I fight civil rights cases, which necessitates asking the government (courts) to tell the government (executive) that they can't do something. It's always an uphill battle, and not every case gets justice for those who encounter government abuse. But this decision left me equal parts depressed and angry.
Rohan Ramsingh is a disabled veteran. In addition to physical injuries incurred during his service to our country, he has PTSD that would be triggered by certain parts of TSA's pat down procedure. His PTSD is documented and treated by the VA.
When he went through a TSA checkpoint just before the pandemic and TSA asked him to undergo a pat-down, he respectfully advised them of his medical limitations. Instead of finding an alternate method of screening (as is frequently done for casts or otherwise medically-inaccessible areas of the body) or simply saying, "We can't clear you today, sorry," they called police to try to force him to submit, and when police declined to play that role, they ejected him from the checkpoint and sent him a fine for $2,050.
I represented Mr. Ramsingh in "TSA court," wherein the agency acts as judge, jury, and executioner, expecting success would be unlikely at that level, which produced gems such as this one:
"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."
In other words, TSA can ask you to do something you medically cannot or should not do, and you must comply or face a fine. TSA court was "nice enough" to reduce that fine to $680.
"As expected, no problem," I thought, as I prepared the petition for the U.S. Court of Appeals for the D.C. Circuit to review the case, fully expecting them to set the TSA straight that no, they cannot force someone to injure themselves at the checkpoint. Wrong I was. In 22 pages of opinion, all they managed to say regarding whether TSA may force a traveler to obey despite a medical condition is this:
When Ramsingh explained his discomfort with a pat-down, TSA offered to conduct the search in a more private area. While the accommodations provided did not fully meet Ramsingh's medical needs, the TSA officers made a good-faith effort to respect his particular conditions while also performing their security and public-safety duties.
Triggering a PTSD episode is not "discomfort," and a "good-faith effort" that fails to accommodate a disability should not result in the person with the disability being fined. It also follows that physical injuries will be similarly treated. You've got a wound that's sensitive to the touch? You better let TSA touch it or face a fine!
I am outraged by the decision of the Court of Appeals, and we will be continuing this fight. If any disabilities or veteran's rights groups, or mental health advocacy groups, would be wiling to assist by helping to explain to the court the seriousness of mental health episodes, please be in touch.
Ramsingh v. TSA – Opinion (.pdf)
On April 20th, 2022, TSA stopped enforcement of its travel mask mandate after a federal district court decided the CDC's similar mandate was unlawfully issued. But, TSA has never publicly, formally rescinded its mandate, and so it could be immediately reinstated whenever the next strain or virus crosses some arbitrary threshold. I asked attorneys for TSA to indicate whether rescission was forthcoming, and they refused to answer (which, to me, is a pretty clear answer).
So, I've asked the U.S. Supreme Court to review the decision of the U.S. Court of Appeals for the D.C. Circuit allowing TSA authority to regulate anything that affects the "operational viability" of the transportation system. TSA's mandate from Congress is security, not "operational viability," a term which to me would include basically anything: the price of jet fuel, the hours pilots are allowed to work, the routes which airlines are allowed to fly… what doesn't affect "operational viability?"
The Supreme Court (at least of recent) has been clear that agencies may not deviate from the normal boundaries of their authority based on creative interpretation of their enabling statutes. In the last year, OSHA was prevented from issuing vaccination mandates because corona is not an "occupational" hazard, the CDC was not allowed to maintain an eviction moratorium because housing is far from disease control, and the EPA was prevented from forcing power plants to switch from coal because the law gave them powers to set standards for coal, not eliminate it. Regardless of whether you agree with these decisions, and regardless of whether you agree that a mask mandate is a "good idea," it clearly follows that TSA should be prevented from issuing mandates on communicable diseases when their mandate was to stop terrorism.
My case was assigned number 22-33, and the high court will be able to hear it, refuse it, ask the government to weigh in, or immediately send it back to the D.C. Circuit for further consideration. This was my first petition for certiorari as an attorney after having been admitted to the court's Bar last month, and shockingly only the tenth time anyone has ever asked the court to hear a TSA-related case (3 of the other 9 were also mine over the last decade). Interestingly, filing is actually made more difficult when you're an attorney: in addition to still needing to send in 40 paper copies in funny booklet format and pay by old-school check, you also need to submit the documents electronically through a buggy and, frankly, insecure-seeming custom platform.
