Still no update on the preliminary injunction, but the TSA filed its motion to dismiss yesterday (a day late, but I’m sure they’re busy :)). The TSA argues that US District Court has no right to review this case, because virtually anything the TSA does is an “order” which can only be appealed (in the US Court of Appeals) rather than subject to a new action on a constutional claim in district court.
The reason the TSA wants the court to see things this way is that there is an important distinction between the district and appellate courts: the district court conducts “fact finding,” such as discovery, witness testimony, etc., while the Court of Appeals would not. The result? No discovery, no witnesses, no jury (juries only decide on questions of fact), and the only facts that will be considered are any record the TSA presents to the court regarding its decision to strip search and molest thousands of passengers daily.
We’ve got a good shot at beating this, and my opposition is 17 pages of discussion on why the TSA cannot do this and the district courts should retain jurisdiction. I’ve attached both their argument and my opposition for anyone interested.