As you probably know, both parts of that happened to me. However, that's covered in two separate lawsuits (in D. Mass. and W.D. Wash. respectively). Unless I can relate it to the SFO incident or the liquids policy, I can't get discovery about it yet.

(I only suggest calling them "investigatory officers", not "officer" unqualified. "Screeners" also works.)

And, again, this happened to me. 2nd link above. STSO explicitly threatened to have me removed because I said I was neither willing nor able to go through AIT, and had my bags (which were post-xray) returned to me. I interpreted it as a very clear threat made under color of state law (e.g. for disturbing the peace or other generic pseudo-crime), even though I know that nobody in TSA (except TSIs & FAMs, who are cops) has any authority to do so. A threat is a threat, even if there is no lawful basis for it.

I kinda have everything covered when it comes to things the TSA can do to someone. I've been the target of pretty much all of it. :p

However, in this lawsuit, discovery has to be related to the facts of this case.

(It bears noting, however, that TSM David Smith, aka the "star" of the SFO video, listed his title as "TSM/Behavior Detection". So to my view, SPOT related stuff is on the table as discoverable, since it might have influenced his decisions to take action against me.)

I disagree. TSA has a policy that LGA's greater than 100 ml are not allowed yet dispose of those items at the checkpoint and at some later time in normal refuse disposal systems. If TSA is only allowed to interdict WEI then under what authority can TSA prohibit non-WEI items. If the claim is that these items are potential WEI then reasonableness would dictate that they be treated as such.

I have nothing substantive to add other than I wish to congratulate you for your perseverance and fortitude in pursuing the case. May it continue.

I agree both that TSA is limited to WEI, and that evidence of how they treat liquids at checkpoints would go to prove lots of it — e.g. (a) whether the policy is in fact limited to WEI, (b) whether there has ever been any liquids WEI intercepted at a checkpoint, and (c) whether my proposed policy, which would significantly reduce the harm to passengers (both with & without disabilities), would in any way harm the security of transportation.

My point was narrow: a "reasonable person" question is either subjective (i.e. about that person's individual state of mind), or an application of law to facts (e.g. for objective reasonableness). I can ask about the latter in requests for admission. Asking about the former is more limited, however, since it'd be hard to get evidence of it outside of interrogatories & depositions — and not relevant except for the people involved in the incident.

(ETA: … and for the TSA itself. I can depose the agency per se as to what "it" thinks, using a 30(b)(6) deposition. I intend to do that too, of course, but that's going to be one of the very last things, once I have a ton of evidence to use to pin them down.)

Obviously I do intend to depose the people involved, and asking them about their subjective beliefs is going to be part of those depositions.

However, the vast majority of discovery is document production. If I can identify it, it already exists, it's not privileged, and it's related, I can probably get my hands on it. Which is why I rephrased your suggestion into documents I can ask for.

Thanks!

Thanks, I understand what you are saying but think my line of questions are pretty narrow. Another angle would be why TSA isn't complying with federal law for hazardous waste disposal. TSA either knows those items are not dangerous or is in violation of federal law in its actions.

Are you going to attempt a deposition of the TSA Administrator or of "Francine the Googling TSA Lawyer"?

"Why?" is an interrogatory again. I can do that, but I have to be very careful as it's a limited resource and there are tons of ways to squirm out of giving a useful answer to the question. Remember, lawyers are going to answer this stuff, and they are not trying to be helpful to me.

However, "please give me documents regarding TSA checkpoints' compliance with 49 CFR Parts 171–175 or other applicable hazmat regulations" is perfectly fine. So is a request to admit that it wouldn't harm aviation security to let passengers carry on anything that's permitted by FAA regulations. (Which are actually airplane safety based.) So is a request to admit that TSA's prohibited items list includes items that are not a threat to aviation if carried on board.

Francine Kerner and David Pekoske are both on my list of potential deponents. So is Curtis "Blogger Bob" Burns, and a lot of other people you've never heard of who are more directly involved. I haven't yet decided whether to depose them or not, however. I only get 10, 7-hour-per-person depositions by default, and I have to use them wisely. (Plus if it's Kerner, I have to get around attorney/client privilege issues.)

Generally depositions come late in discovery, after most of the documents are already produced. That way you have all the evidence you need to pin them down, know what to ask, impeach them on the spot, etc. Just like having a witness testify at trial, you generally don't want to go into a deposition without already knowing what their answers will probably be.


ETA: Also, a 30(b)(6) deposition is much more useful than deposing the administrator. The administrator might not personally know about something, and if so, he can say that. But if I have a 30(b)(6) deposition, if they say they don't know, that means TSA the agency doesn't know, and it's binding on the agency. Way more powerful.

I would focus on who signs off on Management and Screening Directives. If the Administrator signs them then how can he deny having knowledge?

And thinking of screening procedures is TSA required to comply with the APA before starting a program to screen edibles or such?

I'd bet that TSA claims the owners of these items voluntarily abandoned them and that TSA is providing s:rolleyes:me sort of public service by disposing of them in the way that they do.

