[00:00:02] Speaker 00:
Case number 17-1116, Nicholas J. Bonacci, a petitioner versus Transportation Security Administration.

[00:00:10] Speaker 00:
Mr. Bonacci for the petition.

[00:00:39] Speaker 04:
May it please the court.

[00:00:41] Speaker 04:
Good morning.

[00:00:42] Speaker 04:
I'm Nicholas Bonacci, petitioner pro se.

[00:00:46] Speaker 04:
I would request three minutes for rebuttal.

[00:00:48] Speaker 04:
This petition for review presents a very simple question of whether the TSA has statutory authority to conduct passenger screening of airline crew members and employees.

[00:01:00] Speaker 04:
Oftentimes this court is faced with very complex cases concerning scientific or financial questions.

[00:01:09] Speaker 04:
However, this case is a simple yes, no, up-down proposition for the court today.

[00:01:16] Speaker 04:
that became ripe for review on March 2, 2017, when the TSA promulgated an agency action in the newspapers.

[00:01:27] Speaker 04:
The TSA announced, amongst other things, a pat-down searching of airline crew members.

[00:01:34] Speaker 04:
I would remind this court that enhanced pent-down searching was originally proposed in 2010 as an alternate means of screening for persons who opted out of advanced image technology passenger screening.

[00:01:51] Speaker 03:
Am I right, Mr. Bonucci, that you're not objecting to anything that happens in the

[00:01:57] Speaker 03:
When you go through the crew checkpoint, right?

[00:02:04] Speaker 03:
Even if there's additional screening there.

[00:02:07] Speaker 03:
Your objection is focused on being sent to the passenger checkpoint.

[00:02:12] Speaker 03:
That's your case, right?

[00:02:13] Speaker 04:
Let me clarify that.

[00:02:16] Speaker 04:
The alternate screening is a contention.

[00:02:21] Speaker 04:
The wording alternate screening is used by the TSA in lieu of passenger screening.

[00:02:27] Speaker 04:
And I've made it clear in most, actually all my briefs, reply briefs, that I'm not opposed to additional screening.

[00:02:37] Speaker 04:
The TSA is well within their rights.

[00:02:39] Speaker 04:
What I am opposed to, as stated in the law, is passenger screening for crew members and in fact airline employees.

[00:02:50] Speaker 04:
So, to answer your question more specifically, when I use that alternate means of entry, known as the KCM, the known crew member entry point,

[00:03:02] Speaker 04:
At the George Bush Houston Intercontinental Airport, they have a device in which they randomly select persons, crew members and crew members only to send them to passenger screening.

[00:03:17] Speaker 03:
In the known crew member entry point, if you go through that, could a crew member be subject to additional screening or pat-downs in that line without being sent to the passenger?

[00:03:31] Speaker 04:
Well, those are two separate things.

[00:03:33] Speaker 03:
I know.

[00:03:33] Speaker 04:
That's why I asked you a question.

[00:03:35] Speaker 04:
Additional screening was, in fact, one time before in Houston.

[00:03:39] Speaker 04:
was in fact done where they may, after you went through the KCM access portal, they may say, may I have a look in your bag?

[00:03:50] Speaker 03:
You're not objecting to any of that.

[00:03:52] Speaker 03:
No, no sir.

[00:03:53] Speaker 03:
Only what happens after the arrow lights up, right?

[00:03:56] Speaker 03:
That is correct.

[00:03:56] Speaker 03:
Then you have to go over to the other line.

[00:03:58] Speaker 05:
That is correct.

[00:04:00] Speaker 05:
I'm glad to have that clarification.

[00:04:01] Speaker 05:
I also want to get you to clarify whether this has happened to you.

[00:04:07] Speaker 05:
Yes, it has.

[00:04:09] Speaker 05:
When was that?

[00:04:09] Speaker 04:
It actually happened this year.

[00:04:12] Speaker 05:
Well, okay, now you said that this protocol was promulgated in April of 2017?

[00:04:17] Speaker 04:
The order, correction, the agency action was promulgated on March 2nd, 2017.

[00:04:27] Speaker 04:
And you filed in April?

[00:04:29] Speaker 04:
I filed on April 11th, 2017.

[00:04:32] Speaker 05:
And at that point, you knew about the order, but it had not yet been applied to you, is that right?

[00:04:42] Speaker 05:
Has it since been applied to you?

[00:04:44] Speaker 04:
Oh yes, it has been applied many times after that.

[00:04:47] Speaker 04:
In fact, one time it happened was on Christmas Day 2017, so yes.

[00:04:54] Speaker 05:
Where you were selected but randomly.

[00:04:55] Speaker 04:
That is correct.

