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 Jonathan Corbett, Civil Rights Attorney

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Coronavirus Litigation

Lawsuit Challenges TSA Authority to Implement Mask Policy

Lawsuit CoverIt seems that masks reduce transmission of coronavirus: some studies showing reduction of as low as 20%, while others claim as high as 85%. I don’t really have a problem with mask requirements in crowded, confined spaces at the moment. They are not the cure-all that some make them out to be, but they provide some reduction and are a relatively small burden compared to some of the coronavirus measures imposed by the government.

What I do have a problem with is any expansion of the authority of one of the most abusive, inept, and inefficient agencies in the nation: the Transportation Security Administration. Transportation security involves passenger screening, cargo screening, managing intelligence relating to threats to civil aviation, technology to detect weapons and explosives, federal air marshals, and the like. This is clear just by looking at the index of law that Congress passed to assign duties to the TSA, 49 U.S.C., Subchapter I. Transportation security is not transportation safety. Transportation safety is the responsibility of the U.S. Department of Transportation, and when it comes to airplanes, their subagency, the Federal Aviation Administration (F.A.A.).

Despite it being completely out of their jurisdiction — or what lawyers call “ultra vires” (Latin: beyond power) — on January 31st, 2021, TSA issued several “security” directives to air carriers, airport operators, and even bus and train station operators, ordering them to enforce strict mask rules and to report passengers who do not comply to TSA (over the next few days, TSA Twitter accounts informed the public that it would issue fines of up to $1,200 against non-compliant passengers). TSA’s mask rules apply anywhere within the transportation system: from the curb outside of check-in, to TSA’s checkpoints, to the gate, lounge, bathroom, on the airplane, and even while seated in the food court (“the mask must be worn between bites and sips”):

Security Directive

It is unclear why this was necessary at all, given that all airlines and airports in the country require masks anyway. And, in fairness, TSA did not get the idea to implement a mask policy on its own. The day after inauguration day, new President Biden issued an executive order “promoting COVID-19 safety in domestic and international travel” that asked an alphabet soup of agencies to enforce mask regulations, and he made the mistake of including TSA on that list. He could have just named the FAA and CDC and been done with it; if you suggest to TSA that they assert more power, they will not hesitate to accept your invitation.

Notwithstanding, an executive order cannot increase the jurisdiction of an agency beyond Congress’ mandate, and if we do not stop them now, you can expect TSA will continue to issue more and more mandates for general public health and safety concerns. Therefore, after a 2-week process of getting myself admitted to the bar of the U.S. Court of Appeals for the D.C. Circuit, I filed a petition for review of these orders and asked for an emergency stay pending the resolution of the case. (The Court of Appeals, rather than a district court, is the appropriate court because of a jurisdictional statute that says so.) Case is Corbett v. TSA, 21-1074, and I think it is likely the court will in some way address the emergency motion next week. Documents below.

Corbett v. TSA – Petition for Review (.pdf)

Corbett v. TSA – Emergency Motion for Stay (.pdf)


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Second Circuit to Consider N.Y. Music Advertising Ban; Amicus Brief Filed

In response to the coronavirus pandemic, New York Gov. Andrew Cuomo has already banned concerts by prohibiting any indoor food service establishment from any method of operation other than seated dining, and at sharply reduced capacity limits (35% in New York City, 50% elsewhere in the state). But, never content to be minimally invasive, the state also felt that it must prohibit advertising of any musical performances at restaurants, as well as the charging of admission to enter.

I was the first attorney to file suit against these advertising and ticketing restrictions as entirely arbitrary and lacking any relationship with stopping the pandemic — not to mention a restriction on free speech (yep, advertising is speech!). The state argued that the restrictions only apply to illegal events, rather than restaurants with incidental music, and so the court in my case accepted that and declined to grant a preliminary injunction. That case was New York Indep. Venue Ass’n v. Bradley, 20-CV-6870 (S.D.N.Y.).

This would be fair enough except for the fact that the government continues to publish this advertising and ticketing ban without any mention that it applies only to “illegal events,” so two more attorneys sued, and they won. Those cases were one in state court, Sportsmen’s Tavern LLC v. N.Y. State Liquor Auth., Index No. 809297/2020 (N.Y. Sup. Ct. Erie Co., Oct. 15th, 2020) (permanent injunction issued), and one in federal court, Hund v. Bradley, 20-CV- 1176 (W.D.N.Y., Nov. 13th, 2020) (preliminary injunction issued).

