PSA: Don’t Take The Bar Exam Without Typing Skills

I get a lot of e-mails from law students prepping for, or wondering why they failed, the bar exam. Bar prep isn’t exactly a service I advertise, but I’m always happy to see law students thrive, so if you ask nicely I’ll spend a few minutes looking at your essays and score report and give you some thoughts.

One issue that many students might not be aware of is that a fairly solid ability to type is required if you want to pass the bar exam. You have about 40 minutes to type each essay response. The average “selected answer” published by the California bar (sample high-scoring essay response) is 1,600 – 2,000 words. That means if you are able to type non-stop at fewer than 40 words per minute, you are unable to produce a high-scoring response even if you are a bad-ass with legal rules and essay composition skills.

Take a typing test. If you’re scoring anything less than 75 WPM, you could use some practice. If you’re scoring less than 50 WPM, you would be foolish to attempt the bar exam without practice. There are tons of free or low-cost typing tutor apps that you can find with your favorite search engine, and 20 minutes a day for a few months will absolutely boost your score. Another reality check is if you’re practicing by taking previous exam questions in a timed setting and your responses are under 1,200 words, your essays aren’t long enough and if you feel like your fingers were moving the whole time, your typing may be the problem. (And, if you’re not taking previous exam questions in a timed setting in preparation for the Bar, just send me your $800 exam fee and I’ll tell you you’ve failed right away so you don’t even have to sit for the exam!)

Whether you’re just starting law school or you’re a practicing attorney, this is a skill you need ASAP.

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United Airlines Lawsuit Over Flight 328 Incident Resolves

Just under a year ago, 231 passengers on board United Flight 328 encountered an “uncontained engine failure” — a piece of an engine fan blade broke off at high-speed, damaging the right engine, causing pieces of it to fall off, and the remainder of it to ignite on fire which, for whatever reason, could not be immediately put out in-air.

On March 7th, I filed a class action lawsuit on behalf of the passengers of this flight. The details of the incident and alleged injuries were previously discussed on this blog. A total of 14 named plaintiffs joined the lawsuit, and between August 20th, 2021 and January 24th, 2022, they have all filed notices of voluntary dismissal.

A formal motion for certification of the class had not yet been brought, and the case itself was terminated this week as no named plaintiffs remained. Any passengers who have not resolved their claims, filed their own suit, or retained other counsel are encouraged to quickly reach out to my firm, as statutes of limitations are running.

Case Closed

[ATTORNEY ADVERTISING – Corbett Rights, P.C., Jonathan Corbett, Esq., 958 N. Western Ave., Suite 765, Hollywood, CA 90029. Licensed in CA, admitted to D. Colo.]

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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.

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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)

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TSA & DEA Settle Civil Forfeiture Abuse Lawsuit After Stealing $70K from Film Maker at Airport

Etienne Complaint

“Civil asset forfeiture” is a legal framework that allows the government to take money or other assets that it has probable cause to believe are connected to a crime. The problem, of course, is that it’s up to cops on the ground to say whether they have probable cause or not, and then it’s on you to fight to get your property back — precisely backwards from what it should be.

Unlike criminal forfeitures, civil forfeitures require no one to be convicted — or even arrested for — a crime. Surely there are some instances where this allows the government to legitimately take property from drug dealers or others where the property is obviously criminal proceeds but they can’t nail down an individual to send to jail. But the reality is that this enables law enforcement laziness, where field agents act on a hunch, without serious regard for whether the money is actually criminally-connected or not, often times earning their agency a commission, and massively screwing over innocent people left and right. And sometimes, those involved act in bad faith.

Keddins Etienne, who asked me to share his story, was traveling through JFK airport in New York just before the pandemic erupted with $70,000 cash. He was traveling on domestically, and there is no limit to how much cash you may travel with or requirement to declare cash in any amount unless you’re leaving the country. Etienne works as a film maker, an industry that for smaller productions often pays staff in cash, and the funds were needed for an upcoming production. There was literally nothing to see here.

