Michael Muir v. United States Department of Homeland Security and Transportation Security Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2025 Decided July 25, 2025
No. 22-1318
M ICHAEL M UIR,
PETITIONER
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND
TRANSPORTATION SECURITY ADMINISTRATION,
RESPONDENTS
On Petition for Review of Final Order
of the Transportation Security Administration
William R. Weaver, appointed by the court, argued the
cause and filed the briefs as amicus curiae in support of
appellant.
Michael Muir, pro se, argued the cause and filed the briefs
for appellant.
Joshua Waldman, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief were
Brett A. Shumate, Acting Assistant Attorney General, and
Sharon Swingle, Attorney.

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Before: PILLARD and CHILDS , Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge CHILDS .
Opinion concurring in part and dissenting in part filed by
Senior Circuit Judge RANDOLPH.
CHILDS , Circuit Judge: Since childhood, Petitioner
Michael Muir alleges that he has lived with what he describes
as a congenital birth defect that presents as a hernia in his right
scrotum. Muir contends that his hernia causes him to
experience various problems ranging from severe pain to
potentially life-threatening partial strangulation of his
intestines. Muir filed a petition challenging the Transportation
Security Administration’s (TSA) Final Rule, which authorized
its use of scanners that use electromagnetic radiation—known
as Advanced Imaging Technology (AIT) scanners—to screen
airline passengers at airport security screening checkpoints.
See Passenger Screening Using Advanced Imaging
Technology, 81 Fed. Reg. 11,364, 11,365 (Mar. 3, 2016).
TSA posits that “AIT is the most effective technology
currently available to detect both metallic and non-metallic
threat items concealed on passengers.” Id. However, for Muir,
AIT scanners equipped with Automatic Target Recognition
(ATR) software inevitably flag his hernia as a threat object,
which requires TSA agents to perform pain-inducing and
potentially life-threatening pat-downs of his groin area.
Accordingly, Muir implores us to hold that the Final Rule and
TSA’s standard operating procedures (SOPs) are arbitrary and
capricious, contrary to TSA’s statutory authority, and violate
protections afforded under Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794.

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We grant Muir’s petition in part and remand the matter to
TSA for further proceedings to determine whether
implementation of Muir’s requested accommodation under the
Rehabilitation Act will impose an undue burden on the
agency.1 We deny the petition in all other respects.
I.
A.
The terrorist attacks of September 11, 2001, significantly
altered airport security measures. Soon afterward, Congress
established TSA, see Aviation and Transportation Security
Act, Pub. L. No. 107–71, 115 Stat. 597 (Nov. 19, 2001), and
made it responsible “for the screening of all passengers and
property” boarding passenger airplanes, 49 U.S.C. § 44901(a),
and developing regulations prohibiting airlines from
transporting passengers who refuse to consent to the screening,
id. § 44902(a)(1). As a result, Congress charged TSA with
ensuring that passengers did not board a commercial airline
flight carrying dangerous weapons, explosives, or destructive
substances. Id. §§ 44901(a), 44902(a)(1).
Three years later, Congress enacted the Intelligence
Reform and Terrorism Prevention Act of 2004, Pub. L. No.
108–458, 118 Stat. 3638 (Dec. 17, 2004), and directed TSA to
develop “a strategic plan to promote . . . deployment of
explosive detection equipment at airports to screen individuals
and their personal property . . . includ[ing] walk-through
explosive detection portals, document scanners, shoe scanners,
and backscatter x-ray scanners.” 49 U.S.C. § 44925(b)(1).
And after a spate of attempted terror attacks involving
1 Our colleague dissents only insofar as he would hold that we lack
jurisdiction to consider Muir’s request for an accommodation
pursuant to the Rehabilitation Act.

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nonmetallic explosives, Congress further directed the
Department of Homeland Security (DHS), the Cabinet-level
department overseeing TSA, to “give a high priority to
developing, testing, improving, and deploying” a new
technology at airport screening checkpoints “that detects
nonmetallic, chemical, biological, and radiological weapons,
and explosives.” Id. § 44925(a). TSA responded to these
directives by prescribing the details of the screening process in
a set of SOPs2 and by barring any person from entering the
“sterile area”3 of an airport “or board[ing] an aircraft without
submitting to the screening and inspection of his or her person
. . . in accordance with the procedures being applied to control
access to that area or aircraft.” 49 C.F.R. § 1540.107(a).
In 2007, TSA initially deployed AIT scanners as
secondary screening measures, but by 2010 AIT scanners were
the primary method of screening. “AIT creates an image of the
full body that highlights objects that are on the body.” J.A.
196. TSA deploys AIT scanners that use “non-ionizing radio
frequency energy in the millimeter wave spectrum to generate
an image based on the energy reflected from the body,” J.A.
197, and “detect metallic and non-metallic objects on an
individual’s body or concealed in his clothing without physical
contact,” 81 Fed. Reg. at 11,365. An example of the image
generated by millimeter wave AIT appears below:
2 “TSA’s SOPs are internal documents that contain instructions for
[Transportation Security Officers (TSOs)] on how to operate
equipment and conduct screening. TSOs receive extensive training
to perform screening as described in the SOPs. These documents are
[Sensitive Security Information] and cannot be shared with the
public.” 81 Fed. Reg. at 11,386.
3 “Sterile area” is defined as the area of an airport “that provides
passengers access to boarding aircraft and to which the access
generally is controlled by TSA . . . through the screening of persons
and property.” 49 C.F.R. § 1540.5.