Corbett v. TSA – Docket | Petition (.pdf)
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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.
How to Request TSA Checkpoint Security Video (FOIA/Public Records Requests)
I am approached by potential clients multiple times per week describing pat-downs gone wrong. Sometimes, the case is black and white: "They strip searched me in the back room" is a scenario where there is no argument that the screeners were "just doing their jobs." Often times, however, the situation they describe is abusive but close enough to TSA's "legitimate" procedure that proving it crossed the line may be nearly impossible. These include allegations that the pat-down was done in a way to cause pain (generally, by hitting the groin area), or that screeners used the pat-down as an opportunity to grope rather than search. In these cases, I generally advise clients to get the CCTV video of the incident.
"You can do that? How?"
Every state in the country, plus the federal government, has some variety of public records law. They may call it a "Freedom of Information" act or law (FOIA or FOIL), a "Sunshine" law, or merely a "Public Records Law," but the idea is that members of the public have some right to request records from the government. Records include pretty much anything, from paper documents to e-mails to video. But, keep in mind that every state has a different version of a public records law, so the steps below are the general process in many states; an attorney can help you confirm that you're doing what's right for your state.
Step 1: Find the Video Owner. Security cameras at the airport are typically not owned or operated by TSA. The footage generally belongs to the airport authority, which is most commonly the county in which the airport is located. Google for "[airport name] public records request" and you will find that most airports have a process, or at least an e-mail address, for submitting public records requests. If so, follow their procedure. If not, you may have to dig around the county's Web site, or call the county and ask.
Step 2: Write Your Request. Public records requests generally don't have to adhere to some kind of form: you simply ask for what you want and tell them how to get it to you. What you want to make sure you do is describe the video you want in a way that is specific enough that they can find it. Example: "All video showing a TSA pat-down of a blonde woman, 50 years old, 5'3″, 150 lbs., wearing a pink shirt and white pants, at XYZ airport, Terminal 1, South Checkpoint, second security lane from the left, on 1/1/2021, between 10:10 AM and 10:30AM."
Step 3: Wait. Send in your request and set a reminder on your calendar for 30 days, and don't think about it again until then. Sometimes you'll have your records in a week, other times it takes much longer, but you cannot speed it up by contacting them every few days. If you don't have your request in 30 days, then consider your request ignored.
Step 4: Deal with Pushback. Sometimes, the airport authority will not provide the video, often citing that it is "Sensitive Security Information" ("SSI"). However, as a general matter, TSA does not classify checkpoint video as SSI unless it shows computer screens or sensitive documents or similar. Frankly, these security videos have never, in my experience, been detailed enough to make out what was on a computer screen. An attorney can help you if your request is denied. Likewise, if your request is ignored, and after 30 days you are unable to reach anyone to give you a status update, you may wish to have an attorney take a look.
Step 5: Review the Video. Pretend you're a random person on a jury. In fact, perhaps have some objective friends watch it with you. Based only on what you see in the video, are you convinced that this government employee went too far? If the video has a clear view of the search but the misconduct simply isn't apparent on tape, you may need to let this one go. No one wants to let an abuser get away with it, but sadly justice isn't done every time, and you don't want to waste your time and money fighting a battle that simply can't be won. On the other hand, the video may make the misconduct quite clear. In this case, send it on to an attorney for a professional opinion.
The most important part of this process is that you start it quickly. CCTV videos are usually discarded on a rolling basis, most commonly after 30 days. Failing to request the video within this retention timeframe doesn't just deprive you of the video, but it may also allow the other side to suggest that your delay resulted in evidence being destroyed, and may work against you in your lawsuit. Save a receipt for the sending of your request, whether it be an e-mail confirmation, a screen shot, or a certified mail receipt if you went the old-fashioned way (and there is certainly nothing wrong with that!).
