Posted on 11/26/2002 9:55:12 AM PST by ricer1
APA Judge Grants Screeners Temporary Victory Asianweek.com Reach Emil Guillermo at emil@amok.com
If you were wondering when the law would come into play for those beleaguered airport baggage screeners, we finally got some legal maneuvering last week.
You’ll recall that right after Sept. 11, Congress was so eager to deal with the threat of terror that it put the airports under federal authority, with the Aviation Transportation Security Act. That in turn put all the screening under the control of the feds. But it came with a strange requirement: All screeners had to be U.S. citizens.
APA Judge Grants Screeners Temporary Victory Asianweek.com Reach Emil Guillermo at emil@amok.com If you were wondering when the law would come into play for those beleaguered airport baggage screeners, we finally got some legal maneuvering last week.
You’ll recall that right after Sept. 11, Congress was so eager to deal with the threat of terror that it put the airports under federal authority, with the Aviation Transportation Security Act. That in turn put all the screening under the control of the feds. But it came with a strange requirement: All screeners had to be U.S. citizens.
Of the 28,000 screeners nationwide who were let go, then forced to reapply for their jobs, 8,000 were non-citizens. They were barred from applying for jobs they had done for years.
Of the non-citizens, 800 were based in the Bay Area, and back in January, nine of them filed a lawsuit with the assistance of the ACLU, claiming the process was discriminatory.
Why should the screeners be forced into citizenship? What relevance did citizenship have?
When pilots and jet engine mechanics aren’t even required to be citizens, why are baggage screeners suddenly given that hurdle, in the name of airport security?
But the larger issue was the categorical exclusion of non-citizens. Wasn’t the government guilty of discrimination? Non-citizens have rights too, don’t they?
You bet they do. Last week, after nearly a year of no-news on the legal front, U.S. District Judge Robert Takasugi made a courageous ruling.
The government had made a motion to dismiss the non-citizens’ case and the judge denied it. The feds claimed that Congress had “broad authority” on issues such as foreign policy and immigration.
But was the exclusion of screeners such an issue? It was not, according to the judge. The feds claimed that screeners were like police, who are required to be citizens. But was it part of the government’s “obligatory function” to provide baggage screening?
Takasugi denied the motion to dismiss, and now the trial goes forward.
But why wait for a trial if the screeners are to lose their jobs this week? The ACLU moved for some kind of relief now. It all made sense to the judge, who felt the plaintiffs had alleged a sufficient “deprivation” of their constitutional rights “to warrant a finding of irreparable harm.” Judge Takasugi granted the nine plaintiffs a temporary injunction allowing them as non-citizens to re-apply for their old jobs.
More than one news organization was heralding it as a victory. And it was. Here’s a judge who is essentially saying this key part of the homeland security act is unconstitutional.
That’s big stuff.
But there’s also a catch.
The decision was applicable to the nine plaintiffs, not to the entire class of non-citizen screeners.
That’s right, only the named plaintiffs — five at SFO, and four at LAX — will get the benefit of the temporary injunction. All others are out of luck — for now. Back in January, it seems the ACLU calculated that a suit on behalf of individuals could be more flexible, especially for a settlement strategy.
They didn’t figure they would get lucky and win a key ruling. They didn’t figure on drawing an Asian Pacific American judge — who was a Carter appointee, had spent part of his childhood in a Japanese internment camp, and understood clearly the implications of the case.
He knew you can’t discriminate against non-citizens. He knew that the constitution applied to them as well. So now the ACLU is trying to recover by expanding the suit to the entire class.
But even that may run into a snag. The feds can still appeal the judge’s ruling.
And if the case should go to its logical conclusion — the Supreme Court — what’s the likelihood of getting five justices to back the rights of non-citizens?
Sources close to the case told me they had Congress in mind all along as the ultimate place to get justice for the screeners. Currently, there is an amendment to the Homeland Security Act authored by Sen. Dianne Feinstein that would grandfather in the non-citizen screeners. But it’s unclear if it can garner the support it needs.
There’s even been a move to table the entire act because of concern for privacy and civil rights. Further delays in passage won’t help the unemployed screeners.
So what are we left with? The non-citizen screeners who were party to the suit get to re-apply.
But no one else does. Yet.
Would it matter anyway? Most of the jobs that were open have already been given away. At SFO, the few non-citizens who were still working up to the deadline on Nov. 19 were all fired.
All told, less than ten percent of incumbent screeners have retained their jobs. In fact, screeners who held out hope that a legal win would restore their jobs were mistaken. In no legal remedy is there a guarantee of employment, just the guarantee of application.
No wonder there wasn’t much of a celebration among screeners after last week’s philosophical victory. To hear something positive about the screeners was definitely stunning. But once it sunk it, people were left with this realization: If you need a lawyer to understand what you’ve got, you haven’t got as much as you think.
HEROES:
The U.S. Supreme Court ending misuse of public funds
and a coup by Mary Frances Berry (D, US Commission of Civil Rights).
HEROES:
Judges Guy Jr., Leavy, Silberman - Expanded wiretap guidelines do not violate the Constitution
HEROES:
9th U.S. Circuit Court of Appeals - Court blocks legal challenge to detention of Afghan war prisoners
ZERO:
In Los Angeles, US District Judge Robert Takasugi of Los Angeles issued a preliminary
injunction blocking enforcement of the US citizenship requirement for airport guards.
ZEROES:
In Washington, US Appellate Judges Clevenger, Friedman and Prost
ignore false statements and fraud at the US Patent Office to prevent US citizens
from ever patenting instruments capable of looking for alternative energy sources.
The Court purported measuring energy output has "no utility" for the US
even as Amicus Curiae were gagged who would have testified otherwise,
and as foreign companies (e.g. Mitsubishi) have staked out all relevant patents.
[Meanwhile, the US Patent Office does routinely allow patents using
astrology to predict lottery numbers, claiming they have "operability" and "utility".]
They're not? Why not?
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