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J.A. 198.
“If an anomaly is detected [during the scan of a passenger],
a pat-down of the area where the anomaly is located is usually
performed to determine if a threat is present.” 81 Fed. Reg. at
11,365. “A pat-down may include inspection of the head, neck,
arms, torso, legs, and feet[,]” as well as “sensitive areas such
as breasts, groin, and the buttocks.” Security Screening, TSA,
https://www.tsa.gov/travel/security-screening (last visited
Mar. 5, 2025) (“Pat-Down Screening” drop-down box). TSA
provides limited screening accommodations for those with
disabilities and medical conditions, but the agency emphasizes
that persons with such conditions must also “undergo screening
at the checkpoint.” Disabilities and Medical Conditions, TSA,
https://www.tsa.gov/travel/tsa-cares/disabilities-and-medical-
conditions (last visited Mar. 5, 2025). However, also, once an
individual has begun the screening process, with or without
accommodation, he or she must complete it. 81 Fed. Reg. at
11,382. “Individuals are not allowed to leave partway
through.” Ramsingh v. TSA, 40 F.4th 625, 629 (D.C. Cir.
2022).
B.
On July 15, 2011, in response to an earlier legal challenge

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asserting that TSA failed to engage in rulemaking regarding the
decision to use AIT for primary screening, we remanded the
matter for TSA “to conduct a notice-and-comment
rulemaking.” Elec. Priv. Info. Ctr. v. DHS, 653 F.3d 1, 8 (D.C.
Cir. 2011). As TSA explained in the preamble to its resultant
proposed Rule, by that time Congress had responded to privacy
concerns about AIT scanner-generated passenger images in the
FAA Modernization and Reform Act of 2012, Public Law 112-
95, which imposed a further requirement on TSA
to ensure that all AIT used to screen passengers must
be equipped with and employ automatic target
recognition (ATR) software. 49 U.S.C. § 44901(l).
That software eliminates passenger-specific (i.e.,
individual) images and instead indicates the location
of potential threats on a generic outline. Since May
2013, all AIT units deployed by TSA have been
equipped with ATR capability.
81 Fed. Reg. at 11,365. The following is an image from an AIT
scanner using ATR:
J.A. 199.
As required by this Court, TSA issued a Notice of Public

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Proposed Rulemaking regarding AIT on March 26, 2013.
Passenger Screening Using Advanced Imaging Technology, 78
Fed. Reg. 18,287 (Mar. 26, 2013). The proposal was designed
to “codif[y] the use of AIT to screen individuals at aviation
security screening checkpoints,” id. at 18,289, and account for
the additional requirement to use ATR. The Final Rule
regarding AIT screening with ATR was promulgated on March
3, 2016.4 81 Fed. Reg. 11,364.
C.
Muir asserts that he is “a qualified individual with a
disability under 42 U.S.C. § 12102 because” of his hernia. J.A.
109 ¶ 2. Muir claims that he is “symptomatic every day for at
least some part of the day.” J.A. 110 ¶ 3. Moreover, there is
no way for him to tell when this partial intestinal incarceration
is life-threatening.
On August 9, 2018, Muir alleges that he attempted to
board a flight departing from Phoenix-Mesa Gateway Airport
while symptomatic. The AIT scanner identified a potential
threat object located at Muir’s right groin. As a result, a TSA
agent allegedly performed a physical pat-down of Muir’s right
groin area despite his protestations causing him extreme mental
and physical pain and suffering. Three days later, on August
12, 2018, Muir allegedly experienced the same hardship
boarding a flight leaving General Wayne A. Downing Peoria
International Airport.
After his experiences in August 2018, Muir sent TSA a
proposal on November 1, 2019, requesting an informal
discussion pursuant to 28 C.F.R. § 14.6 about his security
4 We use “AIT scanners” or “AIT scanning” hereafter as a shorthand
for AIT scanners equipped with ATR software.

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screening issues, which TSA subsequently denied on
November 19, 2019. Muir then filed a complaint with DHS’s
Office for Civil Rights and Civil Liberties (CRCL) on
December 15, 2019, alleging discrimination based on his
disability. On January 7, 2020, CRCL closed Muir’s complaint
and took no action.
On December 1, 2022, while standing in the security
screening line at St. Pete-Clearwater International Airport,
Muir contends that he realized that his hernia was not
reducible—meaning he could not return the displaced tissue to
its normal position—before passing through the AIT scanner.
Alyssa Pastorino & Amal A. Alshuqayfi, Strangulated Hernia,
Nat’l Libr. of Med., https://perma.cc/3HLU-28RN (last
updated Dec. 19, 2022). Faced with having to endure another
painful pat-down, Muir did not board his flight.
Approximately two weeks later, he filed pro se a petition for
review on December 14, 2022, asking us to set aside the Final
Rule as unlawful.5 Thereafter, we appointed amicus curiae to
present arguments on behalf of Muir. 6
II.
We have jurisdiction over Muir’s petition. 49 U.S.C.
§ 46110. In reviewing a petition under § 46110, we uphold the
agency’s decision unless it is “‘arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law,’ or
unsupported by ‘substantial evidence.’” Suburban Air Freight,
Inc. v. TSA, 716 F.3d 679, 681 (D.C. Cir. 2013) (first quoting
5 U.S.C. § 706(2)(a); and then quoting 49 U.S.C. § 46110(c)).
5 Muir named both DHS and TSA in his petition. DHS is no longer
a party to this action after we dismissed all claims against it for lack
of standing.
6 We express our gratitude to William Weaver, Haley Tuchman, and
Michelle Li for their service.