But, TSA spotted the cash while x-raying his bags and reported their findings to the DEA. DEA agent Antonio LoGrande stopped Etienne, questioned him for several minutes, and — apparently unsatisfied — LoGrande walked away with his cash.

Now, carrying cash, in any amount, is not probable cause that the cash is connected to drugs or some other criminality. Nor is doing so at an airport, nor is not being able (or willing) to justify yourself to some DEA thug. But, Etienne left the airport that day with $70,000 less than he came in with, in exchange for a slip that basically says, “We jacked your cash, if you want to see it back, here’s how you can fight for it.” Except they use important-sounding but actually quite silly language like, “To request a pardon of the property…”

Love Letter from the DEA
Love Letter from the DEA

One shouldn’t have to request a “pardon” for their own innocent funds, but regardless, Etienne did just that. He retained me as his attorney, and I submitted the claim forms to seek return of the cash. Then, something even more curious happened: an attorney for the government, Assistant U.S. Attorney Claire Kedeshian, contacted me and attempted to get me to “settle” the matter by accepting only part of the cash back, as if this were some kind of breach of contract or negligence claim that the parties should negotiate. Ms. Kedeshian advised me by phone that failing to settle might result in additional liability — even criminal liability — for my client, and that they had evidence that he was involved in “structuring” (the crime of depositing or withdrawing large amounts of cash from a bank a small amount at a time in order to avoid federal reporting requirements that trigger with individual transactions of $10,000+).

“Just give us a few thousand and we’ll let you go…”

But, a review of my client’s bank statements showed nothing of the sort: they entirely made up that accusation in an attempt to strong-arm him into settling. I advised them that return of his cash was non-negotiable — return every dollar or see you in court — and that their methods were disgusting. And so we waited for months until the deadline set by law for them to either return the money or start court proceedings arrived, and about 2 weeks before the deadline, they sent us a note saying they would return the money, with no further explanation. Total time from seizure to recovery of funds was about 8 months.

It seemed to me that the wrong done to Etienne was not fully addressed by simply returning his money. So we filed Etienne v. U.S., Case No. 21-CV-613 in the U.S. District Court for the Eastern District of New York, alleging unlawful search and seizure, as well as abuse of process (New York’s civil-context version of malicious prosecution). The case was assigned to a judge who requires a pre-motion conference before filing motions, and the government asked for such a conference on a motion to dismiss. A DOJ attorney got up before the judge and explained the basis for its motion: that carrying that amount of cash through an airport constituted at least “arguable” probable cause sufficient to grant qualified immunity to the DEA agent. The judge made clear that he was not impressed and ordered the parties to mediation. In August, an agreement was reached, and the government paid my client an additional $15,000 for his troubles. The money was finally received last month.

Things ended well for my client, but the taxpayer is out $15K plus probably tens of thousands of salary dollars to the DEA agent and several attorneys who wasted their time trying to backwards-rationalize the seizure of an innocent man’s money. And I wonder how many innocent people just don’t have the will to fight and lose some or all of their money? Those who study the matter suggest that $3B per year is seized through civil forfeiture. So perhaps the government just thinks of the $15K they paid my client as a cost of doing business. It would be nice to see the Department of Justice return to acting in the interest of justice rather than running rackets like this.

Etienne v. U.S. – Complaint (.pdf)
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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.

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How to Request TSA Checkpoint Security Video (FOIA/Public Records Requests)

I am approached by potential clients multiple times per week describing pat-downs gone wrong. Sometimes, the case is black and white: “They strip searched me in the back room” is a scenario where there is no argument that the screeners were “just doing their jobs.” Often times, however, the situation they describe is abusive but close enough to TSA’s “legitimate” procedure that proving it crossed the line may be nearly impossible. These include allegations that the pat-down was done in a way to cause pain (generally, by hitting the groin area), or that screeners used the pat-down as an opportunity to grope rather than search. In these cases, I generally advise clients to get the CCTV video of the incident.

