Fielder v. Napolitano et al

Filing 14

MOTION to Dismiss for Lack of Jurisdiction by Defendants Janet Napolitano, John S. Pistole, Transportation Security Administration, United States Department of Homeland Security. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Ulrich, Tamara)

Fielder v. Napolitano et al

Doc. 14 Att. 2

EXHIBIT 2

Dockets.Justia.com

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 For the Defendants: 20 21 22 23 24 25 Gillian Flory,Esq. Transportation Security Administration Gill P. Beck, Esq. Office of U.S. Attorney PO Box 1858 Greensboro, NC 27402 Carlotta P. Wells, Esq. Joseph W. Mead, Esq. U.S. Department of Justice 20 Massachusetts AVE., NW, ROOM 7152 Washington, DC 20530 APPEARANCES: For the Plaintiffs: Jonathan Blitz, Esq. Jonathan Blitz, Attorney At Law PO Box 61764 Durham, NC 27715 TRANSCRIPT OF MOTION FOR TEMPORARY RESTRAINING ORDER BEFORE THE HONORABLE WILLIAM L. OSTEEN, JR. UNITED STATES DISTRICT JUDGE IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF NORTH CAROLINA JONATHAN BLITZ, MARLA ) TUCHINSKY, and as legal, ) guardians of EB, their minor) child, ) ) Plaintiffs ) ) vs. ) ) JANET NAPOLITANO, Secretary ) of Homeland Security, and ) JOHN PISTOLE,Administrator ) Transportation Security ) Administration, ) ) ) Defendants. ) ____________________________) ) Civl Action Case No. 1:10CV930

Greensboro, North Carolina December 10, 2010 2:06 p.m.

2 1 I N D E X 2 3 4 5 6 WITNESSES: DEFENDANT 7 None 8 9 10 EXHIBITS: 11 None 12 13 14 15 16 17 18 19 20 21 22 Court Reporter: 23 24 25 Proceedings reported by stenotype reporter. Transcript produced by Computer-Aided Transcription. Joseph B. Armstrong, RMR, FCRR 324 W. Market, Room 101 Greensboro, NC 27401 MARKED RCVD WITNESSES: PLAINTIFF None

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you. Greensboro, North Carolina December 10, 2010 (At 2:06 p.m., proceedings commenced.) THE COURT: All right. Good afternoon. We are

here on a motion for temporary restraining order and/or preliminary injunction in 1:10CV930, Blitz versus Napolitano, I'll just say et al. for purposes of this introduction. Mr. Blitz, if you will state for the record

that you are here and who is seated at your table with you. MR. BLITZ: Yes, Judge. Good afternoon, Jonathan

Blitz here on my own behalf and also on behalf of Marla Tuchinsky, who's my wife, and also we're here on behalf of EB who is our minor child as described in the pleadings. THE COURT: MR. BECK: All right. And for the Government?

Your Honor, it's my pleasure to

introduce Carlotta Wells from the Federal Programs Branch Civil Division who will be making the argument today; Joseph Mead, also from Federal Programs; and Gillian Flory from Transportation Security Administration, also general counsel. THE COURT: All right. Good afternoon to all of

Mr. Blitz, I assume you'll be handling the argument

for all the plaintiffs in the case. MR. BLITZ: who can speak. I'm the only lawyer and one of the two

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I should. THE COURT: MR. BLITZ: THE COURT: MR. BLITZ: THE COURT: MR. BLITZ: All right. May I approach the lectern? You may. Thank you. You may proceed. May it please the Court, I am going to If the you. THE COURT: All right. I'll certainly hear from

The matter has been pretty thoroughly briefed at this

point in time, and then I have the affidavits of the plaintiff -- plaintiffs as well as the affidavits and other attachments of the defendants in the case, and I have looked at that. It seems to me probably roughly 20 minutes a

side's about enough, but I'll give the plaintiff the opening and closing arguments. stopwatch. I don't have a red light or a But

So if we run over, that will be all right.

if you start running well over, I may stop you. MR. BLITZ: Well, I'm sure my wife will stop me if

ask a rhetorical question that I'll return to later.

plaintiffs were allowed to proceed in this case, and we demonstrate to the appropriate standard of proof through competent witnesses offering admissible evidence that there is a more effective, less invasive way to meet the defendants' legitimate objectives of deterrence and detection, would the plaintiffs then be entitled to relief

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 from this Court? We brought this suit because on two occasions Plaintiff Marla Tuchinsky was subjected to highly invasive, humiliating searches of her body, including groping of her genitals and stroking of her breasts, along with hand searching inside of her pants by defendants' agents. times she departed out of RDU Terminal 2. Both

There was no

reasonable basis for the invasiveness of the searches, and contrary to what Defendant Pistole might have stated in his declaration, plaintiff was not able to choose a screening lane that would have put her through a less invasive search. At RDU Terminal 2, you either get scoped or you get groped. On the return flights, my wife was subjected to a typical, much less invasive search, and we don't complain of that kind. Just as a little background, Plaintiff Tuchinsky has logged over 1 1/2 million air miles. She's traveled to

every continent in the world except for Antarctica on business, and that's in the last few years. She has never

been subjected to such an invasive search of her person even on international flights to and from the United States, and even when she was flying on one-way tickets or otherwise more indicia that might provide a reasonable basis for a more invasive search. The two incidents were typical flights, and yet on

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the return, plaintiff was unmolested. THE COURT: MR. BLITZ: Typical as compared to what? As compared to her departures from RDU

Terminal 2 on those particular days when these invasive searches were conducted. THE COURT: So you don't mean to suggest they were

typical as compared to the other 100,000, million travelers we have in the United States each day, whatever the number is. MR. BLITZ: Only to the extent that the sample

that she's subjected to is enormous based on the fact that she's traveled through a very high percentage of all the airports in the world. THE COURT: MR. BLITZ: All right. As discussed in our motion and

supporting documents, we also have an infant son who we love very much, and we're very concerned that he will be subjected to highly invasive searches without a reasonable basis. We have invoked the original jurisdiction of this Court under one of the most basic causes of action available. We seek relief from the Article III courts for We're

the unconstitutional actions of an Article II agency. here under 28 USC 1331 with a claim arising under the

Constitution of the United States, and this cause of action

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 has been recognized for more than 200 years in a series of cases stretching from Marbury to Norris to Bell to Bivens to this summer's Supreme Court opinion in Free Enterprise Fund. We claim that we're very likely to be subject to an invasive search that violates the Fourth Amendment, and we're asking for this Court only to enjoin those features of that search that we contend violated the reasonableness requirement of the Fourth Amendment, only for the next nine days, and only as to the plaintiffs. The Fourth Amendment claim is formally alleged in paragraph 63 through 65 and paragraph 69 of our first complaint, but we made another claim. That claim is that we

have no available proceedings other than this action that would provide meaningful review of our claims and that failure to provide a forum is a Fifth Amendment violation. We're seeking a very narrowly tailored order at this point in time so we can take an upcoming tip with our son to see his grandfather without further violation of our rights, and we have further narrowed our prayer for relief in response to Defendant Pistole's declaration. This Court has proper original jurisdiction of these claims. Now, defendants say that 49 USC Section 46110

strips the District Courts of all jurisdiction to review any of defendants' actions. However, the controlling Supreme

Court authority does not permit that statutory instruction.