[00:04:57] Speaker 04:
Yes, I would estimate it's happened no less than a dozen times approximately.

[00:05:03] Speaker 05:
Yeah, in a period of less than two years.

[00:05:06] Speaker 05:
That is correct.

[00:05:06] Speaker 05:
A year and a half.

[00:05:07] Speaker 03:
And when that's in those dozen times, were you ever subjected, when you went to the passenger line, to a pad down?

[00:05:14] Speaker 04:
I have not since filing this at the Houston Intercontinental Airport been, when directed to the passenger screening, subjected to enhanced pad down searching.

[00:05:26] Speaker 03:
You have not?

[00:05:27] Speaker 04:
I have not.

[00:05:31] Speaker 03:
What did you mean in your brief when you said

[00:05:35] Speaker 03:
And you know your petitioner, Page 8, you say, petitioner is not harmed per se by enhanced, but harmed per se by enhanced searching.

[00:05:45] Speaker 03:
What does that mean?

[00:05:45] Speaker 04:
Yes, I thank you for the opportunity because the government has really used that.

[00:05:52] Speaker 04:
So anyway, I could not come in to this court and say that screening itself

[00:06:01] Speaker 04:
is harmful.

[00:06:03] Speaker 04:
Here I am standing in this court today.

[00:06:04] Speaker 04:
I had to go through similar type of screening.

[00:06:08] Speaker 04:
That would be that would be an absurd argument to say that screening of any kind administrative.

[00:06:15] Speaker 03:
No, but it says here enhanced searches.

[00:06:19] Speaker 03:
Am I quoting you correctly?

[00:06:21] Speaker 04:
No, the passenger screening is not itself, per se, harmful.

[00:06:30] Speaker 03:
So what is it that's harmful?

[00:06:33] Speaker 04:
Well, what is harmful then, as argued in the brief, is the requirement to comply with an unlawful act of the TSA and the unknown consequences.

[00:06:48] Speaker 02:
Wait, what's the unlawful act?

[00:06:49] Speaker 02:
Didn't they give notice in 2011 that there could be random screening as a part of the known crew member program?

[00:07:01] Speaker 04:
That was, that's in the brief, and that was rescinded, and that was in 2010.

[00:07:07] Speaker 04:
I started down this path in 2010 when they first proposed this, and then with, as noted in the brief, when the Airline Pilots Association's then president made last minute negotiations, the government backed away from that position.

[00:07:26] Speaker 04:
And so as noted in the brief, it would have essentially rendered any effort to petition this court moot.

[00:07:34] Speaker 02:
There was no SOP adopted in 2011 to this effect?

[00:07:42] Speaker 04:
No, here again, I am not allowed to see the orders and directives, but from what you can see in the record as publicly disseminated public statements by Homeland Security officials, no, they withdrew the effort to include crew members, pilots,

[00:08:04] Speaker 04:
in advanced hand, both advanced image technology screening and path down searching.

[00:08:15] Speaker 05:
Your initial, your initial objection is to being diverted to the passenger screening line.

[00:08:22] Speaker 05:
That's, I'm sorry, I think the initial, your objection, at least your first objection is to being diverted to the passenger screening line, is that correct?

[00:08:31] Speaker 04:
That is, I wouldn't say that's my first one.

[00:08:35] Speaker 05:
Is that among your objections?

[00:08:37] Speaker 04:
It's amongst my objections.

[00:08:41] Speaker 05:
What is the harm you associate with that?

[00:08:45] Speaker 04:
Well, that gets back to the primary objection, which is the Congress never intended for crew members to go through passenger screening.

[00:08:57] Speaker 05:
The question I'm asking is the harm to you, the injury that you need in order for standing.

[00:09:02] Speaker 04:
Correct.

[00:09:02] Speaker 04:
So, since it's unlawful, that's my contention, it's unlawful.

[00:09:08] Speaker 04:
Orders, directives, rules are being made that are unlawful, and I'm asked to comply with them when they're published in newspapers and magazines.

[00:09:21] Speaker 04:
And, even worse yet, I don't know what the consequences are for my noncompliance.

[00:09:28] Speaker 05:
But the question is, how is your compliance a harm to you?

[00:09:32] Speaker 05:
What is the nature of that harm?

[00:09:36] Speaker 05:
Is it an inconvenience?

[00:09:38] Speaker 05:
What is it?

[00:09:40] Speaker 04:
Well, the harm comes from

[00:09:46] Speaker 04:
That's why I say, per se, the harm is not the searching.

[00:09:51] Speaker 03:
The harm is coming.

[00:09:52] Speaker 03:
Well, let me see if I can help get it this way.