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The arbitrary and capricious standard requires that the agency
action be “reasonable and reasonably explained.” POET
Biorefining, LLC v. EPA, 970 F.3d 392, 409 (D.C. Cir. 2020)
(citation omitted). We will uphold the agency’s determination
if it “examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action including a ‘rational
connection between the facts found and the choice made.’”
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington
Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
III.
Muir, aided by appointed amicus, challenges the Final
Rule and TSA’s SOPs on several grounds. First, Muir contends
that TSA’s use of AIT scanners with ATR technology does not
comport with statutory requirements and is therefore contrary
to law. Second, amicus asserts that TSA’s failure to respond to
comments raising concerns with the use of AIT scanners on
travelers with disabilities renders the Final Rule arbitrary and
capricious. Third, amicus also claims that TSA’s failure to
provide alternative screening procedures for passengers with
internal disabilities is arbitrary and capricious. Finally, Muir
and amicus argue that the Final Rule and TSA’s SOPs, as
applied to Muir, violate Section 504 of the Rehabilitation Act
of 1973.
Before analyzing any of those issues, we address Muir’s
pending motion to supplement the administrative record with
additional documentation from a prior action in the United
States District Court for the District of Arizona. We deny this
motion as the supplemental information is unnecessary to our
decision. As to his other claims, we conclude that Muir’s
Rehabilitation Act claim succeeds, but all other challenges are
either forfeited or meritless.

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A.
Before we consider the merits of his petition, Muir must
overcome an administrative exhaustion requirement. Under
§ 46110(d), we have jurisdiction to “consider an objection to
an order of the [TSA] . . . only if the objection was made in the
proceeding conducted by [TSA].” 49 U.S.C. § 46110(d). This
provision requires a petitioner to raise a rulemaking challenge
or point to where another party raised “the same objection[],”
during the notice-and-comment process. Vaughn v. FAA, 756
F. App’x 8, 12 (D.C. Cir. 2018) (citing § 46110(d)). Thus, we
in turn may only review those arguments the administrative
agency had the opportunity to consider in the first instance.
Advocs. for Highway & Auto Safety v. Fed. Motor Carrier
Safety Admin., 429 F.3d 1136, 1150 (D.C. Cir. 2005) (“[A]
party will normally forfeit an opportunity to challenge an
agency rulemaking on a ground that was not first presented to
the agency for its initial consideration.”); Omnipoint Corp. v.
FCC, 78 F.3d 620, 635 (D.C. Cir. 1996) (“As a general rule,
claims not presented to the agency may not be made for the
first time to a reviewing court.”).
1.
First, Muir contends that TSA did not have the statutory
authority to promulgate the Final Rule. He complains that the
Final Rule eliminated “the millimeter wave scanner[’s] . . .
‘visual image’” requirement in contradiction of 49 U.S.C.
§ 44901(l). Pet’r Br. 13. He next protests that it improvidently
replaced “human image operator agents with a narrow artificial
intelligence algorithm as the final decision-maker regarding
potential anomalies present in passenger screening data.” Id.
As to the former, Muir asserts that “Congress require[d] that
the millimeter wave scanner device [used in the screening of

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passengers] create a visual image and the TSA removed the
capability of the device to create a visual image.” Id. at 23. As
to the latter, Muir argues that “there is nothing in § 44901(l) to
suggest that the TSA need[ed] to replace the human image
operator TSO with a narrow artificial intelligence algorithm to
analyze scanned data.” Id.
TSA asserts that Muir forfeited those statutory challenges
to the Final Rule by failing to either raise them during the
public rulemaking proceedings or provide a reasonable ground
for not making the objections. Muir responds that because
other parties articulated the very same objections he raises in
their public comments to TSA, our exercise of jurisdiction is
proper under 49 U.S.C. § 46110(d). Amicus further suggests
that it was reasonable for a person with Muir’s disability to not
monitor the Federal Register for notices of proposed
rulemakings with the potential to affect him.
Here, TSA did not have an opportunity to consider Muir’s
statutory arguments during rulemaking. It is undisputed that
Muir failed to personally raise the challenges, but his specific
claims were also not preserved by other public comments
during the notice and comment period. While some public
comments addressed technological issues, no commenter
raised the very objections that Muir has presented to us.
Therefore, Muir forfeited his statutory challenges to the Final
Rule.
2.
Next, court-appointed amicus asserts that TSA failed to
address publicly raised concerns “that (1) medically disabled
individuals are at a higher risk of triggering false positives by
the AIT scanner, and (2) the subsequent pat-down is simply not
safe for many of those travelers, because they can experience

