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.