent enactments confirm as much.
        e.        Further enactments
        The statutory scheme just described remains largely unchanged since
its enactment. When Congress has modified parts of it, it has done so by
reaffirming the Government’s authority to maintain and use the Watchlist.
For example, in the FAA Reauthorization Act of 2018, 

, 

 (codified at 

(j)), Congress codified
TSA’s PreCheck Program, which required participants to submit to “recur-
rent checks against the terrorist watchlist.” (emphasis added). In the same
Act, Congress took significant steps towards applying the aviation passenger

        _____________________
        7
            What resulted was DHS’s TRIP, which we previously mentioned the Plaintiffs
used.




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                                   No. 23-10284


vetting scheme to railroad passengers, including “vetting passengers using
terrorist watch lists maintained by the Federal Government” or the TSA.
§ 1974(c)(1) (codified at 

 note (Passenger Rail Vetting)) (em-
phasis added). Congress also amended the statute regulating grants to
Amtrak so the corporation can “connect to the National Terrorism Screening
Center watchlist” for enhanced security. § 1973(b)(1) (amending 

(a)(3)(D)) (emphasis added); see also § 1973(a)(3) (amending 

(b)(7)). In its brief, the Government notes other instances in which
Congress directed agencies to maintain, disseminate, or use the Watchlist for
security purposes, albeit not directly related to aviation passengers. 

(10), 622(d)(2), 488a(i)(2)(A), 1140, 1181(e)(2), 1162(e)(2); 

(j)(2)(D), 44917(c)(2); 

(a), (d).
         “[G]uided to a degree by common sense,” it is implausible to con-
clude that Congress would expand use of the Watchlist program if it truly be-
lieved it were unauthorized. FDA v. Brown & Williamson Tobacco Corp., 

 (2000). That Congress’s words became more specific over
time does not undermine the agencies’ prior authority, but rather confirms
Congress intended to build on what already exists. 

 at 137–39.
                               *        *         *
         The foregoing demonstrates the Government’s Watchlist authority
rests on far more than vague authorizing statutes. Instead, the statutory
scheme is highly complex and exists today after years of congressional enact-
ments, presidential actions, and congressional ratifications and enhance-
ments.
         The Government suggests that another way to understand this array
of statutory authorities is to view them as a stacked Venn diagram, wherein
broader statutory authority encircle narrower ones. At its broadest level,
Congress has authorized agencies like the FBI, DHS, and NCTC to collect,




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                                  No. 23-10284


investigate, and analyze terrorist-related intelligence. See 

,
534(a), 538; 

(d)(1), (12); 

(d)(1). At the next,
more specific level, Congress instructs these agencies, with direction from
the President, to share and coordinate such intelligence with other federal
agencies and state and local officials. See 

, 123(c)(4), 124,
124a(a), (c)(1), 124b, 126(a), 482(a)(1)(A), (b)(1), 485(b); 

(t).
At the next, more specific level, Congress directs various agencies, including
TSA and CBP, to screen persons against the shared and consolidated intelli-
gence (i.e., the Watchlist) in various situations. See 

(d)(2),
1162(e)(2),   1181(e)(2);    

(j)(2),    44909(c)(6)(A),
44917(c)(2), 44919(j). Finally, at the most specific level that directly applies
to this case, Congress requires TSA and CBP to coordinate with the TSC and
commercial airlines to screen commercial airline passengers against the No
Fly and Selectee Lists. 

(h), 44903(j)(2), 44909(c)(6).
       Certainly, the Government has broad and detailed statutory authority
to screen airline passengers. The Plaintiffs’ arguments to the contrary there-
fore fail. We next consider the Plaintiffs’ remaining arguments.
III.   Ratification
       To overcome the Government’s clear statutory authority, the Plain-
tiffs argue Congress cannot authorize — or more properly perhaps, ratify —
a previously unauthorized agency action. That is both factually and legally
mistaken. It is factually mistaken because the Government’s clear statutory
authority existed at least six years before any alleged injury to the Plaintiffs,
the earliest of which occurred in 2013. “Agency actions must be assessed
according to the statutes and regulations in effect at the time of the relevant
activity.” Texas v. EPA, 

 (5th Cir. 2016). It is legally mis-
taken because, even if the initial creation of individual agencies’ lists prior to
2001 or 2004 were not authorized, Congress’s ratification of their creation,