[00:09:54] Speaker 03:
Suppose, just to follow up on Judge King's version, suppose the little arrow that says go to the passenger, right?

[00:10:00] Speaker 03:
Correct.

[00:10:01] Speaker 03:
Suppose that arrow simply meant when it goes off, you get a pat down.

[00:10:06] Speaker 03:
You don't have to go to the other, you just get it there.

[00:10:08] Speaker 03:
Would you be objecting to that?

[00:10:17] Speaker 04:
That's a good question.

[00:10:18] Speaker 04:
It's a hypothetical question.

[00:10:19] Speaker 04:
It's not, it's not.

[00:10:21] Speaker 03:
We're both judging that we're going to try to understand what exactly what you're, what you're complaining about.

[00:10:27] Speaker 04:
Passenger screening.

[00:10:29] Speaker 03:
Okay.

[00:10:29] Speaker 03:
So the answer to my question is you wouldn't object to having pat downs in the known crew line.

[00:10:35] Speaker 03:
to be sent to the passenger line, right?

[00:10:40] Speaker 04:
Not specifically.

[00:10:41] Speaker 04:
I object, my contention is against passenger screening of crew members.

[00:10:46] Speaker 04:
That's what I just said.

[00:10:48] Speaker 04:
Whether it does or does not include enhanced pat-down searching, but to answer your question, Your Honor, if the government was to say, okay, at the end of the KCM line, we're gonna do additional screening, which I have no objection to,

[00:11:04] Speaker 04:
And we might look in your flight bag.

[00:11:08] Speaker 04:
And maybe we're going to pat you down a little.

[00:11:10] Speaker 04:
I don't think I would really like that, but that's not in contention today.

[00:11:15] Speaker 04:
But I'm at a loss to say why they could not do that.

[00:11:19] Speaker 04:
But that's not in contention.

[00:11:21] Speaker 03:
OK, is your objection?

[00:11:23] Speaker 03:
So I just got back from a flight.

[00:11:27] Speaker 03:
The passenger lines were really long.

[00:11:29] Speaker 03:
And I can understand why you might not want to go there.

[00:11:31] Speaker 03:
Is that the problem?

[00:11:32] Speaker 03:
Do you have to wait?

[00:11:33] Speaker 04:
No, I would not characterize that as the harm.

[00:11:37] Speaker 03:
So what is the problem?

[00:11:38] Speaker 03:
Is it that you're not treated like a pilot?

[00:11:40] Speaker 04:
No, as I was saying, the problem here is... Is it demeaning?

[00:11:43] Speaker 04:
No.

[00:11:44] Speaker 04:
That's in the brief.

[00:11:47] Speaker 04:
Other people have stated that.

[00:11:48] Speaker 04:
My contention is that the passenger screening itself is unlawful.

[00:11:54] Speaker 04:
and it is disseminated in a manner which I'm not able to see it.

[00:11:59] Speaker 04:
So fine, I get the TSA has, to a certain extent, they cannot publish the lawyers.

[00:12:06] Speaker 04:
I get that.

[00:12:07] Speaker 04:
But I am being asked to comply with an unlawful procedure with lawful sanctions that could be meted out, but I don't know what they are.

[00:12:17] Speaker 04:
So... You're saying all passenger screening is unlawful in your view.

[00:12:22] Speaker 04:
for, actually the Congress said, for airline employees.

[00:12:28] Speaker 04:
And when I'm here to- That's what Judge said.

[00:12:30] Speaker 04:
No, I'm confused.

[00:12:33] Speaker 02:
Why for airline?

[00:12:35] Speaker 02:
Well, I would direct this- I thought your answer was that all passenger screening was unlawful.

[00:12:42] Speaker 02:
Now you're saying passenger screening for airline employees.

[00:12:49] Speaker 02:
Employees.

[00:12:49] Speaker 02:
All right, well now why is that so?

[00:12:51] Speaker 04:
I would direct this Court's attention to, it's in the brief, it's U.S.

[00:12:57] Speaker 04:
Code 49-44901.

[00:12:59] Speaker 04:
It's the actual law taken from the Act.

[00:13:04] Speaker 04:
It's in the brief.

[00:13:06] Speaker 04:
I cite the Congressional record.

[00:13:08] Speaker 04:
But the Congress was very clear about this.

[00:13:10] Speaker 04:
When the Congress originally started down this path shortly after 9-1-1, they actually wanted everyone coming into an airport to go through a metal detector.

[00:13:21] Speaker 04:
Coolheads prevailed, and as reflected in the record, you can see that the Congress began to realize that they would have to have reasonable measures in place for people coming into an airport, namely airline employees.

