Lawsuit Against TSA Mandatory Body Scanner Policy Dismissed: No “Standing” Because It “Probably” Won’t Happen to You

The TSA’s body scanner program had always been put forth as an “optional” way for passengers to be screened: there was always the “pat-down option,” as unpleasant as that option may also be.  But, towards the end of 2015, the TSA announced that for “some” passengers, body scanners screening would be mandatory.  I immediately filed suit.

Fast-forward nearly 4 years, and the Court on Friday finally made a ruling on the matter: my case is dismissed for failure to demonstrate “standing.”

What is “standing?”  The U.S. Constitution allows the federal courts to hear only real, live “cases or controversies.”  All that means is you have to actually have a specific legal “injury” to complain of.  A violation of your rights, or your pocketbook, is an injury (with the exception of “I pay taxes to support this,” which is generally not considered a legal injury for standing purposes).  No standing = no lawsuit.

After thorough briefing, the TSA clarified that “some” passengers means “only selectees” — those on a TSA watch list but who have not made it to the no-fly list. And since I’m not on the selectee list, I’m not injured, and therefore the court should show me the door.

Two problems with this: 1) the rule issued by the TSA in 2015 doesn’t specify that it applies only to “selectees,” meaning they are free to change their mind at any time, and more importantly, 2) the TSA also treats regular passengers as selectees on a random basis! On any day you go to the airport, you too could be “selectee for a day!”  What are the odds?  Redacted:

What are the odds? Redacted!

So to be clear, we won’t tell you the odds, we can change the odds at any time, we can get rid of the odds completely at any time, but don’t worry, your legal rights have not been affected.

“But Jon, what’s the big deal? Why not just wait until it happens and then sue?”

Because challenges to the TSA’s policies, that they call “orders” so long as they are written down and “final,” are made under a statute that requires you to file within 60 days of the date of the order.  In other words, by the time you figure out if a policy will actually be applied to you, it may be too late to challenge it.  (There may be other ways to get a court to hear the issue, such as suing for the cost of your missed flight if you are selected and then refuse a mandatory body scan, but there are challenges there too.)

I will be considering an appeal on the issue of whether a member of a group who will be randomly affected by a law has standing to challenge it, even if the random selection is rare.  This would either be trying to distinguish, or to ask the U.S. Supreme Court to partially overrule, the leading case on the matter, Los Angeles v. Lyons.  [Update: I’ve decided I will be petitioning the full Eleventh Circuit to reconsider the case en banc.  Stay tuned for an update next month…]

Corbett v. TSA VI – Dismissed on Standing (.pdf)

Early Documents — Petitioner’s, Respondent’s, and Reply Briefing

6 thoughts on “Lawsuit Against TSA Mandatory Body Scanner Policy Dismissed: No “Standing” Because It “Probably” Won’t Happen to You

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  1. I think it’s a good appeal. The circumstances around lack of standing have changed in recent years due to changes in technology and changes in our general practices in every day life. I shouldn’t have to sign up for the lottery to be harmed by backscatter radiation before I can sue over the policy. That’s like signing up for a game of Russian roulette.

  2. Let’s see if I get the idea of this. Correct me if I’m wrong. The TSA can make a new rule, wait 61 days to make use of it and since it is past the 60 days at that point, you can’t sue for that rule. So, can they do that with any other laws? Or am I wrong on that?

    If the above is accurate, the Govt is getting further into tyranny territory.

  3. Hi Jon.

    In califonia Constitutional essay (February 2004) I found following statement:

    “… a person with a reasonable basis for challenging a criminal statute is not required to first commit the crime and be convicted thereof before challenging the validity of the statute.”

    On the NWCU discussion board i posted a question asking:

    “2. in what situations i should look for “direct and immediate harm” and when i should argue “person is not required to first violate a regulation”?”

    Below is the answer from prof. G:

    “… On the other hand, a plaintiff who is not being prosecuted may have standing to bring an action if the plaintiff can demonstrate that the risk of violating the statute would be significant harm.”

    So just to clarify, he does not say that the risk should be significantly high, but the harm should be significant.

    Based on the above, do you think they argue lack of the standing due to “insignificance of the harm you may suffer”. In other words, may be actually being scanned is not a big deal in their logic?

    In any case, thank you for what you are doing protecting our rights.

    1. Prof. G. is a great guy, but I wouldn’t use his answer to your message board post as a basis for analyzing a live standing issue. Lyons tells us that the standard is a “likelihood of substantial and immediate irreparable injury.” Unfortunately, how likely it must be is another story that has not clearly been answered.

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