[00:00:00] Speaker 00: Case number 22-1318. [00:00:03] Speaker 00: Michael Muir, petitioner, versus United States Department of Homeland Security and Transportation Security Administration. [00:00:11] Speaker 00: Mr. Weaver, I make this query for the petitioner. [00:00:13] Speaker 00: Mr. Muir, for the balance. [00:00:15] Speaker 00: Mr. Waldman, for the response. [00:00:18] Speaker 00: Mr. Weaver, you may proceed when you're ready. [00:00:21] Speaker 01: Judge Miller, Judge Childs, Judge Randolph, and may it please the court. [00:00:25] Speaker 01: Will Weaver, amicus arguing in favor of petitioner. [00:00:28] Speaker 01: I'd like to reserve two minutes for rebuttal. [00:00:32] Speaker 01: TSA's final rule adopting AIT and the standard operating procedures requiring the AIT plus pat down regime at airport security checkpoints failed to address a significant aspect of the problem before the agency. [00:00:46] Speaker 01: that for a certain category of individuals, those with internal disabilities or hidden medical conditions that are hidden from view, the AIT plus pat-down procedures prevent them from reliably and safely completing TSA screening to access commercial air travel in the United States. [00:01:04] Speaker 01: The standard operating procedures that require AIT plus a pat-down prevented petitioner Michael Muir from accessing his flight in December 2022, [00:01:14] Speaker 01: And the TSA's application of those procedures to Mr. Muir were both arbitrary and capricious and violated the Rehabilitation Act. [00:01:22] Speaker 01: TSA's frequent use of alternative screening procedures, namely walk-through metal detectors, shows both why the application of standard operating procedures to Mr. Muir was arbitrary and also why providing Mr. Muir an accommodation similar to walk-through metal detectors would not constitute an undue burden for the government under the Rehabilitation Act. [00:01:44] Speaker 06: For the first part of the. [00:01:47] Speaker 06: They'll to address a specific aspect did you forfeit the statutory challenge with respect to the I T and the ATR argument. [00:01:55] Speaker 01: Judge child amicus did not address the statutory argument in its briefs. [00:02:02] Speaker 01: But Mister your day that that's correct it's clear. [00:02:07] Speaker 05: Why doesn't the 60-day deadline in 49 USC 46110A bar Mr. Mirror's claims? [00:02:17] Speaker 05: I brought bar after the order at issue here, which I take it to be the standard operating procedures. [00:02:24] Speaker 01: That's right. [00:02:26] Speaker 01: And I'd say a few things about that. [00:02:28] Speaker 01: The first is that the standard operating procedures are nonpublic. [00:02:31] Speaker 01: So Mr. Mears petition was brought within 60 days of the application of the standard operating procedures to him on December 1st, 2022. [00:02:41] Speaker 01: The other thing I would say, this court has held that the 60-day time period is not jurisdictional in the Bonacci case. [00:02:49] Speaker 01: And that isn't an argument that the government has pressed that his claim is time-barred. [00:02:55] Speaker 01: And I would say that's particularly the case with respect to the aspect of his challenge that is to the standard operating procedure. [00:03:03] Speaker 01: There's a fundamental mismatch between the security rationale that the government offers to justify denying AIT alternatives to individuals who have internal disabilities or medical conditions that are hidden from view and the numerous other circumstances in which it does allow for AIT exceptions. [00:03:20] Speaker 01: And that includes travelers who are traveling with small children, passengers who are traveling with pets, passengers who are traveling with service animals. [00:03:29] Speaker 01: passengers with pre-check, passengers who are traveling in wheelchairs, and all passengers that are flying out of the 15% of airports in the United States that are not equipped with AIT. [00:03:41] Speaker 05: In all those situations, what the government argues is it's really straightforward for a TSA operative to see if someone's with small children, a service animal, a pet, in a wheelchair, and in the airports where they don't have the AIT. [00:04:02] Speaker 05: There's no discernment needed as between people who would be eligible for the metal detector or would go through AIT. [00:04:12] Speaker 05: I mean, one of the main things they say, which is part of the challenge for Mr. Muir, is that there are millions of people going through these checkpoints every day. [00:04:25] Speaker 05: And they can readily administer sorting that is based on easily apparent characteristics. [00:04:39] Speaker 01: Judge Miller, with respect to the administrability question, Amicus would point to [00:04:46] Speaker 01: The government is correct that in some of these circumstances, there is a sort of easy visual identifier. [00:04:53] Speaker 01: But amicus would point to, for example, for service animals and pets, there are forms that can be filled out under penalty of perjury that someone who wants to travel with a service animal or someone who had an internal disability or medical condition could fill out. [00:05:09] Speaker 01: again, under penalty of perjury, submit to the TSA, and they could be issued some sort of documentation that would allow them to immediately be identified as someone that needed to go through a walk-through metal detector. [00:05:23] Speaker 01: And amicus would submit that that would not constitute some kind of far-reaching burden on the government, as the government suggests in its briefs. [00:05:32] Speaker 05: You said that's also for people with disabilities? [00:05:36] Speaker 01: Yes, that's correct. [00:05:37] Speaker 05: The form and then they can go. [00:05:39] Speaker 05: Through a different like if you're if you have metal. [00:05:44] Speaker 05: Implants then you filled the form and you go through it. [00:05:48] Speaker 01: I'm not sure if that I'm not sure if that the format I'm referring to here is the one that applies for if you're traveling with animals. [00:05:56] Speaker 01: I'm not sure the precise. [00:05:57] Speaker 05: I thought you said animals and something else. [00:06:00] Speaker 01: Apologies. [00:06:01] Speaker 01: I mentioned both. [00:06:02] Speaker 01: I was saying the same type of regime that applies for traveling with animals could apply in a similar circumstance. [00:06:08] Speaker 01: You can have a one pager that the traveler fills out and then the TSA looks at that and issues some kind of documentation that they can readily identify. [00:06:18] Speaker 05: Just as a matter of information, I know this may be in your brief, but there's a lot of subcategories. [00:06:24] Speaker 05: If you're traveling with an animal and you don't go through AIT because it won't work keeping you together with the animal and going through AIT, you go through a metal detector. [00:06:34] Speaker 01: That's my understanding. [00:06:35] Speaker 05: And you're subject to routine pat down as well or no? [00:06:40] Speaker 01: There are, it's Amix's understanding that you can be subject to a pat down at any point, but certainly if you go through a metal detector as well as going through AIT. [00:06:50] Speaker 01: Petitioner's particular problem in this case and what gives rise to the challenge is that for him, his- I understand. [00:06:56] Speaker 05: I guess maybe these are just questions for the government because it's a little bit unclear when metal detector is routinely accompanied by pat down and when it might not be, but I'll ask the government about that. [00:07:11] Speaker 06: I was going to say to kind of been telling this story. [00:07:14] Speaker 06: It seems like that we're left without certain of the details that a plane to. [00:07:22] Speaker 06: That appear about what happened, you know, once plaintiff goes to the TSA gate, you give your boarding pass, you give your ID and then we just kind of don't know what's happened after that with respect to. [00:07:34] Speaker 06: you know, did he go through the AIT machine? [00:07:36] Speaker 06: Does the machine alert? [00:07:38] Speaker 06: Does the officer attempt to pat down? [00:07:40] Speaker 06: Does he alert every time that he goes through machines and things like that to kind of give us some sense of what does he really need, you know, or is it better for him to have just got out a TSA pre-check form so that he doesn't have to go through this particular machine? [00:07:57] Speaker 01: Yes, Judge Charlton. [00:07:59] Speaker 01: So I would say that within the record and with the declaration that's attached to the briefs, amicus' take on that is that there are, for Mr. Muir, the potential that he ends up with an extremely painful pat down is substantially increased going through AIT. [00:08:17] Speaker 01: And so for purposes of standing, that meets the New Jersey