Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Attorney


49 usc 46110

The TSA Likes It Both Ways

If you’ve been following for a while, you know that my first filing for court review of the TSA’s nude body scanner and genital molestation program was booted for being filed “in the wrong court” (if by “wrong” they mean “in the court that would give me the best opportunity to challenge the TSA’s unconstitutional behavior”). In order to convince the courts to dismiss my case and the several others like it, it had to assure the courts that the other court — the US Court of Appeals — actually would have jurisdiction. This was a problem, since filing in that court has a statutory time limit of 60 days absent “reasonable grounds” for delay.

So, when another plaintiff, who filed virtually the exact same complaint as I did (in large part word-for-word ;)) pointed this out to the judge in their case, the government argued that the “reasonable grounds” clause would clearly cover such a case, and the court need not worry about it:


Months later, here we are in that Court of Appeals that the TSA insisted on. And, of course, now the TSA argues that reasonable grounds don’t actually apply:


Just another fine example of the Department of Justice’s “Win At All Costs, Fuck Justice” attitude. Luckily, courts are not keen on hypocrites and arguing one thing in front of one court and the opposite in another is barred by the doctrine of judicial estoppel. …in theory, at least. Ruling in favor of the TSA here would mean that “scope & grope” would never be able to be reviewed by any court, ever, which is equivalent to placing the Constitution in the fireplace. Let’s see how the court handles this one!

TSA to Court: Actually Don’t Bother with Facts, Just Grant Us Permanent Immunity

In Monday’s post about the TSA asking the court to hear only its own version of the facts, the TSA had reached a new low. It appears they’ve continued to dig. Yesterday’s filing asks the court not to hear my challenge — or anyone’s challenge — regarding the nude body scanners and “pat-downs” — ever!

The basis of this request is that there is a law that says challenges to TSA orders have to be made within 60 days unless “reasonable grounds” are shown. So even though my original challenge *was* filed within 60 days (November 16th, 2010!), because I was forced to re-file in a different court (clearly not a “reasonable ground,” right?), the TSA would like the clock reset and the case thrown out. Naturally, this would mean that no one can challenge the order at this time or at any time in the future, in any court, ever.

In light of the fact that a constitutional injury continues every day that the order remains in place, this is blatantly unconstitutional. And stupid. The requests from the TSA continue to get crazier and crazier, perhaps because judges keep granting them. I seriously hope they’ve crossed a line that even a federal judge can see.

Corbett v. DHS – Jurisdictional Q Govt Reply (.pdf)

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