“You can do that? How?”

Every state in the country, plus the federal government, has some variety of public records law.  They may call it a “Freedom of Information” act or law (FOIA or FOIL), a “Sunshine” law, or merely a “Public Records Law,” but the idea is that members of the public have some right to request records from the government.  Records include pretty much anything, from paper documents to e-mails to video.  But, keep in mind that every state has a different version of a public records law, so the steps below are the general process in many states; an attorney can help you confirm that you’re doing what’s right for your state.

Public Records Request Contact at Miami International AirportStep 1: Find the Video Owner.  Security cameras at the airport are typically not owned or operated by TSA.  The footage generally belongs to the airport authority, which is most commonly the county in which the airport is located.  Google for “[airport name] public records request” and you will find that most airports have a process, or at least an e-mail address, for submitting public records requests.  If so, follow their procedure.  If not, you may have to dig around the county’s Web site, or call the county and ask.

Step 2: Write Your Request.  Public records requests generally don’t have to adhere to some kind of form: you simply ask for what you want and tell them how to get it to you.  What you want to make sure you do is describe the video you want in a way that is specific enough that they can find it.  Example: “All video showing a TSA pat-down of a blonde woman, 50 years old, 5’3″, 150 lbs., wearing a pink shirt and white pants, at XYZ airport, Terminal 1, South Checkpoint, second security lane from the left, on 1/1/2021, between 10:10 AM and 10:30AM.”

Step 3: Wait.  Send in your request and set a reminder on your calendar for 30 days, and don’t think about it again until then.  Sometimes you’ll have your records in a week, other times it takes much longer, but you cannot speed it up by contacting them every few days. If you don’t have your request in 30 days, then consider your request ignored.

Step 4: Deal with Pushback.  Sometimes, the airport authority will not provide the video, often citing that it is “Sensitive Security Information” (“SSI”).  However, as a general matter, TSA does not classify checkpoint video as SSI unless it shows computer screens or sensitive documents or similar.  Frankly, these security videos have never, in my experience, been detailed enough to make out what was on a computer screen.  An attorney can help you if your request is denied.  Likewise, if your request is ignored, and after 30 days you are unable to reach anyone to give you a status update, you may wish to have an attorney take a look.

Step 5: Review the Video.  Pretend you’re a random person on a jury.  In fact, perhaps have some objective friends watch it with you.  Based only on what you see in the video, are you convinced that this government employee went too far?  If the video has a clear view of the search but the misconduct simply isn’t apparent on tape, you may need to let this one go.  No one wants to let an abuser get away with it, but sadly justice isn’t done every time, and you don’t want to waste your time and money fighting a battle that simply can’t be won.  On the other hand, the video may make the misconduct quite clear.  In this case, send it on to an attorney for a professional opinion.

The most important part of this process is that you start it quickly.  CCTV videos are usually discarded on a rolling basis, most commonly after 30 days.  Failing to request the video within this retention timeframe doesn’t just deprive you of the video, but it may also allow the other side to suggest that your delay resulted in evidence being destroyed, and may work against you in your lawsuit.  Save a receipt for the sending of your request, whether it be an e-mail confirmation, a screen shot, or a certified mail receipt if you went the old-fashioned way (and there is certainly nothing wrong with that!).

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This post describes a general means of filing a legal request. This is not legal advice, which can only be accomplished by having a licensed attorney review your specific circumstances. If in doubt — or even if not — you are encouraged to contact a competent attorney for a consultation.

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Lawsuit: TSA Fined Disabled Veteran for Being *Unable* to Comply with Airport Screening

Rohan Ramsingh is a disabled veteran of the United States Army. His service to his country left him with multiple disabilities, including minimal use of one of his shoulders and severe post-traumatic stress disorder (PTSD), sufficient that the government classifies him as having “permanent and total disability.” To give you an idea of the extent of the surgeries, medication, and other treatment he has required, his medical record with the Veterans Health Administration is nearly 900 pages.