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of Tacoma. THE COURT: Well, explain to me then why you THE COURT: Tell me how you distinguish a case

like City of Tacoma versus Taxpayers and the present case. MR. BLITZ: I'm sorry. I'm not familiar with City

consider the Free Enterprise Fund case to be similar enough to this case in terms of statutory review -- or the statutory provisions for review -MR. BLITZ: THE COURT: Okay. -- to make it controlling as to the

statute at issue in this case. MR. BLITZ: The reason is, for more than 200

years, Congress has not presumed to strip a District Court of jurisdiction when doing so forecloses the possibility of meaningful judicial review of executive branch action. THE COURT: You don't think you can get meaningful

review in a Circuit Court? MR. BLITZ: No, and McNary and the other authority

says why, and the reason is -- and I apologize because I'm a little nervous, and I want to get it right. It's exactly

what the Supreme Court in McNary, Reno and Free Enterprise said you can't do because it creates this constitutional dilemma where you don't have any opportunity to marshal facts or present evidence. There's nowhere for the

witnesses to sit in a Circuit Court, and it's --

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: challenging? Well, doesn't it depend on what you're Are you

What are you really challenging here?

suggest -- to put it in perspective, are you suggesting that some Lone Ranger TSA agent searched your wife in a manner that was inconsistent with TSA policy, or are you suggesting that the present TSA policy leads to an unconstitutional search? Which of the two are you suggesting? MR. BLITZ: We don't know, and we have no way of And if it If it's

knowing because we don't know what TSA policy is. is TSA policy, then the policy is unconstitutional.

not TSA policy, then we've also brought a failure to supervise claim. THE COURT: Well, the TSA has filed an affidavit

saying that we -- Pistole has generated this standard operating procedure that requires a backscatter search and then under some circumstances the enhanced pat down. I'm

paraphrasing, but I don't want to read the affidavit again at this point in time. So, I mean, why isn't that proof

that the search that you are complaining about is the TSA policy? MR. BLITZ: If it is the TSA policy, then it's an

unreasonable search, and we should have an opportunity to marshal facts and present evidence before some Article III body to demonstrate that it's unreasonable. THE COURT: What facts over and above the policy,

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the SOP, do you need? MR. BLITZ: First of all, we don't have the SOP. And I'm not trying

Second -- see -- see, this is the issue.

to evade the question, I just want to back up a little bit. What you've got is a situation where you have this Section 46110, and 46110 was designed for -- Congress intended it and we must presume that Congress intended it this way, but if you just read it, this is what Congress intended, that you go through an agency adjudicative proceeding, you present your facts, you get your due process, then you go up to the Court of Appeals where they review what the agency did. That's the normal procedure.

You get your due process in the agency. Here, there is no agency proceeding. saying whatever we write in an SOP is an order. in an order goes up to the Court of Appeals. They're Whatever is

And whatever

goes up to the Court of Appeals are the facts, and those facts are presumed to be correct because the agency found them. THE COURT: Isn't what you just said about what

46610 contemplates as a final agency order, isn't that contrary to the law? And by that I mean take, for example,

the Atorie Air case where they examined what constituted an order, and they said there's two requirements to an order, finality -- let's see. Finality and -- I've lost my cite.

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But the bottom line is it's got to be a final order, and that case goes on to say. "To be deemed 'final,' an order under Section 1486(a) need not be the culmination of lengthy administrative proceedings. It need only be an

agency decision which 'imposes an obligation, denies a right, or fixes some legal relationship.' If the order provides a 'definitive' statement of the agency's position, has a 'direct and immediate' effect on the day-to-day business of the party asserting wrongdoing, and envisions 'immediate compliance with its terms,' the order has sufficient finality to warrant the appeal offered by 1486." Isn't that pretty consistent with what most cases have held with respect to what constitutes an order? MR. BLITZ: Right, but here's the thing. Atorie

Air, how did the facts in that case start out?

The Court

says: "...a principal operations inspector of the FAA advised Atorie that it was in violation of a federal aviation safety regulation and subject to certificate revocation." What happened? The agency went out to a specific

party, gave them notice pursuant to 46105, and started a proceeding. It may be an abbreviated proceeding. It may

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 just be the agency saying, you, private person, you have violated a regulation. Therefore, you can come before the You can get an ALJ hearing. We

agency, complain about it. can take evidence. it to the NTSB.

We can produce a record.

You can appeal

We may take away your certificate in the

meantime because of safety reasons, and, you know, since it's not really relevant here, who cares about the constitutionality of that, you know, pre-notice seizure. The big issue is it's a private individual. go before -- or it's a corporation. They go before the They

agency, and they get due process, and then they go up to the Court of Appeals, and the Court of Appeals decides everything around those circumstances, and they can rely on the agency to give the due process. Here, they've done something. under Section 46105. THE COURT: I never got notice

What's my remedy to that? Isn't your remedy to take it to the

Court of Appeals like the statute allows? MR. BLITZ: No, it's not, because if you do that,

then you violate McNary, and you violate Reno, and you violate Free Enterprise Fund. Because if Congress meant to

do that, meant to strip me of any forum where I can establish a factual basis for my claims, then now an Article II agency can write whatever they want in an order, and I can't get any meaningful judicial review, and that's what

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Reno says, and that's what McNary says, and that's why this case is so important. THE COURT: That's why you -That's not what Tacoma says. Tacoma

says -- I'll just tell you the language from Tacoma which was a proceeding under 313(b) of that particular act, and that act says: "Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain review of such order in the United States Court of Appeals for any circuit wherein the licensee or utility to which the order relates is located. Upon the filing of such

transcript, the Court shall have exclusive jurisdiction to affirm, modify, or set aside such order in whole or in part." And the Supreme Court goes on to say: "The statute is written in simple words of plain meaning and leaves no room to doubt the congressional purpose and intent. It can hardly

be doubted that Congress, acting within its constitutional powers, may prescribe the procedures and conditions under which the courts in which -- under which, and the courts in which, judicial review of administrative orders may be had."

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BLITZ: But the issue is, can you read this

statute to -- can you construe this statute to mean that anything that they do, even if there's no notice under 46105, even if there's no other party who this is happening to -- that talked about a licensee or designee. This talks

about -- you know, 46101 talks about where they start with investigations and complaints. there. There's always another party

There's always somebody else in the room trying to

marshal facts, trying to create a record, trying to argue a position. statute. That's what an order comes out of under this It comes out of this statute from an adjudicative It doesn't come out -All right. Let me structure the

proceeding.

THE COURT:

argument for you, and you tell me where this goes awry. First we look at the regulations, and the regulations under 49 USC Section 114, we'll start with L -MR. BLITZ: THE COURT: MR. BLITZ: I'm sorry, 49? USC Section 114. Is that CFR? That's not a regulation,

though, that's a statute. THE COURT: MR. BLITZ: THE COURT: United States Code. Okay. Sorry, Judge. Notwithstanding

Section 114:

emergency procedures -- well, let's see. "The Under Secretary is authorized to issue,

15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in 46110? MR. BLITZ: I apologize. I said I have it in rescind, and revise such regulations as are necessary to carry out the functions of the Administration. Notwithstanding any other provision of law or executive order, if the Under Secretary determines that a regulation or security directive must be issued immediately in order to protect transportation security, the Under Secretary shall issue the regulation or security directive without providing notice or an opportunity for comment and without approval of the Secretary." So Congress has made allowance for the issuance of orders without notice, without a hearing, and without any rules -- promulgation of rules. MR. BLITZ: Does that section then say that the

only way you can appeal it is under 46110? THE COURT: MR. BLITZ: THE COURT: Do you have 46110 in front of you? I do. You see 114(l) specifically referenced

front of me, but I don't believe it does. THE COURT: here I've got it. All right. I've got it. Somewhere in

46110:

"Except for an order related to a foreign air

16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 carrier...in whole or in part...part B, or subsection (l) or (s) of section 114 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..." So, I mean, as I read 46110, the statute specifically contemplates appeal to the Court of Appeals of an order that's issued without notice, opportunity to comment, or anything else. MR. BLITZ: Well, then unfortunately, Judge, it

violates McNary, it violates Reno, and it sets up a situation where there's no way we can ever have meaningful scrutiny in the -THE COURT: Well, doesn't this go back to the

original question, which is what's the basis of your complaint? Is it a challenge to the procedure, that is,

either submit to the backscatter machine or an enhanced pat down, a grope search, whatever you want to call it, or is it a challenge to the manner in which the procedure is actually conducted by various TSA employees? MR. BLITZ: I don't know, and the reason I don't

know is because we're subject to a law that is a secret, and we're under an $11,000 penalty if we walk away from that screening on the one hand. So we have to submit to those, So there's

and there's just no way to know what the law is.

