Are TSA actions subject to judicial review?

The real test of whether the TSA is above the law isn’t whether TSA or DHS officials, flacks, or lobbyists claim that there are legal procedures which (hypothetically) permit judicial oversight of TSA actions. The real test is what happens when real people object to specific conduct by TSA staff and contractors, or private parties such as airlines acting at the behest of the TSA, and ask the courts to review and decide whether the TSA or its minions are breaking the law or violating the US Constitution.

Nobody has done more to test the real-world limits of TSA lawlessness than our friend Sai, who has been waging a one-person, pro se legal crusade against the TSA for its disregard of the Constitution and of a variety of Federal laws providing for transparency, fairness, and due process. Sai’s pending lawsuits against the TSA include one of the most important challenges anyone has made to the TSA’s claims of authority for secret lawmaking, as discussed below.

Remarkably, and unlike most of those aggrieved by TSA general disregard for the law as well as more specific misconduct, Sai has even had some success. But that limited success gives a sense of just how outrageous is the TSA’s disregard for the law, and how far it has to go before the courts will rein it in.

Sai’s saga with the TSA, which we introduced to our readers last year, is long and complex. He has an unusual but well-documented and undisputed neurological medical condition for which he needs ready access to liquids when he travels, and that causes episodic muteness that sometimes requires him to use sign language (in which he is fluent) and/or paper and pencil to communicate when he can’t speak.

After being mistreated because of his disability by TSA employees in Boston and TSA contractors in San Francisco, Sai filed a lawsuit under the Freedom of Information Act for the TSA’s records of these incidents, and complaints under the Rehabilitation Act, which prohibits discrimination by Federal agencies and programs (such as TSA checkpoints) on the basis of disability.

Despite a specific statutory duty to investigate and respond to these complaints within six months, the TSA failed to respond to either of Sai’s complaints for almost three years. After Sai sued to force the TSA to respond to his complaints, the TSA finally responded to (and dismissed) Sai’s complaint about his treatment in Boston. Armed with the dismissal of his administrative complaint, Sai was then finally able to bring a separate lawsuit challenging his treatment by the TSA in Boston.

With respect to Sai’s complaint about his treatment by TSA contractors at SFO, however, the TSA continued to stonewall. The TSA neither responded to the complaint, nor gave the court any reason why it hadn’t done so. Instead, the TSA argued that Sai had no standing to ask the court order the TSA to comply with the deadline in the Rehabilitation Act regulations, or even to order the TSA to provide the response to the complaint mandated by the law!

With that, the TSA had finally gone too far for the courts. This week, the US District Court for the District of Columbia ruled that the Administrative Procedure Act requires the TSA to follow the rules of the Rehabilitation Act, and (surprise!) that the courts have the authority to order the TSA to follow the government’s own officially promulgated rules for its own agencies’ conduct. Small victory, but we’ll take any victory subjecting the TSA to the rule of law.

Sai also filed Freedom of Information Act (FOIA) requests not only for the TSA’s records of his treatment and of the handling of his (black-holed and unanswered) complaints, but also for all of the TSA’s “orders” creating obligations or prohibitions binding on individuals. If we are required to follow these “rules”, and subject to denial of our right to travel or other sanctions if we don’t, it’s common sense that we should be able to find out, in advance, what the TSA thinks its “rules” are.

The TSA didn’t know what to do with this FOIA request. Normally, it doesn’t decide which of its secret “procedures” or other internal policies constitute orders (and would thus be subject to special restrictions on their review by Federal courts) until after a particular action is challenged in court. The TSA failed to respond to this FOIA request, and Sai sued. The case is dragging on, now in the 1st Circuit Court of Appeals on increasingly arcane issues related to whether the TSA’s decisions about which of its actions constitute “orders” are subject to judicial review of whether those “orders” were within the TSA’s authority, and whether the TSA can decide for itself which of its unclassified records are exempt from FOIA as “Sensitive Security Information”. In the meantime, however, the TSA has begun releasing thousands of pages of previously secret training and procedures manuals and other “orders”.

Sai is disabled and indigent, but has been denied permission to proceed in forma pauperis (without having to pay court fees) in these cases because he isn’t willing to file an affidavit publicly describing his finances in detail. He has offered to file such affidavits under seal and ex parte, and has obtained pro bono legal counsel on this financial privacy issue, but to date the courts have refused. Sai could use both financial support for his own work and pro bono legal assistance with his FOIA, Rehabilitation Act, and Administrative Procedure Act challenges to TSA actions, policies, practices, and secret “orders”.

