Originally Posted by
Boggie Dog
TSA could make that claim but the facts are that TSA disallows LGA's greater than 100 ml through passenger screening while allowing the same items through checked baggage screening. The rule makes no more sense than the method of disposal. Either a LGA presents a threat or does not and since TSA is only allowed to interdict WEI I cannot understand how TSA can defend their position.
101 ml LGA is ok through this door but not the door next to it. That is TSA's security procedure.
It's not
impossible for that to be a reasonable rule. For instance, if (in the hypothetical) there were some liquid that, when
manually manipulated, could be used to make a bomb but is not itself WEI, then there'd be an argument that checking it is fine (because your suitcase isn't a chemist) but taking it through isn't (because maybe you'll synthesize it in the bathroom).
That's an empirical question, though. One that I'll be looking into.
Originally Posted by
Boggie Dog
I was referring to the Administrative Procedures Act. Shouldn't TSA have to propose changes before enacting them? Requiring all electronics bigger than a cell phone to be removed or unwritten requirement to remove food items shouldn't be done willy nilly and the public should have a voice before such changes are enacted.
Yes, they should. In fact, I allege that TSA maintains an
enormous body of secret law that is in willful violation of the APA. This is no exception.
However, N.D. Cal. decided that 49 USC 46110 deprives if of jurisdiction to hear the APA claims, and that my existing 1st Cir. case covers them. So, at least for now, I have to pursue the APA parts in the 1st Cir. case, not this one (which is N.D. Cal.).
There's generally no discovery per se in appellate court — because appellate courts are meant for reviewing things where the record has already been developed below, e.g. in district court or an administrative proceeding. I'm challenging the constitutionality of 49 USC 46110 itself, in part for that reason; it's obviously false as applied to TSA's use of secret "orders" to promulgate secret "policies" on the basis of pseudo-classified "SSI", affecting millions of travelers a day.
I do have a pending motion in the 1st Cir. to compel discovery against TSA in order to determine
what the full record is (e.g. what
is the definitive complete list of TSA policies?) and produce the full administrative record, for review. TBD how the court rules on that. But it's very unlikely that I would get full civil discovery (RFAs, depos, document production, etc) unless I manage to get the 1st Cir. to decide that the case should be heard by a district court after all. Discovery isn't even
covered by the federal rules of appellate procedure (FRAP), only the civil rules (FRCP).
On the other hand, the FRAP doesn't cover motions to preserve evidence either, but I filed and won one of those (for a few months; TSA freaked out after I won that motion, and eventually managed to convince the court to rescind it). And suing an agency to challenge an entire body of secret law is more or less unheard of… because agencies normally comply with the APA. Alas, TSA doesn't, so I do what I must (because I can).