He can deny remembering on the spot. Or he might not remember details I want to get into. A 30(b)(6) deponent can't do either of those things, because everything they say is attributed to the agency itself, including lack of knowledge.

ETA: Also, he's probably only on the high level decisions. So e.g. it's quite possible that Pekoske never even knew about the underlying intelligence, testing, conferral with outside groups, etc. Especially for a policy that was enacted in 2006, a decade before he was hired. A 30(b)(6) deponent, again, can't get out of any of that. So long as I give them fair warning of what topics I'm going to cover, they are required to know the answers on behalf of the entire agency.

Unless there's something I want from the Administrator personally, there's really not much reason to depose him. Agencies also tend to fight attempts at "pinnacle" depositions like that, on the basis that e.g. it's wasting the person's time when there are other options available that are just as useful to the deposing party and not as burdensome/costly for the agency. Which, to the extent it's true, is actually a fair point.

They are. However, my APA claims were removed from this case, and considered to come under my pending case in the 1st Circuit.

That doesn't mean APA issues are entirely outside of discovery here — e.g. it could easily go to whether the policy is reasonable, whether it was properly informed, whether people have adequate notice, etc. All of those things are predicates to what constitutes a "reasonable accommodation" under the Rehab Act, since if the base policy isn't reasonable then they can't demand a case-by-case accommodation exception to it in the first place. And there are disparate impact issues and so forth.

FWIW, here's TSA's official policy about disposing of liquids and other "voluntarily abandoned" property. Decide for yourself. ;)

So, if I leave a bottle of water at the checkpoint and the TSA d:rolleyes:esn't consider it HAZMAT (and clearly they do not) I should have 30 days to reclaim it. :D :p :D

Maybe 40 CFR 261, Ignitability.

You've probably already thought of this, but I'll say it anyway just to get it in the thread: I'd recommend including in your discovery any and all communications, advertising, or decorative materials, both physical and electronic (including but not limited to, memoranda, notices, emails, directives, posted orders, pamphlets, leaflets, posters, wallpapers, screensavers, newsletters, etc) mentioning screening procedures related to liquids, gels, or aerosols; screening those with physical or mental disabilities; screening assistive devices; professional comportment/behavior/conduct while on duty; choice of/escalation of screening methodology for specific situations - from TSA, from the SFO FSD, from Covenant, and from the SFO airport authority itself.

You'll be buried under a mountain of materials, but part of your strategy should be to show how the hundred different cooks in the kitchen issue confusing and contradictory orders to the staff under them, many of which likely violate both TSA's stated policies and the actual law. TSA may issue a policy memorandum that says one thing, but if that is contradicted by a poster in the TSO break room, or an email blast sent by the FSD to all TSOs at one particular airport, you might only get the policy memorandum and not the poster.

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.

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.

No, That's EPA regs. Not applicable at all.

ETA: Correction: EPA regs are applicable to stuff at the checkpoint itself, e.g. how TSA handles alleged hazmat or other materials left behind. However, it's not applicable to what you travel with, which is under FAA regs.

49 CFR Ch. 1 Subch. C has all the FAA regs about hazmat. It includes 49 CFR 173.120, which defines "flammable liquid".

It also has 49 CFR 175.10, which has a variety of exceptions for passengers & crew.

Note that TSA (unlawfully unpromulgated) pseudo-regulations are stricter than FAA's.

... decorative materials & wallpapers? O.o? Is there something you're thinking with that?

What do you mean by "choice/escalation of screening" and "specific situations"?

"Communications" is probably too ambiguous. I will ask for their discussions of the policy with outside groups like Amer. Diabetes Assoc., but that's HQ level. And complaints, claims, etc — those are all in centralized databases.

Why would SFO have this material? They don't conduct the screening. They might have a contract with Covenant, which of course I'll be requesting, but that's a separate matter.

I have a couple planned ones that talk broadly about all training materials, as well as a variety of specific emails, national shift briefs, and the like which I know are relevant. But hm, fair point about things like posters and other ancillary training / guidance material, and especially about difference between written policy and implemented (especially given the "TSOs have the final say" meta-policy). I'll have to think some more about how to pin that down.

I know, for instance, that the policy about hydrogen peroxide / contact lens solution varies between airports; I have a record from them that says so explicitly. So of course I'll be looking into how else policies vary or are implemented arbitrarily & capriciously, both written & practice.

My expectation is they'll either hold out on me (claiming SSI etc while refusing to conduct a background check for me) or bury me with redundant stuff. TBD. For damn sure they aren't going to be happy about me finally getting to conduct discovery. :p

There are some fairly broad rules about not screwing other parties with ESI (electronically stored information), and I won't tolerate them just giving me a bunch of scans or the like that are impossible to search. Also as above, I know that a lot of the info is already in database format, e.g. contact center, complaints, incident tracking, checkpoint stats, performance stats, etc etc. I like databases. :)