VA. [00:08:22] Speaker 01: But in terms of the, [00:08:24] Speaker 01: You know, there's a way to read the declarations that there seems to be some sort of factual question there. [00:08:31] Speaker 01: But with respect to petitioners' claims, it's Amex's position that it doesn't matter precisely at what point on December 1st, 2022, he was prevented from going through the machine, whether he stepped into the machine or did not. [00:08:45] Speaker 01: Um, isn't really relevant to the question of whether he has standing to challenge the standard operating procedures and bring his claims. [00:08:52] Speaker 01: And I would also just point out that the government, the evidence that the government put in on that, the Sebastian declaration is not conclusive, um, you know, on the question either. [00:09:01] Speaker 01: So, so there is, there is perhaps a factual dispute. [00:09:05] Speaker 06: There's two machines that you go through. [00:09:07] Speaker 06: I mean, if you have TSA precheck, you go through a certain machine. [00:09:11] Speaker 06: And then if you don't have TSA pre check you go to the other machine that requires you to put your hands up and then there's a scan around you. [00:09:17] Speaker 06: And so it kind of matters of whether or not he alerts, you know, with respect to going through one or either of those machines. [00:09:26] Speaker 01: Just I'm not sure I want to make sure I'm addressing your question I. [00:09:30] Speaker 01: My understanding is that because the AIT falsa identifies Petitioner's hernia as a threat object, that's sort of what causes the substantial increase in likelihood that he's going to have to endure the pat down. [00:09:42] Speaker 01: And so he needs a circumstance where he can arrive and know that he is going through a metal detector and not the AIT machine. [00:09:51] Speaker 05: So what is the... [00:09:55] Speaker 05: accommodation or range of potential accommodations that he's raising. [00:10:00] Speaker 05: I know he wants to not go through AIT, instead go through a metal detector. [00:10:05] Speaker 05: And the reason I was asking about whether people who are routed as a routine matter through metal detectors, not because of the airport only has that, but because, for example, if they're with a service animal or they're over 75 or what have you, [00:10:22] Speaker 05: whether those people are routinely patted down, because if they are, that's not an accommodation at all. [00:10:27] Speaker 05: So what is the accommodation that you understand Mr. Muir to be asking for? [00:10:33] Speaker 01: The accommodation from Amicus' perspective is access to the walkthrough metal detector because even though in some circumstances there may still be a pat down, the chances of that occurring is substantially decreased because his hernia would not register the walkthrough metal detector in the same way that it registers as a threat object on the AIT machine. [00:10:53] Speaker 06: And is that the same one that the TSA people, excuse me, the pre-check people go through? [00:10:59] Speaker 01: That's my understanding, Judge Childs. [00:11:01] Speaker 06: I'm not sure that it- [00:11:07] Speaker 01: Well, Judge Childs, I would say two things about that. [00:11:09] Speaker 01: With respect to the Rehabilitation Act claim, I do think the fact that TSA pre-check does cost money, right? [00:11:14] Speaker 01: There's a cost associated with it. [00:11:16] Speaker 01: And it's also the requirements of pre-check are not designed for individuals with disabilities. [00:11:23] Speaker 01: There are requirements and background checks and other things that just aren't germane to that issue. [00:11:28] Speaker 06: But isn't there an ability to indicate ahead of time [00:11:34] Speaker 06: whether there's a card or some kind of medical documentation so that you kind of have that confidentiality or sensation that you would go through to an officer ahead of time that you could fill out. [00:11:49] Speaker 01: I think there is. [00:11:49] Speaker 01: There's a card in there. [00:11:50] Speaker 01: There is a hotline. [00:11:52] Speaker 01: And what I would say about that is I [00:11:55] Speaker 01: However, that operates here. [00:11:57] Speaker 01: And there's not a lot in the record about whether that was at issue for petitioner. [00:12:02] Speaker 01: But the TSA is a party to this case. [00:12:04] Speaker 01: I think that they could have said in the briefs, if Mr. Mirror were to dial that hotline or fill out the card, then he would have access to a walk-through metal detector. [00:12:15] Speaker 01: And from Amicus's perspective, because the government hasn't made that argument or assertion, that whatever [00:12:21] Speaker 01: You know, the regime that exists with the hotline and the card isn't sufficient to ensure that Mr. Amir can go through the walkthrough metal detector as opposed to... Speaking of not making an argument, you were appointed by the court. [00:12:36] Speaker 04: You don't represent the petitioner, right? [00:12:39] Speaker 04: That's correct, Judge Randall. [00:12:41] Speaker 04: How can it be then that you can raise arguments that the petitioner hasn't made? [00:12:47] Speaker 04: You don't have any standing whatsoever to do that. [00:12:52] Speaker 04: Well, the comment, the business about comments and the failure of the agency to respond to comments during the rulemaking, Mr. Muir doesn't raise that. [00:13:03] Speaker 01: Well, Judge Randolph, I would say in the petition, he does raise a challenge to the rule and I think fairly read to the standard operating procedures that implemented. [00:13:11] Speaker 04: He doesn't raise the argument that I just said. [00:13:15] Speaker 01: He is not discussing his petition. [00:13:17] Speaker 04: On what basis should we even consider that? [00:13:22] Speaker 01: Well, Judge Randolph, he does invoke section 46.110 and the court's review under that is for under an arbitrary and capricious. [00:13:30] Speaker 04: The 60-day rule is we've held is not jurisdictional, but we've also held that the portion of sub D requiring an objection before the court will consider it an objection before the agency is jurist. [00:13:48] Speaker 04: And if there was no question about, or no objection along the lines of anything that you're arguing, then I don't see how you can possibly argue it. [00:14:01] Speaker 01: Well, Judge Randolph, we do discuss that. [00:14:03] Speaker 01: Amicus discusses that in the briefs as well. [00:14:05] Speaker 01: And the court asked Amicus to address the question of Vaughn and Olmsted and how they interpret the statutory provision you're discussing. [00:14:16] Speaker 01: to me, it's very clear that the sort of the Vaughan holding is correct here, which is just to say that as long as comments were raised by someone during the rulemaking, and that's why in this case, amicus was pointing to comments where, you know, during the rulemaking before the TSA, there were commenters who raised issues that are amicus would say in the same category and similar to Mr. Murers, which is folks with [00:14:43] Speaker 01: internal disabilities or medical conditions that would present a problem for screening. [00:14:48] Speaker 01: So I would say two things to address the question about 46110D. [00:14:56] Speaker 01: The circumstances in the Olmstead case, which is the older case where the court did hold a party to require them to have made the same arguments before the agency, [00:15:08] Speaker 01: That case involved attorneys for, I believe it was a municipality, and the attorneys had been involved in the initial agency process and raised other arguments, failed to raise an argument that they then later raised. [00:15:23] Speaker 01: And so there, they were held to the, or the court said that in that case, it needed to have been the party that was later arguing the issue that also raised it before. [00:15:34] Speaker 04: The provision that I'm talking about, [00:15:36] Speaker 04: portion of D, sub D, they have to raise an objection before the agency, and if you don't, then the court can't consider it, is common throughout administrative agencies, common provision, and the Supreme Court has held that the government, even the government can't waive that. [00:15:57] Speaker 04: There's a case called EEOC versus FLRA that the Supreme Court decided, and the government did not say, hey, you didn't object. [00:16:06] Speaker 04: The Supreme Court said, you can't waive that. [00:16:08] Speaker 04: It's for the protection of the courts in a sufficiently large jurisdiction that we're not going to allow the government to waive, forfeit, waive, whatever you want to call it. [00:16:20] Speaker 04: That's a pretty strong rule. [00:16:23] Speaker 05: So I guess the question is, you do point to, or maybe it was Mr. Mirror who points to comments on the final rule that raised a question of hidden disability and