September 22, 2014 17 Comments
A matter of days after the TSA announced that its nude body scanners would be deployed as primary screening across the nation, I filed the first court challenge of the constitutionality of requiring Americans to walk through devices that visualize their nude body as a condition of flying. Since November 16th, 2010, I have vigorously and consistently maintained this objection to our government’s foolish behavior, as my case was bounced from court to court while we argued over which court should actually hear the case: the TSA argued that it should be in a court that had no discovery, witness stand, or even real trial (the U.S. Court of Appeals), while I argued that the constitution requires that my grievance be heard in a court that can offer meaningful review (such as the U.S. District Courts). It’s no surprise that by mid-2012, the lower courts decided that the court without discovery, witnesses, and trials should hear the case, due process be damned, and the U.S. Supreme Court declined to take up the issue.
With that matter settled, I continued my case in the court that they told me to file in, but now the TSA had a new objection to my case: that it’s too late now. You see, Congress wrote a law that says “orders” of the TSA must be challenged within 30 days, and the government interpreted this to mean that: 1) even if they keep doing the objectionable behavior (i.e. scanning and groping) daily, after they’ve done it for 60 days, it can never be challenged by anyone, and 2) the 60 days shouldn’t be from when I started my case, but from when I proceeded in the court that they preferred. I asked the court to refuse to adopt this absurd proposition and allow me an opportunity to gather and examine facts before the court.
In a 2-1 vote, the U.S. Court of Appeals for the Eleventh Circuit ruled last Friday that the government’s “60 days, forever immunized” theory is exactly right: the government, without violating your Constitutional right to redress, can create a law that says “once we do it for 60 days, it’s permanent, and we can keep doing it for the rest of eternity and you can’t take us to court!” They also went further and ruled that “even if Corbett had timely filed his petition,” the TSA’s nude body scanners and checkpoint molestations are constitutional — before they ever gave me a chance to ask the TSA for documents or meaningfully question their asserted facts.
In her dissent, U.S. Circuit Judge Beverly B. Martin blasts the majority for issuing the “unnecessary holding” that the TSA’s actions were constitutional, stating that there was no reason for the court to go there at this point since the majority decided it was too late to hear. She continues that “Mr. Corbett’s pursuit appears to me to have been methodical and diligent” and that she disagrees with the court’s decision to “penalize” me for the switch of courts in 2012.
Because there was a split between the judges, there is a higher chance now that the case will be accepted for review by either the full 11th Circuit or by the U.S. Supreme Court. I’ll be filing my petition to ask the full 11th Circuit to hear the case next week.
[Correction - Original post listed the time limit as 30 days. The statute sets the time at 60 days.]