[00:00:00] Speaker 02:
Case number 21-1170, Rohan Ram Singh petitioner versus Transportation Security Administration.

[00:00:07] Speaker 02:
Mr. Corbett for the petitioner, Ms.

[00:00:09] Speaker 02:
Edwards for the respondents.

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Good morning, council.

[00:00:13] Speaker 03:
We'll hear council for petitioner.

[00:00:17] Speaker 01:
Good morning.

[00:00:18] Speaker 01:
May it please the court.

[00:00:19] Speaker 01:
My name is Jonathan Corbett on behalf of petitioner Rohan Ram Singh.

[00:00:23] Speaker 01:
And I wanted to elaborate on a hypothetical that I raised in our reply brief.

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Let's suppose you have the misfortune of severely breaking your forearm.

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I'm speaking of a compound fracture requiring a team of surgeons to spend hours reassembling little splinters of bone that make up your arm.

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They succeed and they put you in one of those fancy casts that latches shut and the doctors warn, if you take off this cast before two months goes by, there's a good chance your arm won't heal properly and you will permanently lose some use of it.

[00:00:53] Speaker 01:
Then let's say you go to a TSA checkpoint a month later, they do some initial screening,

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And then they say, okay, we need you to open up your cast because our secret policies say that's what's required here.

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One of the questions before the court is absolutely this simple.

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Can TSA require you to open up that cast under penalty of a maximum fine of over $13,000 or is a bona fide medical condition a defense to that fine?

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TSA argues they can order you to do as they please.

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And what evidence do we have here of a bona fide

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medical condition that was presented to the TSA examiner?

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Sure.

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So my client presented records from the U.S.

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Veterans Administration.

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To the examiner on the scene.

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To the examiner on the scene.

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He didn't present documentary evidence, but he described his condition to the person on the scene.

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So they came up with this alternative.

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And he objected to that as well, correct?

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The problem was there was no alternative.

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Well, I thought initially they wanted him to raise his arm.

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And then they said, well, we'll do a human pat down.

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Yeah, so he has two conditions that both resulted from his military service.

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The first is inability to lift his arms and hold them over his head.

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a physical injury.

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And the second is a mental health injury.

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He has PTSD relating to military sexual trauma.

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And what evidence was presented of that?

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To the screener or to the court?

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To the screener, the person who is trying to carry out the search.

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So my client simply told the screener of his condition.

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He doesn't carry around documentation from the VA of his disability or anything like that.

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So then his reaction was, well, I can just leave.

[00:02:55] Speaker 01:
Well, at that point, they were saying, sir, you have to go through with the search.

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You have to let us touch your genitals.

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And he presented them with the option of, OK, I don't want to fly today.

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I'll just leave the airport.

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On that last point about the genitals, I know you say that in your brief.

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That

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apparently never came up between the two people.

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Is that correct?

[00:03:23] Speaker 01:
That's not correct.

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My client testified that he specifically asked the scope of the search that they were going to perform.

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And a TSA general pat-down does include touching of the genital area using the screener's fingers.

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So having alerted, then what was TSA to do?

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So TSA had a lot of options available to it.

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TSA has a bunch of imaging devices, whether they're x-ray or otherwise.

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They have bomb sniffing dogs.

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They have law enforcement that could detain someone if there's reasonable suspicion.

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They could have transported him to a medical setting.

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They could have called a paramedic.

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There were a lot of different options.

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Or they could have simply said, sir, I can't let you pass today.

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Well, that's where they ended up when he said, well, I'll just leave.

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I mean, what I don't understand about this case is this an experienced pilot, right?

[00:04:27] Speaker 01:
He's not a pilot, no.

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Well, he's seeking to be able to fly, right?

[00:04:32] Speaker 01:
No, ma'am.

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He was a passenger at this point.

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Correct.

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He wasn't even a passenger.

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He was just going to pick up his children.

[00:04:41] Speaker 04:
Well, he wasn't even a passenger.

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He was coming to the airport for that purpose that Judge Millett said.

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I believe that's correct.

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He had a gate pass to meet his children.

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Right.

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So he said he could just leave.

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I don't understand in that situation what TSA was supposed to do.

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He knew, as we all know, that when you go to the airport these days, you're going to be searched.

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And certainly, if you alert anything,

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you're probably going to be subjected to what I'll call is a thorough as opposed to a light touch if you object to going through the machine.

