Ninth Circuit Holds Government Liable for TSA Misconduct at Airport Checkpoints

In a second victory for travelers this year, the U.S. Court of Appeals for the Ninth Circuit held 3-0 that the Federal Tort Claims Act allows lawsuits against the government when TSA screeners violate passengers. Two months ago, the Fourth Circuit held the same, and previously the Third and Eighth Circuits took the same path in 2019 and 2020, respectively.

Oral Arguments in Leuthauser in San Francisco, CA

I was pleased to represent Michele Leuthauser in both the district court and appellate court. The court aptly summed up her experience as follows:

Leuthauser was told that she had to submit to a “groin search.” Leuthauser then entered a private room with two TSOs, including Defendant Anita Serrano. Leuthauser was directed to stand on a floor mat with footprints painted on it to show where to place her feet. Leuthauser alleges that TSO Serrano directed her to spread her legs far more widely than the footprints indicated. TSO Serrano then conducted a pat-down during which TSO Serrano slid her hands along the inside of Leuthauser’s thighs, touched her vulva and clitoris with the front of her fingers, and digitally penetrated her vagina.

One would think that under such circumstances, it would be obvious that the screener or her employer would be on the hook for such egregious conduct. But, the government attempts to combine two laws to preclude any lawsuits against anyone. First, the Westfall Act allows the government, when one of its employees gets sued for on-the-job conduct, to say, “sue us instead of the employee.” This would not be a problem — the treasury is more likely to pay a judgment than a random TSA employee anyway — except they next use the Federal Tort Claims Act, which basically says, among other things, “the government can’t be sued for certain conduct.” In this case, it’s assault and battery when committed by anyone other than an “investigative or law enforcement officer.” So the argument is: 1) you have to sue only the government, but 2) the government isn’t liable.

Luckily, now four appellate courts have concluded that TSA screeners are “investigative or law enforcement officers. I wrote more about this when the Fourth Circuit ruling came out in April for those interested in the details, but suffice to say: if your local letter carrier, social security clerk, or receptionist at a VA hospital doesn’t like your attitude and punches you in the face, you may have no recourse, so long as the government protects the employee with the Westfall Act, because they are not “investigative or law enforcement officers.” But the law is now clear: TSA screeners are, and the government may be sued for their intentional (and negligent) misconduct.

Leuthauser v. United States, 22-15402 – Reversed & Remanded (.pdf)

June 26, 2023 5

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)

August 17, 2021 13

Lawsuit Challenges TSA Authority to Implement Mask Policy

Lawsuit Cover It 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”):

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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February 27, 2021 3

New York Sued for Banning Restaurants from Advertising Music

NYIVA v. NY SLA Last week, the New York State Liquor Authority announced a rule that food service establishments licensed to sell alcohol could no longer advertise any music offered during the dining experience, in a rule absurd enough to surely have been drafted by Governor Andrew Cuomo himself. This rule, which also bans tickets or admission charges to food service establishments, is a clear violation of the First Amendment rights of the state’s liquor licensees.

By and large, the food service industry has done its best to comply with each and every rule and request of the Governor and his agencies in order to provide a safe environment for the public. However, the industry has received no financial support from the state, and the cost of complying with rules that change on a near daily basis is destroying the industry. It is predicted that 1 in 3 food service establishments in the state will never reopen as a result. When all establishments are requiring seated table service, limited capacities, and social distancing, announcing the music selection or having a cover charge simply does not contribute to the spread of coronavirus.

I’m pleased to note that I now represent the New York Independent Venue Association and 9 of its members across the state in taking the New York State Liquor Authority to court over the matter. Case No. 20-CV-6870 in the United States District Court for the Southern District of New York.

NYIVA v. Bradley – Complaint (.pdf)

August 25, 2020 7

N.Y. Gov. Cuomo Doubles-Down on Quarantine, Expands to Half the Country

On June 24th, New York Governor Andrew Cuomo announced a mandatory 14-day quarantine, under penalty of forcible quarantine and large fines, for anyone entering the state from any of 9 “coronavirus hotspot” states. As you cannot protect a population that is already broadly infected by “quarantine,” I immediately filed suit against this irrational and unconstitutional restriction on our right to travel between the states.

A hearing is scheduled for Thursday at 2 PM on my motion for an emergency temporary restraining order in front of U.S. District Judge Lorna Schofield in the Southern District of New York. But in the meantime, the Governor has doubled-down by expanding his list to a total of 16 states:

Cuomo Doubles Down — Current Quarantined State List:
AL, AR, AZ, CA, FL, GA, IA, ID, LA, MS, NC, NV, SC, TN, TX, UT.

