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.
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