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severe pain or potentially fatal health complications.” Amicus
Reply Br. 4. Amicus further contends that while TSA
addressed medical issues generally, the agency failed to either
respond to comments or consider procedures for airline
passengers whose medical conditions cause consistent AIT
alerts resulting in pat-downs. In this regard, amicus contends,
TSA’s failure to address the comments concerning disabled
passengers supports the conclusion that the Final Rule was
arbitrary and capricious.
Here, again, there is no dispute regarding whether Muir
raised this two-part disabled passenger objection during
rulemaking, because he did not. However, while some
commenters did reference the profiling of the medically
disabled, see, e.g., J.A. 153, J.A. 160, J.A. 176, and others
complained about the risks associated with pat-downs, see J.A.
147, J.A. 149, J.A. 151, none addressed the distinct burdens on
disabled persons who are simultaneously affected by both.
Thus, TSA had no obligation to respond to Muir’s specific
circumstance when no comment raised anything materially
analogous to bring the issue to its attention. Cf. Unemployment
Comp. Comm’n of Alaska v. Aragon, 329 U.S. 143, 155 (1946)
(“A reviewing court usurps the agency’s function when it sets
aside the administrative determination upon a ground not
theretofore presented and deprives the Commission of an
opportunity to consider the matter, make its ruling, and state
the reasons for its action.”). We therefore hold that court-
appointed amicus’ first challenge to the Final Rule is forfeited
because no party raised the objection during the notice-and-
comment period.
B.
Court-appointed amicus also challenges the Final Rule
because it does not provide alternative screening procedures for

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travelers with internal physical disabilities, even though TSA
routinely uses such alternatives for other categories of
passengers—like PreCheck®7 passengers, passengers carrying
an infant, child, or a small pet, passengers accompanied by
service animals, and at airports that lack AIT scanners. Amicus
argues that because TSA uses the combination of walk-through
metal detectors (WTMDs) and explosive trace detection swab
tests as alternatives for these travelers, it is arbitrary and
capricious to deny requests for alternative screening
procedures for passengers with internal physical disabilities.
TSA responds to amicus’ arguments by pointing out that
alternative screening measures are used for TSA PreCheck®
passengers, children, and the elderly because TSA pre-
determined them to be low-risk travelers. Moreover,
alternative screening measures are available to passengers for
whom AIT screeners cannot successfully produce an image,
because they cannot raise their arms as required, must remain
connected to medical equipment, or must remain accompanied
by service animals and pets. TSA further explained that the
difference between Muir and these passengers lies in the fact
that the latter have external characteristics that are immediately
apparent to TSOs and do not create verification or proof issues
that would be impracticable to administer at security
checkpoints nationwide.
In its explanation, TSA rationally connected the facts
before it to its decision to offer alternative screening
procedures for two categories of passengers—(1) those deemed
a lower security risk based on background checks or other
7 “TSA PreCheck® is an expedited screening program that makes
risk assessments about passengers prior to their arrival at an airport
checkpoint.” TSA PreCheck®, TSA, https://www.tsa.gov/news/pres
s/factsheets/tsa-precheck (last visited June 16, 2025)

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available intelligence; and (2) those whose images AIT
scanners cannot successfully capture—while declining to
provide a similar process for passengers with internal
disabilities like Muir’s. Unlike the first group, passengers with
internal disabilities, like Muir, have not been determined, as a
class, to present a lower security risk. See J.A. 40. And unlike
the second group, passengers with internal disabilities going
through AIT scanners, do not impede the scanners’ ability to
function to produce images of those passengers. See J.A. 60.
Under 49 U.S.C. § 46110’s deferential standard of review, that
is enough to establish that TSA’s decision to exclude
alternative screening methods in the Final Rule for travelers
with internal physical disabilities is not arbitrary and
capricious. Accordingly, we deny court-appointed amicus’
second challenge to the Final Rule. As TSA noted, Muir’s
challenge is more “properly presented and resolved in a claim
under the Rehabilitation Act,” Resp’t Br. 28, to which we now
turn.
C.
Finally, we consider Muir’s claim that the Final Rule and
TSA’s SOPs, as applied to him, violate the Rehabilitation Act
of 1973, 29 U.S.C. §§ 701–797. The Rehabilitation Act
“empower[s] individuals with disabilities to maximize
employment, economic self-sufficiency, independence, and
inclusion and integration into society.” Id. § 701(b)(1). The
Act’s “basic tenet is that the Government must take reasonable
affirmative steps to accommodate the handicapped, except
where undue hardship would result.” Barth v. Gelb, 2 F.3d
1180, 1183 (D.C. Cir. 1993).
Section 504 of the Rehabilitation Act prohibits
discrimination against disabled persons by recipients of federal
funds. 29 U.S.C. § 794. We start by addressing two threshold