other comments that raised [00:16:40] Speaker 05: Questions, I think, about possibly hazardous pat-down. [00:16:44] Speaker 05: But what's tricky and distinct about Mr. Muir's situation is the combination of those two things. [00:16:51] Speaker 05: And I don't think that there is any comment that raises a situation really analogous to his, that presents the difficulty of accommodation that his case presents. [00:17:06] Speaker 05: Is that right? [00:17:07] Speaker 01: Judge pillard amicus would agree with at that level of specificity that that that is not raised in the comments the other thing I would say that we can be respect to. [00:17:16] Speaker 01: You know that that was the. [00:17:18] Speaker 01: 46110D issue is a question, and it's an issue with respect to the aspect of the challenge that is to the final rule. [00:17:26] Speaker 01: But it's not with respect to the challenge to the standard operating procedures that implement this AIT plus pat-down regime, which is sort of the core. [00:17:35] Speaker 01: I think the petition read fairly. [00:17:37] Speaker 01: That's the core of the challenge. [00:17:40] Speaker 01: But the final rule doesn't lay out [00:17:42] Speaker 01: detail all of the ways in which TSA is going to administer AIT. [00:17:46] Speaker 01: That happens in the standard operating procedure. [00:17:48] Speaker 01: That is a document that is not public and it is one that was applied to the petitioner in December 2022 right before he raised this challenge. [00:17:57] Speaker 01: So the 46-110-D issue isn't an issue with respect to his challenge to the standard operating procedures. [00:18:04] Speaker 05: Because those are not notice of comment rulemaking. [00:18:07] Speaker 01: Right. [00:18:07] Speaker 04: And there would have been no opportunity to raise our... Back to a point that Judge Childs made, which is that if he had put up the $75 and got cleared through the pre-check, he would not be going... He would be going through a metal detector, wouldn't he? [00:18:29] Speaker 01: I think in most cases... I think in almost all cases, that's correct. [00:18:32] Speaker 04: Why isn't that an accommodation? [00:18:34] Speaker 01: That would be an accommodation, but under the Rehabilitation Act, because there is a charge for that and because it is a program that isn't really germane to the issue of individuals. [00:18:44] Speaker 04: There's a Supreme Court case that, for lack of a better description, held that you can't be too poor to declare bankruptcy. [00:18:54] Speaker 04: When you declare bankruptcy, you have to pay a court filing fee. [00:18:58] Speaker 04: And there was a claim that that was unconstitutional and discriminatory and so on and so forth. [00:19:03] Speaker 04: Do you know this case? [00:19:06] Speaker 01: Not off the top of my head, Judge. [00:19:07] Speaker 04: And so the Supreme Court upheld the filing fee. [00:19:11] Speaker 04: And there was a newspaper report of the case. [00:19:14] Speaker 04: And in the newspaper report, it said what happened after that is that the plaintiff in that case paid the filing. [00:19:23] Speaker 04: I mean, you said that. [00:19:26] Speaker 04: I'm sorry. [00:19:27] Speaker 04: If I can find that case and I will. [00:19:29] Speaker 04: I mean, doesn't that sort of undercut your argument? [00:19:32] Speaker 04: Well, this is terrible because he's got to pay $75 for five years. [00:19:37] Speaker 01: Richard. [00:19:38] Speaker 01: Well, Judge Randolph, I would say under the Rehabilitation Act, while Amicus doesn't have a case that's specifically on all fours, I do think the American Council for the Blind case and the rationale laid out there discusses the idea that it can't be the case that just because there would be a way for an individual who otherwise had a Rehabilitation Act claim to obtain access if they were to spend a lot of money to do so, that can't be enough for the government to deny access under the [00:20:07] Speaker 04: What happened to that case on remand? [00:20:10] Speaker 04: I'm sorry? [00:20:11] Speaker 04: What happened to that case on remand? [00:20:13] Speaker 01: I believe that it did not go in favor of the plaintiffs in that case. [00:20:20] Speaker 05: Just to get a clearer sense of what is the accommodation that's being sought, you said it's to go through a metal detector. [00:20:31] Speaker 05: Presumably [00:20:33] Speaker 05: without any supplemental requirement that you be routinely subject to a pat down as part of going through the middle. [00:20:41] Speaker 01: That's right, Judge Pillar. [00:20:42] Speaker 05: So taking the chance that you might if something alerted, but I gather Mr. Muir thinks, I'm going to take all of my metal buckles and watches off. [00:20:53] Speaker 05: So I'm not going to alert it and that that's going to be fine. [00:20:56] Speaker 01: I would say at the very least, I do think Amicus could imagine other accommodations that went further than that, that perhaps for individuals that have this problem also gave them an accommodation for those fewer circumstances where they went through a walk-through metal detector and then also needed to be patted down. [00:21:16] Speaker 05: It's just really difficult to assess and to ask the government to assess is this presenting an undue burden if we don't know what the it is and I know that what's being. [00:21:28] Speaker 05: required is. [00:21:30] Speaker 05: is challenged under the Rehabilitation Act. [00:21:34] Speaker 05: But to know what would be an acceptable regime, especially from those that already exist, would be helpful. [00:21:43] Speaker 05: For example, you objected to the money, had some back and forth with Judge Randolph about that. [00:21:49] Speaker 05: What if the government said, OK, we're going to waive the fee? [00:21:54] Speaker 05: Or if we held that's de minimis, $15 a year for five years, [00:22:01] Speaker 05: then would the treatment under pre-check, which sounds like it's exactly what Mr. Muir wants, which is get routed to the metal detector as an ordinary thing without deluxe pat-down supplement, is that an accommodation that would be sufficient? [00:22:23] Speaker 05: And we can ask Mr. Muir if this is not something. [00:22:25] Speaker 05: I know you're not counsel. [00:22:27] Speaker 01: Judge Piller, I was going to say that's part of the challenge is that question. [00:22:30] Speaker 01: I don't want to speak for the petitioner on what would be sufficient. [00:22:34] Speaker 01: But from amicus' perspective, and I think what we laid out in the briefs, is the idea that what I hesitate to agree with there is I'm not entirely sure that even with the fee waived, TSA pre-check, [00:22:50] Speaker 01: would lead to that outcome. [00:22:52] Speaker 01: And part of that is just I don't actually know if TSA pre-check in all cases routes you through the metal detector. [00:22:58] Speaker 01: So I don't want to speak to that. [00:23:00] Speaker 05: We shouldn't be asking you. [00:23:01] Speaker 05: I can ask Mr. Muir and I can ask the nature of the pre-check of the government. [00:23:15] Speaker 05: Done? [00:23:16] Speaker 05: All right. [00:23:17] Speaker 05: Thank you. [00:23:17] Speaker 05: Thank you. [00:23:20] Speaker 05: And we will hear now from Muir. [00:23:34] Speaker 05: Morning. [00:23:35] Speaker 05: Good morning. [00:23:36] Speaker 03: Thank you, Judge Childs. [00:23:37] Speaker 03: Judge Randolph, may it please the court? [00:23:41] Speaker 03: I'm here today to discuss [00:23:45] Speaker 03: three orders that were made by the special panel in this case and how they relate to the advanced technology and the ultimate relief that my petition seeks. [00:23:57] Speaker 03: First was the December 7th, 2023 order directing parties to address 49 U.S. [00:24:06] Speaker 03: Code [00:24:07] Speaker 03: 46 110 D. And I think to your question earlier, Judge Chiles, I have satisfied the jurisdictional requirement because contrary to respondents assertion at their answering brief, page 41, previous objections raised during the notice and [00:24:31] Speaker 03: on the proposed rulemaking allow my statutory challenge because my declaration at Joint Appendix 112 mirrors previous comments by other commenters at Joint Appendix 55, 60, 160, and 163. [00:24:47] Speaker 03: And so, and then also those are listed at my brief at page two. [00:24:55] Speaker 03: And if general objections about disabilities satisfy section 46-110D, then I would say general objections about the ATR software also satisfy that requirement. [00:25:09] Speaker 03: And that's a Joint Appendix 160 that the ATR software has raised. [00:25:14] Speaker 03: Second would be the June 10th, 2024 order allowing me to [00:25:24] Speaker 03: raise OMB memorandum M-24-10 as it relates to the ultimate relief my petition seeks. [00:25:32] Speaker 03: And I would say there that on December 16th, 2024, the respondents identified