[00:05:29] Speaker 01:
Well, I think my client had been through TSA many times before and hadn't been subject to the kind of search that was being proposed here.

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But because of whatever alert they said happened,

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They perhaps proposed a more intrusive search than he expected.

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Wait, that's not accurate.

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The record is clear that he had been through a pat-down once before.

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Yes.

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Pat-down is one thing, but this- A pat-down that triggered severe emotional responses.

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Okay.

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Okay, it's your record, right?

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If you're buying storage, your record.

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I don't know why you're telling us that he hasn't been through a pat-down like this before.

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I don't recall the client ever saying that he had been through a pat down where they touched his genitals before.

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Well, he did and he said that he broke down and cried and it caused severe emotional trauma for quite some time.

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Okay.

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Can I ask, you said that TSA had other options like, I don't know, taking them into custody or whatever.

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You gave a list of two or three,

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not on that list was simply letting him go.

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I mean, this is a situation where maybe it's unfortunate, but he tries to go through screening and he triggers a preliminary alarm.

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It seems to me at that point, it's just very unrealistic to think that

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he has a right to just walk away.

[00:07:15] Speaker 01:
Your honor, we're not alleging that he has some kind of constitutional right to walk away.

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We're simply arguing that if he has a medical condition that would be triggered by what they're alleging that they would do, he doesn't have to go through with what they would do.

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If the TSA proposes something that would

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cause your arm to not heal if it was fractured, cause significant pain, whatever it is, they can't find him for turning that down.

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I'm sorry, is your challenge, I mean, you just said you agree that he couldn't walk away.

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If they can't do the pad down and he can't walk away, what were they supposed to do?

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To be clear, I'm agreeing that there's no constitutional right to walk away.

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I'm not saying that that wasn't the best option.

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And in fact, that is what happened.

[00:08:08] Speaker 04:
Well, you're here to make legal arguments, I assume, not policy arguments.

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And so what is your position if they didn't have a constitutional right?

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I don't know what other kind of right he would have had to walk away.

[00:08:20] Speaker 04:
So he had no right to walk away.

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There's nothing you've pointed to us in TSA policy or statute that's given him a right to walk away.

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So what was supposed to happen?

[00:08:30] Speaker 01:
Your Honor, unless there is a statute of regulation that forces him to remain, he does have a right to walk away.

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The question here is whether... Where does that right come from if it doesn't come from a statute of regulation?

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A right to move freely?

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You just said there's no constitutional rights, so I'm trying to figure out the source of this right to walk away.

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If it's not in the Constitution, then it's not in a statute of regulation.

[00:08:52] Speaker 01:
What I'm trying to say is the TSA could have regulated against walking away, but so far has not.

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If there's no regulation that says he can't, then what?

[00:09:01] Speaker 04:
No, but it's quite clear.

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They say that once you start screening, you have to finish it.

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That's pretty well settled.

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That's on the signs when you go in to a security checkpoint.

[00:09:11] Speaker 01:
That doesn't make it law.

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But why does it make it unlawful for TSA to insist on finishing in circumstances where the initial pass through gives them some cause for concern?

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Well, if they had reasonable suspicion to detain him, that would have been one thing.

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They could have called law enforcement.

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But instead, they charged him with interference.

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And he didn't interfere with anything.

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But your theory of non-interference seems to presuppose that he can just walk away.

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When he tries to walk away, if you assume the TSA at that point has to or can do something to finish the screening and make sure that

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the initial trigger was a false positive, he's interfering with their ability to do that if he insists on locking away at that point.

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And my client certainly didn't walk away without permission.

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He asked them for permission to walk away and remained until a law enforcement officer escorted him out.

[00:10:43] Speaker 04:
So what

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You say the refusal to undergo the pat-down was not interference?

[00:10:52] Speaker 01:
Correct.

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It wasn't interference because it was entirely passive.

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He didn't do anything to interfere and because he had the defense of his medical condition.

[00:11:03] Speaker 04:
You haven't raised a Rehabilitation Act claim, right?

[00:11:06] Speaker 01:
No.

[00:11:07] Speaker 04:
You haven't independently challenged the size of the fine?

[00:11:10] Speaker 01:
It's not the size of the fine that that's the issue here, no.

[00:11:15] Speaker 04:
What is the issue?