[00:13:37] Speaker 04:
Congress contemplated background checks in lieu of searching.

[00:13:44] Speaker 04:
The facts are the vast majority of airline employees do not get any kind of screening, much less passenger screening.

[00:13:53] Speaker 04:
So what I'm saying is simply that the Congress not only put that into the law, but as shown in my briefs,

[00:14:05] Speaker 04:
that the Congress actually did not want airline employees to go through passenger screening.

[00:14:14] Speaker 03:
Okay.

[00:14:16] Speaker 03:
Okay, thank you.

[00:14:17] Speaker 04:
You're welcome.

[00:14:18] Speaker 03:
We'll hear from the government.

[00:14:29] Speaker 01:
May it please the court, Mike Shee, for the government.

[00:14:32] Speaker 01:
I just want to emphasize that it seems as if the upshot of Mr. Bonacci's position, as best I understand it, is that it would be unlawful to randomly screen pilots and crew members before allowing them access to the sterile area.

[00:14:48] Speaker 01:
That simply is not supported by any of the statutes that Mr. Bonacci cites.

[00:14:56] Speaker 03:
And I would refer the Court to the various authorities that we— I thought you said that what he objected to was being randomly selected to go to passenger security.

[00:15:07] Speaker 03:
So it's— Suppose, for example, that's his argument.

[00:15:11] Speaker 03:
That's actually what he's objecting to.

[00:15:12] Speaker 03:
Then what do you think?

[00:15:14] Speaker 01:
So if that's Mr. Bonacci's argument, then there would be a couple of questions.

[00:15:23] Speaker 01:
The first question would be whether Mr. Bonacci is standing to challenge those procedures.

[00:15:29] Speaker 03:
OK, well, what do you think about that?

[00:15:31] Speaker 03:
I mean, he says he's been a dozen times randomly selected to go through passenger screening.

[00:15:38] Speaker 01:
So I think that with respect to it, so let me try to disaggregate two things.

[00:15:44] Speaker 01:
So the first issue is whether as a general matter, TSA may divert randomly some participants in the known crew member program to passenger screening checkpoint.

[00:15:57] Speaker 01:
And the second question is what the content is of the screening

[00:16:02] Speaker 01:
And so with respect to the first question, TSA publicly announced in 2012 that all participants in the known crew member program should still be aware that they may be subject to additional surveys.

[00:16:17] Speaker 03:
That's the merits.

[00:16:19] Speaker 03:
I thought you were going to talk about that.

[00:16:21] Speaker 01:
And right, so with respect to that, I just wanted to emphasize that that was made clear to folks as no later than 2012 and the petition was filed in 2017.

[00:16:31] Speaker 03:
I like the way you disaggregated.

[00:16:33] Speaker 03:
So question number one is random selection to go to passenger screening, and then random selection within that line to get pat downs.

[00:16:45] Speaker 01:
Yes.

[00:16:45] Speaker 03:
OK.

[00:16:46] Speaker 03:
So standing?

[00:16:48] Speaker 01:
So standing as to random selection to go to the additional screening checkpoint.

[00:16:54] Speaker 01:
Mr. Bonacci has not identified any constitutionally cognizable harm

[00:17:00] Speaker 01:
that accrues when he is subjected to additional screening at that line.

[00:17:05] Speaker 01:
The three theories of injury that he has presented in his brief are as follows.

[00:17:09] Speaker 03:
Suppose he had made my complaint that you have to wait 20 minutes.

[00:17:12] Speaker 03:
Would that have been sufficient?

[00:17:13] Speaker 01:
That might be sufficient, Your Honor.

[00:17:17] Speaker 05:
So, you know, some people might think of it as an imposition, other people might not think of it as an imposition, and it depends.

[00:17:35] Speaker 01:
on what Petitioner's theory of the imposition is.

[00:17:40] Speaker 01:
And Petitioner has been quite clear that the three injuries are as follows.

[00:17:45] Speaker 01:
One, he is harmed because the screening at the passenger checkpoint is issued in violation of the APA's notice and comment provisions.

[00:17:53] Speaker 01:
Two, he's harmed because the issue,

[00:17:57] Speaker 01:
diversion is unlawful under the TSA's statutes, and three, he's harmed because he doesn't know what exactly to do at the checkpoints.

[00:18:05] Speaker 01:
And for the reasons articulated in our brief, none of those theories of injury is sufficient to support Article 3 standing.

[00:18:13] Speaker 05:
And the second one was?

[00:18:15] Speaker 01:
The second theory is he's harmed because TSA lacked statutory authority to issue the order.

[00:18:19] Speaker 05:
Okay, so let's just read that a little bit indulgently.