This post describes a general means of filing a legal request. This is not legal advice, which can only be accomplished by having a licensed attorney review your specific circumstances. If in doubt — or even if not — you are encouraged to contact a competent attorney for a consultation.
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:
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)
Lawsuit Challenges TSA Authority to Implement Mask Policy
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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U.S. District Court: TSA Not Immune in Right-to-Film Lawsuit
TSA says right on its Web site that photo and video at the checkpoint is no problem, so long as you're not in the way and not trying to capture the content of their computer screen. It's also a First Amendment right to record government officials doing their work in public, as has been affirmed time and time again. So why was my client, who simply wanted to capture his husband's pat-down on their cell phone camera, told by a TSA supervisor at Richmond International Airport that not only must they stop, but also delete the video that they started to take?
Probably some bad training, probably some bad attitude, but regardless, U.S. District Judge John A. Gibney, Jr., in the Eastern District of Virginia, wasn't having it, and today denied TSA's motion to dismiss on qualified immunity grounds, as well as rebuffing TSA's attempt to preclude Bivens remedies from being applied to checkpoint abuse.
Bivens is the landmark case allowing for money damages for some constitutional violations, most often for Fourth Amendment search-and-seizure abuse. The U.S. Supreme Court has shown some hostility towards using Bivens in other contexts, recently calling it a "'disfavored' judicial activity" and requiring courts to accept pretty much any reason that might suggest that Bivens remedies should be disallowed as good enough to disallow it. Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). And here, TSA argued them all: that it would harm national security, interfere with their ability to do their job, and cause great hardship in their screener training process. But making TSA screeners follow the Constitution doesn't implicate some kind of state secrets, and regarding training, well:
Federal officials should not evade liability for constitutional violations because their employer has not provided adequate training.
…or in other words, if TSA isn't already training their employees to follow the Constitution, now would be a great time to get started with that.
Regarding qualified immunity — the idea that government officials should get a pass if the courts hadn't already made clear that similar conduct was illegal — the court had no trouble concluding that TSA is not "special:"
"[T]he First Amendment protects the right to record government officials performing their duties … to enable any citizen at any time to bring the government and any person in authority to the bar of public opinion …
In addition, when we protect the right to record public officials, we protect against the degradation of various other constitutional rights. This country's racial unrest highlights this principle. Because a cell phone video captured George Floyd's death, the world watched. The world's reaction to this video — and others — sent millions into the streets in protest. Although the racial reckoning continues, this video and the protests it sparked bent 'the arc of the moral universe … towards justice.' Dr. Martin Luther King, Jr., Remaining Awake Through a Great Revolution (Mar. 31, 1968). What if the officers had ordered the video that captured George Floyd's death deleted?"
It certainly makes this civil rights lawyer warm and fuzzy to have a judge quote Dr. King while a ruling in his favor.
Dyer v. TSA – Motion to Dismiss, Denied (.pdf)
A Full Decade of Litigating Against TSA
When you do something for long enough, it's hard to remember life before you did that thing.
Now 10 years after young me — with no legal education — brought the first complaint against TSA body scanners, it's hard to imagine a time when going into an airport was a comfortable experience before which you didn't ponder what variety of molestation or harassment you'd encounter. Or a time when the sounds of metal detectors didn't generate the same emotional response for me as nails on a chalkboard. But it's also hard to imagine a time when I didn't serve the public as an advocate for the privacy of humans as they move from one place to another.
I've learned that it matters not whether an "R" or a "D" appointed the administrator of the TSA: both sides are quite capable of authoritarian policy. While I've not been shy about being pleased to see Trump go, I promise to keep Biden's appointee in check just as I did Trump's, and just as I did Obama's. Our system of government, and especially our system of justice, requires representation of both sides of any issue. Now with proper legal education and a decade of learning how to hold the government responsible, I look forward to continuing to represent those who have been wronged by poorly planned or executed government policy (or as I've bluntly referred to it in the past, government assholery), as well as continuing to pressure the government to create and implement prudent policy to avoid those injuries in the first place.
To those who have been here with me since 2010, thank you, so much, for your continued support. To those who have just had their first negative encounter with the government, I am sorry, and welcome aboard.