After extensive negotiations, we were given permission to record audio (but not video or still photographs) of the formal hearing conducted in Portland. OR, on May 14, 2013, in the matter of “Naked American Hero” John Brennan.

Linked below are audio recordings of the entirety of the hearing:

Dramatis Personae other than witnesses (in order of appearance):

• Administrative Law Judge George J. Jordan (U.S. Coast Guard, Seattle regional office)
• Susan Conn (attorney for the TSA, Seattle regional office)
• Robert A. Callahan (attorney for Mr. Brennan)

Audio (MP3 recordings can be streamed from here or downloaded directly from the links below):

• Introduction and opening statements (4 min. 47 sec., 4 MB mp3)
• Steven Van Gordon (TSA checkpoint staff, PDX) (1 hr. 11 min. 38 sec., 66 MB mp3)
• Jerry Nichols (TSA checkpoint supervisor, PDX) (18 min. 56 sec., 17 MB mp3)
• Jonathan David (TSA manager, PDX) (42 min. 17 sec., 39 MB mp3)
• Officer Brian Cotter (Port of Portland Police Department) (15 min. 38 sec., 14 MB mp3)
• Marsha Shanahan (TSA Transportation Security Inspector) (36 min. 58 sec., 37 MB mp3)
• John Brennan (“Respondent”) (27 min. 16 sec., 25 MB mp3)
• Closing statements (4 min. 34 sec. 4 MB mp3)

Video: Excerpt from TSA/airport security camera video (from news report, but also entered into evidence at the formal hearing)

Mr. Brennan exercised his First Amendment right to express his political opinion by taking off all his clothes while he was being subjected to “secondary” searching at a TSA checkpoint at the Portland airport (PDX) on April 17, 2012.

The TSA called the Portland police, who arrested Mr. Brennan for “indecent” exposure, but he was eventually acquitted of all criminal charges by an Oregon judge.

Undeterred — or, more precisely, fearing that Mr. Brennan and others would no longer be deterred from similar politically expressive conduct after his acquittal — the TSA has proposed to assess a $1,000 “civil penalty” against Mr. Brennan for “interfering with screening”.

It certainly appears to us that Mr. Brennan’s actions should have facilitated his screening, and he testified that he was trying to assist the screeners in determining that he was not carrying explosives or weapons.

There are many Alice-In-Wonderland aspects to this administrative proceeding, among them that the TSA has declared the “Notice of Proposed Civil Penalty” which explains the basis for the proposed fine to be “Sensitive Security Information” (SSI) exempt from public disclosure.  The notice was, we presume, served on Mr. Brennan and/or his attorney, but they were not allowed to quote from it publicly.

Portions of the evidence and allegations against Mr. Brennan were also designated as SSI and exempt from disclosure.  We were allowed to attend and listen to the whole formal hearing, but not to see any of the documents that were being discussed and entered into the (secret) record.

The  decision of the Administrative Law Judge (ALJ) on whether to assess a fine against Mr. Brennan, and if so in what amount, will probably also deemed SSI.

According to the rules for TSA civil penalty proceedings, journalists or members of the public can inspect  the docket — including the evidence, transcripts of the depositions and the formal hearing, and pre- and post-hearing briefs — only by filing a formal request under the Freedom Of Information Act (FOIA).

We’ve filed a FOIA request for the complete docket record, and have asked (in accordance with FOIA) that it be processed on an expedited basis, but the TSA’s first response was that they estimated that they won’t complete their response until August 23, 2013.  The Coast Guard ALJ’s office told us that they couldn’t remember anyone ever before asking for an active civil penalty docket, and hasn’t yet given us any estimated date for their response.

In the meantime, our audio recordings linked above are the best available public indication of what the TSA thinks Mr. Brennan did, how they think he “interfered with screening“, and why they think he deserves a $1,000 fine. These are also the best available guidance, for others who may be subjected to TSA enforcement action, about how the process works.

The TSA has threatened other protesters with civil penalties, but in most cases either people pay the proposed fines (for example, if they were trying to carry otherwise-legal firearms through a TSA checkpoint, which happens every day), they are convicted of some criminal offense (usually for drugs), or the TSA backs down and withdraws its proposal for a fine. So far as we know, this is the first time the TSA has continued to pursue a proposed civil penalty for nonviolent, non-criminal  political protest at a TSA checkpoint by someone who contested the proposed fine and exercised their right to a formal hearing.

