This summer, I wrote that the U.S. Court of Appeals for the Eleventh Circuit denied my challenge to the TSA’s decision to refuse to allow “some” travelers to opt out of the body scanner in favor of a pat-down. Their reasoning was simple: that the “some” travelers selected at random for this special treatment happened rarely enough that I couldn’t show it was “substantially likely” to happen to me.
The problem with the Eleventh Circuit’s logic is that the U.S. Supreme Court has never required a “substantial likelihood of injury.” What the Supreme Court required was “a likelihood of substantial injury, and the Eleventh Circuit, for the past 2 decades, has, on its own, moved that word “substantial” to modify “likelihood” instead of “injury.”
“The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again — a “likelihood of substantial and immediate irreparable injury.””
Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
To hold otherwise would preclude the courts from ever enjoining unconstitutional government action — no matter how egregious — so long as the government does it to few enough people in an unpredictable way. That’s not what the Supreme Court has said, nor is it what any of the other U.S. Courts of Appeals have understood the law to be. (If you’re interested, my petition explores the correct standard and those used by the other circuits).
The Supreme Court takes only a tiny fraction of the cases presented to it, so the odds are against us here, but I am hopeful that because the Eleventh Circuit has pretty blatantly departed from every other court at its level, there is a chance they might take this one up.