[00:11:16] Speaker 01:
The issue is that there's a fine at all, that one can be held liable for refusing to do something that might injure themselves.

[00:11:24] Speaker 04:
Let's just assume for these purposes that they have a right to require people to complete screening once they start it, and particularly once they alarm, as he did.

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Let's just actually say, once they alarm, just take as given for this question.

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There's an obligation to finish screening.

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And I guess I'm still unclear what your view of is what should happen.

[00:11:50] Speaker 01:
Is there no defense to this obligation that a medical condition?

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What if one is paraplegic and they're asked to stand?

[00:11:56] Speaker 04:
That sounds like a Rehabilitation Act claim, which you just said you haven't raised.

[00:12:00] Speaker 01:
We're bringing a simple defense to a civil penalty action.

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Your Honor, I see my time is at three minutes.

[00:12:10] Speaker 01:
Is it possible to reserve that for rebuttal?

[00:12:13] Speaker 03:
Yes.

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Why don't we hear from the

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Respondent.

[00:12:20] Speaker 02:
Thank you, Your Honor, and may it please the court, Kyle Edwards, on behalf of TSA.

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I think it's helpful to step back briefly for a moment to consider the full set of facts underlying the issuance of this particular civil penalty.

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Respondent regularly uses airports a minimum of six times per year by his own admission.

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He's previously undergone a path down search and did find it very emotionally disturbing due to his PTSD diagnosis.

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On the day in question, he voluntarily entered the TSA screening checkpoint.

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He tried to proceed through the walk the metal detector, but the agent told him to go through the AIT screening machine.

[00:13:00] Speaker 02:
When he couldn't lift his arm due to one of his disabilities, the agent allowed him to proceed through the walkthrough metal detector and at that point there was a swab performed of his hands to test for possible traces of explosives.

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That test returned positive and it was at that point after he had triggered that positive alarm that petitioner refused to complete the screening process and continued to refuse over the course of 30 minutes requiring the involvement of

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multiple TSA agents as well as eventually law enforcement officers.

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That refusal to complete screening plainly interfered with the screener's ability to perform their screening duties because their duty at that point was to conduct a pat down search of petitioner.

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Now petitioner has said TSA have an accommodation

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for folks who, for reasons of disability, cannot endure a physical pat down or at least of private areas?

[00:14:02] Speaker 04:
Is there any accommodation?

[00:14:04] Speaker 02:
There is.

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So in this case, petitioner was offered the chance to have the pat down in a private screening area by- That's not an accommodation for people who can't endure it.

[00:14:13] Speaker 04:
Whether it happens in private or public, it's still the same.

[00:14:18] Speaker 04:
physical consequence and emotional reaction and mental reaction.

[00:14:22] Speaker 04:
And so that's not an accommodation for the mental disability.

[00:14:26] Speaker 04:
That's correct.

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So is there an accommodation for the mental, if you cannot endure a pat down because of disability.

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And TSA for purpose of this case isn't disputing the seriousness of this disability.

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That's correct.

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The answer is no.

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The taken is given that he has a sincere and serious disability triggered by sexual abuse, sexual trauma.

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And he's not going to be the only person in the country in that situation.

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So what accommodation does TSA have for people who simply cannot, for physical or mental health reasons, be subjected to that type of groping and examination?

[00:15:09] Speaker 02:
There is, I wouldn't describe it as groping, but there's no accommodation that would permit individuals to be exempt from the screening process.

[00:15:19] Speaker 04:
The procedure at the point- Not fully exempt, there's other, I'm not saying that they get a whole pad.

[00:15:26] Speaker 04:
Nobody wants anybody to have a pass on going through screening these days, but there are other ways of checking, are there not?

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At this point, TSA's procedures were to require a path down.

[00:15:37] Speaker 04:
I'm just asking whether they've that so they didn't they don't have an accommodation.

[00:15:41] Speaker 02:
There is not.

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And that is because Congress has required the screening of all passengers and property.

[00:15:46] Speaker 04:
The accommodation is that there's there's a distance.

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There's an alternative.

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This is a binary screen or not screen.

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So he couldn't lift his arms for the AIT.

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So it wouldn't get a good shot of his arms.

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But that was OK.

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You had the metal detector.

[00:16:00] Speaker 04:
Why couldn't he have gone to the AIT just to check the brine area?