This list, including the 1st, 2nd, and 3rd most populated states, includes about half the population of the country.

I look forward to seeing Cuomo’s people in court on Thursday. In the meantime, I’ve filed an amended complaint adding details and challenging the allegedly mandatory form that travelers must fill out when crossing the border (see Exhibit B for that one)…

Corbett v. Cuomo – Complaint (First Amended) (.pdf)

Corbett v. Cuomo – Complaint (First Amended), Ex. A (executive order, .pdf)

Corbett v. Cuomo – Complaint (First Amended), Ex. B (incoming traveler form, .pdf)

June 30, 2020 10

Lawsuit Asks Court to “PAUSE” N.Y. Gov. Cuomo’s Travel Quarantine Order

Cuomo Quarantine Press Conference — Cuomo, along with the governors of New Jersey and Connecticut, announce their plans to violate the constitutional right to travel of those entering the states they govern.

This morning, I filed suit against New York Governor Andrew M. Cuomo in regards to the “quarantine” he and two neighboring governors announced yesterday. This particular quarantine requires anyone incoming to the state who has been to states that the governors find have unacceptably high rates of coronavirus to self-quarantine for 14 days. Failure to self-quarantine results in forcible quarantine and a massive bill.

New York, perhaps because of the population density of New York City and its reliance on public transportation, was hit almost first and by far the hardest of the states by the coronavirus pandemic. Since April 7th, however, the state has seen a steady and consistent decline from 799 deaths in a day to 27 a couple days ago. That said, there are still about 600 new infections confirmed in the state daily, and the best numbers I can crunch suggest that tens of thousands of New Yorkers currently have an active coronavirus infection, whether diagnosed or not.

In this context, it is shocking to me that anyone would propose a quarantine to keep the virus out of New York. If anything, there are probably places that should be quarantining us (and, many countries are indeed not accepting American tourists right now). The cat is out of the bag, and coronavirus, although substantially reduced from the peak, can be found in every village, town, and city in the state. An infected traveler from out-of-state simply cannot affect the statistics when we have tens of thousands of people in the state already who are currently shedding the virus.

This reeks of a political stunt. Whether it’s retribution for other states imposing travel restrictions on New Yorkers, or a middle finger to Trump for encouraging states to re-open, or an attempt to appear “tough on corona” to voters, I don’t know and don’t care. What is clear is that this step cannot deliver any public health benefit, but will certainly cause substantial interference with our constitutional right to travel.

“We have a constitutional right to travel?” Indeed. Like the right to an abortion or to get married, the right to travel appears in the U.S. Constitution not in explicit words but in the due process clause of the Fifth and Fourteenth Amendments. Due process involves not only the right to a trial and so forth (“procedural due process”) but also a right to be free from infringements on our liberty absent a good reason (“substantive due process”). The standard for whether a public health concern is a good enough reason comes from over 100 years ago when a state made smallpox vaccination mandatory and ended up on the receiving end of a lawsuit. That case, Jacobson v. Massachusetts, 197 U.S. 11
(1905), required a “real or substantial relation” between the health concern and the government’s restriction. “Real or substantial” is more than just rational, or plausible, but rather courts have required the government to actually explain how A leads to B, and often to consider less invasive means. (Speaking of, there are obvious alternatives: for example, allowing people to escape quarantine by getting tested, or simply checking body temperature of people flying in.)

My lawsuit, filed in the United States District Court for the Southern District of New York, comes along with a motion for an emergency temporary restraining order. I shall leave you with the conclusion:

The Governor is free to come before the Court at any time with evidence to show that the challenged order is actually necessary to protect the public health. After all, the state should already be in possession of such evidence before issuing an order as drastic as the one challenged. If and when such evidence is provided, the Court may immediately lift the TRO. Until that time, the government should be ordered to “PAUSE” itself.

Is this motion likely to be successful? Well, I fight the hard cases, and this is a fight worth fighting. We’ll leave it to the Court to determine whether the fight wins the day.

Case is Jonathan Corbett v. Andrew M. Cuomo, 20-CV-4864 (S.D.N.Y.).

