Airport Screener Curb Is Rejected

A federal district court judge in Los Angeles on Friday barred the U.S. government from enforcing a post-Sept. 11 law that permits only American citizens to work as airport screeners.

However, the ruling will have no immediate impact on staffing at Los Angeles International Airport or hundreds of other airports around the country, since most jobs created by the law already have been filled by U.S. citizens.

U.S. District Judge Robert M. Takasugi issued his ruling -- which ultimately could affect eligibility for screening jobs at every airport in the nation -- in response to a lawsuit filed in January by the American Civil Liberties Union.

Takasugi rejected a request from Justice Department attorneys that he stay his decision to issue a preliminary injunction pending an appeal.

“This is an extremely important ruling,” said ACLU lawyer Ben Wizner, who represented the plaintiffs, eight permanent resident aliens and one man from American Samoa, who held jobs as screeners at LAX and San Francisco International Airport.

“Our hope is that a strong statement from a federal judge” that the law’s constitutionality is dubious “will encourage Congress to reconsider” the hiring restriction, Wizner said.

Some members of Congress already have suggested amending the Aviation and Transportation Security Act, but no action has been taken.

One proposal would make individuals from American trust territories eligible for screening jobs. One of the plaintiffs is from such a territory -- American Samoa -- and Justice Department attorney Elizabeth Shapiro cited the potential change in the law in urging Takasugi not to grant the injunction.

Both Shapiro and U.S. Transportation Security Agency spokesman Robert R. Johnson said they would make no comment on a possible appeal until they had studied the decision.

“We are in the process of beginning to review the decision and decide what the next steps will be,” Johnson said.

Justice Department spokeswoman Barbara Comstock said that because the suit has not been certified as a class action, “the injunction does not apply nationwide, but only to the plaintiffs in this case.”

The ACLU suit contends that the citizenship restriction in the Aviation Transportation and Security Act, enacted last November, is a violation of constitutional equal protection rights.

ACLU lawyers also assert that the section of the act is “irrational” and could weaken airport security by removing thousands of experienced employees from the system.

Justice Department attorneys replied in briefs and in court Friday that there were legal precedents granting the government authority to restrict certain jobs to citizens.

They also argued that the plaintiffs had made no showing that they would be irreparably harmed if the injunction was not granted. Moreover, government lawyers contended that restricting the screening jobs to citizens would help restore confidence in airline security.

“That is the same mentality that led to the internment of Japanese Americans during World War II,” said Mark Rosenbaum, legal director of the ACLU of Southern California, after Friday’s hearing.

In addition, the ACLU attorneys stressed in a brief, “no government report has ever identified the citizenship or nationality of screeners as having any connection to deficiencies in aviation security.”

The suit also emphasized that there is no citizenship requirement for airline pilots, flight attendants, baggage handlers or National Guard troops stationed at airports to enhance security after the Sept. 11, 2001, terrorist attacks.

Takasugi, who earlier this week denied a government motion to dismiss the suit, disagreed with the government on all major issues.

In that decision, the judge acknowledged that “improving aviation security is a compelling governmental interest.”

However, he said, Justice Department lawyers had not demonstrated that “categorical exclusion of all noncitizens from employment as screeners is the least restrictive means” to achieve that interest.

Consequently, Takasugi said in his order Friday, the plaintiffs have “sufficiently alleged a constitutional deprivation to warrant a finding of irreparable harm.”

Irreparable harm is a critical element a plaintiff must demonstrate in order to obtain a preliminary injunction. The other is the likelihood that the plaintiff will ultimately win the case.

A judge also normally considers whether the balance of hardship favors the plaintiffs, and in some instances whether the public interest will be advanced by granting the injunction.

Takasugi said Friday that granting the preliminary injunction would simply “maintain the status quo” pending an ultimate determination of the law’s constitutionality.

In addition, Takasugi said, “Because the termination of plaintiffs’ employment could constitute a constitutional deprivation, the public interest will be advanced by granting the preliminary relief.”

Nonetheless, before Takasugi ruled, thousands of noncitizen screeners lost their jobs.

When the suit was filed, about 25% of the 28,000 pre-boarding screeners at U.S. airports were permanent resident aliens rather than citizens.

At some airports, the percentage of noncitizens was far higher -- about 40% at LAX and more than 50% in San Francisco, Sacramento, Miami and Washington Dulles.

The government set a deadline of Nov. 19 for all screeners employed by the newly created Transportation Security Agency to be citizens, with the exception of five airports where there is a pilot program to use private contractors under the supervision of the TSA.

Those five airports are in San Francisco, Kansas City, Mo., Rochester, N.Y., Tupelo, Miss., and Jackson Hole, Wyo.

On Friday, TSA spokesman Johnson said it was his understanding that all the new jobs had been filled, with the possible exception of positions at the airports with the pilot programs.

A source at LAX said that Transportation Secretary Norman Mineta plans to hold a news conference Monday to announce that the deadline has been met.

LAX hired its 1,600 screeners by Nov. 5, giving it the largest passenger screening force among the nation’s 429 commercial airports.

ACLU attorney Wizner said four plaintiffs who work at San Francisco still have their jobs. He said the ACLU would work diligently to help them keep their posts in light of Friday’s ruling.

As a practical matter, if the decision is not reversed, noncitizens who are permanent residents will be eligible to apply for screener jobs in the future, not that they are guaranteed of getting jobs, Wizner said.

The decision was hailed by the Service Employees International Union, which represents 2,000 airport screeners and was a party to the suit.

“The citizenship requirement was out of tune with basic American values and didn’t do anything to make airports safer,” said Eliseo Medina, the union’s executive vice president.