                   Not for Publication in West’s Federal Reporter

             United States Court of Appeals
                          For the First Circuit

No. 07-2709

                                ANDREW BARKER,

                                  Petitioner,

                                        v.

                TRANSPORTATION SECURITY ADMINISTRATION;
            UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

                                  Respondent.


             APPEAL FROM THE UNITED STATES TRANSPORTATION

                          SECURITY ADMINISTRATION



                                     Before

                      Boudin, John R. Gibson,* and
                         Howard, Circuit Judges.


     Mark C. O’Connor for petitioner.
     Sarang V. Damle for respondent.



                              November 20, 2009




     *
         Of the Eighth Circuit, sitting by designation.
     JOHN R. GIBSON, Circuit Judge. Andrew Barker seeks review of

action taken by the Transportation Safety Administration (“TSA”)

allegedly in violation of its lawful authority.       Barker alleges

that his due process rights were violated by the TSA’s issuance of

a “warning notice” to him at the conclusion of its investigation

into whether he conveyed a false bomb threat in violation of 49

U.S.C. § 46302.    He asserts that the TSA lacked legal authority to

issue such a notice.     In the alternative, he argues that if the

agency was within its authority to issue the warning notice, that

it violated his due process rights by doing so without affording

him a full administrative hearing.        He seeks rescission of the

warning notice and an injunction preventing the TSA from issuing

future warning notices in connection with actual, alleged, or

suspected violations of 49 U.S.C. § 46302. We conclude that Barker

lacks standing to bring these claims and we dismiss the petition

for review.

                             Background

     On August 24, 2006, Andrew Barker was scheduled to travel from

Detroit Metropolitan Wayne County Airport (DMW) to New York’s

LaGuardia Airport on Northwest Airlines flight 538 departing at

7:19 p.m.     Barker had traveled the previous day from Atlanta to

Detroit, on his way home to New York following a lengthy business

trip.   Barker arrived several hours early for his flight.        He

checked a single bag, received a boarding pass, and left the


                                 -2-
airport to attend a meeting.               At approximately 7:25 p.m., Barker

arrived at the departure gate for his flight and a Northwest

Airlines gate agent informed him that there was no longer a seat

available for him.           A dispute arose between the gate agent and

Barker concerning whether he could still board the flight.                      Barker

eventually requested that his checked luggage be returned to him

and he was instructed that it could not be removed from the plane

and that he would have to wait for a supervisor to arrive.                  Several

witnesses then heard Barker make a reference to a bomb being in the

bag, although witness statements varied as to the precise language

used.         A   second   gate    agent   overheard     Barker’s     statement   and

instructed the first to contact the airport police.                     Barker then

attempted to retract the statement.                  The gate agent contacted the

DMW Airport Police and the Federal Bureau of Investigation was also

informed.         Law enforcement officials arrived and Barker was taken

into custody.         A subsequent search of Barker’s luggage revealed

that it did not contain a bomb and no charges were filed.

     On September 12, 2006, the TSA sent Barker a written “letter

of investigation” informing him that it was investigating his

alleged        violation   of     49   U.S.C.    §   463021   for   conveying    false


        1
            49 U.S.C. § 46302(a):
                Civil Penalty.- A person that, knowing the
                information to be false, gives, or causes to
                be given, under circumstances in which the
                information reasonably may be believed, false
                information about an alleged attempt being
                made or to be made to do an act that would

                                           -3-
information and threats to Northwest Airlines personnel.                           The

letter informed Barker that, as part of the TSA’s investigation, he

was being afforded an opportunity to “submit, in writing, any

information regarding th[e] matter.” The following month, Barker’s

attorney   submitted       a    letter    on    Barker’s     behalf     denying    the

allegations       and   pointing    out    various     inconsistencies       in    the

witnesses’    statements.          In    November,     the     TSA   concluded     its

investigation and the inspector assigned to the incident concluded

that Barker had violated 49 U.S.C. § 46302 by conveying false

information of a bomb threat and recommended that he be given a

$500 civil penalty. The agency did not follow that recommendation.

Instead, ten months later, it issued a “warning notice” informing

Barker that the investigation was complete and that a violation of

§ 46302 “may have occurred.”              The warning notice set forth the

language     of    §    46302     and     concluded:     “At     this    time,     the

Transportation      Safety      Administration     has     determined     that    this

Warning Notice adequately addresses the incident.”

     After receiving the warning notice, Barker’s attorney wrote a

letter to the TSA arguing that the warning notice did not actually

“provide any ‘warning’” to Barker and that therefore, its only

purpose must have been to create a formal record against Barker



           violate sections 46502(a), 46504, 46505, or
           46506 of this title, is liable to the United
           States Government for a civil penalty of not
           more than $10,000 for each violation.

                                          -4-
that could be used against him by the TSA in the future.                        The

letter also    expressed concerns that the TSA had acted outside of

its legal authority by issuing the notice.                     The TSA replied,

assuring Barker that the warning notice was not a public record,

was not subject to Freedom of Information Act (FOIA) requests,2 and

that it would not result in Barker’s placement on a “no-fly” list.

The TSA also stated that it had the authority to issue the warning

notice and that it would not repeal its decision to do so.

Thereafter, on November 13, 2007, Barker filed the present petition

for review in this Court, invoking jurisdiction under 49 U.S.C. §

46110.

                                 Discussion

     Barker alleges that the TSA’s issuance of a warning notice to

him following its investigation into his alleged violation of 49

U.S.C. § 46302 was outside the scope of the agency’s authority.