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issues. First, Muir’s Rehabilitation Act claim is properly
before us because we, not the district courts, have exclusive
jurisdiction under § 46110(a) to review claims that TSA
“orders” are “not in accordance with law.” Suburban Air
Freight, 716 F.3d at 681. A TSA SOP is such an “order,”
Roberts v. Napolitano, 798 F. Supp. 2d 7, 10 (D.D.C. 2011),
aff’d, 463 F. App’x 4, 4–5 (D.C. Cir. 2012), which Muir asserts
is not in accordance with the Rehabilitation Act. Muir
challenges the SOP, as applied to him, that instructs TSOs to
conduct follow-up pat-downs of body parts flagged by AIT
scanners, a practice that, without appropriate accommodation,
allegedly excludes Muir from participation in TSA’s security
screening. Pet’r Br. 44.
Our dissenting colleague takes the position that we lack
jurisdiction because Muir did not specify any SOP in his
petition for review. He asserts that Muir has accordingly failed
to satisfy the requirements of the Federal Rules of Appellate
Procedure to “specify the order . . . to be reviewed” in the
petition. FED. R. APP . P. 15(a)(2)(C); see Partial Dissent at 1–
2. We disagree. It is true that Muir, a pro se litigant, did not
identify the relevant (nonpublic) SOP in his petition, but only
designated the Final Rule that authorizes it. See Pet. for
Review 1 (J.A. 32). “But a ‘mistaken or inexact specification
of the order to be reviewed’ is ‘not fatal,’ as long as the ‘intent
to seek review of a specific order [i] can be fairly inferred from
the petition for review or from other contemporaneous filings,
and [ii] the respondent is not misled by the mistake.’” Am.
Rivers v. FERC, 895 F.3d 32, 44 (D.C. Cir. 2018) (quoting
Entravision Holdings, LLC v. FCC, 202 F.3d 311, 313 (D.C.
Cir. 2000)) (alterations in original) (emphasis omitted).
Those conditions are met here. Muir’s petition explained
that he is not able to proceed through screening because “the
configuration of the AIT [scanner] . . . algorithmically

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misidentifies [his] hernia as a threat object requiring a pat-
down to resolve.” Pet. for Review 2 (J.A. 33). That statement
sufficed to inform TSA that Muir challenged its direction to
security personnel to conduct follow-up pat-downs of any
potential threat object identified by an AIT scanner—a
direction Muir now knows is spelled out in an SOP. Notably,
TSA claims no prejudice from the petition’s failure to specify
an SOP. Those circumstances show that the petition meets the
requirements of Rule 15(a)(2). Accordingly, we do not believe
either Federal Appellate Rule of Procedure 15(a)(2)(C) or §
46111(a) preclude our exercise of jurisdiction over Muir’s
Rehabilitation Act claim.
Second, TSA suggests Muir’s challenge is foreclosed
because Muir “did not avail himself of the opportunity to bring
an administrative complaint alleging a violation of Section
504.” Resp’t Br. 47. But § 46110(d) excuses the failure to
raise a claim for an accommodation in a proceeding before the
agency “if there was a reasonable ground for not making the”
request. 49 U.S.C. § 46110(d). As discussed below, Muir’s
prior attempts at procuring an accommodation through the
available administrative process were exercises in futility that
excuse him from engaging in yet another such futile attempt.
See Tesoro Refin. & Mktg. Co. v. FERC, 552 F.3d 868, 874
(D.C. Cir. 2009) (observing that the futility exception to
exhaustion is “limited to situations ‘when resort to
administrative remedies [would be] “clearly useless.”’”)
(citation omitted). Although our dissenting colleague is correct
that the futility exception is used sparingly, Partial Dissent at
5, we find present the requisite “certainty of an adverse
decision,” id. (citation omitted), in TSA’s assertion that Muir’s
requested accommodation “would fundamentally alter the
nature of TSA’s security screening program,” Resp’t Br. 14.
See also J.L. v. SSA, 971 F.2d 260, 271 (9th Cir. 1992)
(“Exhaustion is futile where the agency’s position on an issue

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‘appears already set,’ and it is ‘very likely’ what its result
would have been.”). We accordingly need not decide in this
case whether non-employee petitioners bringing Section 504
claims ordinarily must first exhaust their administrative
remedies. Cf. id. at 270 (“[W]e recognize that the
Rehabilitation Act does not require exhaustion of remedies in
all cases.”), rev’d on other grounds, Lane v. Pena, 518 U.S.
187 (1996). We thus proceed to consider the merits of Muir’s
Rehabilitation Act claim.
1.
“To prove a violation of section 504, [complainants] must
show that (1) they are disabled within the meaning of the
Rehabilitation Act, (2) they are otherwise qualified, (3) they
were excluded from, denied the benefit of, or subject to
discrimination under a program or activity, and (4) the program
or activity is carried out by a federal executive agency or with
federal funds.” Am. Council of the Blind v. Paulson, 525 F.3d
1256, 1266 (D.C. Cir. 2008). In addition, the disabled
individual “bears the ‘initial burden’ of showing that a
reasonable accommodation is possible” and “[o]nce that
showing is made, an [agency] may still avoid liability by
showing that the proposed accommodation would impose an
‘undue hardship’ on the [agency]’s operations.” Ali v. Regan,
111 F.4th 1264, 1269 (D.C. Cir. 2024) (citations omitted).
TSA does not dispute Muir’s ability to satisfy the liability
elements of a Section 504 claim, that is, he “is an ‘individual
with a disability’ as defined in 29 U.S.C. § 705(20), . . . he is
‘otherwise qualified’ to present to a TSA checkpoint and
receive security screening . . . [and] TSA’s security screening
activities are a ‘program or activity conducted by an[]
Executive agency’ under 29 U.S.C. § 794(a).” Resp’t Br. 44.
Rather, TSA argues that Muir’s requested accommodation is

