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Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Attorney

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Coronavirus Litigation

D.C. Circuit Asked to Re-Hear TSA Mask Mandate Challenge After Supreme Court Rejects OSHA’s Mandate

In December, a 3-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit emphatically tossed my challenge to whether TSA has the authority to create public health regulations. Two of the judges ruled that TSA has authority over both “security and safety” while the third judge would have held that I had no standing to even make the challenge.

I intended to chalk up my loses and leave the case at rest, but on January 13th, 2022, with 11 days left for me to ask the D.C. Circuit to change their minds, the U.S. Supreme Court decided NFIB v. OSHA, 595 U.S. __ (2022) (Case No. 21A244), in which they were asked to consider a challenge to the Occupational Safety and Health Administration’s rule requiring all employers across the country who have at least 100 employees to force their employees to either vaccinate or wear a mask and test weekly. The Supreme Court enjoined OSHA from enforcing the rule:

The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.” She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.

I had argued in my case that the Transportation Security Administration was limited to security matters (terrorists, criminals, and the like) and that regulating safety matters (accidents, natural disasters) is outside of their powers. But the OSHA case made clear that even if an agency has authority over safety, they still do not have authority over matters of general public health. That is, OSHA has authority over occupational safety, and so it follows that TSA, if it has any authority over safety at all, has authority over transportation safety. In other words, just as TSA obviously doesn’t control whether a sidewalk at the airport is slippery, or whether the terminal is painted with lead paint, or whether exposure to UV rays at 35,000 feet should be limited to reduce cancer risks, they do not get to address coronavirus absent a special risk to transportation.

Could they create a regulation that requires masks at security checkpoints due to the special transportation-related risk created by the close proximity required to search travelers? Could be. Could they possibly do a study and conclude that the density of travelers on airplanes creates a special transportation-related risk, and thus require masks on airplanes? Maybe (although the advanced air filtration systems on passenger planes may mitigate that risk). But can they possibly continue to defend a regulation requiring me to wear a mask while shopping at the duty free or eating at the food court? It seems to me that the OSHA case forecloses that possibility.

My petition for re-hearing or re-hearing en banc was filed late Monday night. It is likely that the court will respond in a few weeks.

Corbett v. TSA – Petition for Re-Hearing (.pdf)

PS – Court clerks apparently read this blog last month and bunched their panties due to the name of the blog. I do detail the rationale behind the “Professional Troublemaker” name. It would be nice if the law were decided not based on whether one is pro- or anti-mask/vax/mandate/whatever or by trying to judge the attorney who filed a petition and instead decided strictly based on what the law says. Trying to stretch the powers of the agency created to prevent the next 9/11 to cover public health matters is foolish and entirely unnecessary: even if you like a mask mandate, let the agencies which actually do have authority make it.

D.C. Circuit: TSA Charged with “Safety and Security,” Not Just Security; Mask Mandate Petition Denied

There is no dispute that the Transportation Security Administration was created by Congress after the 9/11 attacks in order to prevent future acts of air terrorism. The Aviation & Transportation Security Act of 2002 (“ATSA”), TSA’s enabling statute, makes clear that it was created to address “security in all modes of transportation.” 49 U.S.C. § 114(d). Virtually every section of ATSA discusses issues such as passenger screening, cargo screening, sterile areas, and the like.

TSA is not a public health agency, nor do they have general police powers, so when they issued a mask mandate for basically the entirety of the nation’s transportation system, I sued. My challenge has nothing to do with whether masks work or what coronavirus policy should be: it solely raised the issue of whether TSA should be allowed to create those policies.

Today, unfortunately the U.S. Court of Appeals for the D.C. Circuit disagreed. In a 2-1 decision (linked below), the court held that TSA was created to deal with “safety and security” and denied my petition. The court held that “Corbett plainly has standing to pursue his claims in this case,” a point which the government disputed in an argument that “borders on frivolous,” which was a small victory for anyone challenging TSA policies in the future. But the court then continued to conclude that Congress used “capacious terms” in ATSA in order to give TSA “broad authority.” Respectfully, I disagree that when Congress says “security” they really meant “safety and security,” I am disappointed with the ruling, and I will consider my options from here.

The dissenting opinion, penned by U.S. Circuit Judge Karen Henderson unfortunately “dissented” to personally attack me for a “waste of judicial resources” because it found the gripes within my petition to amount to mere “trifles” and that my alleged injury was insufficient to demonstrate standing. With all due respect, two federal judges just agreed that I demonstrated standing, so clearly raising that issue was not an indefensible claim. I consoled myself after reading her harsh words with the knowledge that Judge Henderson also wrote that illegal aliens are not “persons” under the Fifth Amendment in 2017 (seriously), that the Second Amendment doesn’t apply in D.C. (also seriously), and recently sided with controversial Trump appointee Neomi Rao to force a lower court to dismiss the case against retired U.S. General Michael Flynn, who lied to investigators about being an unregistered agent of a foreign country, in a ruling that was aptly described as “astonishingly bad.”