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 no way to effectively challenge it. I believe that we can marshal the facts to show that there are less invasive searches that will more effectively actually meet the objectives of the agency. the issue you've got to decide first is -THE COURT: All right. Let's go back to your But

original question, and specifically on these less invasive ways to accomplish the same security. Now, are you

suggesting that in evaluating whether or not a Fourth Amendment search is reasonable or -- or a search is reasonable or unreasonable under the Fourth Amendment, that one of the factors I have to take -- or should take into consideration is the availability of other alternatives to that search? MR. BLITZ: THE COURT: Absolutely. All right. Now, what is there in the

record at this point based on evidence presented by the plaintiff to suggest that there is a less invasive or more reasonable method by which the same security levels can be met? MR. BLITZ: First of all, there's the fact that

the agency itself is in the vast majority of the air system deploying less invasive procedures. The second is that the plaintiff has never -Plaintiff Tuchinsky, or myself for that matter, and I've

18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here. the plane. MR. BLITZ: THE COURT: the scanners? MR. BLITZ: THE COURT: We don't know. And how did the explosives -- where Through an airport that had scanners. All right. And did they go through get found? MR. BLITZ: THE COURT: By a group of passengers. After the individual had made it on to traveled a fair amount, has never encountered searches this invasive anywhere in the world. So these are clearly the

most invasive types of searches -THE COURT: How did the explosive in the underwear

was the explosive material found that was apparently secreted, for lack of another way to describe it, in the breast area on this particular woman, apparently? MR. BLITZ: We don't have any knowledge of that

other than Defendant Pistole's declaration. THE COURT: Why should I assume or find that there

are other methods in place in other places or other countries that more effectively screen or discover these threats? MR. BLITZ: Okay. We're in two different places

If we're still talking about the jurisdictional

issue --

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point. THE COURT: Then in determining whether or not a THE COURT: MR. BLITZ: THE COURT: I have moved to a different place. You have, okay. Your -- one of your contentions is

going to the substantive merits of your motion. MR. BLITZ: Correct, what we have to do at this

search under the Fourth Amendment is unreasonable, I do that by comparison to other possible ways in which the threats can be met, right? MR. BLITZ: THE COURT: Right. And my question simply is, what

evidence is there from the record, as it presently sits before me, that there are other methods that would more reasonably meet the same security level? MR. BLITZ: Other than what I've described, which

is the experiences of the plaintiff and the fact that these searches are the most invasive in the world, we don't have any evidence at this point. THE COURT: with your argument. MR. BLITZ: You know, if we -- I don't know if All right. I'll let you proceed ahead

Your Honor is satisfied about the jurisdictional issue or not. I really can't tell. THE COURT: Well, unfortunately, it's not a

20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question and answer. have to answer them. MR. BLITZ: I understand. I just want to use my I get to ask the questions, and you

time wisely and not waste the Court's time. But I think that the -- that there's a larger issue here that's implicated by this case, and, frankly, as an attorney, I'm pretty disturbed about it, and I didn't know it was here before I started this case. If you look at what happens here, as a matter of practical effect you have an agency making secret laws that we have to comply with. of Americans. It's affecting hundreds of millions

You have a jurisdictional statute that

purports to send those up for review only in an appellate court. And so you've set up a situation that's been talked

about again and again and again for 200 and some odd years where there is no way that a District Court will ever get one of these cases if you follow their line of argument; and according to McNary and the other authorities, you don't ever get to marshal facts in support of your claims, and you basically end up with a right without a remedy which just cannot be under the Constitution. If I could go to the agency and engage in some sort of fact-finding procedure where I could try to bolster my claims, that's one thing. But if I can't ever go before

that agency, and the only place I can go is the Court of

21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Appeals, then as we quoted in our brief, McNary says that's tantamount to denial of judicial review. So we don't read

the statutes that way, and that's what's most disturbing about this case to me. In addition, these are highly invasive searches. They go far beyond anything else that most people have ever experienced, and the people who have experienced them have been deeply troubled by them. As you look at the cases in which 46110 -- and I'm going to sit down in a minute -- has been applied, I'd just point out to you that almost every single one of those cases involved an aircraft mechanic, a flight instructor, a pilot or municipality, someone who was given notice; and they can, and in most cases they have, raised their claims before the agency in a meaningful proceeding that bears all the hallmarks of due process, and the courts have said you're not entitled to go and re-litigate that case in the District Court. You're not -- you don't get two or three or four

bites at the apple if you've had two in front of the agency. We don't know if there is an apple, much less do we ever get to bite into it, and this Court doesn't get a slice either. And so what do we do? barred to us. The courthouse door is

The Court of Appeals window is open; but if

we manage to climb up a ladder and get in there, there's no evidence. How am I going to provide any evidence to the

22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court of Appeals? There's nowhere to go. They send me back

down to the agency if they haven't already found that, as 46110 states, that all the facts that they found are entitled to deference. If they're supported by any That's not

substantial evidence, they're deemed to be true. due process.

McNary says it's not due process, Free

Enterprise -- all of those cases say that's not due process. And I just want to say one other thing, and I will tell the Court I'm certainly not going to look to re-argue this issue before the Court, I appreciate your time on it, if there is a 12(b)(1) motion, because I think -- I think to me it's clear. But this case has really staggering

implications; and if the terrorists who authored this Inspire Magazine that the Court's been provided, although I'm not sure what exactly the relevance is, they're going to win because they will have set a frightening precedent where an Article II agency gets to write a document, it's a secret document, they call it an order, and thus there's never going to be any meaningful review of the constitutionality of what they're doing. THE COURT: If they decide -Now, stop right there. That -- where

you have just crossed is what troubles me, because -- on your argument, and it's this. It sounded to me like what

you're arguing is we've got a procedure we think has been put in place, it's a secret procedure, and no one can review

23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that procedure. But if it is the procedure about which you are complaining, and the procedure is written as Pistole describes in his affidavit, a standard operating procedure, and that is an order, I mean, that order can be reviewed thoroughly by the Fourth Circuit Court of Appeals or the DC Circuit or any other circuit. MR. BLITZ: THE COURT: MR. BLITZ: No, it can't. Why not? Because there's no other evidence that

will come in than what the agency -THE COURT: MR. BLITZ: How do you know that? Because that's what the statute says.

That's what the -- I mean, the statute says that anything that they do is -- if it's supported by substantial evidence, there's no -- the record consists of the record of the agency. It's a review of an administrative proceeding,

and that's why you can't read 46110 in this way -- in this super broad way because McNary says if you deny me as a litigant, not a party to an agency proceeding, mind you, but just somebody who has been subjected to executive branch action -- remember, I never did anything in front of the agency. right? THE COURT: I know your forum -- it seems to me, I never got there because I never got notice,

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 one argument -- I'm not saying I'll rule this way, but one argument is you never got notice, you never had an opportunity to be heard, and now you're subject to this rule that's going to require them to conduct this search on you if you try to board an airplane under some circumstances. MR. BLITZ: THE COURT: Right. And that search is set out apparently

in this standard operating procedure. MR. BLITZ: THE COURT: in a Court of Appeals. MR. BLITZ: Right. And your forum for review of that is Congress gave you that forum. But the Mace line of cases says that

where I'm complaining about something -- I'm not complaining about -- I mean, obviously I have to have an injury from the order itself in order to have standing, but -THE COURT: No, I mean, the statute makes clear if

it affects you -- if you are someone affected by the order, you have right of review in a Circuit Court. MR. BLITZ: And what McNary says is that if that's

the only place I ever get to introduce any evidence, that's tantamount to a denial of judicial review. That's where the

constitutional problem is because this deck is totally stacked against me. An Article II agency is acting, hurting

me, and I can't come into this court and show evidence and proffer anything to the Court.

