I’ve complained several times of “creative” (read: absurd) arguments put forth by Assistant U.S. Attorney Rachael Zintgraff in the DOJ’s Northern District of Oklahoma office in Rhonda Mengert’s case stemming from an illegal TSA strip search. A partial list of Ms. Zintgraff’s next-level arguments have included:
- That an illegal strip search in the back room of an airport is comparable to using a locker room (page 11)
- That women in locker rooms regularly “observe” each other’s feminine hygiene products (page 11)
- That an illegal strip search in the back room of an airport is not extreme or outrageous (requirements for an emotional distress claim) (page 15)
- That an illegal strip search in the back room of an airport is comparable to a preschool nurse examining a child (page 18)
- That classic PTSD symptoms, including uncontrollable shaking, nausea, sweating, tightness in throat, headache, and hot flashes whenever thinking about the incident are insufficient allegations of “severe” emotional distress (page 33)
- That instead of a lawsuit, Ms. Mengert could have simply filed a complaint with the TSA or told a police officer, and that would be a sufficient remedy for being unlawfully strip searched in the back room of an airport (page 19)
- That there are national security implications involved in this case (page 23)
- That holding TSA screeners liable for illegal strip searches may cause them to hesitate when a real terrorist tries to get through the checkpoint (page 26)
- That Ms. Mengert can’t prevail on her claim under one law (Federal Tort Claims Act), but since that law provides a way for her to seek redress, even though it doesn’t, the court shouldn’t allow another type of claim (Bivens remedies) because the first law adequately protects her (if this makes your brain hurt, you’re not alone) (page 17, fn. 8)
- That perhaps TSA procedures allow for strip searches and thus exonerate the screeners, despite TSA spokespeople literally saying that TSA does not conduct strip searches in response to media inquiries in this case (page 10, fn. 9)
- That ordering someone to drop their pants and panties in order to get a good look is not actually a strip search (page 10, fn. 9)
The bar for what is “frivolous” is high: it must not be merely wrong, it must be such that no reasonable attorney would think it reasonable to argue otherwise. So, just maybe, it’s not frivolous to argue that a strip search is like a locker room, because perhaps consent is not something you value.
But in this entire pile of nonsense, there is one more argument in particular stood out as legally frivolous: that Mrs. Mengert should have brought her challenge in a different court (page 15). Let me explain.
Congress wrote a law that basically says that written decisions of the TSA are to be directly appealed in the Court of Appeals. These so-called “orders” of the TSA cannot be challenged in the normal trial court. To try to invoke this law, the TSA has argued that many TSA orders are secret and therefore there is no way for us to know whether the strip search was conducted pursuant to an order or not, and therefore the case belongs in the Court of Appeals.
Notice how this argument is not that “TSA has ordered strip searches.” It’s basically “maybe they have, so the plaintiff should have to try the Court of Appeals first.” At the outset, that is a blatant attempt at delaying litigation. If the defense is that they were following orders, they could simply say so, and no one knows better than me that they are happy to do so when it helps their case: my first case against the TSA, back in 2010, was dismissed on a successful argument that I was challenging a written order of the TSA and therefore was in the wrong court. The case law for this concept literally bears my name in the caption.
Beyond that, we know that TSA doesn’t “order” strip searches because their spokespersons say so. Because you can ask any screener at the checkpoint, and most of them are happy to tell you that TSA doesn’t do that. Because they publish the same in their blog. And because millions of women pass through TSA with feminine hygiene products each year, yet less than a handful have ever reported being strip searched for the same. TSA policy is clear that strip searches by checkpoint screeners are prohibited.
An argument that maybe a secret order required the defendants to do something, when Ms. Zintgraff knows damn well that no such order exists, is legally frivolous. No reasonable attorney in her position would have made such an argument, and that is why, after 21 days’ notice and demand to retract without reply, I filed my first motion for sanctions since becoming an attorney.
Professional Troublemaker ® 
Well, I posted the other day that people should be held accountable for this stupid crap. I said impeach the Judge but hey, this is a good start to. Go get ’em!!!
lol, the judge in this case hasn’t made any rulings yet, so hold on the impeachment for a moment 🙂
This case is getting absurd enough that I’m actually curious as to whether a court can issue a summary judgment without a Motion For Summary Judgment being filed by the plaintiff and whether it has happened before. (I’m guessing if it has, it would probably be a bank suing a debtor – in my limited experience, such applications are often verbal; let’s not count those either (there were nine applications in the one courtroom that morning and I was the only defendant to show up. But I forget how many where service was not in order and they were withdrawn because the defendant didn’t know he was getting sued yet.))
well written
I travel a lot and have never seen a strip search – not saying they don’t exist but in the hundreds of flights I take I only see pat downs. Every airport seems different and I know some are better/worse than others, but pat downs vs strip searches seem extremely different. I have read the horror cases online regarding extremely bad situations, but a majority of the screeners seem like they are just doing their job.
They have several bad apples, like any large organization, so hopefully those are weeded out, but I don’t agree with bulking a whole agency together due to the idiocracy of several. That is the same as bulking all Americans as criminals due to us having 10s of millions of them. A smaller percentage doesn’t justify classifying the whole group as one thing.
There are a lot of personable, respectable people working for that agency, they just happen to work with a few who should not be employed there as well. I support your views and love that you fight for the people who can’t fight for themselves- but there are screener/officers/ whatever you want to call them that are fighting against poor political/public views based on actions of idiotic coworkers who may not even work T their airport.
Just an outside perspective from a fresh set of eyes.
The TSA has both systemic problems and problems with individual screeners. If your point is that not all of the screeners are assholes, sure, but that doesn’t mean the agency does not have a massive problem.
So, I just read the latest lawsuit regards to groin groping in Ashville NC that was in CNN news last night..
What happened to me in Orlando airport was way worse. I am a female on oxygen. I went through body scanner, had to be off my oxygen, it is ok. For short periods of time.. then my groin area “lit up on their screen”.. after my pat down, then they put hands inside my skirt, then that wasnt sufficient, I guess, so they then put their hands in my underwear, then literally probed inside my vagina.. seriously wtf.. this happened at orlando airport on Jamuary 14, 2020. So your women’s lawsuit and complaint is literally NOTHING compared to my vagina being searched in front of EVERYONE in a packed airport at 530 pm… while OFF my oxygen! Then the TSA agent wiped off my vaginal secretions. And then put it through a machine… then let me go… so I guess I tested negative for STDs and any WMDs that they had assumed were hidden inside my vagina.. I have been in shock and silent about this til i read the cnn article. I posted my thoughts to my friends on facebook.. as i pondered, if this was my teen daughter’s vagina, I literally would have fcking killed them before their hand even had a chance to slide into her skirt… so why is it ok for tsa to do this to me. Or is this a way to force me to pay more money to get that TSA pre check…so I can keep my shoes and panties on🤔🙈🤨… I joked and laughed as this was happening.. I use sarcasm and joking to calm and to cope… now after a month I am mad. And I feel SOTUS and all of Congress is guilty. I am a USA BORN CITIZEN, I am White, I am a tax payer, I am a Registered voter. I have a state issues real I’d, I have a us passport.. wtf.. why does my vagina have to be violated??!!
And do the TSA change gloves between each vaginal probing??