(TSA Publc Affairs Manager Lorie Dankers, who came down from the TSA regional office in Seattle along with the TSA’s lawyer to attend the hearing in Portland, told reporters that since the TSA’s creation the agency has assessed “a few hundred” civil penalties for “interfering with screening.” But most of those cases involved neither political protest nor a formal hearing.)

This was an administrative proceeding, not a trial. It was held in a courtroom rented from the U.S. Bankruptcy Court, but it was not a trial, not a “court” proceeding, and not governed by court rules.

Most people are familiar with “civil penalties” or “administrative fines” though non-criminal tickets and fines for traffic violations or for offenses in jurisdictions that have decriminalized, but not legalized, certain drugs.

Under the TSA’s enforcement procedures, the TSA sends a “Notice of Proposed Civil Penalty” giving the recipient the choice of paying the proposed fine, requesting an “informal conference” with the TSA investigator, or demanding a formal hearing. If you receive such a notice, consult a lawyer before responding or saying anything to the TSA.

In Mr. Brennan’s case, the formal hearing was preceded by exchanges of preliminary legal motions, discovery of evidence, and depositions of Mr. Brennan and of the TSA’s witnesses.

No decision was expected or announced at the hearing. Following the hearing, attorneys for Mr. Brennan and the TSA will each submit post-hearing briefs including proposed findings of fact and conclusions of law. Eventually the ALJ will issue a decision on whether to assess a fine, and if so in what amount.

A decision of an ALJ assessing a fine can be appealed to the head of the TSA or his or her designee. The decision on this appeal is administratively final. Only then can Mr. Brennan get his day in a real court by petitioning for a review of the TSA’s administrative decision by a U.S. Circuit Court of Appeals, either in the D.C. Circuit or the 9th Circuit (which includes Oregon).

49 USC § 46110 prohibits the ALJ or the TSA decision maker on any administrative appeal from considering the Constitutionality or validity of any TSA rule. Those issues can only be raised if and when the case gets to the Court of Appeals.

Other lawyers have commented in relation to the case against Mr. Brennan that, “Once in the administrative process, the agency gets a huge degree of deference in determining violations with judges who are dependent on the agency.”

An Administrative Law Judge (ALJ) is usually an employee of the same agency in whose proceedings he or she makes decisions.

The TSA, however, has entered into a memorandum of understanding with another DHS component, the U.S. Coast Guard, pursuant to which TSA matters requiring decisions by ALJs are assigned to Coast Guard ALJs. (Some of our appeals of TSA FOIA decisions, for example, have been decided by Coast Guard ALJs.)  This spared the new TSA from having to set up its own ALJ structure.

Most of the formal hearings conducted by Coast Guard ALJs involve maritime workers who are being threatened with revocation of their mariners’ licenses on the basis of drug test results. But they also hear cases of civil penalties for actions ranging from drunk boating to dumping or leakage of water pollutants from ships.  TSA matters are a small part of their caseload.

The Coast Guard ALJ in this case, George J. Jordan, was previously the chief administrator of the Coast Guard ALJ office and legal advisor to the Chief Coast Guard ALJ.  He was named as a defendant along with the Chief ALJ and others in three related lawsuits (Dresser v. Ingolia, Elsik v. Ingolia, and Rogers v. Ingolia) brought by mariners who were the subject of Coast Guard enforcement actions. The plaintiffs alleged that “Coast Guard administrative law judges, clerks, and other staff [including Jordan] conspired to ‘fix’ administrative proceedings.”

In 2009, while those cases against him and his colleagues were pending, Jordan was shifted to the Social Security Administration, where he was appointed an ALJ for that agency.  In 2010, after all three cases against him had been dismissed (on jurisdictional and immunity grounds which were eventually upheld by Circuit Courts, without fact-finding on the substantive allegations), Jordan returned to the Coast Guard and was appointed as a Coast Guard ALJ, a promotion from his former position as an advisor and administrator for the ALJs. At the time, some maritime lawyers specializing in practice before Coast Guard ALJs complained that Jordan’s appointment as an ALJ showed at least the appearance of a lack of concern by the Coast Guard for the probity of its ALJs and the integrity of their proceedings.