A few months before the pandemic descended upon the world, Ramsingh went to the airport, presented himself at the security checkpoint, and candidly told TSA screeners about his disabilities at the start of screening. His shoulder injury precludes going through a body scanner (which requires a traveler to hold their arms above their head for several seconds) and his PTSD is triggered by having certain areas of his body touched by strangers. Upon hearing this, instead of working to find a solution, or at worst telling Ramsingh that they wouldn’t be able to clear him to enter, supervisors apparently interpreted Ramsingh’s medical limitations as disrespect of their authority and started to threaten him with detention, fines, and police intervention. Security video shows that the whole time, Ramsingh remained calm, not once yelling or create a scene, and after several minutes of being barked at, he asked TSA to allow him to leave the airport. Instead, TSA held him and police were called. The incident ended when the responding officer told Ramsingh that he wouldn’t be participating in detaining him and that he was free to go.

If only the story also ended there. Days later, Ramsingh received a letter proposing that he pay TSA a civil penalty of $2,050 for “interference” with the TSA screening process.

Surely this must be posturing by some supervisor with a hurt ego that will be abandoned once the adults in charge take a look, right? Wrong. Ramsingh retained competent counsel — yours truly — who retrieved the security video, the incident reports, and the medical records, and presented them to actual attorneys for TSA assigned to the case, David Hall and Bill Hernandez. Instead of dismissing, they argued that being disabled is no defense for failure to complete the screening process, and TSA court (yes, there is such a thing), of course, agreed:

“TSA did not dispute Respondent’s claims to STOSs Pagan and McClelland that he suffers from a condition preventing him from lifting both arms and PTSD, and it does not dispute Respondent’s VA medical documentation, in Exhibit A. … However, as discussed in Ruskai, supra, an individual’s bona fide medical condition does not invalidate the requirement to complete screening.

Order Granting TSA’s Motion for Decision, Mar. 4th, 2021, by Hon. Michael J. Devine, U.S. Coast Guard Administrative Law Judge

An appeal to the head of the agency was denied, and so on Friday we asked the United States Court of Appeals for the D.C. Circuit to explain to TSA that no, it cannot fine people for not completing screening when they are unable to do so. Case No. 21-1170 was assigned with briefing to begin next month.

One would think that a disabled veteran would be the last person the TSA would give grief to. In screening 2 million travelers daily, TSA could be expected to learn how to interact with people with disabilities generally. After all, according to the CDC, 1 in 4 Americans has some kind of disability. This behavior is a disgrace, and I look forward to fighting this battle in an actual Article III court.

Ramsingh v. TSA – Petition for Review w/ Exhibit (.pdf)

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Farewell, Andy!

I usually don’t celebrate the downfall of others. So I will keep this exception to my general rule brief.

Governor Cuomo caused the deaths of ~10,000 seniors because he refused to use the USNS Comfort for political reasons, instead sending COVID patients to nursing homes. He set the tone for unnecessary restrictions around the world by declaring that “science” required a food curfew, bans on music, discrimination against other states, and more; the “science” supporting this has still not been released and our economy will feel it for years. And he did all this while being a creep to any woman who crossed his path.

The Governor was a bully and got what he deserved. Some may think he did the best he could with a tough situation. I respectfully but firmly disagree, and today I celebrated his resignation from downtown Denver, where I am representing those injured by United Airlines’ negligence on Flight UA328 earlier this year. It was a pleasant surprise to check my phone after leaving the federal courthouse to learn that it was champagne o’clock!

Best of luck to Kathy Hochul, next in line for the Governor’s Mansion. The systemic problems in Albany are not gone, and she has a lot of work to do.

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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!]

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