[00:16:04] Speaker 02:
Um, so my understanding is that the procedure at this point was because he triggered that, that, um, uh, explosive trace detection test and we've gone through the walkthrough metal detector already.

[00:16:15] Speaker 04:
The walkthrough metal detector tests for metallic, um, I'm talking about the other one, the AI, I think you call it the AIT, which again, it wouldn't have been a perfect screen because of the arm issue.

[00:16:27] Speaker 04:
But if the concern at this point, the only point we're talking about now, as I understand it is.

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the pat down stage and the mental trauma.

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And so, and taking the facts in the light most favorable to him, he says that he told them I can do a pat down except not in the groin area.

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Would the AIT, would running them through the AIT at that point to examine the groin area have been a reasonable accommodation?

[00:16:57] Speaker 02:
That is not permitted under TSA's policies.

[00:17:00] Speaker 04:
What's permitted under point of accommodations is that sometimes the policy can't be followed.

[00:17:08] Speaker 04:
Sometimes the policy can't be followed.

[00:17:11] Speaker 04:
The policy at that airport was to go through the AIT, but he couldn't.

[00:17:15] Speaker 04:
So they accommodated him because he couldn't do his arms, lift his arms, or at least one arm.

[00:17:20] Speaker 04:
And so they accommodated him by going through the metal detector.

[00:17:23] Speaker 04:
I'm not asking what their written policy is.

[00:17:25] Speaker 04:
I'm asking what their accommodation plan was for individuals who, because of sexual trauma, couldn't endure a pat down.

[00:17:31] Speaker 02:
And they do have accommodation policies.

[00:17:34] Speaker 02:
The petitioner could have brought medical documentation explaining his... How would that have changed it?

[00:17:40] Speaker 04:
If he had medical documentation that said, I have this military sexual trauma, what would have happened then?

[00:17:46] Speaker 04:
It wouldn't have changed the fact that... Okay, then it doesn't matter.

[00:17:49] Speaker 04:
It wouldn't have changed how they treat him, right?

[00:17:51] Speaker 02:
He would have still had to undergo the path down.

[00:17:54] Speaker 04:
Okay, so then what's the point of bringing the paperwork?

[00:17:56] Speaker 02:
The paperwork can, in terms of just explaining to a TSA agent, can help with that.

[00:18:01] Speaker 04:
That's not an accommodation.

[00:18:03] Speaker 04:
That's not an accommodation.

[00:18:05] Speaker 02:
I understand that.

[00:18:07] Speaker 02:
The thing is, is that... It sounds to me like your answer is there's no accommodation.

[00:18:12] Speaker 04:
An alternative to pat downs.

[00:18:16] Speaker 02:
There is not, once you trigger the explosive trace detection test after you walk through the metal detector, the procedure is to receive a path out.

[00:18:26] Speaker 02:
And that was offered to Petitioner in a private screening area.

[00:18:29] Speaker 04:
They attempted to accommodate- I know, but I think we can agree that the location wasn't the issue, the screening was not the issue for this guy.

[00:18:36] Speaker 04:
When people have this type of trauma, that's not going to change anything.

[00:18:40] Speaker 02:
Private screening does, I think, that is an accommodation.

[00:18:44] Speaker 04:
It may help other people in other situations.

[00:18:47] Speaker 04:
It's a good thing to offer for other reasons.

[00:18:50] Speaker 02:
That's right.

[00:18:51] Speaker 02:
And I think here, I really do think that here the petitioner was offered accommodations.

[00:18:56] Speaker 02:
He was permitted to go through the walkthrough metal detector because he could not raise his arm.

[00:19:00] Speaker 04:
I'm just asking what accommodation he got for, he's got two disabilities.

[00:19:04] Speaker 04:
So take the metal detector and the arm disability off the table.

[00:19:08] Speaker 04:
That was accommodated.

[00:19:10] Speaker 04:
He was not accommodated or offered any accommodation for his sexual trauma.

[00:19:18] Speaker 02:
Apart from the private screening, there was no other alternative.

[00:19:20] Speaker 04:
And again, private screening doesn't address his trauma.

[00:19:24] Speaker 04:
The trauma is to the touching.

[00:19:26] Speaker 04:
I mean, imagine if you had a child on the spectrum, autism spectrum, and cannot be physically handled by other people without complete meltdown

[00:19:41] Speaker 04:
Go ahead.