the ATR software as artificial intelligence. [00:25:45] Speaker 03: And that's at Joint Appendix 312. [00:25:48] Speaker 03: And I believe they identified it as DHS 131. [00:25:53] Speaker 03: And that's at Row 152 of the spreadsheet. [00:25:59] Speaker 03: So the court can be confident that this is artificial intelligence that they're dealing with. [00:26:03] Speaker 03: And then third would be an order related to a motion that is still pending. [00:26:10] Speaker 03: And that's the motion to supplement the administrative record [00:26:15] Speaker 03: The order on July 10th 2023. [00:26:18] Speaker 03: Referred that motion to this panel. [00:26:21] Speaker 03: And I would say that. [00:26:24] Speaker 03: The joined appendix from page 206 to 275. [00:26:29] Speaker 03: Should be considered because the. [00:26:35] Speaker 03: Advanced Imaging Technology manufacturer, Leidos, was just granted a $2.6 billion DHS contract on January 2nd of this year for integrated logistics support for the TSA security detection systems equipment. [00:26:53] Speaker 03: So I believe that their attorney's comments on the real world functioning of the equipment apply here. [00:27:03] Speaker 05: Can I ask you, Mr. Muir, about some of the questions that perhaps inappropriately I was asking Amicus about what is the accommodation that you're seeking? [00:27:14] Speaker 05: It's easier for us to assess the claims of TSA. [00:27:17] Speaker 05: What would require a fundamental alteration of their program if we have a sense of how what you're seeking lines up with anything that's currently offered? [00:27:26] Speaker 05: Why would PreCheck not give you exactly what you're seeking? [00:27:32] Speaker 03: So PreCheck cannot give me what I'm seeking because I am subject to being put through the advanced imaging technology machine at any time at the TSA's discretion. [00:27:44] Speaker 03: So PreCheck in no way protects me from the exact situation that I'm trying to get a relief from. [00:27:51] Speaker 04: Are you trying to get a letter from your doctor? [00:27:54] Speaker 03: So that is not sufficient for TSA. [00:27:59] Speaker 03: Judge Randolph. [00:28:00] Speaker 04: I asked whether you tried. [00:28:01] Speaker 03: I didn't because TSA does not have to accept any reason at all whatsoever, including a disability caused medical emergency for me refusing a pat down, Your Honor. [00:28:15] Speaker 04: To get an accommodation, they have to know your condition. [00:28:20] Speaker 04: Isn't that right? [00:28:21] Speaker 03: I don't know, Your Honor, because there is no process to get an accommodation from TSA. [00:28:27] Speaker 04: At the gate, at least when you're when you're going through the metal detector or the other device or whatever. [00:28:34] Speaker 04: I mean, there's a face to face contact. [00:28:38] Speaker 03: And it's that exact face-to-face contact that I'm here, Your Honor. [00:28:43] Speaker 03: On August 12, 2018, my condition was the reason for a false threat alarm in my right groin. [00:28:51] Speaker 03: And since I had already been through it once before on the 9th, I elected to go into a private room. [00:28:57] Speaker 03: There in the private room, I was desperate to not be touched, Your Honor. [00:29:01] Speaker 03: And I offered to actually, in the spirit because I'd read, I think in Oklahoma TSA case, [00:29:07] Speaker 03: They said that it's nothing different than a locker room, Your Honor. [00:29:11] Speaker 03: And so there was two males in there, and I offered to lower my pants so that they could see that I didn't have a threat object. [00:29:21] Speaker 03: And I told them what had happened a few days earlier. [00:29:24] Speaker 03: I was desperate, and they refused. [00:29:27] Speaker 03: Face to face, it does nothing, Your Honor. [00:29:29] Speaker 03: I have no guarantees whatsoever that they'll listen to me or take [00:29:33] Speaker 03: a doctor's note or anything like that. [00:29:35] Speaker 03: There is nothing. [00:29:36] Speaker 04: Is that incident the subject of any of your prior litigation? [00:29:41] Speaker 04: Yes, it was, Your Honor. [00:29:43] Speaker 04: And what happened? [00:29:44] Speaker 04: The court, the Seventh Circuit ruled against you. [00:29:48] Speaker 04: I can't remember why. [00:29:50] Speaker 03: I think it's because this court, Your Honor, is the only place where my challenge could be properly heard. [00:29:57] Speaker 04: I think it was because you filed in the district court, and they said you had to file in the court of appeals. [00:30:03] Speaker 03: For a petition for review. [00:30:05] Speaker 03: That's correct. [00:30:08] Speaker 05: Did you receive any follow-up emails from the DHS Office of Civil Rights and Civil Liberties after it sent you the letter that you attached to your reply brief, the January 7, 2020 letter? [00:30:22] Speaker 03: No follow-up. [00:30:23] Speaker 05: That it was recording your complaint? [00:30:25] Speaker 05: No follow-up. [00:30:25] Speaker 03: No follow-up whatsoever, no. [00:30:28] Speaker 05: And did you ever get a TSA follow-up on the email that you sent? [00:30:34] Speaker 05: And they said they were assigning your claim to an examiner for review. [00:30:39] Speaker 05: It was in November 2019, or is that the predicate? [00:30:43] Speaker 03: That claim was denied. [00:30:46] Speaker 05: Uh-huh. [00:30:47] Speaker 05: So just to circle back, the accommodation that you're seeking, I think it is the plaintiff's burden to identify the accommodation that you're seeking. [00:30:56] Speaker 05: What is that? [00:30:57] Speaker 05: So I would say or range of accommodation. [00:31:00] Speaker 03: Sure. [00:31:00] Speaker 03: First, and that's why I raised the brought the statutory challenge, because I don't know if it's an accommodation. [00:31:07] Speaker 03: I would say that first TSA is not entitled to analyze data regarding tissue beneath my skin. [00:31:18] Speaker 05: I'm actually asking about the Rehabilitation Act claim. [00:31:23] Speaker 05: So I'm setting aside the statutory claim for now. [00:31:26] Speaker 05: Sorry, I wasn't clear about that. [00:31:27] Speaker 05: And assuming that you're having a disability that prevents you from participating in the program, which here is the TSA screening program, and then the question is, what's the combination you're seeking? [00:31:44] Speaker 05: Is it reasonable, or does it pose an undue burden [00:31:48] Speaker 05: on TSA, in which case they wouldn't be required to offer that accommodation. [00:31:53] Speaker 05: So assuming that you, just for purposes of the argument or my understanding of how your position plays out, if we set aside this statutory argument and we're just looking under the Rehabilitation Act, what would the accommodation that you're seeking, assuming that the AIT technology, as they're using it, [00:32:18] Speaker 05: is lawful as they're using it in the general course. [00:32:23] Speaker 03: I would say I don't want to be arrested for refusing a pat down at the site of my medical emergency. [00:32:33] Speaker 03: I don't want to be fined in the TSA court because there's no legitimate reason to refuse a pat down. [00:32:42] Speaker 03: So if I'm in a situation where it's the path down or another option, I'm going to take the other option because that happened before. [00:32:49] Speaker 03: I can't let anyone touch me like that again. [00:32:51] Speaker 05: That you're wanting the other option to metal detector and or even AIT and a private room to do the as you described the locker room panstrop. [00:33:05] Speaker 03: That's it. [00:33:05] Speaker 03: So what I asked for in November of 2019 was to have all threat alarms at my right groin resolved through visual inspection for the rest of my life. [00:33:17] Speaker 03: I do not want to be touched there. [00:33:19] Speaker 03: I cannot be touched there. [00:33:20] Speaker 03: And that was what I proposed in November of 2019. [00:33:25] Speaker 05: And is that the only or, I mean, as I read the briefing, there was some suggestion that a metal detector would be your preferred approach. [00:33:39] Speaker 05: But is that only because the AIT virtually invariably triggers a groin specific [00:33:47] Speaker 03: It's the focused nature, whereas I guess if I went through the metal detector and I had to be pat down, it would be my whole body. [00:33:57] Speaker 03: And so then in that case, the alarm is not based solely on my disability. [00:34:04] Speaker 03: It's there and only there. [00:34:07] Speaker 03: I mean, it's very clear. [00:34:12] Speaker 03: I would say they shouldn't be allowed to use that information to raise an alarm in the first place. [00:34:18] Speaker 03: But if this court thinks that they're using it lawfully, then I would say... [00:34:27] Speaker 03: This is why I'm here. [00:34:28] Speaker 03: It's really tough. [00:34:29] Speaker 03: And I understand