Posted by DWT

In a lawsuit testing the limits of the Transportation Security Agency’s (TSA) authority to screen passengers without disclosing the nature of the screening, Plaintiff/Petitioner John Gilmore is seeking Supreme Court review of a Ninth Circuit Court of Appeals decision in which that court held that petitioner lacked standing to challenge anything other than the identification-or-search requirement, rejecting Gilmore’s due process claim that he received inadequate notice of the identification-or-search requirement. The Court held that petitioner had "actual notice" of the identification or-search requirement (in particular, "several airline personnel . . . told him that in order to board the aircraft, he must either present identification or be subject to a ‘selectee’ search."). Several organizations have amicus briefs on behalf of Gilmore. (See here, here, and here).

As stated in petitioner’s brief, the issues for the Supreme Court are as follows:

QUESTION PRESENTED

The Transportation Security Agency (TSA) uses a directive that it claims requires airline passengers, as a prerequisite to boarding a flight, to show identification or undergo further security screening. This directive affects millions of airline passengers each year. The government acknowledges not only the directive s existence, but also its purported contents. TSA nonetheless refuses to actually disclose the directive.

The Question Presented is:

May the government keep secret a directive that is generally applicable to millions of passengers every day notwithstanding that it (i) has acknowledged both the directives existence and its contents, and moreover (ii) has identified no special circumstance that nonetheless justifies secrecy.

The Solicitor General has now filed an opposition to Gilmore’s petition for certification. The Solicitor General takes the following position as to the issues presented to the court:

Question Presented

Petitioner alleges that respondents have promulgated "security directives" relating to airline safety that require airline passengers to present identification before boarding or, in the alternative, submit to a more extensive search than would otherwise be required.

The question presented is whether, under the Due Process Clause, petitioner received sufficient notice of the above requirement where petitioner had actual notice of that requirement through oral instructions.

Mr. Gilmore has scheduled a press conference for 11 a.m. today in Washington, D.C. to address the Solicitor General’s opposition to the petition for certification.

DISCLOSURE: Davis Wright Tremaine LLP acts as counsel for petitioner John Gilmore in this action.