By a vote of two judges to one, a panel of the 11th Circuit Court of Appeals has declined to consider a petition by Jonathan Corbett for review of the TSA’s use of virtual strip search machines and “enhanced patdowns” (genital groping), and has opined that if the court were to consider Mr. Corbett’s petition, it would deny it.

If that sounds irregular, it should. Normally, once a court has found a reason it doesn’t need to decide a case on its “merits”, but can resolve it on procedural or jurisdictional grounds, judicial economy dictates that the court won’t issue any opinion on issues it doesn’t have to reach.

In this case, the two judges in the panel majority went out of their way to erect as many barriers as possible to future court challenges to TSA actions, in contravention of normal principles of appellate adjudication and over a cogent dissent, on exactly these grounds, by the third member of the panel.

The ruling on the “merits” of the petition, while bad, is not unprecedented: Every other petition for Court of Appeals review of the TSA’s virtual strip-search practices has already been dismissed.  That’s largely because Congress has directed the Courts of Appeals to limit their “review” of TSA orders to the “administrative record” supporting the TSA’s actions, as provided to the court by the TSA itself, and to treat any “findings of fact” by the TSA, “if supported by substantial evidence” (and even if controverted by more persuasive evidence) as “conclusive”.

Conclusory declarations by TSA employees, not subject to cross-examination and allegedly based on secrets not in the record (“if you knew the secrets we know but can’t reveal, you’d agree with us”) are almost always deemed sufficient to constitute “substantial” evidence for this purpose.

In other words, the TSA gets to tell the Court of Appeals which evidence to consider, and what factual conclusion to draw from it.  Given that the TSA is allowed to make up the facts to suit its own interests, and submit them to the court in secret, it’s scarcely surprising that the decisions made by the Courts of Appeal on the basis of those “conclusive” factual claims by the TSA are almost invariably in the TSA’s favor.

If you think that’s unjust, ask Congress to change this law and support those who argue to the courts, especially the Supreme Court, that this law is unconstitutional.

The only legal challenge to the TSA’s use of virtual strip-search machines that was in a legal sense “successful” has had no practical effect on the TSA’s actions. In 2011, the Court of Appeals for the D.C. Circuit ruled that the Administrative Procedure Act required the TSA to provide public notice, allow public comments, and consider public comments on its proposed rules for virtual strip-searches before putting those rules into effect.  But despite this finding, the court allowed the virtual strip-searches to continue.  The TSA did publish a proposed rule to authorize the virtual strip-searches it was already conducting, and received thousands of overwhelmingly critical public comments, including ours. More than a year after the conclusion of the comment period, the TSA has neither responded to any of those comments nor promulgated any final rules, but the virtual strip-searches and genital groping continue unabated at TSA checkpoints.

There’s an additional obstacle to judicial review in defining what constitutes an “order”. The TSA has simultaneously and hypocritically argued that its secret “Standard Operating Procedures” (1) are not “substantive rules of general applicability” which are required by FOIA to be pro-actively published in the Federal Register, (2) are exempt from disclosure under FOIA even if specifically requested, (3) are not binding on the TSA and can be ignored by the TSA at its sole discretion, but (4) are nevertheless the “final orders” of the TSA, for the purposes of the procedures and deadlines for judicial review, as soon as they are secretly issued to TSA employees and contractors.

But wait —  there’s more!  A petition for Circuit Court review of a TSA “final order” must be filed within 60 days after the order is “issued”.  You snooze for 60 days, you lose, even if the order and its consequence remain in effect forevermore, immune from judicial review.

It’s unclear what would happen if someone were to petition for review of a specific order issued to a specific traveler, on a specific date, by a TSA employee or contractor, as a condition of passage through a checkpoint.  We suspect the TSA would argue that the actual “order” at issue is some provision of the Standard Operating Procedures which formed the basis for the order to the traveler. The TSA would say that the relevant provision of the secret SOP, known only to the checkpoint staff and not to the traveler, is exempt from judicial review because it was secretly “issued” to checkpoint staff more than 60 days earlier.

There’s an exception: “The court may allow the petition to be filed after the 60th day only if there are reasonable grounds for not filing by the 60th day.”  Mr. Corbett had a good reason: He filed his complaint first in the District Court, where he thought (and we agree) that it properly belonged. He re-filed in the Court of Appeals within 60 days after exhausting his appeals of a series of rulings by different courts as to which of them should hear the case. As the dissenting member of the 11th Circuit panel of judges said:

Given Mr. Corbett’s pro se status, his active pursuit of this challenge was anything but “quixotic,” as the majority characterizes it at one point….. Mr. Corbett’s pursuit appears to me to have been methodical and diligent. Shortly after the Supreme Court confirmed he chose the wrong forum, he immediately filed here. I do not believe he should be penalized for doing so.

So listen up, litigants: Don’t wait for the courts to decide the proper venue for your case, and don’t hesitate to fiel in two places at once. The two judges in the majority of this panel of the 11th Circuit want you to file your case from the start, without delay, in as many different courts as might conceivably later decide they have jurisdiction, and make multiple judges, and your adversary, and yourself all deal with the same case simultaneously in multiple courts.  If they don’t like that, tell them the 11th Cicruit asked for it in Corbett v. DHS.

The only good news in this is the dissent by one of the three judges on the panel, which makes it more likely that the full Court of Appeals will grant Mr. Corbett’s planned motion for rehearing “en banc” by all the judges of the 11th Circuit.