Wednesday, May 21, 2003
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Injunction Vacated as Ninth Circuit Panel Sends Airport Screeners Case Back to Takasugi
From Staff and Wire Service Reports
A constitutional challenge to the post-9/11 statute requiring that all airport luggage screeners be citizens of the United States was returned to U.S. District Judge Robert Takasugi yesterday by the Ninth U.S. Circuit Court of Appeals.
The three-judge panel that heard arguments May 7 vacated Takasugi’s preliminary injunction against enforcement of the law and said the judge should reconsider it because the statute was amended after the injunction, which has never been implemented, was issued.
As originally enacted, the Aviation and Transportation Security Act provided that only citizens could become screeners for the Transportation Security Administration, which was established by Congress to take over the function that had previously been performed by private contractors at most airports. The TSA was intended to cure what were widely perceived as gaps in the security of the screening process, illuminated by the Sept. 11 attacks.
Nine non-citizen screeners who had been employed by private contractors at Los Angeles and San Francisco international airports, but were barred from applying to the TSA, sued in the U.S. District Court for the Central District of California. One of their attorneys said that 80 percent of privately employed screeners at San Francisco and 40 percent at LAX were non-citizens.
The ACLU estimates 7,000 green card holders lost positions as screeners when the law was passed.
Congress subsequently amended the statute to allow employment of U.S. nationals, a category consisting primarily of persons born in American Samoa, which is administered by the Department of the Interior. Of the nine ex-screeners who sued, one is from American Samoa and is no longer part of the case, the others are permanent legal resident aliens—more commonly referred to as green card holders—and still cannot apply to the TSA although they can serve in the military and hold many other government jobs.
Mark Rosenbaum, the local ACLU legal director who is lead counsel for the plaintiffs, said he fully expected Takasugi to reaffirm the injunction.
“The core legal issues remain the same,” he told the MetNews. “It’s un-American for the president and Congress to permit noncitizens to give up their lives in Iraq but not to be airport screeners.”
He said he expects to return to court soon and argue that the case should be decided on the basis of the briefs filed in the Ninth Circuit, thus avoiding the delay that would occur if the district judge requires new briefs or arguments.
The Justice Department’s Mark Stern, who argued for the government, maintained that the ban on hiring resident aliens as screeners serves a legitimate purpose.
“A restriction of employment of aliens can be justified as promoting naturalization,” he told the Ninth Circuit panel. “We’re not breaking new ground here. This has been established for decades.”
Even if the injunction is readopted, the immediate impact will be minimal, because the government is not hiring new screeners and is laying some of the current screeners off, including four percent of the workforce at LAX. But a ruling for the plaintiffs would make it possible for green card holders to apply for any jobs that become available in the future.
The case is Gebin v. Mineta, 02-57033.
Copyright 2003, Metropolitan News Company