[00:18:23] Speaker 05:
I'm harmed because

[00:18:25] Speaker 05:
I have required to do something, which I don't want to do, and for which there's no authority.

[00:18:32] Speaker 05:
But the harm part in terms of Article 3 is the first clause.

[00:18:36] Speaker 01:
That's right.

[00:18:36] Speaker 01:
So the critical difference, Your Honor, between your characterization of that argument and the argument, as I understand it, to have been presented in the briefs

[00:18:47] Speaker 01:
is you said, I don't want to do it, and yet I'm being forced to do it, and I also think it's unlawful.

[00:18:54] Speaker 01:
The first part of that, I don't want to do it, is not apparent from Mr. Bonacci's pleadings or from Mr. Bonacci's brief.

[00:19:03] Speaker 01:
And to the extent that that really is what Mr. Bonacci means, he would have a much easier path to establishing standing.

[00:19:09] Speaker 01:
But he would still.

[00:19:10] Speaker 03:
What do you think of the, I mean, this court, we always say, well, we interpret pro se pleadings more liberally.

[00:19:18] Speaker 01:
I understand that, Your Honor, and so.

[00:19:20] Speaker 03:
Would that principle apply here?

[00:19:22] Speaker 01:
The court is certainly free to interpret the brief in that liberal manner.

[00:19:29] Speaker 01:
And we would point the court to Mr. Bonacci's statement that he is not harmed per se by any sort of enhanced screening as perhaps a reason not to supply that reading.

[00:19:41] Speaker 05:
So we can make an indulgent reading and we have an institutional preference for resolution on the merits.

[00:19:47] Speaker 01:
Right.

[00:19:48] Speaker 01:
But so I would say, furthermore, that even if you think Mr. Bonacci has standing to challenge the diversion to the passenger screening area, that challenge would be untimely because TSA publicized it no later than 2012, as indicated in our brief.

[00:20:04] Speaker 02:
But what is the official nature of the publication you're talking about?

[00:20:07] Speaker 02:
You say some newspaper article.

[00:20:10] Speaker 01:
It's not a newspaper article, Your Honor.

[00:20:11] Speaker 02:
Where is the official rule or order or whatever?

[00:20:14] Speaker 02:
Normally when agencies

[00:20:17] Speaker 02:
Look to say that something is untimely.

[00:20:20] Speaker 02:
They point to an official record saying Often we gave notice and comment that we did or we issued in order and it's in the Federal Register or whatever And there are that reading the briefs is impossible to try and figure out what you think and what he thinks and

[00:20:38] Speaker 02:
the agency's actions are that are at issue.

[00:20:41] Speaker 02:
So where is the official reference to a 2012 agency action?

[00:20:49] Speaker 01:
The official reference, Your Honor, would be in the modification TSA made to its standard operating procedures to permit the known crew member program to exist.

[00:21:02] Speaker 01:
That is not public because these documents have been determined by TSA to constitute sensitive security information.

[00:21:11] Speaker 01:
And so in this context where TSA will issue an order, but the order cannot be made public for security reasons,

[00:21:19] Speaker 01:
this court has held that notice of this modification that TSA announces to the public is when the 60-day timing in 46-110 begins to run.

[00:21:31] Speaker 01:
That's the Avia Dynamics case.

[00:21:33] Speaker 01:
And so as we indicated in our brief and as we reproduce at page 13 of our supplemental appendix, and this is in the public record, TSA issued a press release on its website

[00:21:45] Speaker 01:
announcing that it was expanding the known crew member program, and announcing that that program would always incorporate random and unpredictable security measures.

[00:21:54] Speaker 01:
And the date on that?

[00:21:56] Speaker 01:
I'm sorry?

[00:21:56] Speaker 01:
The date on that?

[00:21:58] Speaker 01:
The date was 2012.

[00:21:59] Speaker 01:
And the petition for review was brought in 2017.

[00:22:03] Speaker 01:
The other thing that- Did you see our cases say that's sufficient notice?

[00:22:09] Speaker 01:
Yes, Your Honor.

[00:22:10] Speaker 01:
That's the Avia case that I just cited to Judge Edwards.

[00:22:14] Speaker 01:
I want to turn then to the other component of what I understand Mr. Bonacci's challenge to be, which is to the universal pat-down procedure.

[00:22:24] Speaker 01:
And as to that, I would just emphasize that Mr. Bonacci has not alleged that he has ever been patted down, and indeed has stated that even after the filing of the petition and the briefs, he still has not been patted down.

[00:22:36] Speaker 03:
But isn't enough that he alleges as a policy?