Barker argues that the statute provides only for the issuance of a

civil penalty, not a warning notice, and that although the TSA has

regulatory    authority    to    issue    a     warning   notice      for   alleged

violations    of   other   statutes       for    which    it   has    enforcement

responsibilities,    it    has    no     such    authority     with    regard    to




     2
      Specifically, the TSA indicated that “If [it] received a
request to release the warning notice under [FOIA] or otherwise,
the agency would excise all of Mr. Barker’s identifying information
on privacy grounds, so that document would not be attributable to
him.”

                                       -5-
investigations under § 46302.3

     In response to Barker’s petition, the TSA argues that Barker

has failed to allege any “cognizable legal or practical consequence

flowing    from    the   TSA’s   issuance   of    the   Warning   Notice”   and

therefore this Court lacks jurisdiction over Barker’s claims.

More specifically, the TSA argues that this Court is without

jurisdiction “under either the rubric of Article III standing, or

principles of administrative law that require an order to be

‘final’ before it can be reviewed.”              The TSA also addresses the

merits, arguing that its issuance of a warning notice was within

its lawful authority and comported with due process.

     Because Article III standing is required for this Court to

exercise jurisdiction, we must determine its presence at the

outset.    See Donahue v. City of Boston, 304 F.3d 110, 117 (1st Cir.

2002) (“[T]his Court must resolve questions pertaining to its

subject-matter jurisdiction before it may address the merits of a

case.”).    “The doctrine of constitutional standing reflects the

fundamental       limitation     of   judicial     power   to     ‘Cases’   and

‘Controversies,’ under Article III of the Constitution.”              Sutliffe



     3
      After oral argument in this case, the TSA revised its
regulations.   See 74 Fed. Reg. 36,030 (July 21, 2009).         The
regulations now provide that the TSA may issue a warning notice for
“a violation or an alleged violation” of any “TSA requirement.”
See 49 C.F.R. § 1503.301(a). Although we decide this case on the
basis of standing, we note that this change in the TSA’s
regulations would render moot Barker’s request to enjoin the TSA
from issuing such warning notices in the future.

                                      -6-
v. Epping School Dist., 2009 WL 2973115, at * 8 (1st Cir. September

17, 2009) (internal quotation marks and citation omitted). To have

Article III standing, a plaintiff must establish: "(1) [he] has

suffered      an     ‘injury     in   fact'     that   is    (a)      concrete    and

particularized and (b) actual or imminent, not conjectural or

hypothetical; (2) the injury is fairly traceable to the challenged

action of the defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision."     Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,

528   U.S.    167,    180-81     (2000)     (quoting   Lujan     v.   Defenders    of

Wildlife, 504 U.S. 555, 560-561 (1992)).                “The burden of stating

facts sufficient to support standing rests with the party seeking

to assert federal jurisdiction.”              Sea Shore Corp. v. Sullivan, 158

F.3d 51, 54 (1st Cir.1998).

      Here, Barker has failed to allege any concrete actual or

imminent injury.        As to actual injury, Barker argues that having

received a letter that the TSA was unauthorized to send damaged his

“liberty interests.”            Barker has not, however, identified what

“liberty interests” are supposedly affected. Indeed, Barker admits

that the warning notice “does not request or require . . . Mr.

Barker   to    take    any     corrective     action   or   to   comply   with    any

regulatory matter under the TSA’s jurisdiction.”                      This nebulous

argument is at best a claim of procedural error which does not

excuse the absence of an actual injury.                     “[D]eprivation of a


                                          -7-
procedural right without some concrete interest that is affected by

the deprivation – a procedural right in vacuo – is insufficient to

create Article III standing." Summers v. Earth Island Inst., 129 S.

Ct. 1142, 1151 (2009).     Barker has failed to allege any actual,

concrete interest that was affected by issuance of the letter.

       The other consequences Barker suggests may stem from the

warning notice have yet to occur and are anything but imminent.

Barker argues that if he is ever the subject of another TSA

investigation, the warning notice will be in his file and may be

used   against   him.   Such   a   consequence,   however,   is   far   too

speculative to meet the “injury in fact” requirement of Article

III.   See Ctr. for Law and Educ. v. Dep’t of Educ., 396 F.3d 1152,

1161 (D.C. Cir. 2005) (no standing where “[a]ppellants alleged

direct injury styled as ‘increased risk,’ in the form of giving the

States the opportunity to injure Appellants’ interests”); see also

National Counsel of La Raza v. Gonzales, 468 F.Supp.2d 429, 438-440

(E.D.N.Y. 2007) (rejecting claim of “heightened risk” of future

arrest by placement of plaintiff’s immigration data into the NCIC

database as too speculative to constitute an injury in fact).

Further, should such a future investigation occur, Barker could

assert due process claims in connection with those proceedings.

Barker also alleges that reputational harm may result from the

TSA’s decision to place the warning notice in Barker’s TSA file.

He has not, however, alleged that this confidential record has or


                                   -8-
ever will be accessed by the public.               In fact, Barker has received

assurances from the TSA to the contrary and it is Barker, not the

TSA, who made this matter public by filing this lawsuit.                    See id.

at 444 (“The speculation that at some point in the future some

unauthorized party may access plaintiffs' file in violation of a

plaintiff members' privacy right does not satisfy the requirement

that plaintiffs identify an ‘actual or imminent,’ ‘concrete and

particularized’ injury.”).

      We conclude that Barker lacks Article III standing because he

has   failed   to    allege     an   actual   or    imminent     injury    in   fact.

Accordingly, this Court can not exercise jurisdiction over his

claims.

                                     Conclusion

      For   the     foregoing    reasons,     the     Petition    for     Review   is

dismissed.




                                        -9-
