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1st Circuit to Hear TSA Groping, 'Naked' Scanner Case

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By William Peacock, Esq. on March 26, 2013 4:48 PM

Yeah. Stand there. That's right. Put your hands above your head. Yeah. That's good. Okay, you can go. Next. Yeah.

Okay, maybe it's not that creepy, and perhaps the strange men at the airport don't want to see me naked, but that's what it feels like to those of us who have passed through the "naked" scanners that are now occupying the nation's airports. Of course, if you say "no thanks" they say, "come here, big boy" and give you the old grope.

Did we mention that the scanners may (may, evidence still shakey) cause cancer and aren't especially effective at detecting booty bombs or strategically-placed metallic objects?

It’s bad times. It also, at least according to a few litigants, is a violation of our Fourth Amendment right against unreasonable search and seizure and our constitutional right to privacy and interstate travel.

Jeffrey Redfern, 27, and Anant Pradhan, 23, are former Harvard Law students who were given the unholy choice and chose the pat down. It was uncomfortable, to put it mildly, and as a result, they sought an injunction to prohibit use of the scanners and pat-down procedures, as well as a declaratory judgment that TSA procedures violate our constitutional rights.

The lower court kicked the case, citing lack of jurisdiction to review administrative matters. For those who are unfamiliar or out of practice with administrative law (not all of us were forced to take it in school), when an agency issues an order or a rule, it is reviewable by the Court of Appeals, not the District Court. Furthermore, great deference is afforded to the administrative agency’s rulings.

In addition to overcoming the very deferential review standard, there is the issue of fact-finding. In the First Circuit Court of Appeals, there is no fact-finding — review is done on the record at hand (a.k.a. the record established by the TSA when promulgating the regulation). Of course, if the First Circuit finds the record lacking, they can always remand the case to the agency for further fact-finding or possibly even the district court, though such a circuitous route to fact-finding is obviously less desirable than a straight trial in district court.

Alas, jurisdiction is jurisdiction. The lower court didn’t have it. The First Circuit does.

The case is set for April 3, 2013 at 10:00 am. We’ll report the outcome as soon as it is available.

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