[00:22:39] Speaker 01:
I'm sorry?

[00:22:40] Speaker 03:
He alleges there's an existing policy to do random pat-downs.

[00:22:46] Speaker 03:
And he goes through the lines.

[00:22:47] Speaker 03:
Why isn't that enough?

[00:22:48] Speaker 01:
So two things need to happen for him to establish that the pat-down will imminently apply to him for purposes of Article III.

[00:22:56] Speaker 01:
First, he needs to fall within the very small percentage of known crew member participants randomly selected for additional screening.

[00:23:02] Speaker 03:
And even then, once you get- He's in that category.

[00:23:05] Speaker 01:
He is, Your Honor, but once you get to a additional screening checkpoint that passengers can use, the pat-down is never the first line of screening.

[00:23:14] Speaker 03:
No, but it's a random, it's random, people are randomly, one way to get pat-down is a random selection, right?

[00:23:20] Speaker 01:
That's right.

[00:23:21] Speaker 03:
And that's part of the TSA policy.

[00:23:23] Speaker 01:
Yes.

[00:23:23] Speaker 03:
So he's challenging a policy that, right, he could be, in other words, it's not like, it's not like,

[00:23:34] Speaker 03:
the chokehold case, where there was no, you know, the Supreme Court's LAPD.

[00:23:43] Speaker 03:
It's not like that, where there wasn't a policy to use chokehold.

[00:23:47] Speaker 03:
Here, he's alleging there's a policy of random

[00:23:51] Speaker 03:
selection for enhanced pat-downs.

[00:23:54] Speaker 03:
And he goes through the line.

[00:23:55] Speaker 03:
I just don't see why that's not enough.

[00:23:57] Speaker 01:
Right.

[00:23:57] Speaker 01:
So I take the argument to be that it's just layering a probability that's very small on another probability that's very small, and that is sufficient.

[00:24:09] Speaker 05:
The first one's not small at all.

[00:24:10] Speaker 05:
It's happened a dozen times.

[00:24:12] Speaker 01:
So I don't want to get into the precise percentages as to that.

[00:24:17] Speaker 05:
Well, maybe the percentages could be very high or very low, but it's happened a dozen times.

[00:24:21] Speaker 01:
With respect to the initial one of being diverted to additional history.

[00:24:25] Speaker 05:
So the second one isn't the probability being layered on a probability.

[00:24:28] Speaker 05:
It's a probability layered on a certainty.

[00:24:32] Speaker 01:
So it is true, Your Honor, that Mr. Bonacci has alleged that in the past he was selected for additional screening.

[00:24:40] Speaker 01:
And if the court were then to think that because TSA has the policy of subjecting even a very small percentage of people who go through the additional screening line to a pack down, that's sufficient to support standing.

[00:24:55] Speaker 01:
I would emphasize that the universal pat-down challenge is only as to whether or not it needed to be promulgated through notice and comment rulemaking.

[00:25:04] Speaker 01:
And for the arguments that we've made in our briefs, we think that the universal pat-down is better understood as a procedural and not a substantive rule.

[00:25:14] Speaker 02:
Why do you think that's the only thing that would be before us, is challenging the universal pat-down?

[00:25:20] Speaker 01:
Yes, Your Honor.

[00:25:21] Speaker 01:
And I take his argument to be that the universal pat-down does not conform to the notice and comment requirements of the APA.

[00:25:30] Speaker 02:
No, that's your read of his brief.

[00:25:32] Speaker 02:
That's not what he says, quite the contrary.

[00:25:33] Speaker 02:
He doesn't.

[00:25:35] Speaker 02:
I read his brief to say that's not what has been raised.

[00:25:38] Speaker 02:
He's challenging the rule or order or whatever you call it that allows

[00:25:45] Speaker 02:
I would have happily joined the suit challenge at the Universal Pet Town.

[00:25:49] Speaker 02:
But in any event, that's nothing bad.

[00:25:52] Speaker 02:
He's clearly saying it's an offensive, I thought, clearly saying it's an offensive and aggressive approach, which is impermissible.

[00:26:01] Speaker 02:
No?

[00:26:02] Speaker 02:
He isn't raising a noticing comment challenge.

[00:26:05] Speaker 02:
He said that.

[00:26:06] Speaker 02:
He says that in his brief.

[00:26:08] Speaker 02:
Yeah, he clearly says he's not.

[00:26:12] Speaker 01:
It's hard for me to try to disaggregate the various types of claims that Mr. Bonacci might try to break.

[00:26:18] Speaker 02:
Well, I just disaggregated it for you.

[00:26:20] Speaker 02:
He's saying it's an offensive pat-down.

