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 Jonathan Corbett, Civil Rights Attorney

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standing

Supreme Court Petition Filed: When TSA Searches Travelers at Random, Do All Travelers Have Standing to Challenge the Practice?

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.

Corbett v. TSA – Petition for Certiorari (.pdf)

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

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