Update: TSA Asks Court Not to Hear Brief Regarding Stay

Earlier today, I posted the briefs relating to my motion to stay the TSA’s new rule allowing it to refuse opt-outs.  Not long after, I received an e-mail noting that the TSA will oppose allowing the court to consider my reply brief.

Why? Because it’s long.

The Federal Rules of Appellate Procedure govern how things work in cases heard by the Court of Appeals.  Indeed, Fed. R. App. P., Rule 27(d)(2) limited my reply to 10 pages, when it was 19, “unless the court permits or directs otherwise.”  My reply was filed along with a routine motion for permission to file excess pages, and I’ve actually never seen such a motion opposed, let alone denied.

In my reply brief, I noted that “avoidance of judicial review” is common for the TSA, which argues anything it can to get a court to decline to even consider whether the TSA’s actions are lawful.  It’s wrong, and plainly, it’s against the deep-rooted American value that we should be able to meaningfully petition our government for redress.  To reply to a brief accusing you of evading judicial review with a request that the court not hear the brief is the definition of an agency — and its attorneys — demonstrating their contempt that one would dare to challenge them.

I take this as a positive: I don’t expect the court to refuse to hear my brief, and I don’t think the TSA would have filed such a disfavored opposition if they weren’t scared that my Motion to Stay had a chance of being granted.

Corbett v. TSA IV – Opposition to Motion for Leave to File Excess Pages (.pdf)

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21 thoughts on “Update: TSA Asks Court Not to Hear Brief Regarding Stay

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  1. I’ve got nonrefundable tickets I bought before this new policy. Plane leaves tomorrow. I won’t be on it. There is no dignity in a vacation that requires as a condition precedent that one submit to this kind of indecency. Therefore, I am no longer a member of the flying public.

    1. @Jason: In practice, right now, most people are not forced through AIT. But we don’t know who will or won’t be, now or in the future. That’s why Jon & I are suing TSA about this. (Separate cases — mine’s @ https://s.ai/tsa/legal/46110.)

      I would suggest that instead, you take your flight and insist on opting out. In the most likely (good) scenario, you’ll be allowed to without hassle.

      In the unlikely scenario, you’ll be told you can’t, and either leave (which is what you were going to do anyway) or escalate to TSA management, who may or may not overrule the grunts. In either of those outcomes, it’d probably bolster both of our cases.

  2. Congress votes to stigmatize and surveil the travel of second-class US citizens:

    Yesterday Congress completed its approval of a bill which, assuming it is signed into law by the President, will stigmatize and surveil the international movements of certain US citizens by (1) requiring the State Department to mark their passports with a modern equivalent of an “A for Adulterer” or “J for Jew” (a “visual designation affixed to a conspicuous location on the passport indicating” their status), (2) requiring these individuals to notify the government, in advance, of any intended travel outside the US, including their complete itinerary and any details of their planned movements demanded by the Attorney General, and (3) creating a new pre-crime travel surveillance and policing agency within the DHS to track, log, and alert foreign governments to the intended movements of these travelers.


  3. TSA Conducting “Bag Checks” At Donald Trump Event:

    “My first political rally was the Donald Trump rally Jan. 30 in Davenport, Iowa. As a newbie caucus-goer and fledgling reporter, I was more than a little nervous. To my and Chad Davis’, executive producer for TMN TV, surprise, we underwent strict security measures — bag searches, bomb sniffing dogs and metal detectors — before we were allowed in the building…”

  4. EPIC Prevails in Passenger Screening Lawsuit Against TSA/DHS:

    EPIC has prevailed in EPIC v. DHS, a case involving a controversial passenger screening program operated by Customs and Border Protection. The agency combines detailed personal information with secret algorithms to assign “risk assessments” to travelers, including US citizens. EPIC sued the DHS and argued that the agency unlawfully withheld records under the Freedom of Information Act.

    Click to access 28-Mem-Op.pdf

  5. It Took Nearly EIGHT Years For the TSA To Reply To FOIA Request:

    “Seven and a half years ago, as a new reporter here, I filed a Freedom of Information Act request for all reports of misconduct by federal air marshals.”

    “It had been several years since the U.S. government rapidly expanded its force of undercover agents trained to intervene in hijackings after 9/11. And a source within the agency told me that a number of air marshals had recently been arrested or gotten in trouble for hiring prostitutes on missions overseas.”



  6. TSA Ignores Federal Court, Public Comments and Mandates Airport Body Scanners!

    The Transportation Security Administration has issued a final rule on airport body scanners, nearly five years after the D.C. Circuit Court of Appeals ordered the agency to “promptly” solicit public comments on the controversial scanners. In 2011, EPIC successfully challenged the TSA’s unlawful deployment of airport body scanners. Despite public comments that overwhelmingly favor less invasive security screenings, the agency will continue to use invasive body scanners at airports. The agency also states that it may mandate airport body scanners. EPIC and 25 organizations have urged Congress to hold a hearing on TSA’s decision to end the opt-out for airport body scanners. The agency previously informed the D.C. Circuit that the body scanner program was optional. The Court concluded because “any passenger may opt-out of AIT screening in favor of a patdown” there was no violation of the Fourth Amendment.

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