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not “reasonable” because it would fundamentally alter TSA’s
security screening program. Id. at 44–45. Against this
backdrop, we turn to assessing whether Muir establishes the
existence of a reasonable accommodation.
2.
The accommodation Muir seeks is for TSA to screen him
using a WTMD. He understands that if he causes the metal
detector to alert, he will be subjected to pat-down, and that at
TSA’s discretion he may also be subjected to Explosive Trace
Detection swabbing. Amicus asserts that use of this alternate
screening method is a reasonable accommodation because TSA
already uses WTMDs to screen “millions of passengers every
year” and, therefore, it “sufficiently protects airline security.”
Amicus Br. 21. To further stress the reasonableness of this
accommodation, Amicus observes that “[w]hile Mr. Muir can
use a WTMD without incident,” id. at 22, TSA continues to
subject him “to an invasive and painful pat down procedure
simply because its AIT systems erroneously categorize his
medical condition as a threat,” id. at 24.
TSA rejects any suggestion that Muir’s request for
screening by a WTMD is reasonable. TSA belabors that AIT
“provides the most effective and least intrusive means currently
available to detect both metallic and non-metallic threats
concealed under a person’s clothing.” Resp’t Br. 48 (quoting
81 Fed. Reg. at 11,367). Moreover, TSA posits that passengers
primarily screened by WTMDs rather than AIT scanners “are
either pre-determined by TSA to pose a lower security risk or
are categorically ineligible to be screened by AIT.” Resp’t Br.
13. In this regard, TSA emphasizes that Muir has neither
applied for PreCheck®, the program for low-risk, trusted
travelers who are primarily screened by WTMDs, nor shown
why he is ineligible for AIT scanning. Furthermore, it argues

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19
any accommodation that requires either the granting of
PreCheck® status without undergoing the advance background
check or a pre-clearance determination of AIT ineligibility
would fundamentally alter the nature of TSA’s security
screening program.
At oral argument, Muir clarified that he does not view
PreCheck® as a reasonable accommodation because TSA
reserves the right to subject airline passengers in the
PreCheck® program to AIT screening, which in Muir’s case
would lead to a risky and excruciatingly painful pat-down. 81
Fed. Reg. at 11,380. We are persuaded that Muir has succeeded
in meeting the threshold requirement that he identify an
accommodation that is facially reasonable. Hill v. Assocs. for
Renewal in Educ., Inc., 897 F.3d 232, 237–38 (D.C. Cir. 2018)
(citing U.S. Airways v. Barnett, 535 U.S. 391, 401–02 (2002)).
TSA routinely provides WTMD screening to passengers
who are unable to proceed through AIT scanners because they
cannot raise their arms above their shoulders. On the existing,
admittedly incomplete administrative record, we disagree with
TSA that affording Muir the same accommodation would
fundamentally alter the security screening program simply
because Muir’s disability is not “immediately obvious and
readily observable” and would therefore require TSOs to
“identify and verify” his disability whenever he shows up at the
airport. Resp’t Br. 52. Although TSOs cannot invariably
visually identify a traveler’s inability to raise his arms, the
agency does not require those passengers to be prescreened or
provide verification of their disability.
On the available record, we are satisfied that Muir met his
burden to show that a reasonable accommodation is possible to
address his concerns regarding AIT scanners. However, the
record will not permit a determination of whether Muir’s

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20
proposed reasonable accommodation imposes on TSA’s
operations an undue hardship. That assessment requires
information regarding the extent to which an accommodation
would create “financial and administrative burdens” for TSA,
which is currently not in the record. Sch. Bd. of Nassau Cnty.
v. Arline, 480 U.S. 273, 287 n.17 (1987) (citation omitted);
Taylor v. Rice, 451 F.3d 898, 908 (D.C. Cir. 2006) (“An
accommodation—even a reasonable one—imposes undue
hardship on an employer if it ‘requir[es] significant difficulty
or expense, when considered in light’ of several statutory
factors.”) (citing 42 U.S.C. § 12111(10)). Accordingly, a
remand to TSA is appropriate to determine if Muir’s proposed
accommodation would cause it undue hardship. Roberts, 463
F. App’x at 5 (“And if . . . the administrative record is
inadequately developed for appellate review, section 46110
expressly permits us to remand for further proceedings.”).
3.
Muir also challenges the Government’s alleged failure to
provide him any kind of process to request an accommodation
to the SOPs. Specifically, under compliance procedures set
forth in 6 C.F.R. § 15.70, the CRCL must investigate
complaints alleging violation of Section 504 and notify the
complainant within 180 days of the results of the investigation,
including factfinding, statements of law, and a description of a
remedy for any violation. Id. § 15.70(g). Muir submitted
documentation showing that the CRCL did not follow those
procedures, but provided him an uninformative, boilerplate
response that only acknowledged receipt of his complaint.
Reply Br. Addendum 42–3.
Muir was entitled to an administrative process—as
outlined in 6 C.F.R. § 15.70—conducted by TSA. The agency
admitted as much in its brief, Resp’t Br. 47 (“DHS has