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                                      No. 23-10284


maintenance, and use would “give the force of law to official action unau-
thorized when taken.” Swayne & Hoyt v. United States, 

, 301–
02 (1937). This is a long-settled principle. 8
IV.     Other Watchlist uses
        The Plaintiffs’ final contention is that the relevant statutes do not au-
thorize the entirety of the Watchlist program and its uses. Specifically, the
Plaintiffs argue Congress never authorized the Government to maintain or
administer the Watchlist for use in immigration proceedings, traffic stops,
permitting, licensing, and firearm purchases. As a result, being on the
Watchlist “ensnar[es] [the Plaintiffs] in an invisible web of consequences im-
posed indefinitely and without recourse.” This, they say, makes the entirety
of the Watchlist program beyond the scope of congressional authorization.
        The fundamental reason the Plaintiffs’ argument fails is they lack
standing to raise it. The Plaintiffs bear the burden of demonstrating they sat-
isfy the familiar Article III standing requirements of (1) an injury in fact that
is (2) fairly traceable to the defendant’s challenged conduct and (3) will likely
be redressable by a favorable opinion. Friends of the Earth, Inc. v. Laidlaw
Env’t Servs. (TOC), Inc., 

, 180–81 (2000) (citing Lujan v. Defs.
of Wildlife, 

, 560–61 (1992)). The alleged injury in fact must be
both “concrete,” meaning “it must actually exist,” and “particularized,”
meaning “it must affect the plaintiff in a personal and individual way.”
Spokeo, Inc. v. Robins, 

, 339–40 (2016) (quotation marks and ci-
tation omitted). Future injury may be sufficient for Article III standing, but
the “threatened injury must be certainly impending”; “allegations of possible

        _____________________
        8
         See Fleming v. Mohawk Wrecking & Lumber Co., 

 (1947); Charlotte
Harbor & N. Ry. Co. v. Welles, 

, 11–12 (1922); Mattingly v. District of Columbia,

 (1878).




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                                   No. 23-10284


future injury are not sufficient.” Clapper v. Amnesty Int’l USA, 

 (2013) (emphasis in original) (quotation marks and citations omitted).
Furthermore, “standing is not dispensed in gross”; “the right to complain
of one administrative deficiency [does not] automatically confer[] the right to
complain of all administrative deficiencies” from which the plaintiff has not
been injured. Lewis v. Casey, 

, 358 n.6 (1996) (emphasis in orig-
inal).
         Here, the Plaintiffs failed to show that they have suffered any adverse
consequence unrelated to airport security resulting from their alleged place-
ment on the Watchlist. The Plaintiffs are United States citizens, and their
alleged injury is being subject to enhanced airport screenings because of their
purported placement on the Watchlist. Any immigration consequences of
their alleged placement, therefore, do not personally or concretely injure the
Plaintiffs. See Spokeo, 578 U.S. at 339–40. Although it is possible the Plain-
tiffs could be injured if their alleged placement on the Watchlist adversely
affects them during a traffic stop, firearm purchase, or license application,
they have not demonstrated that such injuries have occurred or are “certainly
impending.” Clapper, 

 (emphasis in original). Instead, the
only personal injury they allege is having to undergo TSA’s enhanced screen-
ings at airport security and, in Plaintiff Kovac’s case, being prevented from
boarding a flight.
         To avoid this conclusion, the Plaintiffs argue that “once an agency’s
power is called into question by a plaintiff who has suffered [an] Article III
injury, courts consider the full range of the agency’s asserted power, even if
the plaintiff has not been harmed by every aspect of the agency’s congressionally
unauthorized actions.” As support for this broad proposition, the Plaintiffs
cite two Supreme Court cases involving major questions. See Alabama Ass’n
of Realtors v. HHS, 

 (2021); Utility Air Regul. Grp. v. EPA, 

 (2014). Neither case, however, supports the Plaintiffs’ proposition.



