Aggressive TSA Pat-downs Challenged in Wrong Court

The Transportation Security Administration has won a round in
a lawsuit filed by three citizens challenging TSA’s use of “advanced imaging
technology” (AIT) and “aggressive pat-downs” to screen passengers at airports.
(Durso, et al. v. Napolitano and Pistole,
D.D.C. Civil Action 10-02066 (HHK), 7/5/11)

The court has tossed the lawsuit as requested by TSA’s
motion to dismiss that argued the case was in the wrong court. (Opinion p. 1)

In short, the court agreed with TSA that “because the
challenged screening procedures are employed pursuant to a TSA order, the U.S.
courts of appeals have exclusive jurisdiction over plaintiffs’ challenges
thereto.” (p. 1)

At the heart of the case is the Screening Checkpoint SOP
(Standard Operating Procedure) that apparently is the “bible” for TSA screeners
to follow at airports. That SOP was revised on September 17, 2010 to require
using the AITs and “aggressive pat-downs.” The catch is that the SOP is not
available to the public, nor, apparently to the court—it is protected from
scrutiny because it “contains sensitive security information.” In fact the
court decision specifically acknowledges that the SOP “is not part of the
record before the Court.” (p. 2)

Nevertheless, the court has ruled that the SOP which it
cannot and has not seen falls under the umbrella of a rule reviewable under 49
U.S.C. Section 46110, which places it squarely within the exclusive
jurisdiction of the appeals courts. This part of section 46110 was quoted in
full by the court:

“A person disclosing a substantial
interest in an order issued by the Secretary of Transportation (or the Under
Secretary of Transportation for Security with respect to security duties and
powers designated to be carried out by the Under Secretary …)…may apply for
review of the order by filing a petition for review in the United States Court
of Appeals for the District of Columbia Circuit or in the court of appeals of
the United States for the circuit in which the person resides or has its
principal place of business.” (Opinion p. 4) 

The court’s complete analysis is in its opinion. Suffice it
to say that if these plaintiffs are motivated enough they will presumably take
their case to the appeals court. It is not clear whether the appeals court will
be able to see the SOP at issue. 

Very little is said about the actual facts of the screenings
that involved the three plaintiffs. Each indicated he/she had been required to
go through the AIT or the “aggressive pat-down.” Adrienne Durso indicated she
had undergone a mastectomy and apparently described to the court the
“humiliating and painful patdown in which a TSA agent ‘repeatedly and
forcefully … prodded’ at her chest.” (p. 3)

D. Chris Daniels talked about “an
aggressive and invasive pat-down of his genitals” that was all the more
difficult due to a childhood injury he had suffered. (p. 3)

Michelle Nemphos
sued on behalf of her 12-year old daughter who had been pulled out of the line
and forced to go through an AIT scan “without the knowledge or consent of her
parents and without being given an opportunity to refuse.” (p. 3) The scan
showed her daughter’s naked body contrary to the family’s religious beliefs and
exposed her to dangerous radiation. (p. 3)

All three plaintiffs argue that the TSA screening procedures
violate the Fourth Amendment’s ban on unreasonable searches and seizures. These are factual allegations and a
constitutional issue that the district court now does not need to address given
its conclusion that this can needs to be kicked upstairs to an appellate court.

Given the brief facts outlined in the court’s opinion, one
might assume these plaintiffs are sufficiently motivated to press on to the
higher court. Or, perhaps they will discover Bivens v. Six Unknown Named Agents (403 U.S. 388 (1971)) and try a
constitutional tort lawsuit against the involved TSA agents in their personal
capacity and take that to the district court.


Aggressive TSA Pat-downs Challenged in Wrong Court

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.