Corbett v. Cuomo – Complaint (.pdf)

Corbett v. Cuomo – Motion for Emergency Temporary Restraining Order (.pdf)

June 25, 2020 13

Is It Really Impossible To Get A Gun License in NYC? (Part XIII — No Help from Second Circuit)

This is the thirteenth installment of a series documenting an ordinary New Yorker attempting to exercise his Second Amendment rights: Part I (license application), Part II (application rejected), Part III (the lawsuit), Part IV (appeal filed), Part V (appellate briefing complete), Part VI (N.Y. Appeals Court Not Interested in Ending NYPD Corruption), Part VII (Corruption? You Can’t Prove It!), Part VIII (appeal to N.Y. high court), Part IX (N.Y. Court of Appeals won’t hear), Part X (Federal Lawsuit Filed), Part XI (Federal Court Refuses Challenge), Part XII (U.S. Court of Appeals).

Total Time Spent So Far: 79 hours
Total Money Spent So Far: $2,296

In July last year, I filed a notice of appeal of the U.S. District Court’s decision that New York City’s gun licensing scheme was constitutionally sound. Federal court appeals are heard by the appellant filing a brief, the appellee filing an opposing brief, and the appellant gets an opportunity to file a reply brief. Often, but not always, oral arguments are heard, wherein the parties get a short period of time (typically, 5 – 15 minutes each) to persuade the judges hearing the case and to answer their questions.

Oral arguments were ordered in this case and heard on June 3rd, 2020. Getting the Second Circuit to overturn longstanding precedent regarding New York gun laws was always a long shot, so I prepared for a somewhat hostile reception. The judges randomly assigned, however, were two Trump appointees and 1 Bush 43 appointee — a favorable selection for a gun rights case. Because of coronavirus, the arguments were telephonic, and a recording is available from the court (.mp3).

Alas, despite the favorable panel selection, the judges apparently had made up their mind before hearing arguments, as they put out a 5-page opinion the next day (.pdf) affirming the judgment of the court below. The judges did not reach the merits of the case (the constitutional issue). Instead, they agreed with the city that because of the way I presented my case in state court, I could not challenge again in federal court.

Let me try to explain. Some cases can be heard in both state and federal court — gun issues are one of them. However, if your case is heard in state court, it generally can only be heard in federal court if the state court doesn’t provide the same type of remedy (in the legal world, we describe this issue using the Latin phrase “res judicata“). Gun license challenges in New York courts (called “Article 78” proceedings) typically only come with the remedy of ordering the issuance of the license or a new administrative hearing, while in federal court I can ask for money for the infringement of my rights. So, I should have been good. The problem is that when I asked for the review of my gun license issue in state court, I also asked them to review their refusal to provide me with records I requested. The federal court held that this type of case allows for money damages also. In other words, if I had filed 2 separate cases — one challenging the gun license denial and the other challenging the records refusal — my case could be re-reviewed in federal court, but since I did both at once, no dice.

As far as I can tell, this is the first case in which such a distinction has been made, and in my opinion creates an unjust result: there should be no penalty for saving the courts time by asking them to hear two matters at once. Needless to say, it leaves my court battle over my 2015 gun license application dead, as although I can appeal to the U.S. Supreme Court, it is highly unlikely that they have interest in hearing such a case.

But, the fight is not over. Stay tuned for Part XIV over the next month or two, in which we explore the contours of New York’s “proper cause” requirement. 🙂

June 16, 2020 13

Woman Sues TSA for Inserting Fingers Inside of Her During “Search”

Michele Leuthauser was traveling from Las Vegas-McCarran International Airport last June wearing yoga pants that should have made it quite easy to determine that she was concealing nothing on the lower half of her body. But, because the TSA uses body scanners with a false positive rate somewhere in the range of 20-40% (some studies higher), Michele was flagged for additional screening: a pat-down of her “groin area.”

Unfortunately, a yet-to-be-identified TSA screener used this as an opportunity to violate Michele. While typically body scanner alarms are resolved with a quick and limited (yet still often invasive) pat-down right next to the machine, the screener directed Michele to a “private room.” Screening in a private room is supposed to be an option offered to passengers who feel more comfortable (an option I advise all travelers against taking at all costs), but for Michele it was mandatory.

When doing pat-downs, the TSA has little mats with footprints painted on to indicate to the passenger how to stand. But, the screener told Michele to spread her legs far wider than the mat — an order that seems common for TSA screeners about to inflict abuse. She then proceeded to rub her hand on Michele’s vulva, pressing firmly enough to penetrate her labia with her finger through her leggings, and then continuing to rub her vulva until Michele, in shock, finally recoiled and told the screener to stop.