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                                 No. 23-10284


       In Alabama Association of Realtors, the Supreme Court held the Center
for Disease Control and Prevention’s (“CDC”) eviction moratorium ex-
ceeded its statutory authority. 594 U.S. at 759–60. Although the Plaintiffs
here concede that the moratorium applied to the plaintiffs in that case, they
argue it supports their proposition because the Court discussed the penalties
the CDC could impose on violators even though none of the plaintiffs suf-
fered such a penalty. 

 at 764–65. There, the Court was discussing what
the CDC itself said would be the penalties for moratorium violators in the
order under review. 

 at 765 (citing 

, 43,252 (Aug. 6,
2021)). Because the plaintiffs themselves would be subject to such penalties
if they violated the order, the “application of the regulations by the Govern-
ment [would] affect them” in a personal and concrete way. Summers v. Earth
Island Inst., 

, 493–94 (2009) (emphasis in original). Here, there
is no indication that the Plaintiffs themselves have been or are likely to be
subject to the Government’s maintenance and use of the Watchlist apart
from airport security.
       In Utility Air Regulatory Group, the Supreme Court held that the En-
vironmental Protection Agency (“EPA”) exceeded its statutory authority by
treating greenhouse gases as a “pollutant” under a statutory regime regulat-
ing the permit needs of certain emission sources. 573 U.S. at 325–26. At one
point, the Court discussed the “numerous small sources not previously reg-
ulated” under the Clean Air Act, such as “large office and residential build-
ings, hotels, large retail establishments, and similar facilities,” that the EPA
predicted could be regulated if it chose to regulate greenhouse gases. 

 at
310 (quoting 

, 44,498–99 (July 30, 2008)). The Plaintiffs
here use this discussion to support their proposition because the Court “did
not pause to ask whether the challenged regulations’ effect” on the




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                                       No. 23-10284


previously unregulated entities “would injure petitioner Utility Air Regula-
tory Group.” 9
        The Plaintiffs’ reliance on this case, however, is misplaced. To start,
the quoted discussion is the Court’s review of the EPA’s prior concerns over
possible regulation of greenhouse gases articulated in an advanced notice of
proposed rulemaking. 

. The discussion says nothing about the ac-
tual effects of the final rules the petitioners challenged. See 

 at 311–13 (de-
scribing the final rules). More importantly, the Utility Air Regulatory Group
members were subject to the challenged final rules because they were electric
utilities. See 

, 31,514 (June 3, 2010); Brief for Petitioner
Utility Air Regulatory Group at x, Utility Air Regul. Grp. v. EPA, 

(2014) (No. 12-1146), 

, at *x. Although the Supreme Court
did not address standing extensively, it concluded the petitioners had stand-
ing because the rules essentially imposed a new permitting regime for green-
house gases discharged above an administratively created emissions thresh-
old. See Utility Air Regul. Grp., 573 U.S. at 325. This, the Court said, was an
impermissible “rewriting of the statutory thresholds” that “went well be-
yond the bounds of [the EPA’s] statutory authority.” Id. at 325–26 (quota-
tion marks and citation omitted).
        Here, the Plaintiffs do not argue or suggest that they have been or are
likely to be imminently injured by use of the Watchlist in situations unrelated
to airport security. Accordingly, they lack standing to challenge the Govern-
ment’s use of the Watchlist in such circumstances. See Summers, 555 U.S. at
493–94. The cases they cite do not support the sweeping proposition that
they can challenge all uses of the Watchlist because they are injured by only
        _____________________
        9
           The Plaintiffs overlook the fact that there were numerous petitioners in that case,
including several states. Id. at 313. Only one of the petitioners had to demonstrate standing
to satisfy Article III. See Bowsher v. Synar, 

 (1986).




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                                    No. 23-10284


one of them. Lewis, 

 n.6. Indeed, “[i]t would be quite strange
to think that a party experiences an Article III injury by not being affected by
an unlawful action . . . or not being more affected by such action.” Depart-
ment of Educ. v. Brown, 

, 564 (2023) (emphasis in original).
       Our conclusion that the Plaintiffs have no standing as to the Watchlist
uses unrelated to airport security should not be read as also implying a lack
of statutory authority. We simply have no constitutional authority to review
an issue for which no actual controversy is presented.
                                *        *         *
       The Government’s creation, maintenance, and use of the Watchlist in
screening passengers in commercial air travel does not exceed its statutory
authority in violation of 

(2)(C). Because the Government’s
statutory authority in this case is unambiguous, we do not reach the issue of
whether the major questions doctrine applies in this case.
       AFFIRMED.




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