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Circuit Court? MR. BLITZ: As McNary said, Circuit Courts are not You can't file an affidavit in the

set up -- the courts of appeals are not set up to take evidence, and, therefore, if you send me there -- I mean, it's not my rule, Judge, it's McNary. Court. It's the Supreme

The Supreme Court has said it's not the same thing. An appearance here, a trial here. I

It's not fungible.

mean, I go back to my rhetorical question.

If I am allowed

to proceed and I show you that evidence, then what happens? I get my relief. supposed to work. I get my relief. And that's the way it's

To do otherwise violates 200-plus years

of -- and I hate to cite Marbury versus Madison, but thank God I've got a time in my career when I can do it, and it makes sense. THE COURT: establishing courts. MR. BLITZ: Judge, my pocket copy of the Tell me what Article III says about

Constitution is not with me. THE COURT: I mean, you're taking me back to

Marbury versus Madison, which is good law, but the Constitution itself originally, doesn't it say that there shall be a Supreme Court and such other inferior courts as Congress shall establish from time to time? MR. BLITZ: Correct, but if you go to McNary,

26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 trial. it. which doesn't go all the way back to Marbury, and consider the allocation of judicial power among the courts, it basically says when you look at the way that the federal courts are set up, if you can't go somewhere to plead your case with evidence -- such competent evidence as would establish my right to my constitutional claim, then you've denied me due process, and, therefore, we're not going to read the statute that way. And if you look at the cases involving this, and you brought up Atorie, and they're all -- I tried to list as many out in my brief. Almost every single one of those,

with the exception of Gilmore -- and I'll just tell you right now, Judge, Gilmore was wrong. Gilmore was wrong in a They I'm

scary way, because what did the Circuit Court do?

said, oh, we'll examine that administrative decision. not going to show it to you or your lawyer. going to look at it. not constitutional. Constitutional is you come in here. Oh, you lose. We're just

That's scary.

That's

We have a

We establish that there's a more effective way to do Maybe we lose on Rule 56, you know,

Maybe we don't.

summary judgment. judgment.

There's no shame in losing on summary Maybe there is no more

Maybe you're right.

effective way. THE COURT: I haven't ruled yet.

27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BLITZ: get a shot. I know, but I'm just saying I ought to And if we've gotten

I get a chance to do it.

so scared of terrorists and so frightened of what might happen on an airplane that we're going to let an executive branch agency write whatever they want in a secret order and no judge can review it with evidence that an individual affected by that order offers, then we've gone -- they've won already. I really appreciate the Court's time. I just ask

for maybe a minute or two to stand up in rebuttal. THE COURT: MS. WELLS: THE COURT: MS. WELLS: All right. Ms. Wells?

Good afternoon, Your Honor. Good afternoon. I don't think anybody here or anywhere

can dispute that the threat to aviation security is real. Defendant TSA has deployed a risk-based, layered approach to deal with the ever evolving terrorist threat that now exists. The reality in today's world is that there are

individuals who very much wish to harm American citizens, including the air traveling public, and any success on their part to deploy explosives on even one airplane would amount to a catastrophe. Now, one aspect of the layered security system that TSA has adopted is the checkpoint screening process which is at issue here in this case. This screening is

28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 order -MS. WELLS: THE COURT: Okay. -- and talk about that for just a necessary to keep the terrorists guessing and thus to protect all air travelers. THE COURT: All right. Let's skip forward to the

minute, because I have looked at Pistole's affidavit, and on page 9 -- I mean, the core order is the SOP -- apparently the SOP that was revised and implemented on October 29, 2010. MS. WELLS: THE COURT: Right. It's not attached here because the

Government contends that it's sensitive security information. But it looks to me like there's some careful The language of the affidavit says:

choosing of words here.

"Although the checkpoint screening SOP is not public, it sets forth the mandatory procedures that both TSOs and passengers must follow in order for a passenger to enter the sterile area of the airport." Now, that creates, first of all, an interesting little dichotomy in that we've got a nonpublic directive that passengers have to follow. I mean, how do I follow it

or know that I'm following something that's not available to me? That dichotomy intrigues me a little bit. But in any event, Pistole, who has said in here

29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hear. MS. WELLS: I think -- I know Mr. Blitz would them. First of all, the standard operating procedures are an order, in our view, that come under the purview of 49 USC 46110, and they are for a variety of reasons. THE COURT: All right. That's what I wanted to clear. MS. WELLS: -- because it does encompass both of that this decision is reviewable by a United States Court of Appeals under 49 USC Section 46110 -- I would assume if he's familiar with the statute, he knows what an order is, or he knows that it talks about orders, but he characterizes this as an SOP. So walk me through and explain why I should find under 46110 that the backscatter and enhanced pat downs constitute an order for purposes of 46110. MS. WELLS: Okay. I'd like to back up for just a

minute and clarify that what we're talking about here is alternative imaging technology, which includes not just the backscatter scanners, but also the millimeter wave scanner. That's why we lump them together -THE COURT: I think your affidavits made that

rather not have you follow Gilmore, but we actually think that that case is the closest parallel to the situation that

30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we have here, and I would just also note that there actually is a decision from the Eastern District of Michigan which has found that an SOP, or standard operating procedure, is an order. That's the Thompson versus Stone case. But I

think the analysis in Gilmore by the Ninth Circuit is a lot more thorough and really spells out why something like the security directive in that case and the standard operating procedure that we have here relating to the check point security measures come under the order. THE COURT: MS. WELLS: THE COURT: another term here. directive" is. MS. WELLS: The security directives are parallel All right. Let's break it down --

First of all -No, first of all, you've introduced Let's -- tell me what a "security

to standard operating procedures, and generally those are what are -- TSA issues to air carriers, for example, maybe airport operators, a port authority, anybody else who is a partner with TSA in securing areas where passengers travel -- are traveling and are, therefore, joining in combating the efforts of terrorists to cause harm. So a security directive would be something -- and in Gilmore the security directive at issue there was one that was issued to the airlines that set up the procedures of what do you do or don't do if a passenger appears to get

31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on a flight and doesn't show an identification, something that is required for traveling. And if you don't have an

identification, then they kick into the alternative measures that they will apply, one of which includes a pat down. So it's an identical -- you know, direct analogy to the situation here where you show up at the airport, you want to get on the airplane, you know you have to go through the checkpoint, and you know you've going to be subjected to a search at that checkpoint. THE COURT: MS. WELLS: Okay. And you know that there are procedures

that the agency has put into place that are going to affect how you're getting from point A to point B and into the secure area is going to be conducted. You know that when

you show up to the airport, all of us do, and we have for many years. Even prior to 9/11, we were searched. All right. What's the difference then

THE COURT:

between the security directive and the SOP? MS. WELLS: The SOP is issued to people who

actually implement TSA procedures, like the screening officials, the transportation security officers who conduct the screening. Most of them are TSA employees. So the

standard operating procedures, the way I've been thinking about it -- I'm not sure the agency would necessarily buy into this -- is they're more directed to the internal