The government has appealed in both cases, and while state court appeals move at a snail’s pace, the federal appeal in the U.S. Court of Appeals for the Second Circuit is almost ripe for review. Both sides have filed their opening briefs and the government’s reply brief is due this week. And, of course, I submitted an amicus (friend of the court) brief to make sure the Court understands that the government is engaged in misleading the courts:

[New York Independent Venue Association’s] position in the district court was, and still is, that the [N.Y. State Liquor Authority] intended a broader scope than it represented in court, and its lawyers “creatively” narrowed the scope post hoc in order to survive judicial review. The government’s opening brief in this case makes it painfully clear that NYIVA was correct and the attorneys for the government in the NYIVA case misled that court. Appellant’s Brief, p. 3 (“Holding advertised, ticketed shows is still prohibited by executive orders”), p. 10 (“bars and restaurants are prohibited from hosting ‘advertised and/or ticketed shows’”). In other words, the SLA here argues that the mere act of advertising or ticketing turns an otherwise lawful event into an unlawful one.

The government knows, or should know, that the Constitution prohibits it from banning advertisements of lawful goods and services absent exceptionally compelling reasons. Given that concerts are already prohibited as a result of the seated table service requirement, those reasons are utterly absent here. So why is Cuomo wasting time and taxpayer dollars on this? Probably just to distract from his nursing home scandal, wherein the state ordered nursing homes to accept its residents back from hospitals without regards to whether they were still infected in coronavirus, resulting in 13,000 seniors dead and a massive cover-up.

Let’s hope the Second Circuit affirms the glimmer of sanity provided by the district court in the Hund case.

Hund v. Bradley – Appellant’s (Cuomo’s) Brief (.pdf)

Hund v. Bradley – Appellee’s (Hund’s) Brief (public version available shortly)

Hund v. Bradley – Amicus NYIVA’s Brief (.pdf)

Cuomo to Court Considering NYC Midnight Food Curfew: “The Government Is Not Required to Justify an Executive Order”

One by one, New York Governor Cuomo’s arbitrary, irrational rules are coming down. Last week, I wrote that challenges to a ban on advertising or ticketing music at restaurants was destroyed as a result of a pair of court challenges (one of which I argued). This week, a federal court in Brooklyn will hear arguments on another challenge I’m working on: the midnight food curfew.

What’s that? New York City finally just got the blessing of the Governor to resume indoor dining last week — well over 6 months after closing mid-March and likely last in the nation — with massive restrictions: 25% max capacity, air filtration upgrades, and a midnight closing time. Yes, for some reason, the Governor decided that it is only safe to be in a restaurant until the clock strikes 12, after which your risk of corona becomes excessively high. To clarify, this rule applies to restaurants — even those serving no alcohol — and applies even though only seated dining is allowed with full social distancing (no mingling, no dancing, no fun).

I filed suit on behalf of a Brooklyn restaurant to challenge this rule (which received some media attention, and a hearing on our motion for a preliminary injunction is tomorrow at 12:30 PM, public audio: (571) 353-2300, access code 188465608#. The written briefing on the motion went pretty normally… tl;dr: I argued that there’s no reason to subject NYC to restrictions that aren’t used elsewhere in the state or country, they argued that NYC is special because of it’s population, I replied that they failed to demonstrate why higher population means restaurants must turn into a pumpkin when the clock strikes 12. If you want the long version of that:

Columbus Ale House v. Cuomo – Motion for Preliminary Injunction (.pdf)

Columbus Ale House v. Cuomo – Motion for Preliminary Injunction, Opposition (.pdf)

Columbus Ale House v. Cuomo – Motion for Preliminary Injunction, Reply (.pdf)

It gets more interesting: the state included a declaration by Dr. Elizabeth Dufort, Director of Epidemiology for the NYS Department of Health, and the judge ordered her to appear at the hearing for questioning. This is perhaps the first time I’ve seen a judge take serious interest in examining the facts, seemingly triggered by Dr. Dufort’s apparent expertise in everything from how people behave in bars, to how restaurants handle arriving and departing guests, to the details of state law, to medicine (the latter of which I concede she may be qualified to discuss).

The government apparently did not like that order, and filed a motion for reconsideration, noting that Dr. Dufort was not available and that her testimony does not matter because “the government is not required to justify an executive order.” After a scathing opposition, they “found” the Dr. and withdrew their motion.

I very much look forward to asking Dr. Dufort some difficult questions tomorrow.

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