Apr 05 2014

TSA fines “Naked American Hero” $500

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.)

Coast Guard ALJ George J. Jordan presided over a formal administrative hearing which we attended and reported on in Portland on May 14, 2013.

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.

6 thoughts on “TSA fines “Naked American Hero” $500

  1. To: webstaff@kptv.com
    From: Daniel Grossman
    Date: Sat, 5 Apr 2014 10:11:07 -0400
    Subject: Factual problem with use of word “judge” in TSA story


    As I am sure you have already been informed (possibly by dozens of people) an “Administrative Law Judge” is not a “judge” in the sense established by a hundreds of years of common law history, and more importantly they are not part of the judicial branch of government, but rather a part of the executive branch, and so your use of the word “judge” in this story was misleading. Given a journalist’s ethical obligation to fairly inform the public, perhaps some sort of explanation or retraction would be appropriate.

    A “judge” is an objective and impartial public official (referred to in some contexts as a “neutral and detached magistrate”) while the official who handed down this ruling in favor of the TSA is an employee of the Department of Homeland Security (the agency to which TSA belongs). In a sense the DHS simply affirmed its own initial decision, so for you to give the public the impression that an objective “judge” approved the TSA’s action was misleading.

    In addition to the fact that “Administrative Law Judges” are not neutral and objective (the key element in any judge), they are not allowed to consider some of the crucial legal factors that are considered by real judges; for example, whether an underlying regulation or its application is constitutional. It is especially misleading to the public, therefore, for KPTV to broadcast a story stating that a “judge” approved punishment for conduct implicating First Amendment freedom of speech, where that “judge” was not allowed to consider First Amendment freedom of speech issues (the way a real judge would have).

    Just as background, the ALJ system was not designed to provide due process but to streamline operations by having fact-finding conducted by a technically-trained person and by postponing and perhaps avoiding the involvement of busy federal courts.

    I myself formerly worked as a prosecutor for the Federal Aviation Administration. When a pilot, flight attendant, or mechanic appealed our imposition of discipline, it was initially reviewed by an Administrative Law Judge employed by the FAA.

    I am happy to report that ALJ’s did occasionally find in favor of the individual, saving the taxpayers (and the individual) an expensive federal court proceeding. But the purpose of the ALJ was not to give a pilot facing loss of his license the full due process provided by the Constitution, but simply to make the overall system more efficient. Full due process (including consideration of constitutional issues) was provided later, if needed, by a real court and a real judge. Since the factual issues in these cases are technical the involvement of a technically-proficient ALJ is appropriate and helpful. And since constitutional issues almost never arise, it is rarely a problem that ALJ’s are prohibited from considering them. In fact, ALJ’s are not trained or qualified to rule on issues of constitutional law, so leaving those issues to real courts makes perfect sense. But in light of how the system works, your story was misleading to the public.

    As someone who has appeared on TV news dozens of times, I understand your need to be pithy and concise when preparing a TV story. But without adding many more seconds to your broadcast, you could have more accurately referred to the person who approved the TSA sanction as a “hearing officer employed by the Department of Homeland Security” rather than as a “judge.” That would have been more truthful, and it would have given your viewers the objective news they expect from you without adding more than a second, if that, to your broadcast.

    Thanks, and best regards,

    Dan Grossman
    Atlanta, GA

  2. John Brennan: “TSA, Free Speech & Me” (April 12, 2014):


    “Appropriating the language of criminal law, being found in violation the rules of TSA sound down-right criminal and final. It is not. Reading the decision of the administrative law judge could similarly seem legal and final. It is not. The administrative law judge in my case does have a legal background, and I’m not dissing his credentials. It’s just that he’s working in a self-serving system, a systems that’s purposely obfuscated….

    It’s an inside job. Their employee said their rules were broken…. The next decision will also be internal. How long that will take remains to be seen. All will find against me. It’s like I did a guy wrong, and my only choice is to have his brother make the decision as to whether it was wrong or not. I then get to ask his mom to make a decision. And then his sister. It’s not objective…. There’s an appearance of impropriety, like when police find no wrongdoing for police behavior, or the men of the military don’t punish men of the military for sexually assaulting women, or torture….

    In the case of my protest, in the two years since disrobing at a TSA checkpoint at Portland International Airport, I have not had my protest evaluated as to its constitutionality.

    I look forward to my day in court of law. This “court of rules” is very slow, inefficient, and probably very expensive for US taxpayers. I look forward to a review of my case when the US Constitution has some bearing on the decision.

    Shouldn’t all dealings with the government be subject to the US Constitution and Bill of Rights from the start?”

  3. TSA Fines “Naked American Hero” $500 (Lowering the Bar):


    “What about Brennan’s constitutional defenses? Ha! Who cares? According to TSA regs, its ALJs “may not: … (v) Decide issues involving the validity of a TSA regulation, order, or other requirement under the U.S. Constitution … or other law.” Well, that’s handy! We’ll just issue a regulation preventing us from considering whether our regulations are illegal or unconstitutional. (“Wait, can we do that?” “I don’t know—I’m not allowed to consider it!” )

    What about judicial review? As explained very well by the “Papers, Please!” blog, this was an internal agency ruling, not an actual court ruling. Brennan can appeal within the agency, and when he loses, then the judicial branch will get hold of this. But under a TSA-friendly law, that case must be heard by the circuit court of appeal, not the federal district court. A court of appeal can’t hold hearings or have a trial, so the law effectively limits review to the record developed in the agency’s hearing. That may or may not be an issue here, but why should TSA proceedings get this special treatment? They shouldn’t.

    Will the agency appeal reverse this injustice? That’s another rhetorical question. But hopefully the Ninth Circuit will.”

  4. Pingback: “Naked American Hero” goes to court | Thought Crime Radio

  5. Pingback: DHS must explain failure to release e-mail files – Papers, Please!

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