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 Jonathan Corbett, Civil Rights Attorney

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rachael zintgraff

Sanctions Motion Filed Against DOJ Attorney for Frivolous Argument in TSA Case

I’ve complained several times of “creative” (read: absurd) arguments put forth by Assistant U.S. Attorney Rachael Zintgraff in the DOJ’s Northern District of Oklahoma office in Rhonda Mengert’s case stemming from an illegal TSA strip search.  A partial list of Ms. Zintgraff’s next-level arguments have included:

  • That an illegal strip search in the back room of an airport is comparable to using a locker room (page 11)
  • That women in locker rooms regularly “observe” each other’s feminine hygiene products (page 11)
  • That an illegal strip search in the back room of an airport is not extreme or outrageous (requirements for an emotional distress claim) (page 15)
  • That an illegal strip search in the back room of an airport is comparable to a preschool nurse examining a child (page 18)
  • That classic PTSD symptoms, including uncontrollable shaking, nausea, sweating, tightness in throat, headache, and hot flashes whenever thinking about the incident are insufficient allegations of “severe” emotional distress (page 33)
  • That instead of a lawsuit, Ms. Mengert could have simply filed a complaint with the TSA or told a police officer, and that would be a sufficient remedy for being unlawfully strip searched in the back room of an airport (page 19)
  • That there are national security implications involved in this case (page 23)
  • That holding TSA screeners liable for illegal strip searches may cause them to hesitate when a real terrorist tries to get through the checkpoint (page 26)
  • That Ms. Mengert can’t prevail on her claim under one law (Federal Tort Claims Act), but since that law provides a way for her to seek redress, even though it doesn’t, the court shouldn’t allow another type of claim (Bivens remedies) because the first law adequately protects her (if this makes your brain hurt, you’re not alone) (page 17, fn. 8)
  • That perhaps TSA procedures allow for strip searches and thus exonerate the screeners, despite TSA spokespeople literally saying that TSA does not conduct strip searches in response to media inquiries in this case (page 10, fn. 9)
  • That ordering someone to drop their pants and panties in order to get a good look is not actually a strip search (page 10, fn. 9)

The bar for what is “frivolous” is high: it must not be merely wrong, it must be such that no reasonable attorney would think it reasonable to argue otherwise.  So, just maybe, it’s not frivolous to argue that a strip search is like a locker room, because perhaps consent is not something you value.

But in this entire pile of nonsense, there is one more argument in particular stood out as legally frivolous: that Mrs. Mengert should have brought her challenge in a different court (page 15).  Let me explain.

Congress wrote a law that basically says that written decisions of the TSA are to be directly appealed in the Court of Appeals.  These so-called “orders” of the TSA cannot be challenged in the normal trial court.  To try to invoke this law, the TSA has argued that many TSA orders are secret and therefore there is no way for us to know whether the strip search was conducted pursuant to an order or not, and therefore the case belongs in the Court of Appeals.

Notice how this argument is not that “TSA has ordered strip searches.”  It’s basically “maybe they have, so the plaintiff should have to try the Court of Appeals first.”  At the outset, that is a blatant attempt at delaying litigation.  If the defense is that they were following orders, they could simply say so, and no one knows better than me that they are happy to do so when it helps their case: my first case against the TSA, back in 2010, was dismissed on a successful argument that I was challenging a written order of the TSA and therefore was in the wrong court.  The case law for this concept literally bears my name in the caption.

Beyond that, we know that TSA doesn’t “order” strip searches because their spokespersons say so.  Because you can ask any screener at the checkpoint, and most of them are happy to tell you that TSA doesn’t do that.  Because they publish the same in their blog.  And because millions of women pass through TSA with feminine hygiene products each year, yet less than a handful have ever reported being strip searched for the same.  TSA policy is clear that strip searches by checkpoint screeners are prohibited.

An argument that maybe a secret order required the defendants to do something, when Ms. Zintgraff knows damn well that no such order exists, is legally frivolous.  No reasonable attorney in her position would have made such an argument, and that is why, after 21 days’ notice and demand to retract without reply, I filed my first motion for sanctions since becoming an attorney.

TSA: Forced Strip-Search No More Offensive Than Voluntarily Using a Locker Room

TSA's Motion to Dismiss Mengert Lawsuit
The TSA fails to appreciate the value of consent.

In June, my client Rhonda Mengert filed suit against the TSA for forcing her to expose herself and show them a feminine hygiene product she was wearing.  The strip-search of this 51-year-old grandmother was flatly against TSA’s own rules, yet strip-searches happen over and over at airports across the country, perhaps as a result of poor training, high turnover, failed background checks, or… well, who really knows why they can’t get it together?

What we do know from the TSA’s 24-page reply to the lawsuit (.pdf), a motion to dismiss filed Friday in U.S. District Court for the Northern District of Oklahoma, is that they don’t think they should be held responsible.  Much of their rationale is the standard technical stuff that one expects of defense lawyers and we’ll respond to that in due course.

One of their rationales, however, is so absurd, offensive, and regressive that I am shocked to see it written by anyone in 2019, let alone a well-educated woman from the U.S. Department of Justice.  In her motion, Assistant U.S. Attorney Rachael Zintgraff writes that a forced government strip-search just isn’t that big of a deal as to justify a lawsuit:

These allegations amount to no more than indignities, annoyances, and petty oppressions. Even if it was subjectively “embarrassing,” “disturbing,” “humiliating,” and “offensive,” for Plaintiff to lower her clothing and show the feminine hygiene product she was wearing, the intrusion on her privacy was no more severe than what could be routinely experienced in a women’s locker room, where states of partial undress and feminine hygiene products are subject to observation by other members of the same gender.

Is a rape victim’s trauma is no greater than they would have had during consensual sex?  Can peeping toms now use this same defense?  If not, then how can one possibly argue that having 2 uniformed federal employees force my client into a back room to show them her most intimate areas is in any way comparable to one voluntarily using a locker room?

The difference between “extreme and outrageous” and “just locker room embarrassment,” Ms. Zintgraff, is consent.  And respectfully, while I don’t personally have a lot of experience with women’s locker room etiquette, I must assume that inspecting each other’s pads is generally not a part of the experience.  At least DOJ attorneys have moved on from arguing that kids detained for weeks don’t need blankets or toothbrushes… it’s just unfortunate that they’ve now taken up selling out on women’s rights in order to avoid paying a woman who they violated.

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