from the other side, but I can't be touched again like that. [00:34:34] Speaker 03: And if I refuse, then as there was pretty troubling to see in the respondents brief, they raised city and county of San Francisco. [00:34:42] Speaker 03: Whereas I could see a scenario where I'm very resistant to being touched and local law enforcement is called. [00:34:49] Speaker 03: And what I took from that case is that they can shoot and kill me. [00:34:53] Speaker 03: And that's not unconstitutional because there's no clearly defined right against algorithmic discrimination of narrow artificial intelligence. [00:35:05] Speaker 03: There's clearly no defined right for that. [00:35:08] Speaker 03: This is an advanced technology case. [00:35:11] Speaker 03: And I think that the court should get it yesterday. [00:35:14] Speaker 06: I just still want to be clear. [00:35:15] Speaker 06: So you really don't want to go through either scanner. [00:35:21] Speaker 03: I mean, I understand that I have to. [00:35:24] Speaker 03: I have to be screened in order to get on the other side of the sterile area. [00:35:29] Speaker 06: So which screener is that? [00:35:31] Speaker 06: The AIT? [00:35:34] Speaker 03: Well, I'm happy to go through either one as long as they don't use my health information regarding human tissue beneath my skin as the predicate for raising a potential threat alarm at my right groin. [00:35:47] Speaker 03: And when I'm not symptomatic, I can go through the AIT. [00:35:50] Speaker 03: It's only because the software, artificial intelligence software, misidentify. [00:35:55] Speaker 03: It doesn't know anything. [00:35:58] Speaker 03: It's contour, pattern, and shape, and it's algorithmic, and it flags it in as an anomaly. [00:36:03] Speaker 06: So I guess what I'm asking then is, for example, when Judge Randolph asked about the letter from the doctor that becomes very explicit, you hand that over to the TSA officer. [00:36:16] Speaker 06: You still go through the appropriate screening mechanism that you have this letter. [00:36:21] Speaker 06: The scanner alerts directly to that area, but you also have the letter. [00:36:26] Speaker 06: So the scanner matches up with the letter. [00:36:28] Speaker 06: Then you go to a room. [00:36:32] Speaker 06: allowed the visual inspection and then the three of those instances, letter, scanner, visual inspection gets you through. [00:36:40] Speaker 06: Is that sufficient? [00:36:41] Speaker 03: I think you can ask the government, but I don't think it is. [00:36:44] Speaker 06: But I'm asking you. [00:36:45] Speaker 06: We're still trying to get from you what's known as accommodation. [00:36:51] Speaker 03: matches up with the scanner. [00:36:53] Speaker 03: I don't think that would fly with them. [00:36:55] Speaker 03: That would be great. [00:36:56] Speaker 03: That would be great for me. [00:36:57] Speaker 03: If it was that easy, Your Honor, then I'd go three hours early, and I wouldn't leave enough time, and that would be great. [00:37:02] Speaker 03: Yeah. [00:37:02] Speaker 06: OK. [00:37:03] Speaker 06: But even on something like that, potentially that might be something that has to be developed through the trial court or an order or something like that, because I don't know that this record gives us that. [00:37:17] Speaker 06: because you don't have the doctor's letter you have you know certain information that you're telling us about but that sounds very specific and you're telling us sometimes it alerts sometimes it doesn't you know sometimes you're symptomatic sometimes you're not that's correct and it only works when i'm symptomatic solely because i'm symptomatic okay otherwise i could i could get right through like i did on june 6 and june 9 2019 were you able to fly to you know i had to drive [00:37:46] Speaker 06: Okay, but you also understand, you know, when we're looking at the undue hardship burden, this whole screening process is what TSA would argue is most effective, least intrusive in terms of it detecting metal and non-metal, you know, without physical contact for any person who is going through. [00:38:05] Speaker 06: That issue. [00:38:07] Speaker 06: That's the reason why they chose this particular methodology. [00:38:10] Speaker 03: Yes, and I would say if they had followed the statutory language. [00:38:14] Speaker 03: And what I would say is what I really want is a final review of that threat potential threat or alarm anomaly flag by a human being, because, you know, as I point out in the briefs that [00:38:28] Speaker 06: But are you asking a review of the final rule or asking for an accommodation for you? [00:38:32] Speaker 03: Oh, for me, when that data is flagged, when my screening data is flagged by the algorithm, if it's at my right groin, I think the only way for the Rehabilitation Act to apply is to have a human being making the call on whether it's an anomaly or not, because software [00:38:54] Speaker 03: doesn't know what the Rehabilitation Act is and it can't be trained in it. [00:38:57] Speaker 05: Only people can be. [00:39:05] Speaker 05: the accommodations, range of accommodations, are that you would be OK with the metal detector, in part because, in your view, you would take the risk that it will alarm on metal and that they will pat you where there might be metal. [00:39:19] Speaker 05: But that would not be the sensitive area of your hernia. [00:39:23] Speaker 05: And therefore, that, to you, seems like a reasonable accommodation. [00:39:27] Speaker 05: Am I right? [00:39:28] Speaker 03: I mean, those seem like good odds, because it's completely human tissue and it's completely beneath the skin. [00:39:33] Speaker 05: Yes, Your Honor. [00:39:33] Speaker 05: Good enough. [00:39:34] Speaker 05: Thank you. [00:39:36] Speaker 05: So we will hear now from Mr. Waldman. [00:39:42] Speaker 05: Thank you, Mr. Mirror. [00:39:43] Speaker 05: Thank you. [00:39:59] Speaker 02: Good morning, Your Honors. [00:40:00] Speaker 02: My name is Joshua Waldman from the Department of Justice representing the respondent TSA. [00:40:05] Speaker 02: TSA's AIT rule is not arbitrary or capricious. [00:40:10] Speaker 02: TSA expressly acknowledged and replied to comments from travelers with disabilities who objected to AIT or pat downs that the petitioner or those commenters didn't get the answer that they might have been hoping for, does not make the rule arbitrary or capricious, does not mean that the agency failed to respond to those comments. [00:40:35] Speaker 02: TSA also reasonably explained why some passengers are not primarily screened by AIT. [00:40:42] Speaker 02: For example, because they are low-risk passengers who have gone through the pre-check procedures or because they are categorically ineligible for AIT. [00:40:53] Speaker 05: Who is in that latter category? [00:40:55] Speaker 02: So, for example, those would be people who could not stand or raise their arms in the required position for AIT. [00:41:03] Speaker 02: Those would also include people who had like a service animal or a service dog. [00:41:11] Speaker 02: It would also include people who have an oxygen concentrator that can't be removed or people who had to be accompanied by another adult, for example, someone with dementia or autism who could not be separated from their companion. [00:41:27] Speaker 05: And how, so those people go through metal detectors? [00:41:31] Speaker 02: Most of them would go through the metal detector. [00:41:34] Speaker 02: Some of them would not. [00:41:35] Speaker 02: For example, if you're someone who can't stand because you're in a wheelchair, they're not going to direct you to the metal detector because the wheelchair would just set off the metal detector. [00:41:44] Speaker 02: So those people, as the rule said, people who can't stand in the required position would go through a pat-down as opposed to the metal detector. [00:41:52] Speaker 04: Also another category, which you triggered, I had a friend actually, it was a federal district judge in the South, [00:42:01] Speaker 04: He couldn't go through metal detector because he had shrapnel from World War II. [00:42:07] Speaker 02: Someone like that, and that was similar to the Ruski case in the First Circuit, if you opt into the, you can opt into AIT, for example, even if you were going to otherwise go through the metal detector. [00:42:23] Speaker 02: So if you had pre-check, you could just say, you know, I prefer to go through AIT and that would be fine. [00:42:28] Speaker 02: And it's not obviously a security concern because the AIT is better from a security perspective for all the reasons stated in the rule, which is that it detects both metallic and nonmetallic threats, which is all what the technology is about and what Congress directed TSA to be sure to check for. [00:42:47] Speaker 04: Some of the conditions that you just finished listing are not