[00:19:42] Speaker 02:
Apologies.

[00:19:42] Speaker 02:
Children with autism regularly go through the screening process, as do people with dementia and other issues.

[00:19:48] Speaker 02:
They are permitted, like petition was offered here, to conduct that in private.

[00:19:52] Speaker 02:
They're permitted to have a... No, no.

[00:19:53] Speaker 04:
My hypothetical is a child.

[00:19:56] Speaker 04:
There's all different reactions for all of these diseases.

[00:19:59] Speaker 04:
So a child comes in with all the documentation, cannot mentally, in a healthy way, handle being physically touched by strangers.

[00:20:12] Speaker 04:
and will have severe, severe mental and emotional consequences if it happens.

[00:20:20] Speaker 04:
With the exact same situation as this, doing it in private wouldn't change that.

[00:20:25] Speaker 04:
I get that that's an accommodation for some people, it's not an accommodation for the situation here.

[00:20:30] Speaker 03:
Why isn't your answer simply that it's a matter of policy, he can't be allowed to enter?

[00:20:37] Speaker 03:
That's it, if he can't,

[00:20:41] Speaker 03:
be searched under these accommodations, then he can't go in, period.

[00:20:51] Speaker 03:
That is too risky.

[00:20:53] Speaker 03:
I mean, I don't know why you're hesitating at just taking that position.

[00:21:02] Speaker 03:
I realize

[00:21:03] Speaker 03:
you don't want to lose a case, but all I'm saying is why isn't that the agency's position that Congress is vested in the agency, the security obligation, it has these alternatives available for people, but some people simply aren't going to be able to fly.

[00:21:23] Speaker 03:
And I'm thinking of people who are the matter of personal choice,

[00:21:27] Speaker 03:
say it's just too traumatic for them to fly.

[00:21:32] Speaker 03:
So they drive everywhere, they take trains, or they don't go.

[00:21:38] Speaker 03:
They take a ship or something, but they're not going to be allowed post 9-11 to fly on a plane.

[00:21:49] Speaker 02:
Yes, that is our position, that there are certain people.

[00:21:53] Speaker 04:
Has there been a Rehabilitation Act case that has challenged this and that's been your position?

[00:21:57] Speaker 04:
So that's a little shocking to me, actually, because with the Americans with Disabilities Act has an entire section on transportation and making that equally accessible to people with disabilities.

[00:22:08] Speaker 04:
And it should seem to me that while folks might not commonly want to go through this, if they have a situation like that, if the child's traveling for his grandparents funeral in Hawaii,

[00:22:19] Speaker 04:
there may be no other option for getting there.

[00:22:22] Speaker 04:
And it seems a rather harsh reaction to disabilities to say nothing else could be done like drug sniffing dog or a chemical sniffing dog.

[00:22:32] Speaker 02:
It's the case here that if certain passengers cannot go through the process due to their disabilities or due to other reasons, they simply won't be able to fly.

[00:22:45] Speaker 02:
It is the case that Congress has required the screening of all passengers and property to ensure that there's no prohibited items that may get on board.

[00:22:52] Speaker 02:
TSA has been tasked with setting up regulations that- I just want to be clear here.

[00:22:57] Speaker 04:
I understand what you're saying.

[00:22:58] Speaker 04:
And so that is TSA has studied this issue about sexual trauma or for other reasons people can't endure a pat down and has made the decision that there is no other way to accommodate them.

[00:23:13] Speaker 04:
They are not welcome to fly in the United States of America.

[00:23:17] Speaker 04:
They are those disabilities are not able to fly.

[00:23:21] Speaker 02:
They are, they are of course not welcome.

[00:23:24] Speaker 04:
They're not welcome because your theory is you get in line.

[00:23:26] Speaker 04:
And then you have to agree to be traumatized.

[00:23:31] Speaker 02:
So a couple of things.

[00:23:33] Speaker 02:
First, to the ADA point, there's no ADA claim here.

[00:23:35] Speaker 02:
That is something that a petitioner could bring.

[00:23:37] Speaker 02:
So that is a different case, I think.

[00:23:39] Speaker 04:
No, I understand that.

[00:23:40] Speaker 04:
But I've been asking you about what the policy is.

[00:23:42] Speaker 04:
And you said to Judge Rogers, we've got a hard and fast policy.