Last but not least — and perhaps most significantly, in our opinion — Sai has filed the first general challenge to the Constitutionality of the TSA’s entire scheme of TSA “orders” issued in secret and exempt from normal judicial review but purportedly binding on individuals and serving as a basis for denial or restriction of our rights including our right to travel. That case is now pending in the 1st Circuit; Sai has moved to stay the proceedings pending resolution of the issue of the privacy of financial information of indigent plaintiffs, as discussed above.

The crux of the TSA’s system of secret law is 49 U.S.C. § 46110, which purports to prohibit review of TSA “orders” by trial courts and to require Courts of Appeal to defer to any administrative finding by the TSA supported by any evidence in the record created and handed up to the court by the TSA, regardless of the weight of contrary evidence in the record or which could have been introduced in a trial. The TSA has stretched this unconstitutional jurisdiction-stripping and burden-of-proof law, originally intended for individualized orders issued within the framework of published regulations, to include regulations applied against the public at large but issued secretly as “orders” rather than promulgated as regulations.

The Constitutionality of 49 U.S.C. § 46110 has been challenged as the law was applied in at least one pending “no-fly” case, that of Gulet Mohamed. But so far as we know, Sai v. Neffenger is the first facial challenge to 49 U.S.C. § 46110.

The petition for review of the TSA’s “orders” includes the following causes of action:

Cause 1. 49 USC § 46110(a) fails to grant adequate due process, and is facially and as­ applied unconstitutional, as it precludes discovery, grants impermissible levels of deference to agency fact­finding, limits the period in which de facto regulations may be challenged, and otherwise impairs the full and fair review of the facts — especially in conjunction with the TSA’s use of § 114(r) to promulgate secret law.

Cause 2. TSA has promulgated de facto regulations substantially affecting the rights of millions of travellers, in secret, in violation of the Administrative Procedure Act and Petitioner’s fundamental right to know what regulations may affect Petitioner’s travel.

Cause 3. Upon information and belief, many of TSA’s § 46110(a) orders, such as its “standard operating procedures”, violate the 1st, 4th, and 5th Amendments.

Sai asks the Court of Appeals to award relief including the following:

27. Declare that 49 USC § 46110(a) is unconstitutional, both facially and as applied;…

29. Declare that the TSA has unlawfully promulgated secret regulations, set all such de facto regulations aside, and order TSA to speedily conduct full APA [Administrative Procedure Act] rulemaking;

30. Compel Defendants to produce all “orders” and “facts” under 49 USC §§ 46110(a) and 46105(b) that affect Petitioner;…

32. Declare that TSA’s SOPs [Standard Operating Procedures] are unconstitutional, and permanently enjoin their use;

We welcome this lawsuit as long overdue, and we commend it to the attention of any lawyers who might be able to volunteer pro bono assistance from themselves or their firms or organizations.

7 Responses to “Are TSA actions subject to judicial review?”

  1. alan guillaudeu Says:

    I was wondering if you were taking any cases under the forfeiture act where people with large amounts of cash were being robbed by the TSA?

  2. Filed motion to enjoin new mandatory NoS policy - FlyerTalk Forums Says:

    […] against the new TSA policy on mandatory AIT. Info on my motion for injunction (will be updated) Overall description of my current litigation TSA told court they’ll respond to my motion on Tuesday. I’ll file a reply ASAP. Hopefully can get […]

  3. TSA transparency activist seeks injunction towards obligatory full-physique scanners Says:

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  4. Carlos Says:

    What can we do or who can we contact to start a campaign to stop this “Mandatory” criminal act.

  5. transprox Says:

    Civil asset forfeiture, while certainly outrageous has nothing to do with the TSA. Just FYI.

  6. Edward Hasbrouck Says:

    “Sai tests legality of TSA’s new scanner policy” (by Lisa Simeone, TSA News Blog, January 7, 2016):

    http://tsanewsblog.com/16412/news/sai-tests-legality-of-tsas-new-scanner-policy/

  7. Are TSA actions subject to judicial review? | Recent News Says:

    […] on April 2, 2016 by Jay Fenello Papers, Please!The real test of whether the TSA is above the law isn’t whether TSA or DHS officials, flacks, […]

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