self-evident. [00:42:55] Speaker 04: Seeing eye dog, for example, you wouldn't necessarily know. [00:42:59] Speaker 04: Well, maybe because the person would be blind and that's why they knew. [00:43:03] Speaker 04: But some of those other conditions are not self-evident. [00:43:06] Speaker 04: Is there some sort of a certificate that TSA issues contain any information that would entitle the person to skip the artificial intelligence screening? [00:43:19] Speaker 02: Not the latter part of what you said. [00:43:21] Speaker 02: There's nothing that you can say that, like, certify a medical condition that gets you out of what would be the otherwise applicable security screening. [00:43:32] Speaker 02: But you can fill out a form, and there was some reference to this earlier, that just if you have a medical condition that you'd like the officers to be aware of, but you don't feel comfortable, or for whatever reason, you don't want to talk about that out loud, you can write it on the form, and it's a recognized form, and the person would understand it. [00:43:49] Speaker 05: For example, so how does that work with somebody who can't lift their arms? [00:43:52] Speaker 05: Let's say. [00:43:52] Speaker 05: And they don't want to say they fill that out. [00:43:55] Speaker 05: The person looks at it and they say, oh, you can go through the metal detector. [00:43:58] Speaker 02: there you officer does have discretion in that example to do that. [00:44:02] Speaker 02: Sometimes there's outward signs, but I do want to actually emphasize a point that you said, Judge Pollard, about it sort of being obvious to the person. [00:44:10] Speaker 02: And while that is a factor, there's really something antecedent and much more important, which is that someone who, for example, can't raise their arms or someone with a service animal, the AIT won't function and it won't be able to get [00:44:28] Speaker 02: an image that can be analyzed by the software. [00:44:31] Speaker 02: And so it's not as if the person can go in and get scanned anyway. [00:44:36] Speaker 02: What would effectively happen is the machine would say they can't do a scan, as opposed to Mr. Muir is not in that category, whether it's readily apparent or not, he can be scanned. [00:44:49] Speaker 02: It's really not disputed in the record. [00:44:50] Speaker 05: I think we're partly asking what the different regimens are, as well as how a person becomes eligible. [00:45:00] Speaker 05: If you come up and you have a service animal, do you need to have a card? [00:45:08] Speaker 05: Do you need to have a letter? [00:45:09] Speaker 05: Do you need to have any communication? [00:45:11] Speaker 05: Or do you just show up and they say, oh, and they put you in a line that goes through a metal detector? [00:45:17] Speaker 05: Or do you not even go through a metal detector? [00:45:19] Speaker 05: You get a pat down? [00:45:21] Speaker 02: No, you would go through the metal detector. [00:45:23] Speaker 02: And I believe with a service animal or a pet, you would get a swab of the hands as well with the explosive trace detection. [00:45:31] Speaker 02: The animal would get its own screening as well, as well as any equipment. [00:45:36] Speaker 02: I'm sorry. [00:45:38] Speaker 05: Does the individual get a full pat down? [00:45:41] Speaker 02: Not routinely, no, in that situation. [00:45:44] Speaker 05: Why not? [00:45:44] Speaker 02: Why not? [00:45:46] Speaker 05: When everybody needs to be screened, and my sense is that for non-metallic explosives, the metal detector isn't enough. [00:45:56] Speaker 05: So you go through and you do a hand swab for explosive traces, and you just do the metal detector, and that's enough. [00:46:04] Speaker 02: Right, yes. [00:46:05] Speaker 02: Now, you have in the record, and I'm not going to discuss the details here because it's SSI, but you do have in the record all of the various procedures under the standard operating procedure. [00:46:17] Speaker 02: And there are nuances there that I can't sort of get into here, but you might want to read that record as well. [00:46:24] Speaker 02: But the TSA obviously has to, [00:46:32] Speaker 02: or in addition to having security concerns, manage the flow of the security checkpoint. [00:46:37] Speaker 02: And if they had to routinely pat down people who didn't alarm, I think that would seriously impede that part of its performance. [00:46:45] Speaker 05: So if Mr. Muir, and if, like I gather you can travel with a small... [00:46:50] Speaker 05: pet if not a non-service animal? [00:46:54] Speaker 02: Yes, TSA does not distinguish between a service animal and a pet consistent with other non-discrimination rules which in which the government is not supposed to insist on certification that the animal is certified. [00:47:07] Speaker 05: So Mr. Muir would get a travel pet that would be that would result it sounds like that would resolve his [00:47:14] Speaker 02: Sure, just the same as if he applied for Pre-Check. [00:47:17] Speaker 05: But in Pre-Check, is it right that you always go through a metal detector with Pre-Check, or do you go sometimes through AIT? [00:47:25] Speaker 02: Well, TSA, in its rulemaking, did reserve the right, in particular circumstances, to direct everyone through AIT, whether you had a pre-check or not, based on particular security circumstances. [00:47:37] Speaker 02: Or I could imagine a situation in which the metal detectors were all non-functioning, and so we sent everyone through AIT. [00:47:43] Speaker 05: The metal detectors were all non-functioning, and the people with the pets and the people who can't raise their arms. [00:47:49] Speaker 05: they still need something. [00:47:51] Speaker 02: In those situations, I don't know what they would do, particularly if all the machines broke. [00:47:56] Speaker 02: I assume they would probably do more pat downs or try to direct people to other security lines. [00:48:01] Speaker 02: I honestly don't know that hypothetical what would happen. [00:48:05] Speaker 02: But to answer your question, as a routine course, the people with PreCheck would go through the metal detectors unless, as they can, they can opt to go through AIT or they can opt for a pat down. [00:48:17] Speaker 02: for that, too. [00:48:18] Speaker 02: But as a routine matter, they would go through the metal detector. [00:48:21] Speaker 02: And our point is, if [00:48:23] Speaker 02: If that's what the petitioner is asking for, and even listening today, I'm still a little bit confused on what exactly that is. [00:48:30] Speaker 02: And there seems to be some disagreement or maybe not complete alignment between the petitioner and the amicus. [00:48:37] Speaker 02: But if the request is for going through the walkthrough metal detector, there is an existing program pre-check that the petitioner can apply for. [00:48:46] Speaker 02: And if approved, and millions of Americans have been approved, he would just get the option of primarily going through the walkthrough metal detector. [00:48:53] Speaker 02: Now it is the case that just because you go through the metal detector doesn't mean that you're exempt from pat downs. [00:48:59] Speaker 02: There could be an alarm. [00:49:00] Speaker 02: You could be pulled out randomly as anyone pre-check or not could be for a pat down. [00:49:05] Speaker 02: So we can't guarantee that that won't happen. [00:49:08] Speaker 06: But that pat down is for either metal or random. [00:49:12] Speaker 02: That's correct. [00:49:13] Speaker 02: Okay. [00:49:14] Speaker 02: Yes. [00:49:14] Speaker 05: And I've been patted down many, many times. [00:49:16] Speaker 05: I mean, obviously it's not in the factual record, but it's not typically in the groin area when you come through a metal detector and there's an alarm. [00:49:24] Speaker 02: Well, I don't think that that's right. [00:49:26] Speaker 02: My understanding is that when you go through a walk through a metal detector, if it alarms, they don't know where on you the metal is. [00:49:34] Speaker 02: So they have to do everything, including [00:49:38] Speaker 02: like the full body. [00:49:40] Speaker 02: And in fact, that was the claim. [00:49:41] Speaker 02: That was the issue that was raised in the Ruski case in the First Circuit, which is that petitioner had wanted a more targeted [00:49:50] Speaker 02: Pat down in the first circuit right and the first circuit said even that would not be that would fundamentally alter TSA security screening and that Proposed accommodation was rejected by that court. [00:50:02] Speaker 05: What about someone who can't lift their arms? [00:50:05] Speaker 05: they walk through the metal detector right and this may be I know that in the standard operating procedures March through some of this but it wasn't entirely clear to me on some cases if you go through the [00:50:18] Speaker 05: metal detector. [00:50:19] Speaker 