[00:26:21] Speaker 02:
That's the challenge.

[00:26:22] Speaker 01:
Right.

[00:26:23] Speaker 01:
So to the extent that Mr. Bonacci's concern is with the nature of the pat-down, I would note

[00:26:30] Speaker 01:
that this court and other courts, most recently in EPIC, have held that similar sorts of screening by TSA, such as the AIT screening, do not independently violate, for example, constitutional principles.

[00:26:45] Speaker 03:
And moreover, this court... That's the merits.

[00:26:48] Speaker 01:
Yes, Your Honor.

[00:26:49] Speaker 01:
At this point, I would think that we're speaking about the merits.

[00:26:52] Speaker 03:
Oh, okay.

[00:26:52] Speaker 03:
So you just got convinced by Judge Edwards' question.

[00:26:55] Speaker 03:
Yes.

[00:26:56] Speaker 01:
Oh, no, I'm sorry.

[00:26:57] Speaker 01:
I had understood Judge Edwards' question to be, you know, on the merits.

[00:27:01] Speaker 01:
What is Mr. Bonacci's challenge?

[00:27:06] Speaker 01:
And so my response to that question is to the extent that the court construes it not as an APA challenge, but as another sort of challenge to the lawfulness of what TSA is doing, because the pat-down is

[00:27:19] Speaker 01:
Perhaps too intrusive.

[00:27:20] Speaker 01:
So I guess what I'm saying is under this theory would be the APA's universal pat down procedure is contrary to law.

[00:27:30] Speaker 01:
So one possibility is that it could be too invasive under the Constitution, and my response there is that other courts have rejected that claim.

[00:27:38] Speaker 02:
With respect to this particular pat-down?

[00:27:40] Speaker 01:
Not respect to the universal pat-down, but with respect to other pat-downs.

[00:27:43] Speaker 02:
Isn't that really the issue, that the TSA is up the ante now, and this pat-down that's being used now is really pretty amazing?

[00:27:52] Speaker 01:
The issue is the extent to which TSA's actions at the checkpoint violate some expectation of privacy.

[00:28:02] Speaker 01:
I take that to be the premise of the question.

[00:28:05] Speaker 01:
And the courts have said that what happens at the checkpoint, the 11th Circuit in the Corbett case, for example, has held that what happens at the checkpoint is an administrative search.

[00:28:14] Speaker 01:
where the government has plenty of latitude to figure out the appropriate procedure to protect national security.

[00:28:20] Speaker 02:
They have upped the stakes.

[00:28:23] Speaker 02:
And there's certainly evidence of that.

[00:28:25] Speaker 02:
I'm not supposed to be looking to my own experience.

[00:28:28] Speaker 02:
But they've changed it.

[00:28:29] Speaker 02:
They've upped the stakes.

[00:28:31] Speaker 02:
And I thought he was saying, it's really quite aggressive now.

[00:28:36] Speaker 02:
It's not what the courts were looking at before, which was, you know, it may have bothered some people, but it was not where it is now, which is very aggressive.

[00:28:46] Speaker 01:
I don't want to get into the specific differences between one and the other.

[00:28:50] Speaker 02:
I'm just saying hypothetically, if that's what he's arguing, that is, that what's going on now is really quite unbelievable and unacceptable, and people should not be allowed to touch me in the way in which TSA is now endorsed.

[00:29:05] Speaker 02:
And it's different from what was permitted by the courts before.

[00:29:08] Speaker 01:
So if that were what Mr. Bonacci said.

[00:29:12] Speaker 01:
And I disagree with that characterization of Mr. Bonacci's arguments.

[00:29:16] Speaker 01:
But if that were what he said, I think he would have an easier time of establishing his standing to challenge the universal pat-down.

[00:29:24] Speaker 01:
I still think that on the merits, the universal pat-down is defensible.

[00:29:29] Speaker 01:
And Mr. Bonacci hasn't articulated why TSA's expert judgment in this regard should be disregarded.

[00:29:34] Speaker 01:
Thank you very much.

[00:29:35] Speaker 03:
Thank you very much.

[00:29:37] Speaker 03:
Did Mr. Bonacci have anything?

[00:29:40] Speaker 03:
No.

[00:29:41] Speaker 03:
Mr. Bonacci, you can take one minute.

[00:29:46] Speaker 04:
Thank you, Your Honor.

[00:29:49] Speaker 04:
The government points out that I have not been patted down, as you asked, at the Houston airport.

[00:29:53] Speaker 04:
That is a true statement.

[00:29:55] Speaker 04:
I have here papers from other people, but I mean, it's inadmissible who have, crew members who have been patted down, one of them publicly humiliated, but that's really inadmissible and not an issue.