On Friday, I filed suit on behalf of Michele after TSA supervisors, local police, and TSA’s Office of the Chief Counsel refused to do anything about this incident. While TSA policies (and the Constitution) obviously prohibit checkpoint body cavity searches, no one seems to care when normal screening turns to blatant sexual assault. I look forward to giving TSA incentive to care in the U.S. District Court for the District of Nevada.

Leuthauser v. TSA – Complaint (.pdf)

March 9, 2020 12

TSA: Making Woman Take Down Pants & Underwear “Not a Strip Search”

The TSA has been pretty clear that they do not conduct “strip searches” at the checkpoint. In fact, they even re-iterated it to the media last year when I filed suit on behalf of Rhonda Mengert, a grandmother from Las Vegas, NV, who was ordered to take down her pants and underwear and show them a feminine hygiene pad.

So why does once a year or so a new news story gets published with new allegations of checkpoint strip searches?

Perhaps one reason is that the TSA doesn’t think forcing you to expose your genitals counts as a strip search. From their latest filing in the Mengert case:

Here, the TSA attempts to borrow from a case in which police officers, sued for conducting an illegal strip search, argued that they really only conducted a “clothing search” that, incidentally, resulted in the person being searched ending up naked in front of a police officer. Their attempt to try the same justification — essentially that the TSA screeners who violated Mrs. Mengert were not interested in looking at her body; rather, she was just incidentally exposed as they searched her clothes — is a bit curious since the case they cited told the police to pound sand:

“Whether or not the officers set out deliberately to inspect a prisoner’s naked body is not the question; it is, rather, whether the officers did, in fact, perform such a search.”

Wood v. Hancock County Sheriff’s Dept., 354 F.3d 57, 64 (1st Cir. 2003), remanding the case back to the lower court for a jury trial.

I don’t imagine this will go well for them.

If you’re interested in qualified immunity, Bivens liability, and the lengths your government will go to defend blatant misconduct of their employees, the entire motion…

January 30, 2020 3

Lawsuit Against TSA Mandatory Body Scanner Policy Dismissed: No “Standing” Because It “Probably” Won’t Happen to You

The TSA’s body scanner program had always been put forth as an “optional” way for passengers to be screened: there was always the “pat-down option,” as unpleasant as that option may also be. But, towards the end of 2015, the TSA announced that for “some” passengers, body scanners screening would be mandatory. I immediately filed suit.

Fast-forward nearly 4 years, and the Court on Friday finally made a ruling on the matter: my case is dismissed for failure to demonstrate “standing.”

What is “standing?” The U.S. Constitution allows the federal courts to hear only real, live “cases or controversies.” All that means is you have to actually have a specific legal “injury” to complain of. A violation of your rights, or your pocketbook, is an injury (with the exception of “I pay taxes to support this,” which is generally not considered a legal injury for standing purposes). No standing = no lawsuit.

After thorough briefing, the TSA clarified that “some” passengers means “only selectees” — those on a TSA watch list but who have not made it to the no-fly list. And since I’m not on the selectee list, I’m not injured, and therefore the court should show me the door.

Two problems with this: 1) the rule issued by the TSA in 2015 doesn’t specify that it applies only to “selectees,” meaning they are free to change their mind at any time, and more importantly, 2) the TSA also treats regular passengers as selectees on a random basis! On any day you go to the airport, you too could be “selectee for a day!” What are the odds? Redacted:

What are the odds? Redacted!

So to be clear, we won’t tell you the odds, we can change the odds at any time, we can get rid of the odds completely at any time, but don’t worry, your legal rights have not been affected.

“But Jon, what’s the big deal? Why not just wait until it happens and then sue?”

Because challenges to the TSA’s policies, that they call “orders” so long as they are written down and “final,” are made under a statute that requires you to file within 60 days of the date of the order. In other words, by the time you figure out if a policy will actually be applied to you, it may be too late to challenge it. (There may be other ways to get a court to hear the issue, such as suing for the cost of your missed flight if you are selected and then refuse a mandatory body scan, but there are challenges there too.)

I will be considering an appeal on the issue of whether a member of a group who will be randomly affected by a law has standing to challenge it, even if the random selection is rare. This would either be trying to distinguish, or to ask the U.S. Supreme Court to partially overrule, the leading case on the matter, Los Angeles v. Lyons. [Update: I’ve decided I will be petitioning the full Eleventh Circuit to reconsider the case en banc. Stay tuned for an update next month…]

Corbett v. TSA VI – Dismissed on Standing (.pdf)

Early Documents — Petitioner’s, Respondent’s, and Reply Briefing

July 22, 2019 6

Tag: lawsuit