32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 order. MS. WELLS: Well, first of all, as I just alluded personnel. If you have an airport, however, like where they

have contract screeners, they would follow the same procedures as the TSA screeners, which for the most part the standard operating procedures are directed to, in this instance, the TSA screeners who are responsible for maintaining security at the screening checkpoints. THE COURT: All right. Tell me why the SOP is an

to, it does impose an obligation on the passengers, such as plaintiffs, to make sure that you comply with these procedures. So, therefore, that means at a minimum you're

passing through either an AIT machine or a walk-through metal detector, and you're placing your bags on a conveyor belt, and those bags are also being screened. obligation that's placed on the passenger. And by the way, Your Honor, I do want to point out that most of the references in support that are cited in both the declaration of Administrator Pistole and that of Ms. Seagraves are actually cites to the TSA website. A lot That's the

of the information about what the requirements are and what the obligations are and what the technology is is, in fact, public knowledge. There's a wealth of information that is

available to any member of the traveling public on that website. So it's not as if these are all procedures that

33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are happening in a total secret vacuum. Another indicia of why that makes the SOP, or standard operating procedure, an order is that if, in fact, a petition for review were to be filed in a Court of Appeals, there would be an adequate record that would be presented to that court for purposes of making an informed decision. Now, we included a footnote in our brief to a pending case in the DC Circuit, which is EPIC versus Napolitano, or TSA, and in that case the plaintiffs, which includes an advocacy organization and some individuals, are challenging the standard operating procedure that was issued back in January of this year that actually implemented the rollout of the AIT. So it steps back not just to the

checkpoint technology which now includes the revised pat downs, but also the use of this alternative imaging technology. That case, which went directly from a letter

from a TSA official to one of the plaintiffs denying their challenge to the procedure, is now directly in the DC Circuit, and in connection with that case, which is currently being briefed, the agency has, in fact, put together a record that includes over 132 items, I believe. It's somewhere around there. So it doesn't -- it wouldn't be a denial of meaningful review. There, in fact, would be an adequate

34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 record to the policy and to the implementation of the policy itself directly in the Court of Appeals. So it's not --

that isn't an alternative forum, it's the forum that Congress has chosen. There would not be a denial of appeal

if the case were to be transferred to that level. Now, the standard operating procedure also provides a definitive statement of TSA's position relating to the screening and sets forth the procedures. think even the plaintiffs here doubt that. I don't

The standard

operating procedure also has an immediate and direct effect on air passengers, and it obviously required immediate compliance; although, here it was issued in September, but the effective date was October 29, and as of that date the expectation was anybody who wanted to get on an airplane would have to comply. And for these reasons, the SOP has all the indicia that the courts have required for an order within the meaning of 46110. Now, I also would note that to the extent that plaintiffs here raise constitutional claims in addition to challenging the procedure and the policy itself if that, in fact, is what they're challenging here, those claims would be inextricably intertwined with their challenge to the merits of the order, and I think that the case law is -definitely supports the position that where you have a

35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 challenge to an order as applied to you that's inextricably intertwined and can't be separated from a challenge to the merits of that order and the procedures that are being implemented as a result of that order, then jurisdiction vests exclusively with the Court of Appeals, and not with the District Courts. Now, neither the decision in McNary, nor the decision of the Ninth Circuit in Mace, which relies on McNary, dictates otherwise. And I would note actually that

the Gilmore decision, which is also a Ninth Circuit decision, really just gives Mace passing reference in a footnote. So they were not troubled at all by the fact that

the challenge to the security directive as applied to Mr. Gilmore was inextricably intertwined with the challenge to the actual, you know, application of the security directive itself. situation here. Now, McNary involved a statute that it contemplated direct review of individual denials of special agricultural worker, SAW, status rather than referring to a general constitutional challenge to policies and practices. Those were more typically individual -- specific individual application cases. But the Supreme Court in Thunder Basin, We would say that we have the same

which is a decision after McNary, noted that McNary, in fact, would not permit a plaintiff to circumvent an

36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 exclusive review scheme by raising constitutional claims which could be addressed by the Court of Appeals. In Thunder Basin, the Court was looking at a scheme similar to this one and similar to the one Your Honor referred to in the Tacoma case where Congress clearly has intended to set up a particular way for people to challenge orders and have set up a whole scheme designed to -THE COURT: MS. WELLS: THE COURT: switch to this. Is that --- of the Court of Appeals. Let me back up one second before we Under 49 USC

Under 114(l) -- is it 114?

Section 114(l), we've got this emergency procedures, (l)(2)(A): "If the Under Secretary determines that a regulation or security directive must be issued immediately in order to protect transportation security, the Under Secretary shall issue the regulation...without...notice or...opportunity for comment and without prior approval of the Secretary." And then it looks to me like under that statute, it contemplates a review by the Transportation Security Oversight Board within a certain period of time after that emergency regulation has been issued. correctly? Am I reading that

37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. WELLS: I think to the extent that there would I do think that that is a

be a regulation issued, yes.

provision which relates also to the issuance of security directives. Part of the problem we're dealing here obviously is the threat is constantly evolving, and so, you know, a security directive that is issued in, you know, January may or may not actually apply to a situation as it exists in March or April, and I think Congress clearly intended to allow the Secretary of Homeland Security or the Administrator of TSA some flexibility in making sure that they could react very quickly to the evolving situation. And I think that's primarily what 114 is getting to with respect to the security directives, and we would suggest that even though the statute doesn't exclusively address standard operating procedures that they basically come within the ambit of some -- you know, they're very similar to the security directive. Now, I would also note that 49 USC Section -THE COURT: Wait a minute. Then would an SOP

issued on short notice under emergency changes be subject to review by the Transportation Security Oversight Board? MS. WELLS: THE COURT: MS. WELLS: No. So they're not really the same then. No. And I think it's mostly because,

38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 again, the examples I think we've provided in Mr. Pistole's declaration of where the standard operating procedures had to be changed very quickly -THE COURT: Before we go to Mr -- back up, though.

I want to -- I mean, if the SOPs aren't going to be submitted to this oversight board, then I don't see any reason to treat them the same as a security directive under the statute. Explain to me why I should. I mean, I need to verify this. Let

MS. WELLS:

me -- if you -- I don't know the answer to your question as to whether or not, in fact, all security directives have to go to the transportation security board. THE COURT: I mean, the statute says this is an

emergency security directive. MS. WELLS: THE COURT: If I could just have a moment. All right.

(Short pause.) MS. WELLS: Apparently, Your Honor, what I've been

advised is that transportation security directives go to this oversight board, but aviation ones do not. THE COURT: All right. So your aviation security

directives are generated under -- is it 4409 -- let me see -- 44901. MS. WELLS: Well, 44901 is the statute that

provides the authority for the screening of all passengers

39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then. before boarding. THE COURT: MS. WELLS: screening procedures. THE COURT: All right. And requires passenger compliance with That's in 44902. All right. Let me let you back up

So the SOP and a security directive are different Does an SOP -- as I read Pistole's affidavit, an That's the final level of Is that

creations.

SOP is approved by Pistole.

approval within -- before it's implemented by TSA. correct or incorrect? MS. WELLS: THE COURT: That's correct. All right.

And under what authority

is an SOP generated or approved by the Under Secretary? MS. WELLS: in the statute. THE COURT: MS. WELLS: Which one? Let's see. The statute generally And, again, I believe it's set forth

would be 44904 -- 49 USC Section 44904 which provides that together with the director of the Federal Bureau of Investigation, the administrator must take necessary actions to approve domestic transportation using his authority to prescribe regulations to protect passengers and property on an aircraft -- in an aircraft. THE COURT: regulation? So is the SOP an order or a

40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor -THE COURT: these, but I don't. Hold on one second. I thought I had What MS. WELLS: It's an order, and the authority for

the SOP itself comes from 49 CFR Section 1540.105, which we have cited in our papers. So the statute gives the One

administrator the authority to implement regulations. of the regulations that's been implemented is 49 CFR

1540.105, and that provides the authority for issuing the standard operating procedures. THE COURT: Then is it that regulation or the SOP

that constitutes the order of the agency? MS. WELLS: THE COURT: MS. WELLS: The SOP. All right. In this instance. And, you know, Your

Let me pull them up real quick.

was the authority for the regulation? MS. WELLS: THE COURT: MS. WELLS: THE COURT: MS. WELLS: prescribe regulations. THE COURT: Prescribe a regulation under that The regulation itself? Um-hum. Is, I believe, 44 -- 49 USC Section -No, you cited it to me. 44901 is for screening, 44904 is to

statute, and then there was another step, CFR. MS. WELLS: The CFR is 49 CFR 1540.105.