05: First of all, how do they know you're someone who can't lift their arms? [00:50:22] Speaker 02: You have to say that. [00:50:24] Speaker 02: You have to say it. [00:50:25] Speaker 02: Often there are outwards signs, like, you know, the person is showing you, you can see visually. [00:50:32] Speaker 02: You know, I just think of like John McCain or Bob Dole. [00:50:39] Speaker 02: sort of somebody you can physically see, but it's not always the case. [00:50:42] Speaker 02: But the person would sort of communicate that they can't do that. [00:50:45] Speaker 02: And then the officer would then have discretion to say, OK, you can go through the walkthrough metal detector. [00:50:50] Speaker 05: OK, you go through the walkthrough metal detector. [00:50:52] Speaker 05: And then even if it doesn't alarm, does that person get a pat down? [00:50:56] Speaker 02: No. [00:50:57] Speaker 02: My understanding is that person would not get a pat down if the [00:51:02] Speaker 02: metal detector did not alert, unless, for example, they were pulled out for a random selection. [00:51:09] Speaker 02: And our point as far as the Rehabilitation Act is, if that's what you want, then just you can apply for a pre-check, and you would get exactly that same treatment. [00:51:20] Speaker 02: So if that's the accommodation we're talking about, there's an existing way to do it. [00:51:24] Speaker 02: And our view is, if that's available to the petitioner, [00:51:29] Speaker 02: There's no sound basis for the court to order some other kind of accommodation that would be more detrimental to TSA's security screening program when this existing mechanism [00:51:41] Speaker 02: uh, is available. [00:51:43] Speaker 02: And again, that was the exact holding of the first circuit in Roskite, which said, if you wanted, if the petitioner wanted what she wanted, she could just get pre-check and that, and she did. [00:51:54] Speaker 02: And as that system expanded, she would get exactly the type of screening that she was looking for. [00:51:59] Speaker 02: Um, and for that reason, they said, we're not going to require a different accommodation, which would be, uh, [00:52:05] Speaker 02: for TSA to create a system of medical documentation and verification so that they could present that at the airport. [00:52:14] Speaker 02: There's no reason to do that. [00:52:16] Speaker 02: And I think that's particularly so when we're talking about an individualized claim here for one person. [00:52:22] Speaker 05: Speaking of the Individualized Act, [00:52:25] Speaker 05: Your briefing somewhat persuasively says we should have had administrative proceeding below. [00:52:33] Speaker 05: But when you look at the documents, when you look at the regulation, when a person submits a complaint, [00:52:47] Speaker 05: I'm just missing the acronym, but the celebrities CRCL is under an obligation to investigate, make findings of fact and conclusions of law, description of a remedy for each violation found, notice of right to appeal. [00:53:04] Speaker 05: None of that was done when Mr. Muir made a complaint to CRCL. [00:53:10] Speaker 05: And so why is there not a futility argument, or should we remand and say, can you actually do the thing that the regulation says you're supposed to do? [00:53:18] Speaker 02: Let me address that in several parts. [00:53:21] Speaker 02: One, that specific, and then the broader question. [00:53:23] Speaker 02: On the specific, I agree. [00:53:26] Speaker 02: And I reached out to CRCL through agency council. [00:53:30] Speaker 02: And the answer is that this was an error, that it should have been investigated at that point and it wasn't. [00:53:36] Speaker 02: I will say, just as it relates to this case, the complaint that was filed was not about the incident that is the subject of the petition for review in this case. [00:53:45] Speaker 02: It was about cheating. [00:53:45] Speaker 05: Identical incident. [00:53:46] Speaker 02: Yes. [00:53:46] Speaker 02: And also it was on its face an untimely administrative claim that came [00:53:53] Speaker 02: You have to file it within 180 days. [00:53:55] Speaker 02: It was filed more than a year after the incident. [00:53:58] Speaker 02: But all that aside, we are not making an affirmative argument here that you cannot reach the merits because of a failure to exhaust administrative remits. [00:54:08] Speaker 02: We're not making that claim here. [00:54:10] Speaker 02: We only brought it up to make it the point that I think this court is making here, which is that there's a lot of unknowns about the facts of this case, how often the petitioner has [00:54:23] Speaker 02: a situation in which AIT would alert. [00:54:26] Speaker 02: Is it sometimes, always, occasionally, frequently? [00:54:32] Speaker 02: What can be done about it? [00:54:33] Speaker 02: Exactly what he wants. [00:54:35] Speaker 02: There could have been a range of options, and none of that was explored or presented on a record. [00:54:39] Speaker 02: We're just here on a petition for review, and we have very few concrete facts about it. [00:54:45] Speaker 05: So given that, what are you suggesting? [00:54:49] Speaker 02: Well, what we think the proper answer here is petitioners should just [00:54:53] Speaker 02: apply for a pre-check if that's what he wants and the court should not order any additional accommodation. [00:55:01] Speaker 02: He's entitled to get that if that's what he wants. [00:55:05] Speaker 05: If we're unclear about whether that is satisfactory, it's much more [00:55:12] Speaker 05: intrusive background, someone who can't raise their arms doesn't require that. [00:55:18] Speaker 05: So if there's a way for him to be in, I mean, it sounds like what you're saying and to some extent what Mr. Muir is saying is like the standard thing in a rehabilitation act situation where there should be some back and forth. [00:55:33] Speaker 05: What's possible, what's easy, what's not an undue burden and what would work for you among the [00:55:39] Speaker 05: the non-burdensome options. [00:55:42] Speaker 05: And if we thought that there's not a categorical reason to dismiss or grant this case, [00:55:50] Speaker 05: What would you suggest we do? [00:55:53] Speaker 02: What I would suggest you do is you would say on this record before this court, we do not see any basis to order an accommodation under the Rehabilitation Act when pre-check is available and appears based on the record before us to give him the relief that he wants. [00:56:08] Speaker 02: But if there's something beyond that that the commissioner wants now or in the future, [00:56:14] Speaker 02: He's free to file precisely that kind of claim either directly with TSA or with CRCL. [00:56:20] Speaker 02: And there can be back and forth. [00:56:22] Speaker 02: And this court would expect TSA to do the investigation that CRCL erroneously did not do before. [00:56:28] Speaker 02: And I think you could decide the case on that basis. [00:56:31] Speaker 05: But then he would have to go do a whole new case. [00:56:33] Speaker 05: Or he'd have to go try to travel again, try to go by air. [00:56:37] Speaker 05: I mean, if we were to remand based on [00:56:42] Speaker 05: He wasn't required given his past experience to do the administrative thing, but it'd be a good idea to do it now. [00:56:48] Speaker 02: I mean, I think it would be within your authority to say go back to the agency and have that back and forth without him having to file something new. [00:56:58] Speaker 02: I mean, it's not like there's a filing fee for that, but [00:57:03] Speaker 02: I don't think that we have a preference between saying go write a letter, Mr. Muir, versus agency go back and talk about it. [00:57:10] Speaker 05: I thought you were saying deny this case and let him in the future file a new one. [00:57:14] Speaker 05: It seems a little rich when the administrative process was apparently [00:57:21] Speaker 05: not fruitful in this very way. [00:57:23] Speaker 02: Well, with respect to the claims under the APA statutory authority, I think that you would... I'm bracketing those. [00:57:31] Speaker 02: Okay. [00:57:31] Speaker 02: But bracketing those, with respect to the Rehabilitation Act, I think you would... I don't know whether you need to have a disposition of denied or... I mean, I don't think you would grant the Rehabilitation Act claim because we don't... If there's a mystery over exactly what we're asking for. [00:57:46] Speaker 02: But if you say, [00:57:49] Speaker 02: We don't really know. [00:57:50] Speaker 02: And there's a range of options and go back and discuss it with the agency. [00:57:54] Speaker 02: I think we'd be fine with that disposition. [00:57:56] Speaker 02: But I do think it would be helpful to sort of have some guidance from the court on exactly [00:58:03] Speaker 02: what you think appropriate accommodations would and wouldn't