Search

Professional Troublemaker ®

 Jonathan Corbett, Civil Rights Attorney

Tag

tsa mask mandate

TSA Mask Mandate Ends After Court Strikes Down CDC’S Mask Mandate

I spent my weekend writing an appellate petition regarding TSA’s mask mandate, and of course as soon as I finished proofreading and sending it to the printer on Monday, I see the alert that a judge for the U.S. District Court for the Middle District of Florida vacated the CDC’s rule — which supposedly TSA was just “supporting” — as beyond its authority and improper under the Administrative Procedures Act. A few hours later, TSA announced it would rescind its mask mandate.

My personal frustration about the wasted weekend notwithstanding, I naturally welcome the news. CDC — an actual public health agency — was stretching its mandate, but TSA was absolutely sprinting past its mandate by cramming a public health order under the umbrella of “transportation security.” I don’t have an opinion to share on whether yesterday’s order would survive appellate review, as the 59 page document certainly requires more than a moment to parse, but it appears the government will not be appealing and is ready to let the mask mandate go. So, although the D.C. Circuit certainly did not agree in my case, it appears to me (at least if nothing changes) that the issue may now be moot before my deadline to ask the Supreme Court to review that decision next week, which means I am left with nothing to ask the Supreme Court to review.

I’ll be representing individuals who have been fined (or worse) under the mask mandate and look forward to pressing the important issue of agency boundaries in those cases — and will update you all as much as I can. And, I’ll be enjoying a mask-free flight tomorrow!

D.C. Circuit Asked to Re-Hear TSA Mask Mandate Challenge After Supreme Court Rejects OSHA’s Mandate

In December, a 3-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit emphatically tossed my challenge to whether TSA has the authority to create public health regulations. Two of the judges ruled that TSA has authority over both “security and safety” while the third judge would have held that I had no standing to even make the challenge.

I intended to chalk up my loses and leave the case at rest, but on January 13th, 2022, with 11 days left for me to ask the D.C. Circuit to change their minds, the U.S. Supreme Court decided NFIB v. OSHA, 595 U.S. __ (2022) (Case No. 21A244), in which they were asked to consider a challenge to the Occupational Safety and Health Administration’s rule requiring all employers across the country who have at least 100 employees to force their employees to either vaccinate or wear a mask and test weekly. The Supreme Court enjoined OSHA from enforcing the rule:

The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.” She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.

I had argued in my case that the Transportation Security Administration was limited to security matters (terrorists, criminals, and the like) and that regulating safety matters (accidents, natural disasters) is outside of their powers. But the OSHA case made clear that even if an agency has authority over safety, they still do not have authority over matters of general public health. That is, OSHA has authority over occupational safety, and so it follows that TSA, if it has any authority over safety at all, has authority over transportation safety. In other words, just as TSA obviously doesn’t control whether a sidewalk at the airport is slippery, or whether the terminal is painted with lead paint, or whether exposure to UV rays at 35,000 feet should be limited to reduce cancer risks, they do not get to address coronavirus absent a special risk to transportation.

Could they create a regulation that requires masks at security checkpoints due to the special transportation-related risk created by the close proximity required to search travelers? Could be. Could they possibly do a study and conclude that the density of travelers on airplanes creates a special transportation-related risk, and thus require masks on airplanes? Maybe (although the advanced air filtration systems on passenger planes may mitigate that risk). But can they possibly continue to defend a regulation requiring me to wear a mask while shopping at the duty free or eating at the food court? It seems to me that the OSHA case forecloses that possibility.

My petition for re-hearing or re-hearing en banc was filed late Monday night. It is likely that the court will respond in a few weeks.

Corbett v. TSA – Petition for Re-Hearing (.pdf)

PS – Court clerks apparently read this blog last month and bunched their panties due to the name of the blog. I do detail the rationale behind the “Professional Troublemaker” name. It would be nice if the law were decided not based on whether one is pro- or anti-mask/vax/mandate/whatever or by trying to judge the attorney who filed a petition and instead decided strictly based on what the law says. Trying to stretch the powers of the agency created to prevent the next 9/11 to cover public health matters is foolish and entirely unnecessary: even if you like a mask mandate, let the agencies which actually do have authority make it.

D.C. Circuit: TSA Charged with “Safety and Security,” Not Just Security; Mask Mandate Petition Denied

There is no dispute that the Transportation Security Administration was created by Congress after the 9/11 attacks in order to prevent future acts of air terrorism. The Aviation & Transportation Security Act of 2002 (“ATSA”), TSA’s enabling statute, makes clear that it was created to address “security in all modes of transportation.” 49 U.S.C. § 114(d). Virtually every section of ATSA discusses issues such as passenger screening, cargo screening, sterile areas, and the like.

TSA is not a public health agency, nor do they have general police powers, so when they issued a mask mandate for basically the entirety of the nation’s transportation system, I sued. My challenge has nothing to do with whether masks work or what coronavirus policy should be: it solely raised the issue of whether TSA should be allowed to create those policies.

Today, unfortunately the U.S. Court of Appeals for the D.C. Circuit disagreed. In a 2-1 decision (linked below), the court held that TSA was created to deal with “safety and security” and denied my petition. The court held that “Corbett plainly has standing to pursue his claims in this case,” a point which the government disputed in an argument that “borders on frivolous,” which was a small victory for anyone challenging TSA policies in the future. But the court then continued to conclude that Congress used “capacious terms” in ATSA in order to give TSA “broad authority.” Respectfully, I disagree that when Congress says “security” they really meant “safety and security,” I am disappointed with the ruling, and I will consider my options from here.

The dissenting opinion, penned by U.S. Circuit Judge Karen Henderson unfortunately “dissented” to personally attack me for a “waste of judicial resources” because it found the gripes within my petition to amount to mere “trifles” and that my alleged injury was insufficient to demonstrate standing. With all due respect, two federal judges just agreed that I demonstrated standing, so clearly raising that issue was not an indefensible claim. I consoled myself after reading her harsh words with the knowledge that Judge Henderson also wrote that illegal aliens are not “persons” under the Fifth Amendment in 2017 (seriously), that the Second Amendment doesn’t apply in D.C. (also seriously), and recently sided with controversial Trump appointee Neomi Rao to force a lower court to dismiss the case against retired U.S. General Michael Flynn, who lied to investigators about being an unregistered agent of a foreign country, in a ruling that was aptly described as “astonishingly bad.”

Coronavirus litigation is hard. It is few courts that have had the courage to draw a line in the sand — anywhere in the sand — and attorneys who fight that fight certainly do not deserve to be talked down to by federal judges. We can all disagree on exactly how coronavirus policy should be shaped and by whom, and indeed we are doing a disservice if we are not testing these society-altering policies in the courtroom. I’ll try not to be too discouraged, and I hope my readers will not be either.

Corbett v. TSA – Petition Denied (.pdf)

Blog at WordPress.com.

Up ↑