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21
promulgated procedures for doing so, 6 C.F.R. § 15.70, which
apply to its component agencies such as TSA.”), and at oral
argument where counsel for TSA agreed that Muir’s complaint
warranted investigation. Had such process occurred here, the
case likely would have reached us on a more informative
factual record. Cf. GAO, TSA Should Assess Potential for
Discrimination and Better Inform Passengers of the Complaint
Process (Nov. 2022), https://perma.cc/678M-7SFE.
*****
For the foregoing reasons, we grant Michael Muir’s
petition for review insofar as it alleges a violation of Section
504 of the Rehabilitation Act. Accordingly, we remand the
matter to TSA to conduct the appropriate administrative
process to address implementation of Muir’s facially
reasonable accommodation. If TSA determines that Muir’s
preferred accommodation would pose an undue burden on the
agency, the parties should explore alternative reasonable
accommodations. We deny the balance of Muir’s petition for
review and his motion to supplement the record.
So ordered.

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RANDOLPH, Senior Circuit Judge, concurring in part and
dissenting in part:
I join the majority opinion except for part III. C. I dissent
from that part because our court lacks jurisdiction to review
Muir’s contentions regarding the Rehabilitation Act, 29 U.S.C.
§ 701 et seq.
Muir’s petition for judicial review invoked 49 U.S.C.
§ 46110(a), a statute conferring jurisdiction on the federal courts
of appeals—direct review—over a person’s1 “petition for
review” of an “order” of the Transportation Security
Administration. The majority opinion declares that the
§ 46110(a) “orders” establishing our jurisdiction are TSA’s
Standard Operating Procedures, or “SOPs.”2 The opinion then
considers Muir’s arguments (and those of a court appointed
“amicus” attorney) regarding the Rehabilitation Act.
The majority has missed a step. It first should have noticed
that Muir’s § 46110(a) petition did not designate any TSA
Standard Operating Procedure as an “order” with respect to
which he sought judicial review. As a consequence, and as I will
explain, our court lacks jurisdiction to adjudicate Muir’s claims
about the Rehabilitation Act.
Rule 15(a)(2)(C) of the Federal Rules of Appellate
Procedure states: a petition for direct review of an agency
decision “must . . . specify the order or part thereof to be
reviewed.” Note the “must.” Muir, although representing
1 That is, “a person disclosing a substantial interest in an order” of the
Transportation Security Administration. 49 U.S.C. § 46110(a).
2 These are non-public directions to staff regarding screening
procedures. See Roberts v. Napolitano, 798 F. Supp. 2d 7, 9 (D.D.C.
2011), aff’d, 463 F. App’x 4 (D.C. Cir. 2012).

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2
himself, cannot claim ignorance of this rule—he cited Rule 15
in his petition for judicial review. To repeat, Muir’s petition
never mentioned any SOPs.3
The law of our circuit is that a petitioner’s failure to specify
an “order” in compliance with Rule 15(a)(2)(C) deprives our
court of jurisdiction to review that order. See City of Benton v.
Nuclear Regul. Comm’n, 136 F.3d 824, 826 (D.C. Cir. 1998)
(per curiam); John D. Copanos & Sons, Inc. v. FDA, 854 F.2d
510, 527 (D.C. Cir.1988); Small Bus. in Telecomms. v. FCC, 251
F.3d 1015, 1022 (D.C. Cir. 2001). Our opinion in City of Benton
added that the “jurisdictional requirements of Rule 15(a) may
not be waived.” 136 F.3d at 826 (citing Gottesman v. INS, 33
F.3d 383, 388 (4th Cir. 1994)).
3 Muir’s “contemporaneous filings” also failed to notify the
government of the order being challenged. See Small Bus. in
Telecomm. v. FCC, 251 F.3d 1015, 1019 (D.C. Cir. 2001). Muir filed
his petition on December 14, 2022. Fifteen days later, on December
29, he filed the Docketing Statement, Statement of Issues, and
Underlying Decision from which Petition Arises. None of these filings
mentioned the SOPs. The filings merely reiterated Muir’s objection
to TSA’s promulgation of 49 C.F.R. § 1540.107(d) and DHS’s order
certifying the AIT devices.
The majority excuses Muir as a “pro se litigant” unable to
identify the “nonpublic” SOPs. Majority Op. at 15. But Muir knew of
the SOPs when he filed his petition in this court in December 2022.
In January 2021, the District Court for the Central District of Illinois
dismissed one of Muir’s suits because “TSA’s screenings are
conducted pursuant to [the SOP] . . . and challenges to the SOP . . . lie
within the exclusive jurisdiction of the courts of appeals.” Muir v.
TSA, 2021 WL 231733, at *11 (C.D. Ill. Jan. 22, 2021). Muir then
discussed the SOPs in his Seventh Circuit brief in 2021. See Brief for
the Appellant at 13, Muir v. TSA, 857 F. App’x 251 (7th Cir. 2021)
(No. 21-1312), ECF No. 15.