be depending on what they're asking for. [00:58:08] Speaker 02: So if what they're asking for, we would ask you to say, if what's being asked for is the option to go through a walkthrough metal detector, that the answer to that is the government, it doesn't have to do anything more and provide what it already has, which is the pre-check option. [00:58:24] Speaker 02: But if he's asking for something else, which is, for example, the ability to go into a private room and [00:58:32] Speaker 02: and disrobe. [00:58:33] Speaker 02: I mean, I think there's lots of reasons why we wouldn't want to do that. [00:58:37] Speaker 02: I don't know that they're security based, but we haven't really considered that. [00:58:43] Speaker 02: So I think we could, but I would sort of like you to know whether that's something that's the court considers to be an option or if the answer is the only thing that's really [00:58:53] Speaker 02: on the table is you have to be exempt from a pat down under any circumstance. [00:58:59] Speaker 02: I mean, it's our view that under no circumstances, can we agree to that? [00:59:04] Speaker 04: One of the problems with this case is that [00:59:09] Speaker 04: It's on direct review, instead of before a discrete court where it could be and should be evidentiary hearing ceiling with this. [00:59:20] Speaker 04: The question whether an accommodation is effective [00:59:26] Speaker 04: It is a material fact that has to be established by the plaintiff in the case. [00:59:33] Speaker 04: And all we have are pleadings. [00:59:35] Speaker 04: We don't have any evidentiary findings or any of the sort. [00:59:41] Speaker 02: That's right. [00:59:42] Speaker 02: And I think those could be gathered in an agency proceeding. [00:59:48] Speaker 02: And I think that was sort of our point. [00:59:50] Speaker 02: And I think the only question is whether you would, if you decided that what was required was that kind of a proceeding and you would remand for that, we would just ask that the court provide some explanation about sort of what's on the table and what you view about those things. [01:00:07] Speaker 02: I think that would be helpful for all the parties who know. [01:00:10] Speaker 02: I do also want to bring up one point just so that everyone is sort of, I guess, aware of it. [01:00:18] Speaker 02: And I'm not quite sure what the answer is, but what happens after that proceeding with respect to future federal court proceedings if the petitioner is unhappy with the answer given by TSA? [01:00:32] Speaker 02: And we are here on a position for review and it's not 100% clear to me whether that's really the appropriate way to bring a challenge to. [01:00:44] Speaker 02: agency administrative procedures under the Rehabilitation Act. [01:00:48] Speaker 02: I understand that in Ruski, the First Circuit thought that that is how you bring the case, although a careful reading in that case shows that neither party disputed it and the court sort of [01:01:04] Speaker 02: lack of a better term kind of glossed over the issue a little bit. [01:01:07] Speaker 02: And then subsequent district court cases in Mr. Muir's cases have held that Rehabilitation Act claims should go directly on a petition for review. [01:01:16] Speaker 02: And for some of the reasons that Judge Randolph said, I'm not sure that that's [01:01:21] Speaker 02: the correct avenue that maybe a district court would be better would better handle the fact finding in that scenario. [01:01:28] Speaker 05: And it's also a claim splitting problem where there's a challenge to the statutory. [01:01:32] Speaker 05: I mean, given the combination of challenges in this case, one, you know, that the statutory authorization for the standard operating procedures comes directly rehabilitation that goes separately. [01:01:43] Speaker 02: I right I understand that I understood the premise of my argument was that you would on this petition for you dispose of those hate claims on the merits the APA claim and the only thing that would be left would be the Rehabilitation Act claim and if that's the case [01:02:02] Speaker 02: I just want to sort of be clear that it may be the case that the way you proceed after any future administrative proceedings is through district court rather than a petition for review. [01:02:14] Speaker 02: And the reason I want to make that point clear is because in prior cases involving Mr. Muir, the district courts have held that he should bring that case in the Court of Appeals. [01:02:29] Speaker 02: And they did so based on Ruskai, which I think did not [01:02:32] Speaker 02: maybe thoroughly examine the issue. [01:02:34] Speaker 02: And so I think that's an open question. [01:02:36] Speaker 02: And I don't want to be accused of sort of sandbagging later. [01:02:39] Speaker 02: So I just want to put that out for the court's awareness that it's not necessarily the case that if you were to remand for administrative proceedings, that it necessarily returns to you on the same petition for review. [01:02:50] Speaker 02: And I just want to be candid about that issue. [01:02:55] Speaker 06: OK. [01:02:55] Speaker 06: That's helpful. [01:02:56] Speaker 05: Thank you. [01:02:57] Speaker 02: If there are any further questions, I'm happy to answer them. [01:03:01] Speaker 05: OK. [01:03:01] Speaker 05: Thank you. [01:03:03] Speaker 05: Satisfied. [01:03:04] Speaker 05: Now in terms of rebuttal, did Mr. Weaver reserve any rebuttal time? [01:03:19] Speaker 01: Your honor, just a couple of quick points on our bottle. [01:03:22] Speaker 01: With respect to the rehabilitation, I claim the government's only argument that it has made is that it would be an undue burden to provide an accommodation to Mr. Muir. [01:03:30] Speaker 01: We've had a lot of discussion today about what precisely the accommodation is, and I appreciate the court's concern about that. [01:03:37] Speaker 01: But in the briefing, at the very least, the accommodation that Mr. Muir has [01:03:42] Speaker 01: is in need of is access to the walk through metal detector, as opposed to the AIT machine, because that will significantly reduce the chance that he is subjected to a targeted painful pack down. [01:03:55] Speaker 01: And I would just emphasize that the government's rationale for why that type of accommodation would be an undue burden [01:04:02] Speaker 01: And the government's rationale for why the standard operating procedures are not arbitrary and capricious is completely hollow for a lot of the reasons that we've discussed today. [01:04:12] Speaker 01: All the categories are for many of the categories of individuals who are given sort of access to walkthrough metal detectors as the primary option. [01:04:22] Speaker 01: The notion that there's some sort of visual indication necessarily indicating that they legitimately have whatever the problem is that causes them to go through that machine is wrong. [01:04:35] Speaker 01: It's not the case that for individuals who, for instance, cannot raise their hands, [01:04:41] Speaker 01: That is something that anyone who was trying to get through and access a walkthrough metal detector could act and pretend like that was the case. [01:04:52] Speaker 01: There's no way for a TSA agent to verify that there's a medical problem that necessitates putting them through the walkthrough metal detectors. [01:05:02] Speaker 01: So Amicus would just emphasize that I do think the reasoning on both the question of would [01:05:09] Speaker 01: primarily accessing walkthrough metal detectors constitute a primary burden? [01:05:14] Speaker 01: And then is the denial of Mr. Muir and individuals in his circumstances of access to walkthrough metal detectors as the primary screening mechanism, whether that's arbitrary and capricious? [01:05:26] Speaker 01: I think the government's rationale on that is illogical and violates both the arbitrary and capriciousness standard and then also the Rehabilitation Act. [01:05:39] Speaker 05: We don't know how many people are similarly situated, how many people who use the airports are similarly situated to Mr. Muir Dewey. [01:05:48] Speaker 01: No, there's nothing about that. [01:05:51] Speaker 05: All right. [01:05:52] Speaker 05: Thank you. [01:05:52] Speaker 05: Thank you. [01:05:55] Speaker 05: And did Mr. Muir reserve rebuttal time? [01:05:57] Speaker 05: You don't need to take it, but if you want to. [01:06:06] Speaker 03: I would just say thank you, your honors, for granting me permission to appear in front of you today. [01:06:10] Speaker 03: And I'll stand on my briefs. [01:06:13] Speaker 05: Thank you. [01:06:14] Speaker 05: Thank you. [01:06:15] Speaker 05: And Mr. Weaver, you were appointed by the court to represent the interests of appellant in this appeal. [01:06:25] Speaker 05: And the court very much thanks you for your able assistance. [01:06:29] Speaker 05: Cases submitted.