Scott Tooley narrowly won an appellate court victory earlier this year in his suit against top government officials, accusing them of invading his privacy through purported wiretaps, clandestine surveillance and “terrorist watch lists.” Now he may lose again.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled 2-to-1 in February that as “thin” as Tooley’s claims appear, he has standing to sue. (The trial judge had tossed Tooley’s suit.) Justice Department lawyers challenged the split decision, saying that it conflicts with other circuits’ views.
The D.C. Circuit on Wednesday granted a rehearing, a win for the government. The case will be argued again in October.
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The February court opinion provides a summary of how the case started:
According to Scott Tooley’s complaint, he phoned Southwest Airlines in the spring of 2002 to buy tickets to fly to Nebraska to visit his family. At the end of the call, after Tooley had provided Southwest with his name and contact information, the airline representative asked Tooley if he had any “comments, questions, or suggestions.” Tooley responded that, in the wake of the September 11 attacks, Southwest should screen 100 percent of “everything,” and that without “proper security” Tooley and other members of the traveling
public were “less safe due to the potential that those who wish to harm American citizens could put a bomb on a plane.” The Southwest representative responded with alarm and declared “you said the ‘b’ word, you said the ‘b’ word.” Tooley attempted to explain to the representative that she had not understood him correctly, but she nevertheless placed him on hold. After 20 minutes, Tooley finally hung up.
According to Tooley, the ticket agent’s seeming paranoia was not the end of the matter. Other events followed, which he ascribes to various government officials; those remaining in the suit, after a partial dismissal by Tooley, are the United States Attorney General, the Secretary of the Department of
Homeland Security, and the Administrator of the Transportation Security Administration, all sued solely in
their official capacities (collectively, the “government”).