Coronavirus litigation is hard. It is few courts that have had the courage to draw a line in the sand — anywhere in the sand — and attorneys who fight that fight certainly do not deserve to be talked down to by federal judges. We can all disagree on exactly how coronavirus policy should be shaped and by whom, and indeed we are doing a disservice if we are not testing these society-altering policies in the courtroom. I’ll try not to be too discouraged, and I hope my readers will not be either.

Corbett v. TSA – Petition Denied (.pdf)

NYC: Don’t Ask Our Vaccine Mandate Inspectors to Show Their Vax Cards!

New York’s vaccine mandate program, dubbed “Key to NYC” and requiring all who enter bars, restaurants, gyms, theaters, and the like to show proof of at least one dose of a vaccine, has been a shit-show from its very inception. We can start with its questionable necessity, given that 83% of adults in the state already have at least one dose. We can look at the disparate racial impact, given that younger black residents are far less likely to be vaccinated, leading to a new means of discrimination and protests by BLM. We can realize that its efficacy is questionable given that any moron can print a vaccine card (so long as one is not illiterate) and there is absolutely no way for a business to verify its authenticity. And perhaps we can even think about the small business owners, already closed for many months and handicapped thereafter, who shouldn’t have to take city-provided conflict resolution courses to deal with people who get upset about having to show their medical records to have a bite to eat, as well as the hit to their much needed revenue, and the fact that it is simply not fair to place the burden of enforcing a public health mandate upon them.

If all of that doesn’t demonstrate that this policy was created in an ivory tower, I received a tip from a New York CIty venue who was inspected by the city for vaccine mandate compliance yesterday and had a simple request of the inspectors: show your vaccination card before entering, like any other person who enters. The inspectors had a simple reply: no. The venue was written up for “denying access” and presumably will face some kind of fine by mail.

These were just inspectors on a power trip, right? I contacted the Mayor’s “Office of Nightlife” chief Ariel Palitz, who told me:

“Inspectors are not required to be vaxxed because their presence is for a ‘quick and limited purpose.’ Exactly like unvaxxed patrons who are dining outside may go inside to use the bathroom or pick up food with a mask on.”

But as any establishment in NYC with a food service permit knows, city inspections can sometimes take hours, the inspectors are in people’s faces, putting their grubby hands all over things, and wandering into private areas, and is simply not the same risk as one who enters to use the bathroom and then leaves. Beyond that, the city seems oblivious to how it looks when they say, “All you people need to be vaccinated to come in… but we are special and will come and go as we please!”

Knock it off, Mayor de Blasio. The people are tired of rules for them, but not for you.

Can Government Officials Block the Public on Twitter? N.Y. Gov. Cuomo Aide Melissa deRosa Wants to Find Out

[Update at bottom!]

Just a few short years ago, we elected a president who took to Twitter to communicate his public policy positions (in between insults, incoherent ramblings, covfefe, and the like). Trump, never known to take criticism well, also made a habit of blocking users who disagreed with him, resulting in a First Amendment challenge that did not go well for him. “We also concluded that when the President creates such a public forum [on Twitter], he violates the First Amendment when he excludes persons from the dialogue because they express views with which he disagrees.” Knight First Amendment Inst. at Columbia Univ. v. Trump, 953 F.3d 216, 217 (2nd Cir. 2020). The Fourth and Eighth Circuits held similarly in similar cases.

But the right has far from an exclusive claim on censorship, as well as on the use of Twitter to communicate with the public. N.Y. Governor Andrew M. Cuomo, the man who ordered nursing homes to accept COVID patients to avoid using the USNS Comfort provided by Trump, resulting in many thousands of dead seniors, also likes to use Twitter, directly as well as through his staffers, including his right-hand-woman Melissa deRosa. After a year of regularly participating in public discussions started by the Governor and his staffers, today Melissa apparently decided she has had enough of my shit and blocked me.

When you take a public office and start creating public fora, you must have thick skin and accept that you’ll receive criticism (and that it will not always be polite!). My First Amendment right to be a part of the public debate has been curtailed, and I’ve written to Ms. deRosa to demand that she cease-and-desist from this unconstitutional behavior — or get sued.

Will update as things progress. [Update: I guess the C&D was well received… have been unblocked!]

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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