US District Judge Marcia G. Cooke today dismissed my case, saying that “without having been provided a copy of this unpublished statute or regulation [the SOP], I am unable to conduct any meaningful inquiry as to the finality of the Screening Checkpoint SOP” and “this argument would be better addressed to the Eleventh Circuit Court of Appeals.”

As brief background for those of you at this blog for the first time, the government replied to my lawsuit against the airport nude body scanners and molestation procedures by saying that anything the TSA “orders” is not reviewable by US District Courts, and rather all cases must be filed in the Court of Appeals.  The reason the TSA wants this is because in the Court of Appeals, there is no jury, no discovery, and I don’t get to present evidence — essentially, the court would take the TSA’s word on issues of fact.

With no disrespect intended to the Hon. Judge Cooke, I find this to be a bit of a cop-out (essentially, “I couldn’t decide, so I’ll dismiss the case and let the higher court deal with it”),  though I am happy to appeal this dismissal to the 11th Circuit, and will do so as soon as possible.  Note that this is appealing the decision that there is no jurisdiction, not transferring the case to the 11th Circuit.

The appellate process is expensive (the filing fee is $450 alone!) — if you would like to donate to this cause, please feel free to send donations by PayPal to jon [at] fourtentech.com.

This fight is only beginning.

Corbett v. US – Dismissed (.pdf)

The US District Judge on my case today adopted the magistrate’s recommendation and denied my request for temporary relief, in a one-page order.  Interestingly, the judge has not yet ruled on the motion to dismiss, which I almost expected would happen before the ruling on the TRO (if you’re planning on dismissing the case, there’s no point in responding to other motions).

This is definitely a setback for us, and means that the DoJ will try to drag this case out for as long as possible.  However, the motion to dismiss is the real thing to watch, and will almost certainly be appealed whether it is granted or denied.  I will keep you all updated.

Today, Jonathan Blitz filed his reply to the government’s motion to dismiss in his case, so we now have 3 cases in US district courts ready to rumble on the issue of jurisdiction.  

Corbett v. US, 10-CV-24106, SDFL 11/16/2010 (11th Cir.)
Redfern v. Napolitano, 10-CV-12048, MAD 11/29/2010 (1st Cir.)
Blitz v. Napolitano, 10-CV-930, MDNC, 12/03/2010 (4th Cir.)

Blitz is a brilliant guy, and I’ve attached his public filing here, as it’s a great read.  The next cases to get to this point will be in the DC and CO (10th Cir.), and I’ll update everyone as the public filings are made. 🙂

–Jon

Blitz Opposition to Motion to Dismiss (.pdf)

I filed my objection the the R&R today (see the previous post). This filing is my opportunity to convince the district judge that the recommendation issued by her magistrate judge was, well, poor, short-sighted, lacking in thoroughness, and overstepping its bounds.

This is the first time I’ve ever written an objection to an R&R, and it puts the author in a precarious position. On one hand, if I don’t strongly and clearly object, the R&R will be adopted and I’ll lose my motion. On the other hand, the magistrate is an officer of the court just as the district judge is, and for all I know they’re best friends, so any criticism must be delivered as respectfully and tactfully as possible.

The TSA has until Friday to file their own objection, which I don’t really expect them to do. After that, the district judge may rule at any time, so we’re looking at as early as Monday, but more likely several weeks from now.

Corbett v. US – Objection to R&R (.pdf)

The objection lists 5 exhibits which are not in the document. They are:

A – http://abcnews.go.com/Travel/miami-airport-tsa-officer-charged-assault-manhood-jokes/story?id=10583691
B – http://www.flyertalk.com/forum/travel-safety-security/1157130-tattoos-visible-body-scanner.html  (post #3)
C – http://www.usatoday.com/news/washington/2011-03-04-bodyscans04_ST_N.htm
D – http://www.wbtv.com/Global/story.asp?S=14142489
E – http://www.wate.com/Global/story.asp?S=13407686

A bit of a setback, unfortunately, but not a final decision. The district judge in my case requested her magistrate judge (sort of like an assistant judge who often does some of the legwork before the big event) give what’s known as a “Report and Recommendation” regarding my motion for a temporary restraining order. This is basically asking the magistrate for his opinion on whether or not the motion should be granted.

