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Sai, do you have any help to conduct discovery and to review any documents you receive? I would hope a few legal types would quietly see if they can assist you even if only behind the scene.
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Originally Posted by Boggie Dog
(Post 29703610)
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. That's an empirical question, though. One that I'll be looking into.
Originally Posted by Boggie Dog
(Post 29703641)
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.
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). |
Originally Posted by Boggie Dog
(Post 29703695)
Sai, do you have any help to conduct discovery and to review any documents you receive? I would hope a few legal types would quietly see if they can assist you even if only behind the scene.
If you know of anyone who might be interested in helping, please have them contact me. I can provide references to prior pro bono counsel who can vouch for me as a client. I'd also be happy to have partial help, e.g. deposing witnesses (mainly in CA, DC & VA), researching specific legal questions, reviewing documents, expert witnesses on liquid explosives, security, & disability, funding; etc. |
Originally Posted by saizai
(Post 29703246)
FWIW, here's TSA's official policy about disposing of liquids and other "voluntarily abandoned" property. Decide for yourself. ;)
Here's the policy on "voluntarily abandoned" property. |
Originally Posted by saizai
(Post 29703714)
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. 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). |
Originally Posted by saizai
(Post 29703789)
My apologies; that one was about lost or unclaimed property.
Here's the policy on "voluntarily abandoned" property. H. Prohibited Items: Refers to weapons, explosives, incendiaries (material capable of causing fire), and liquids, aerosols, creams, and gels in excess of 3oz {and not contained in a one-quart, zip-top plastic bag}, along with other items as defined in Attachment A, Disposition Guidance Table for Voluntarily Abandoned Property (VAP) Prohibited Items. According to TSA MD 200.52 if I have a 6 ounce bottle of shampoo and can fit it into my explosion proof zip-top plastic bag it should be allowed. |
Originally Posted by Boggie Dog
(Post 29703954)
TSA can't even follow its own Management Directives it seems.
According to TSA MD 200.52 if I have a 6 ounce bottle of shampoo and can fit it into my explosion proof zip-top plastic bag it should be allowed. The real rule is contained in the Screening Checkpoint SOP, y'see. Can you see that? Don't be silly, of course not, it's sensitive! So is the "serious prohibited/illegal items list" that was part of their SPOT study. 'cause what if people knew the sort of things they were referring people to cops about? That wouldn't do at all. But don't worry, they have a press release and a website about prohibited items. That's cool, right? I mean, it's not really the rule, and the rule isn't really the rule either because it's always up to the TSO, but... [insert spokesbabble here] |
Originally Posted by saizai
(Post 29703068)
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.)
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Originally Posted by Loren Pechtel
(Post 29705488)
Curiosity: What keeps them from just running you in circles with non-answers and running out the clock?
However, with a few exceptions (e.g. privilege, protective order, abusing the witness), they do have to answer the questions I ask in a deposition. I can ask immediate follow-up questions, or impeach them if they give contradictory responses. If I think they're refusing to comply, I can go to the judge and get an order to compel or various other things. The deponent is the only one allowed to answer questions; their lawyer has to sit there and shut up, except for very briefly stating objections. Coaching the witness isn't allowed. If a regular deponent gives answers like "I don't recall", I can ask about their memory, ask about other things before or after to see whether they have selective amnesia, etc. If a 30(b)(6) deponent gives answers like "I don't recall", then I get to use that against the agency; there's no protection of human memory fallibility. So it really depends on what exactly you mean by "non-answers". |
Originally Posted by saizai
(Post 29703744)
Unfortunately I do not, despite having made extremely diligent efforts to find help. I'm poor (IFP status), and the case is primarily injunction based (so not likely to get a big fees & damages payout). I do have some damages claims (mainly against Covenant), but it's not the sort of risk-to-payout ratio that gets lawyers wanting to take it on contingency. And it's not going to be an easy or short case; the government will fight it all the way, and it involves a number of legal issues of first impression.
If you know of anyone who might be interested in helping, please have them contact me. I can provide references to prior pro bono counsel who can vouch for me as a client. I'd also be happy to have partial help, e.g. deposing witnesses (mainly in CA, DC & VA), researching specific legal questions, reviewing documents, expert witnesses on liquid explosives, security, & disability, funding; etc. |
Originally Posted by zitsky
(Post 29708947)
How about a GoFundMe page? I would donate.
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Originally Posted by saizai
(Post 29707248)
That is, obviously, one possible way to frustrate a deposition.
However, with a few exceptions (e.g. privilege, protective order, abusing the witness), they do have to answer the questions I ask in a deposition. I can ask immediate follow-up questions, or impeach them if they give contradictory responses. If I think they're refusing to comply, I can go to the judge and get an order to compel or various other things. |
FWIW, I've begun taking discovery against TSA & Covenant. Whee. :)
Originally Posted by Boggie Dog
(Post 29709197)
Sai has been been on the attack for years so I would feel better supporting his effort.
FWIW, the court in my FOIA case has ordered that I post all the records from the FOIA requests at issue in that case. So, I'll be updating https://s.ai/foia#tsa within the next week or so with about 5,000 pages of documents, about 4,000 of which are TSA policies & procedures. Many of them never before released. [Discussion of Moderator action edited per FT Rule 18.]
Originally Posted by Loren Pechtel
(Post 29709361)
I'm thinking more along the lines of asking for clarification, pretending not to understand etc.
In fact, a deponent asking for clarification is a cooperative behavior. The uncooperative version is when a dpeonent privately "interprets" what you say in a way you don't intend and is unhelpful, doesn't tell you (they're not required to answer something you haven't asked), and answers as interpreted. Then you don't find out until after the fact that they were leaving themselves some weasel room to not-technically-lie. Pretending not to understand, however, is another thing entirely. That's sanctionable conduct. They're under oath for the whole thing. If they say they don't understand, and they're lying, that's actual perjury for which they can be fined or go to jail, just as much as if they did it on the witness stand — potentially together with their lawyer, if the lawyer was suborning it. Depositions are really really not a joke. You can be a pain, insist on extreme precision, give a misleading but truthful response, not volunteer info that you know the asker wants but hasn't technically asked, etc… but you had damn well better not lie. That includes lying about your lack of understanding or knowledge or memory. It's a pain to prove that someone's lying about their memory or understanding, but it can be done — e.g. noticing their selective amnesia, contradictions, training, prior statements, etc etc — and if a judge finds out about it they will be pissed. |
On the subject of unhelpful deponents, here's a reenactment of a real deposition.
One hopes it'd go better than that. :p (Among other things, this is why you go in very intensively prepared, with a ton of documents ready to refer to if necessary. TSA, like most of the government, has a bit of a fetish for having official documents with definitions of things. I'll be asking for those. For instance, what is a "gel" anyway?) (Also, incidentally, the deponent's lawyer is committing sanctionable conduct there by leading the witness, objecting in a manner outside of the set of permissible objections, having extended discussion instead of the witness, etc. He could get fined for that.) |
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