41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (a)(2)? is 49. THE COURT: MS. WELLS: THE COURT: It says: "No person may enter, or be present within, a secured area, AOA, SIDA or sterile area without complying with the systems, measures, or procedures being applied to control access to or presence or movement in, such areas." So the statute prescribes that regulation or -MS. WELLS: The statute authorizes or provides 49 CFR 1540.105. Right. And it relates -THE COURT: MS. WELLS: THE COURT: MS. WELLS: 1540 point what? 105. All right. 49 CFR 1540.105. It's 40 CFR. No, it

Oh, I'm sorry.

I assume you're referring to two --

authority to prescribe regulations to protect passengers and property on an aircraft. This particular regulation sets

forth the fact that in order to enter a secure or sterile area of an airport, the passenger must submit to screening, and then the SOP or the order actually implements the procedures by which TSA is going to make sure that nobody enters that secured, sterile area who poses a risk. They're

going to do what they can to make sure that, in fact, it stays secure.

42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: So ultimately what we're left with is

a procedure approved by Pistole then becomes an order of TSA? MS. WELLS: THE COURT: regulation. Right. Or an order for purposes of the

That's the Government's position. Right. It becomes an order within the

MS. WELLS: meaning of 46110.

I would also note, Your Honor, that the standard operating procedures are the instructions that the screeners and the other security personnel follow as they're implementing TSA's policy regarding checkpoint screening. It would to -- you know, to provide these to the general public as written would be to provide a roadmap to anyone as to what the vulnerabilities could be in that system and to ways to -- that, therefore, be -- an individual of some kind could evade the systems -THE COURT: these to be done -MS. WELLS: THE COURT: Right. And, in fact -At this point the statutes permit

-- without public disclosure, and I

don't see that being challenged unless it's indirectly at this point in time. MS. WELLS: Right. And I would just note for that

that, you know, 49 USC Section 114(s)(1)(C) is basically the

43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 authority for the security -- sensitive security information, or SSI. And that statutory provision prohibits

the disclosure of information that's obtained or developed in carrying out security if the TSA administrator decides that disclosing the information would be detrimental to security. And for the reason that I just referred to,

clearly the SOP by allowing the road -- you know, the roadmap to be out there for people to identify what the vulnerabilities would be would clearly be detrimental to security. THE COURT: MS. WELLS: All right. So just to sum up, we would -- we do

submit here the SOP is an order that comes within 46110 and, therefore, the statute vests jurisdiction in the Court of Appeals. In addition in this situation given the claims as they've been presented, any constitutional claims are inex--- inextricably intertwined with a challenge to the policies and procedures itself, and, therefore, that also belongs in the Court of Appeals. And I would just finally note -THE COURT: Well, let's go to Mr. Blitz's question

for just a moment or his complaint for just a moment about the record in the Court of Appeals. a filing within the Court of Appeals. So what you envision is The agency would then

44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 submit its record as to the generation or creation of this SOP, but you -- at this point in time the only thing that I can have any evidence of that exists is the SOP itself. Clearly, it looks like from Pistole's affidavit that he considered some information in generating the SOP, but all I've got in his affidavit is this we generated these SOPs, and they're not subject to public disclosure under these regulatory matters. But let's say that Mr. Blitz contends, either previously or in anticipation, the search that's going to be conducted is unconstitutional because it is completely unreasonable for whatever reason, pick your reason. How

does he make a record to challenge the administrator's SOP? MS. WELLS: I mean, I think, first of all, the

record that will be provided to the Court of Appeals will be similar to a record that is created in an APA case. In APA

cases, the agency is responsible for compiling the record, and that becomes the basis for the Court's decision. do think that this procedure would not be different, certainly no less meaningful, than that type of procedure if it goes up to the Court of Appeals. The other thing is that I think, you know, an as-applied challenge -- I mean, we're obviously not advocating for this here, but, I mean, there are procedures in place if one feels there's been a wrong done to you under So I

45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ms. Wells. (Short pause.) THE COURT: Thank you Ms. Wells. Mr. Blitz, the tort law, and those procedures would be different -- it would be different, you know, complaining about something that's specific that happened to you by a TSO presumably, and then there are those laws that you could then challenge that application of the procedure to you under the FTCA -THE COURT: So the Government wouldn't be in here

arguing that an improper execution of the SOP because it led to tort law damages is inextricably intertwined. have to be a separate, standalone claim. MS. WELLS: Right. So that would be another So he would That would

opportunity, another forum, another way to go. not be precluded in either event. THE COURT: All right.

Hold on just a minute,

anything further you want to add by way of rebuttal? MR. BLITZ: Just briefly, Judge, if I could just I just want to point the Court's

stand here for a moment.

attention to McNary at 496 and 497 where they specifically talk about how inadequate it is to have a record of the agency go up to the Court of Appeals on a judicial review where there's been no opportunity to participate in the adjudicatory proceeding in front of the agency. specifically call that out as the problem. They

46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Second, the only place the agency's regulations mention Section 46110 is specifically in the context of an adjudicative proceeding, and that's at 49 CFR part 1503.661. That's the only place I could find that they mention it. Now, I'm not the greatest researcher in the world. The only other thing is I really just hope that this Court looks at that Thompson case and the way that that was done because I think it was a big mistake. What the

Court did, and I talk about this in my brief, so I'll just mention it, is they look back to a Sixth Circuit case from 1965 where I think it was a pilot got their certification taken away because they flew a helicopter too low, and then that helicopter pilot went in and had some hearings, two, in fact, in front of the FAA and then went into District Court and said I've got a claim here. said, wait a minute. of the agency. And the District Court

You just litigated this twice in front The Court of Appeals said

No jurisdiction.

you've got plenty of due process. The application of that kind of precedent -THE COURT: Mr. Blitz, I'd suggest instead of

focusing on Thompson that if you want to distinguish a case, the Gilmore versus Gonzalez case is the case that you ought to consider addressing. MR. BLITZ: Judge, there's just not much to say

about Gilmore except that it's very interesting that the

47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court of Appeals evaluated all of his constitutional claims and essentially dismissed them using a 12(b)(1) type standard. So if everything you said was true, Mr. Gilmore,

and you really had to show your driver's license, you don't have a claim. THE COURT: MR. BLITZ: jurisdiction. THE COURT: The Circuit Court is the one that Well, the Circuit Court -Then they said 46110 gives us

found it had jurisdiction to entertain the claims, and the jurisdiction was not proper -- that the District Court had ruled properly. MR. BLITZ: I understand, and all I can say is

that Gilmore is wrong, and Gilmore is wrong in light of McNary. occasion. I mean, you know, the Ninth Circuit does err on I don't know what to say. It's not binding

precedent in this circuit.

I realize it's quite persuasive,

but, Your Honor, I'm raising arguments that I'm not sure were raised in Gilmore. I'm not sure they've been raised

since Mace versus Skinner, and the thing about Mace is Mace was an aircraft mechanic who had an opportunity for hearing in front of the agency, and he didn't like the way the hearing was conducted. I've never had a hearing. I've never had notice. And if I go up

I don't have anywhere to present anything.

48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 like. THE COURT: McNary didn't address a limited forum McNary says: to the Court of Appeals, they've just said it's going to be under an APA standard which means that the agency's findings are going to be entitled to substantial deference, and that's exactly -- I mean, exactly what the Court in McNary said works this terrible injustice and insulates Article II action from Article III review, meaningful judicial review. THE COURT: MR. BLITZ: In McNary -- McNary -I can get the full cite if you would

type clause of the type that we have here.