[00:23:46] Speaker 04:
just don't fly.

[00:23:47] Speaker 04:
If you have this particular type of trauma, I'm assuming that we have studied this.

[00:23:54] Speaker 04:
We don't just reactively say there's no accommodation available.

[00:23:58] Speaker 04:
We've studied this and determined that we cannot provide any other accommodation.

[00:24:03] Speaker 02:
So I think in thinking about this, it's also important to recognize that Petitioner regularly uses airports.

[00:24:12] Speaker 02:
He has been through a path down before.

[00:24:13] Speaker 04:
And he said he had severe trauma.

[00:24:18] Speaker 04:
He did.

[00:24:18] Speaker 04:
A point of deep depression than even, he says, we're taking it all as true at this point, to considering taking his life.

[00:24:27] Speaker 02:
He did say that.

[00:24:27] Speaker 02:
And again, the point is he voluntarily entered that TSA checkpoint.

[00:24:31] Speaker 02:
That was his choice to do so despite knowing that he would have to go through the screening process that is paramount to the protection of aviation safety.

[00:24:40] Speaker 04:
I think the choice is that this isn't someone going on a vacation, right?

[00:24:44] Speaker 04:
His children are coming to visit him.

[00:24:47] Speaker 04:
Parents have to pick up children.

[00:24:49] Speaker 04:
Airlines require that.

[00:24:52] Speaker 04:
in this particular circumstance he arrived what control did he have he arrived with his um girlfriend but i'm assuming assuming single and doesn't have someone else how does he get his kids so i just i want to i don't want to accept right up front that this was um uh just a lightly made decision by him to go on a recreational trip somewhere sometimes people really have no choice but to go to the airport

[00:25:16] Speaker 02:
And TSA is not in charge of the handoff of unaccompanied minors petitioner could have reached out to the airline itself to discuss if it was possible for him to pick up his children without entering the screening process.

[00:25:30] Speaker 02:
In this case, as I noted, his partner came with him and she was actually able to collect the children while he was still being.

[00:25:37] Speaker 04:
I'm just curious about TSA policy, generally given the very bright lines, both adopted in the TSA decision here and that you've been articulating, which seemed to go much broader than the facts of this case.

[00:25:54] Speaker 02:
Well, again, I don't think that the position is much broader than the facts of this case petitioner.

[00:25:59] Speaker 02:
The facts of the case are that petitioner has previously been through the screening process.

[00:26:04] Speaker 02:
He knew that he would have to be he might be subject to a pat down search.

[00:26:07] Speaker 02:
He's gone through that before.

[00:26:08] Speaker 02:
And he did voluntarily enter the screening process.

[00:26:11] Speaker 04:
And so, you know, the TSA regulations recognize that there are defenses.

[00:26:21] Speaker 04:
to a charge of interference and I'm unclear what counts as a defense.

[00:26:27] Speaker 02:
Sorry, can you repeat the first part of that question?

[00:26:30] Speaker 04:
The regulation 49 CFR 1503.629 F4 recognizes that there are defenses to a charge of interference.

[00:26:37] Speaker 04:
Do you know what counts as a defense?

[00:26:40] Speaker 04:
Apparently disability does not, but their theory seem to think, they're arguing that it is a defense.

[00:26:49] Speaker 04:
And you're telling me it's not a defense, but there are other defenses?

[00:26:53] Speaker 02:
I'm not sure about that, Your Honor.

[00:26:55] Speaker 02:
Apologies.

[00:26:58] Speaker 02:
Anything further?

[00:26:59] Speaker 02:
I just want to stress the sort of importance of the government interest here.

[00:27:04] Speaker 02:
I mean, as the court noted in Akai from the Ninth Circuit, if people were able to enter the screening process, trigger a secondary screening due to possible traces of explosives,

[00:27:16] Speaker 02:
and then opt out of the screening process, that would allow potential terrorists multiple opportunities to attempt to penetrate airport security by opting out on the cusp of detection and then leaving the airport.

[00:27:31] Speaker 04:
And that is just- What about the decision to find somebody?

[00:27:36] Speaker 04:
Does everybody, how is that decision made?

[00:27:38] Speaker 04:
Does everybody that causes a hurtful at some level

[00:27:44] Speaker 04:
end up getting one of these civil penalties?

[00:27:47] Speaker 02:
The civil penalty scheme.