It seems that this magistrate judge ignored entirely all of my arguments on jurisdiction and (surprise, surprise) assumed all of the “facts” stated by the TSA are true. The one-sidedness of the R&R is astounding, as generally arguments are discussed and “shot down” by a disagreeing judge, rather than simply ignored. This, again, goes to show why a jury trial is necessary: a jury will require the TSA to prove their case, rather than assume it. [Note: it’s unclear if the magistrate judge took into account my last filing, which was opposition to the TSA’s motion to dismiss.]

R&R attached. My response, if I would like to file one (and I would ;)), is due within 10 days. I still have hope that the district judge will examine the facts and law much more carefully.

Corbett v. US – Magistrate’s Report and Recommendation on Motion for TRO (.pdf)

Still no update on the preliminary injunction, but the TSA filed its motion to dismiss yesterday (a day late, but I’m sure they’re busy :)). The TSA argues that US District Court has no right to review this case, because virtually anything the TSA does is an “order” which can only be appealed (in the US Court of Appeals) rather than subject to a new action on a constutional claim in district court.

The reason the TSA wants the court to see things this way is that there is an important distinction between the district and appellate courts: the district court conducts “fact finding,” such as discovery, witness testimony, etc., while the Court of Appeals would not. The result? No discovery, no witnesses, no jury (juries only decide on questions of fact), and the only facts that will be considered are any record the TSA presents to the court regarding its decision to strip search and molest thousands of passengers daily.

We’ve got a good shot at beating this, and my opposition is 17 pages of discussion on why the TSA cannot do this and the district courts should retain jurisdiction. I’ve attached both their argument and my opposition for anyone interested.

–Jon

Corbett v. US – Defendant’s Motion to Dismiss (Memorandum) (.pdf)
Corbett v. US – Opposition to Motion to Dismiss (.pdf)

I was doing research today into the other lawsuits filed against the TSA, and downloaded a complaint filed by a pair of Harvard Law students…

http://www.bloomberg.com/news/2010-12-01/airport-scanners-enhanced-patdowns-bring-lawsuit-by-massachusetts-pair.html

To my surprise, I found that I downloaded a nearly exact copy of my own complaint! I hope they didn’t submit it as their senior project. 😉

Redfern v Napolitano (.pdf)

***UPDATE*** Final version completed, filed, and attached.

Much of the work in a federal lawsuit is not in the courtroom, but rather in written arguments. Right now, a motion for a preliminary injunction is in front of the court, and the US replied in opposition (naturally — see previous post on blog). I’ve spent much of this week preparing a reply to their opposition, and I think I’ve produced a quality argument.

Let’s make it even better. Some of you may have legal experience, many likely do not, but it doesn’t require a law degree to make a coherent argument. So, I open the floor to you for your review, thoughts, ideas, and suggestions. Anything from a comma out of place to a great piece of case law you read that you think might fit.

My draft document is attached. Some rules:

1) The document gets filed on Monday, so the earlier you reply, the better. The latest reply that I can look at before filing is Monday at 9:00 AM.

2) This is essentially a reply to the government’s reply. Please read the government’s reply first (previous post). As background information, the motion at hand is a motion for preliminary injunction against the TSA using nude body scanners on me or “touching my junk.” (Preliminary injunctions are supposed to be narrow in scope, which is why the motion only relates to me, however if the motion is granted, the door is open for anyone to sue to get relief, not to mention the TSA will be forced re-look at their actions!)

3) You can post your thoughts in the comments or e-mail me directly -> jon at fourtentech.com.

4) Nothing will be construed as “legal advice.” You are either not a lawyer or are a lawyer giving a personal, non-professional opinion only. No attorney-client relationship created, and no compensation due.