"This case relates only to the SAW amnesty program. Although additional issues were resolved by the District Court and the Court of Appeals, the only question presented to us is whether Section 210(e) of the Immigration and Nationality Act, which was added by Section 302(a) of the Reform Act and sets forth the administrative and judicial review provisions of the SAW program precludes a federal District Court from exercising general federal-question jurisdiction over an action alleging a pattern or practice of procedural due process violations by the (INS) in its administration of the SAW program. We hold

that given the absence of clear congressional

49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 language mandating preclusion of federal jurisdiction and the nature of respondents' requested relief, the District Court had jurisdiction to hear respondents' constitutional and statutory challenges." On the next page, at least my next page: "The Reform Act expressly prohibited judicial review of such a final administrative determination of SAW status except as authorized by Section 210(e)(3)(A). That subsection

permitted 'judicial review of such a denial only in the judicial review of an order of exclusion or deportation.'" So that statute -- McNary was dealing with a situation where the statute permitted an agency to act, but then only permitted review for the deportation or -- in the deportation or exclusion process, and there was no intermediate review of any type permitted of this SAW or whatever you want to call that determination of whether someone could remain. And I see that, at least for argument purposes, it seems to me that statute is very different from one that says you may file a claim if you're affected by an order in the Circuit Court, which does permit judicial review. may not be the preferred forum. It

I understand your arguments

50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 decision? MR. BLITZ: No, it's not. It's not. And if you about whether or not the Court of Appeals as opposed to a District Court is a better forum for presenting evidence and can more fairly proceed, and I'm not saying the Circuit Court would be bad. I'm simply saying that that's what

District Courts do generally is take evidence and create a factual record. But as I see it, the McNary issue was very different from this issue because there was just no allowance for any review of that intermediate decision as to whether an illegal alien qualified for relief as determined by the agency. You agree or disagree? I agree that that's the narrow holding

MR. BLITZ:

in McNary, but if you look at McNary and Reno and the larger legal principles that are laid down in that case, they stand for the larger principle that whatever an administrative agency does in the review process, if you don't have an opportunity to meaningfully participate in that, and then that decision goes up to only Circuit Court review, you're in a courtroom with no witness stand, and you've never been given access to a process by which you can marshal facts to support your claim. THE COURT: And when they looked at -Isn't that true for any agency

look at all the cases that they cite -- there's all these

51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 agency decisions under 46110 that people are coming into court and complaining about, and they're getting sent up to the Circuit Court. Circuit Court? Why are they getting sent up to the

Because they already had a chance to Whether it was,

participate meaningfully in a proceeding.

hey, we don't want this airport here, and we don't like the way FAA heard our notice and comment or whether they took our certificate away. I mean, whatever the agency has done.

And, again, it's really hard -- they're straining to read 46110 this way. I mean, their own regulations talk

about what's in a final order, and then the statute says that the order shall set out what facts it's based on. apologize. I

The order shall include the findings of fact on

which the order is based and shall be served on the parties to the proceeding and the persons affected by the order. How is it possible that anything that they do has these types of hallmarks and due process? I mean, they're

shoehorning this under here so they can do what they want and then not be subject to judicial review. And where we've

brought a claim that we will never have an opportunity to marshal facts for, that's just -- you know, that's just not -- that's just not what this statute contemplates, and you're not allowed to presume that it does. In fact, you

have to have a very strong presumption that it doesn't because it raises such a powerful due process claim.

52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If there are no more questions? THE COURT: All right. Let's take a recess and We'll

come back, and we'll figure out where we're going. stand in recess for 15 minutes. (At 3:24 p.m., break taken.) (At 3:52 p.m., break concluded.) THE COURT: All right.

Mr. Blitz and Ms. Wells, I I

appreciate the arguments that were advanced here today. think there's something to commend both sides.

Mr. Blitz, I

certainly understand your concern about secrecy which you say seems to run contrary to a lot of things our court system stands for, and I very much appreciate your confidence in the District Court to conduct an appropriate fact-finding mission. I wouldn't be quite so quick to sell

the Circuit Courts short in that regard, but I do appreciate your comments in that regard. I am going to deny the motion. reasoning on that briefly. I will explain my

And then at the end of that,

Mr. Blitz, depending on how you wish to proceed, I know you're traveling next week, we can talk a little bit about whether -- what your preference is in terms of procedural posture of the case if you want to proceed from here. But

let me explain my reasoning, and then you can let me know what you want to do. Presently before the Court is plaintiff's motion

53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for preliminary injunction, Document 4. And as I just

mentioned, I conclude that the plaintiffs have not demonstrated that the extraordinary remedy of a preliminary injunction should be issued in this case, and I will therefore deny the motion for a TRO and preliminary injunction. To obtain a preliminary injunction, the plaintiff must establish that he is likely to succeed on the merits; that he is likely to suffer irreparable harm in the absence of preliminary relief; and that the balance of equities tips in his favor; and, finally, that an injunction is in the public interest. That's Winter, 129 S. Ct. at 374.

For multiple reasons, I conclude that the plaintiffs have not shown that they are likely to succeed on the merits of their claims against defendants such that a TRO or preliminary injunction should issue. First, it is, at best, unclear at this point whether this Court has jurisdiction to adjudicate plaintiffs' claims. When I say "at best," what I mean by

that is it seems to me I do not. By statute, a person disclosing a substantial interest in an order issued by the administrator for the Transportation Security Administration, TSA, under Part A of Subtitle 7 of Title 49 of the United States Code, which I'll refer to hereinafter as Part A, may apply for a review of

54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the order by filing a petition for review in the United States Court of Appeals for the DC 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. That's 49 USC Section 46110(a). That statute further

provides that the United States Court of Appeals has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order. That's 46110(c).

The TSA screening procedures at issue in this case are required under TSA's current standard operating procedures for checkpoint screening; that is, SOP. The SOP

on this record appears to meet the criteria set forth in Section 46110(a) in that it is issued by the administrator for TSA and is apparently issued pursuant to the administrator's mandate under Part A which requires the administrator to provide for the screening of all passengers and property that will be carried aboard a passenger aircraft operated by an air carrier or foreign air carrier in air transportation or interstate air transportation. That's 4901(a). Thus, if the SOP constitutes an order for purposes of 49 USC Section 46110, then the Court of Appeals is the proper forum for review that the plaintiffs seek. Tacoma versus Taxpayers of Tacoma, 357 US at 336. City of In that

case, the Supreme Court held that a statute vesting the

55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court of Appeals with exclusive jurisdiction to review an administrative order necessarily precluded de novo litigation between the parties of all issues and hearing in the controversy and all other modes of judicial review. While it is not entirely clear to this Court that the SOP constitutes an order under Section 46110, at this point, based on the record presently before me, I conclude that it is an order within the meaning of the statute. At a

minimum, this difficult jurisdictional matter makes success on the merits less likely. But with respect to the question of whether or not the SOP constitutes an order, the Fourth Circuit has stated that the existence of a reviewable administrative record is a determinative factor in defining an administrative decision as an order and also that the agency action must be the final disposition of the matter it addresses to be deemed an order. 728 F.2d at 646. It does seem to be clear that the administrative record does not have to be lengthy. It need only be an That's City of Alexandria versus Helms,

agency decision which imposes an obligation, denies a right, or fixes some legal relationship. Another part of the test

includes the question of whether or not the order provides a definitive statement of the agency's position or -- and has a direct and immediate effect on the day-to-day business of

56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the party asserting the wrongdoing and envisions immediate compliance with its terms. Those are other factors in

determining whether or not the SOP constitutes an order. I find that because the SOP conclusively settles the matter of deploying the screening methods at issue in this case, the SOP is a final disposition by TSA and the SOP itself, and the documents that TSA reviewed in connection with the SOP appear to constitute a reviewable administrative record. As Pistole points out in his

affidavit, there have been specific written SOPs generated by TSA. In support of these propositions, see Green versus Brantley 981 F.2d 514; Atorie Air versus FAA, 942 F.2d 954; and Southern California Aerial Advertisers Association versus FAA, 881 F.2d 672. Further, other Federal Courts have held that TSA actions similar to the SOP at issue in this case constitute orders under Section 46110 and, therefore, cannot be reviewed in the District Court. That's Gilmore versus

Gonzales, 435 F.3d 1125; Green versus TSA, 351 F. Supp. 2d 1119. Although plaintiffs have advanced reasonable arguments as to why the SOP should not be considered an order for purposes of Section 46110, this Court concludes in light of the foregoing authorities that plaintiffs have not

57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 made a clear showing that this Court has jurisdiction to adjudicate their claim. See Winter 129 S. Ct. 376.

