Aggressive TSA Pat-downs Challenged in Wrong Court

A U.S. District Court ducks handling of a challenge to TSA’s enhanced screening procedures by holding that only the U.S. appeals courts can handle these cases.

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.

Durso, et al. v. Janet Napolitano (Civil Action 10-02066)

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.