[00:30:08] Speaker 04:
Well, what was the nature of his objection?

[00:30:11] Speaker 04:
In both cases, they were not allowed to go to work and they actually filed in the U.S.

[00:30:19] Speaker 04:
State District Court, District of Columbia, one, a friend I've known for 30 years, she was actually publicly humiliated when, this goes back when the pat-down searching was first introduced.

[00:30:32] Speaker 04:
But they were, I do agree that I have not, since the March 2nd, 2017 order, I have not to date been subject to enhanced pat-down searching.

[00:30:46] Speaker 04:
I have been subject.

[00:30:48] Speaker 02:
Were you challenging the enhanced pat-down as being at a new level and offensive where it is now?

[00:30:54] Speaker 02:
I am.

[00:30:54] Speaker 02:
Or not?

[00:30:55] Speaker 02:
Yes or no, so I understand.

[00:30:56] Speaker 04:
Yes, in totality, all of it, along with passenger screenings, the only way to... No, no, no, no.

[00:31:02] Speaker 02:
I'm trying to get the pieces of your case clear in my head.

[00:31:06] Speaker 02:
I understand the first piece, and now I'm trying to understand what you're claiming about the universal path down.

[00:31:11] Speaker 02:
I thought you might be saying that it's now different and offensive.

[00:31:16] Speaker 02:
Invasion of privacy, it's not acceptable in any term.

[00:31:19] Speaker 04:
Or not.

[00:31:20] Speaker 04:
I will be very clear on that.

[00:31:21] Speaker 04:
The questioning went to that line.

[00:31:23] Speaker 04:
I am not lodging a fourth amendment

[00:31:26] Speaker 04:
invasive or unreasonable search claim.

[00:31:29] Speaker 04:
That's in my brief in several places.

[00:31:32] Speaker 04:
This would be a waste of this court's time.

[00:31:35] Speaker 04:
It's been tried before.

[00:31:37] Speaker 04:
A lot of these other cases, they've done it on Fourth Amendment grounds.

[00:31:41] Speaker 04:
This is simply, that's why I'm in this court.

[00:31:45] Speaker 04:
It's because it's an administrative law issue, not a constitutional claim at all.

[00:31:51] Speaker 04:
I've never made that argument.

[00:31:54] Speaker 04:
Regarding the harm, I would ask this court

[00:32:03] Speaker 04:
to consider not so much, well, I would ask this court to consider the harm from the consequences of noncompliance.

[00:32:13] Speaker 04:
And I would cite, as I did in my brief, Abbott Laboratories, which in Abbott Laboratories, it's cited CBS versus Sanders.

[00:32:22] Speaker 04:
And these cases looked very specifically like, for example, in CBS, the government made a rule

[00:32:29] Speaker 04:
And the affiliate stations didn't know whether they were coming or going.

[00:32:34] Speaker 04:
If they didn't comply, they were told they would be subjected to consequences.

[00:32:38] Speaker 04:
And laboratories, they told the drug makers, if you don't comply, first they told them criminal sanctions, and they said, no, no, no, we don't really mean that.

[00:32:46] Speaker 04:
It could be civil sanctions.

[00:32:48] Speaker 04:
So I'm subjected to sanctions, which I don't know what they are, for an unlawful act that I'm being asked to comply with, which is passenger screening.

[00:32:57] Speaker 03:
Wouldn't they just, if you said, if you were sent, if a little arrow went off and they said, okay, Captain, go over there and go through, and you didn't, you just wouldn't be let through, right?

[00:33:07] Speaker 04:
No, sir.

[00:33:08] Speaker 04:
That is in my brief.

[00:33:09] Speaker 04:
It is in the, it's an appendix.

[00:33:12] Speaker 04:
That's in a magazine article.

[00:33:14] Speaker 04:
And you may recall, I quote, a case in Hawaii, it's called the Kohli, where a gentleman was in a, going through TSA screening, set off an alarm, and they couldn't resolve it, and they found a crack pipe, and a police officer came over, and then he was taken into custody and arrested.

[00:33:38] Speaker 04:
And he tried to claim and quote.

[00:33:40] Speaker 05:
Was he a crew member?

[00:33:41] Speaker 05:
A crew member?

[00:33:43] Speaker 05:
No, sir.

[00:33:43] Speaker 04:
This was a passenger.

[00:33:47] Speaker 04:
The TSA has reported in a magazine article in my brief as this for a reason that I cannot opt out of surging screening.

[00:34:00] Speaker 04:
In other words, when I show up for screening, I have to go through the screening.

[00:34:05] Speaker 04:
Thank you very much.