The TSA has assessed a $500 civil penalty against “Naked American Hero” John Brennan, who removed all his clothes at a TSA checkpoint at the Portland, Oregon, airport in 2012 to show that he wasn’t carrying any weapons or explosives and in protest of the TSA’s practices.
Mr. Brennan was arrested at PDX airport by Portland police on April 17, 2012, but he was found not guilty of criminal charges in June 2012 by a county judge on the grounds that, under local Portland ordinances and Oregon state law, nakedness for purposes of political protest is not a crime.
After Mr. Brennan’s acquittal, a TSA investigator proposed that he be penalized $1000 for “interfering” with TSA screening. In accordance with a memorandum of understanding between the TSA and the Coast Guard, the TSA has delegated its administrative authority to determine whether to assess such a penalty, and if so, the amount of the penalty, to an “Administrative Law Judge” (ALJ) from the U.S. Coast Guard.
(Why the Coast Guard? The TSA doesn’t have any ALJs on its own payroll, so it contracts out their functions with respect to TSA decisions to the Coast Guard as a parallel component of the DHS.)
Almost a year after that hearing and almost two years after the underlying events at the airport, ALJ Jordan has finally issued an initial decision to assess a $500 penalty (reduced from the $1000 proposed by the TSA investigator) along with a set of findings of fact and conclusions of law.
Contrary to some headlines, no court has yet considered, much less upheld, the TSA’s decision, and no independent third party has yet reviewed, much less ruled on, the TSA’s complaint against Mr. Brennan.
Both the terminology and the TSA’s outsourcing of its own internal decision-making to Coast Guard employees make it easy to misunderstand what has happened.
Just as the checkpoint staff the TSA calls “Transportation Security Officers” are not law enforcement officers, so-called “Administrative Law Judges” are not judges or officers of any court. The “formal administrative hearing” was held in a courtroom (rented for the day by the TSA from the U.S. Bankruptcy Court), but it was not a trial and was not a proceeding of any actual court.
ALJ Jordan was acting not as an independent party, but as a DHS employee subcontracted by the TSA (only because the TSA doesn’t have its own ALJs, not because this was required) to make the TSA’s own initial, internal decision. ALJ Jordan’s decision was issued on behalf of, and under the authority of, the TSA itself, as the TSA’s own initial decision on the complaint of its own investigator.
Almost two years after he was arrested, Mr. Brennan’s only day in any court has been when he was acquitted of all criminal charges in county court. ALJ Jordan’s initial decision on behalf of the TSA will be subjected to further internal review by the head of the TSA or his designee. Only after that review will the TSA’s final internal decision, as made by the head of the agency or his designee, be subject to review by any court or outside body.
ALJ Jordan explicitly recognized that he had no authority to consider whether Mr. Brennan’s conduct was protected by the First Amendment or whether the TSA’s regulations or actions were otherwise invalid. Only after the ALJ’s initial decision is reviewed internally within the TSA, and the TSA issues its final order, will Mr. Brennan be entitled to petition a Circuit Court of Appeals to review and make initial rulings on those issues.
An unusual Federal law designed to minimize judicial oversight of TSA decisions, 49 U.S.C. § 46110, provides that TSA orders — such as any final TSA order following the forthcoming internal administrative appeal from ALJ Jordan to a higher-ranking TSA employee — can only be heard by the Courts of Appeals. Unlike lower-level District Courts, Courts of Appeals don’t hold trials or conduct their own fact-finding. The eventual review of the TSA’s decision by the Court of Appeals will be based on the “administrative record” as submitted to the court by the TSA.
As we’ve noted recently, the Courts of Appeals have begun to question this jurisdiction-stripping law in no-fly and “watchlist” cases, sending these cases to District Courts for trials or other fact-finding. But the TSA’s proposed civil penalty against Mr. Brennan is the sort of case in which the Court of Appeals will likely accept jurisdiction and make its decision on the basis of the “facts” in the TSA’s self-serving administrative record.
For this reason, ALJ Jordan’s decision is significant less for its conclusions of law — which are required to ignore all the real Constitutional issues, which can only be considered once the case gets to court — but for the record it creates for Mr. Brennan’s eventual day in the Circuit Court of Appeals.
(For those court-watchers keeping score, the law would allow Mr. Brennan to choose to file his petition for review in either the 9th Circuit or the DC Circuit.)
We’ve posted our own complete audio recording of the formal administrative hearing, as well as ALJ Jordan’s decision and findings. The rest of the TSA’s records about this case remain secret. On May 17, 2013, we filed a FOIA request for all TSA or Coast Guard records related to the TSA’s complaint against Mr, Brennan. The TSA denied our request for expedited processing of this request, and to date has provided neither any response nor any estimated date for when it will respond.
ALJ Jordan found, among other things, that Mr. Brennan “was not angry, belligerent or abusive to any TSA officer” or Port of Portland police officer. “He did not use profanity or vulgarity; nor did he try to assault any TSA officer” or police officer. He “was polite and courteous” according to the testimony of both TSA and police personnel.
Mr Brennan “was never ‘ordered’ to put his clothes on,” according to uncontested TSA testimony, and he “was never told that his actions were interfering with TSA officers’ duties… that his actions were interfering with the screening process [or] that his actions were causing TSA to be less efficient in the performance of their duties.”
In spite of this, ALJ Jordan decided that Mr. Brennan had “interfered with screening personnel in the performance of their screening duties” because, he alleged, some TSA staff were “distracted” from their duties by his nudity (although none of them actually testified that they or anyone else were distracted). ALJ Jordan found that Mr. Brennan’s “actions constituted a distraction” and that “TSA screeners do not have to warn someone that their actions are interfering with their duties.”
ALJ Jordan was not allowed to consider or rule on whether it is Constitutional to allow an agency to penalize, without warning, anyone whose expressive and otherwise lawful and non-obstructive conduct they find “distracting”. That will only become an issue once the case gets to court, if and when Mr. Brennan petitions a Court of Appeals to review the TSA’s eventual final internal administrative decision.
Mr. Brennan told us he is not surprised that the TSA decided to fine him. He plans to seek review of the TSA’s decision once he is able to do so. “I didn’t take off my clothes to pay a fine,” he says.
Mr. Brennan is currently seeking pro bono or low-cost legal counsel for his eventual petition for Circuit Court review of the TSA’s eventual final decision. Contact Mr. Brennan directly if you can help.