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3
The next problem with part III.C of the opinion is this.
Section 46110(a)—the provision Muir invoked to establish our
jurisdiction—requires a petition for review to be filed within 60
days of issuance of the “order.” Our court has held that
“simpl[e] ignorance of the order” will not excuse
noncompliance. Matar v. TSA, 910 F.3d 538, 542 (D.C. Cir.
2018) (quoting Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 521
(D.C. Cir. 2011)). It is one thing if a person files his petition
challenging an order after the 60-day deadline expired. Section
46110(a) has an escape valve for those who have “reasonable
grounds” for delay. The built-in assumption of § 46110(a) is
that the person, at some time after the 60 days had run, filed a
petition for review of the “order.” Muir was not late in filing.
The problem for him—and the majority—is not with delay. It is
that he did not, and still has not, filed any § 46110(a) petition
objecting to an SOP.
The third jurisdictional defect in the majority’s analysis is
as follows. The majority excuses Muir from his failure to
exhaust administrative remedies because “Muir’s prior attempts
at procuring an accommodation . . . were exercises in futility.”
Majority Op. at 16. What “prior attempts”? The majority has
only one “attempt” in mind. That is the single complaint Muir
lodged with the DHS Office for Civil Rights and Civil Liberties
on December 15, 2019, three years before the events at the
Florida airport described in his petition for judicial review in this
case. Majority Op. at 8. This Office—CRCL—responded to
Muir’s complaint in a January 2020 letter. The letter stated that
after reviewing the information Muir “provided, CRCL has
recorded it in our database.” Muir Reply Br. Addendum at 42.
CRCL took no further action and Muir considered his complaint
as having been “denied.” Muir Reply Br. at 17.
The DHS regulation governing complaints like Muir’s—6

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4
C.F.R. § 15.70(d)—requires claims of disability discrimination
to be filed within 180 days of the discriminatory conduct.
Muir’s complaint alleged discrimination at two airports in
August 2018. He did not file his complaint with CRCL until
November 1, 2019, many months out of time.
More important, CRCL’s letter was not “final agency
action” subject to judicial review. See Bennett v. Spear, 520
U.S. 154, 177–78 (1997); Magassa v. Mayorkas, 52 F.4th 1156,
1165 (9th Cir. 2022). It was only an intermediate determination.
If Muir was dissatisfied with CRCL’s response, he had a right to
take an administrative appeal within 60 days.4 In such an appeal,
it is “the Officer for Civil Rights and Civil Liberties, or
designee thereof, who will issue the final agency decision which
may include appropriate corrective action to be taken by the
Department.” 6 C.F.R. § 15.70(i) (emphasis added).
But Muir never filed an administrative appeal regarding his
November 2019 complaint. In other words, he did not then
exhaust his administrative remedies.5 And so the majority
opinion is clearly mistaken in excusing Muir from having to
present any administrative complaint whatsoever before
4 “Appeals of the findings of fact and conclusions of law or remedies
must be filed by the complainant not later than 60 days after receipt
from the Department of the letter” denying the complaint. 6 C.F.R.
§ 15.70(h).
5 See, e.g., Smith v. Blue Cross & Blue Shield, 959 F.2d 655, 659 (7th
Cir. 1992) (requiring litigants challenging agency action to “show that
it is certain that their claim will be denied on [administrative] appeal,
not merely that they doubt an appeal will result in a different
decision”). Our court cited this portion of Smith with approval in
Tesoro Refin. & Mktg. Co. v. FERC, 552 F.3d 868, 874 (D.C. Cir.
2009).

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5
pursuing his Rehabilitation Act claim in this court.6 There is no
telling how the CRCL Officer would have ruled in 2020 had
Muir appealed, and still less is there any way to know how he
would have been treated if he had filed an administrative
complaint in 2022. The majority therefore erred in applying the
futility exception of exhaustion. That exception is “quite
restricted,” Comm. of Blind Vendors of D.C. v. District of
Columbia, 28 F.3d 130, 133 n.5 (D.C. Cir. 1994), and is
confined to situations when resort to administrative remedies
would be “‘clearly useless,’” Randolph-Sheppard Vendors of
Am. v. Weinberger, 795 F.2d 90, 105 (D.C. Cir. 1986) (quoting
Baxter v. Claytor, 652 F.2d 181, 185 (D.C. Cir. 1981)); see also
Tesoro Refin. & Mktg. Co. v. FERC, 552 F.3d 868, 874 (D.C.
Cir. 2009).
6 49 U.S.C. § 46110(d) itself required Muir to exhaust his
administrative remedies. That section, and comparable provisions in
the judicial review statute of many agencies, cannot be waived. See
EEOC v. FLRA, 476 U.S. 19, 23 (1986).

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