Thanks for helping! I know that we all wish that there were something we could do to make this better, and hopefully this is a step in that direction. Together we can beat them!

–Jon

Reply to Opp to TRO (.pdf) (FINAL VERSION)

The US Department of Justice made its first filing in my case today, in opposition to my motion for a temporary restraining order and/or preliminary injunction, attached here for any who would like to review.  While nothing within was terribly surprising, a couple of points were interesting:

•  The DoJ implicitly affirms that they understand that we all have a constitutional right to travel.  However, they proceed to state that there “is no constitutional right to travel by a specific mode of transportation; Plaintiff has the option of traveling by car, bus, or train,” essentially putting it down in writing that the government’s position is, “Don’t like it?  Take the train.”  It goes without saying, but naturally this doesn’t work to overseas destinations (or even the 50th US state), and makes business travel impossible.  The train on my most frequently flown route (NY to Miami) takes about 30 hours — it’s not simply an inconvenience, but impractical.  …and we all know that the trains are next on the TSA’s list, as are buses, and soon enough, the highways.
   
• In order to get a temporary restraining order, one must show that it is unlikely that the other party will be harmed (or if they are, less so that the potential harm to me by not issuing the order).  To that end, part of my request for the temporary restraining order was a declaration that I’m not a terrorist, have no criminal record, and have no intention of blowing up a plane.  The DoJ’s response: A “would-be terrorist would make the same assurances.”  I’ll be sure to ask them if they have any examples of would-be terrorists going to court to petition for their constitutional rights, or perhaps they just assume that anyone opposed to being molested in the name of security may deserve suspicion of being a terrorist.

Next step is a reply from me, and the judge may rule at any time.  I’m confident that the government’s opposition is without merit and will be rejected by the Court — stay tuned!

–Jon

Defendant’s Opposition to TRO/PI (.pdf)

I’ve had several requests for the Word versions of my legal documents so that people can file their own suit against the TSA.  I’m not an attorney and can’t give you legal advice (so nothing in this blog should be construed as such), but since my suit only asks for an injunction rather than for money, it seems to me that filing additional suits asking for the TSA to be enjoined from their behavior won’t make things go any faster.  In other words, 1 injunction is just as good as 100.  You can believe that I’m pressing this suit forward as fast as possible, and faster and harder than any law firm would or could.

However, if you’ve been groped against your will by the TSA and want to ask for money damages, I do recommend (personally and not as an attorney) pursuing that.  Depending on what you’d like to sue for (which depends on your state’s laws), you may need to file a claim with the government before filing a suit, as the government is entitled to special rules when it comes to suing them.  (Note that my suit uses the US Constitution as the basis for its claim, instead of state or federal law, which allows me to bypass some of those special rules, as no rules are above the Constitution!  If only the TSA understood this…)

A quick Google search for “How to sue the United States” is a good place to start.  Take everything with a grain of salt, because law is not an exact science, and the Internet makes for a poorly controlled laboratory. 🙂  If you can afford it or find free one, a lawyer is great, especially if you haven’t ever filed a suit before, since you’ll end up with the entire Department of Justice working against you.

But, if you’re willing to do the research and want to do it yourself, I’d go for it.  I’m a firm believer that any determined citizen can petition the government for a redress of his or her grievances without an attorney.  After you figure out your cause of action (what you want to sue them for) and figure out any special obstacles you may encounter because you’re suing the US (including and especially, the proper party to sue: the US?  DHS?  Big Sis, in her official capacity?  …or as an individual?  …or the screener who molested you?  etc.), you’ll also want to read the current Federal Rules of Civil Procedure, which is essentially a guide to the rules of lawsuits in federal court.  It won’t teach you what to say, but it will tell you when and how you should (or must) say it.

As always, if I can be of any assistance to you in your struggle for your rights, please let me know, and definitely let me know if you file a suit, as I’d love to watch it progress!

–Jon