[00:27:52] Speaker 02:
So what happens in a situation like this where law enforcement is called is that the law enforcement officers are the ones that decide whether to perform their own search of petitioner if they have reasonable suspicion, probable cause, and then decide whether to detain the person or let them go.

[00:28:07] Speaker 02:
The civil penalty scheme kicks in because

[00:28:10] Speaker 02:
TSA does not have the authority at the checkpoint to physically detain someone, the TSA, individual TSA agents.

[00:28:19] Speaker 02:
And so, you know, there's an investigation that occurs after one of these incidents.

[00:28:25] Speaker 02:
There's the inspector's report in the record here and a determination about whether to bring a civil penalty is made based on that investigation.

[00:28:37] Speaker 04:
This is what I'm trying to ask.

[00:28:38] Speaker 04:
So are you saying that every time police are called, then a civil penalty process?

[00:28:46] Speaker 04:
I get that the police are not TSA, that's separate.

[00:28:50] Speaker 04:
TSA always pursues a fine?

[00:28:54] Speaker 02:
I believe when law enforcement is involved, they always institute this investigation and then the sort of whether the fine... Do they always pursue a fine?

[00:29:02] Speaker 04:
I was just curious here about that because I noticed he got a bigger fine than the guy who stripped down naked and required the shutdown of an entire checkpoint.

[00:29:12] Speaker 04:
He got a $500 fine and yet the person who we are assuming for these purposes could not

[00:29:20] Speaker 04:
because of disability go through the pat down, got a larger fine.

[00:29:24] Speaker 04:
I'm just trying to understand how that happened.

[00:29:26] Speaker 02:
Well, I think that the ALJ is capable of moving the fine amount.

[00:29:33] Speaker 02:
So here, TSA asked for the minimum amount, which I believe was in the range of $2,000 in terms of the guidance for what a fine should be for non-physical interference.

[00:29:46] Speaker 02:
And the ALJ taking into account

[00:29:49] Speaker 02:
petitioners medical condition actually reduced that to at least $680 so that that that sort of determination is made on a case by case basis, I couldn't tell you sort of why the person who stripped naked in the Brennan case was $500 versus versus some other amount.

[00:30:06] Speaker 03:
All right, why don't we hear counsel for petitioner.

[00:30:11] Speaker 02:
Thank you, Your Honor.

[00:30:14] Speaker 01:
Thank you, Your Honor.

[00:30:15] Speaker 01:
So as opposing counsel has made clear, my client had two options and two options only.

[00:30:22] Speaker 01:
Option number one was to let them try and pat him down at the risk of whatever would have happened, whether he would have had a panic attack or whatever it is, or be escorted out of the checkpoint and face a fine.

[00:30:35] Speaker 01:
One of the problems here is that most of the times you go through a TSA checkpoint, you're not subject to a pat down.

[00:30:40] Speaker 01:
They're able to screen you

[00:30:42] Speaker 01:
using their machines and you go forward.

[00:30:45] Speaker 01:
So if you have a disability or some other reason that you can't be padded down, you can go through the airport nine out of 10 times perhaps and not end up padded down.

[00:30:54] Speaker 01:
But that one time that you can't and you end up with the pad down, TSA wants to issue a fine with a maximum penalty of up to $13,000.

[00:31:03] Speaker 01:
You'll have that with that choice of trying and you'll probably get through, but maybe you'll face a fine

[00:31:09] Speaker 01:
It's not right.

[00:31:10] Speaker 01:
And TSA points to this idea that if they don't find people, then terrorists will get multiple attempts.

[00:31:16] Speaker 01:
Finds aren't dissuading terrorists.

[00:31:18] Speaker 01:
If you're set on bombing an airplane and you try once and you're rejected and go home, don't care if you're issued a fine.

[00:31:26] Speaker 01:
All this is doing is penalizing law abiding citizens with disabilities who simply cannot complete the screening that TSA has demanded.

[00:31:34] Speaker 01:
And there is no opt out.

[00:31:36] Speaker 01:
There is no alternative.

[00:31:37] Speaker 01:
There is no accommodation.

[00:31:38] Speaker 01:
Once they've decided a path done as necessary, you either accept it or apparently you have to go through this whole process.

[00:31:46] Speaker 03:
Okay, we'll take the case under advisement.

[00:31:49] Speaker 03:
Thank you very much, council.