Plaintiffs have not satisfied this Court that they are likely to succeed on the merits. See Munaf versus Geren

553 US 674 wherein that Court stated a difficult question as to jurisdiction makes success on the merits more unlikely due to potential impediments to even reaching the merits, and, thus, plaintiffs are not entitled to a preliminary injunction in this case. This Court also concludes that plaintiffs have not made the requisite clear showing that they are likely to succeed on the merits with respect to the reasonableness of the challenged screening procedures. Defendants have

proffered significant evidence of the grave threats that adhere in air travel, the failure of less sensitive screening methods to identify and neutralize those threats, and the efforts by TSA to make the challenged screening procedures as minimally invasive as possible. Although

plaintiffs have made sensible arguments that the challenged screening procedures are unreasonably invasive, even in light of the threats they seek to combat, at this point for purposes of a TRO or preliminary injunction, I cannot find that plaintiffs are likely to succeed on the merits or demonstrate that such is the case. Finally, it appears to me that in the absence of

58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that -- let me back up. It appears to me that the

plaintiffs have not made a clear showing that the requested injunction is in the public interest. Again, defendants

have proffered significant evidence of the utility of the challenged screening methods and neutralizing threats of aviation-related terrorism. Given the presence of such

threats and this Court's conclusion that the plaintiffs have not shown that they are likely to succeed in demonstrating violations of their constitutional rights, an injunction reducing defendants' ability to employ the challenged methods would not benefit the public at least based on the record as it exists at this preliminary stage of the proceedings. So that, Mr. Blitz, is my ruling. I don't know

whether or not -- I told you I wouldn't dismiss it, and I won't dismiss the case until you've had a chance to respond to the 12(b)(1)argument. I don't feel that that's been But that's my finding,

fully briefed at this point in time.

and I don't know if you have a preference as to simply denying the motion and then you may decide whether you want to proceed in the Fourth Circuit under an appeal of that order, or whether something else would be more appropriate. I'll hear from you. MR. BLITZ: Do you understand my question? I think I do, Judge. I think I'm not

going to ask you to go further than just denying the motion

59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. because that's all before the Court. its own motion at this time? THE COURT: No, I'm not. I will not -- I'm not Is the Court making

interested -- you haven't had the full -- the benefit of the full time to respond. There is no 12(b) -- actually, there All we are in at this point

is no 12(b)(1) motion pending.

is a motion for TRO and a response to that motion as I set out. But to the extent you want to appeal this order, if

you wanted me to do something different other than simply deny the motion at this point, I would certainly hear from you on that. MR. BLITZ: Well, Judge, I think I've made it

pretty clear that I think that Article III proceedings belong in this court, and I'm going to try to keep them in this court. I'm certainly not going to look to this Court I'm going to

to dismiss it for lack of jurisdiction. militate pretty heavily against that. THE COURT: MR. BLITZ:

I mean, if you're asking -Maybe I don't understand your

I mean, you've made your ruling on the motion

that's before you. THE COURT: I understand your -- what I understand

you to be saying is, no, Judge, at this point deny the motion, I'm not asking you to do anything else, nor is there anything else before you to rule upon at this point.

60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BLITZ: Right, and I don't think I could ask

you to do anything else other than give you a notice of appeal, which I'm not doing -THE COURT: MR. BLITZ: Okay. -- at this point. I mean, certainly I

have time to make that decision. THE COURT: You do, and I certainly didn't mean to

force you, but you're traveling next -- I think -MR. BLITZ: Well, you know, to the extent -- yeah,

I mean, to the extent we don't have the protection of the Court's order, that's where we are, and I certainly do have an appealable issue. But in terms of the other issues that

the Court's raised, we appreciate you giving a look into our -- into your thought process behind it, and we would -THE COURT: MR. BLITZ: Was it the 14th? It's the 14th through the 18th. So we

leave here Tuesday afternoon. THE COURT: time on you. And today -- I was not checking the I was checking So you

It's not time to go home yet.

the date to see what day it is. would at least have Monday -MR. BLITZ:

Today is the 10th.

You know, I'm not interested in

ruining anybody's weekend for sure, either here or at the Court of Appeals. THE COURT: I would make some comment about you

61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 messing my night up last night, but that's okay. MR. BLITZ: Well, we appreciate the Court's time

and the thoughtfulness -THE COURT: It's a very interesting issue, it's a

novel issue, and there clearly is a lot of developing case law on it, and I certainly by denying the motion don't mean to suggest you haven't made some arguments that certainly have some substance to them. So at this point in time to If you wanted me to

the extent -- I'm denying the motion.

consider doing something else, I would, but you've answered that question, so I'll deny the motion. you want to proceed from here. MR. BLITZ: The only thing I would bring up, You can decide how

Judge, and I'm sorry I didn't mention this to counsel, it's been sort of a long week, but there was -- there's a standard mediation order that goes out, and I would just ask counsel, do you think this case is susceptible to mediation? THE COURT: All right. We don't -- in this

district, we don't do much of the talking back and forth between counsel in the courtroom. Generally speaking, any

questions you have, address them to me; and if there's something you want to talk about with counsel, you can discuss that with them outside the court. MR. BLITZ: THE COURT: I apologize, Judge. That's all right.

62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BLITZ: The issue of mediation, I don't Unless

believe this case is susceptible to mediation.

counsel -- opposing counsel would object, I would ask that Your Honor not direct us to mediation in this case. THE COURT: I'll leave that general -- a lot of

that unfolds within the Clerk's Office after answers or motions have been filed and addressed, so I think at this point in time I'll deny the motion. We'll see where we go And

from here and how the Government wishes to proceed.

then once we get past that, if you want to raise that again about mediation, you can. would be done. I don't think the mediation part

Ms. Kemp can correct me if I'm wrong, she

probably knows, but that doesn't usually happen until after the Rule 26 -- that stuff has been done. THE CLERK: THE COURT: Yes, sir. So nothing for me to do. Thank you

both for your arguments. I'll do it again today.

I generally will come down, and We'll recess court, and I'll come And, again, thank you

down and say hello to the lawyers. for your time.

A very interesting issue and one of first We'll stand adjourned.

impression in this court.

(At 4:07 p.m., break taken.)

63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Date: 12/16/10 ________________________________ Joseph B. Armstrong, RMR, FCRR United States Court Reporter 324 W. Market Street Greensboro, NC 27401 I, JOSEPH B. ARMSTRONG, RMR, FCRR, United States District Court Reporter for the Middle District of North Carolina, DO HEREBY CERTIFY: That the foregoing is a true and correct transcript of the proceedings had in the within-entitled action; that I reported the same in stenotype to the best of my ability; and thereafter reduced same to typewriting through the use of Computer-Aided Transcription. C E R T I F I C A T E