Gebin et al. v. Mineta et al.: Federal Judge Denies Government's Motion to Dismiss Airport Screeners' Suit

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

GEBIN ET AL. V. MINETA ET AL.: FEDERAL JUDGE DENIES GOVERNMENT'S MOTION TO DISMISS AIRPORT SCREENERS' SUIT, ISSUES PRELIMINARY INJUNCTION
Immigrants' Rights Update, Vol. 16, No. 7, November 22, 2002

A federal court judge in Los Angeles has denied a U.S. Dept of Justice motion to dismiss a lawsuit that challenges as unconstitutional a provision of the Aviation and Transportation Security Act that requires all airport security screeners to be U.S. citizens. (For background on the law, see "Newly Enacted Citizenship Requirement to Displace Thousands of Airport Security Screeners," Immigrants' Rights Update, Dec. 20, 2001, p. 13.) The suit was brought by a group of screeners who lost their jobs because of the citizenship requirement. Judge Robert Tagasuki, who sits in the Central District of California, made the ruling on Nov. 12, 2002.

Generally, when a law singles out a group of persons (such as noncitizens) for disparate treatment, it must pass a legal test called "strict scrutiny." Under strict scrutiny, the government must show that the disparate treatment results from "a narrowly tailored measure that furthers compelling governmental interests." The DOJ argued that under two exceptions to strict scrutiny, the test should not be applied to the citizenship requirement for airport screeners. The requirement, the DOJ argued, falls under the "governmental function exception" and also qualifies as an action that is due the special deference that must be accorded to the political branch of the government in immigration and naturalization matters. Therefore, the DOJ contended, the government need only show that the citizenship requirement is rationally related to a legitimate governmental purpose.

However, Judge Tagasuki found that neither exception applies in this case. First, he held that the "governmental function" exception applies only to jobs that "perform a fundamental obligation of government to its constituency," such as police officers or school teachers. The function of a security screener is, he ruled, "a more common occupation to the community" and does not fall into the same category.

The judge also held that in barring all noncitizens, including lawful permanent residents, from jobs as screeners, the government is not due special deference. The restriction, the judge ruled, does not implicate the political branches' foreign relations powers, and the incentive it provides for noncitizens to be naturalized is insufficient to trigger the deference exception.

The judge noted that improving aviation security is a compelling government interest. But because neither exception to the "strict scrutiny" test applies to the restriction, the government must show that the exclusion of all noncitizens from employment as screeners is the least restrictive means of furthering that compelling interest. The judge held that at this early stage in the case, the government had not made that showing. Accordingly, he allowed the case to go forward.

This decision does not mean that the citizenship requirement has been found unconstitutional, as was erroneously reported by some media outlets. Rather, it simply means that the parties can now engage in discovery and that the government will have to present evidence to satisfy the strict scrutiny test.

On Nov. 15, 2002, Judge Takasugi granted a preliminary injunction, which prevents the defendants from enforcing the citizenship requirement pending trial on the merits. Generally, in order to obtain a preliminary injunction, a plaintiff has to show that it is likely to win on the merits of the case, that it would be irreparably harmed if the injunction was not granted, that the balance of hardships tips in the plaintiff's favor and, in some cases, that granting the injunction serves the public interest. A plaintiff generally only has to show that the weight of these factors falls in its favor.

In this case, the judge determined that because the harm claimed by the plaintiffs stems from an alleged violation of their constitutional rights, they have shown that they would be irreparably harmed without the injunction. He also found that the balance of hardships weighs in the plaintiffs' favor: preventing the enforcement of the citizenship requirement until a trial determines whether it is constitutional only delays implementation of a new law, while allowing its enforcement will result in termination of the plaintiffs' employment. Finally, he determined that the public interest will be served by the injunction because the termination of the plaintiffs' jobs could constitute an unconstitutional deprivation.

The injunction will stay in place until the case is resolved on the merits, either in a trial or through a motion for summary judgment. If the court or jury determines that the citizenship requirement is unconstitutional, then a permanent injunction will be issued.

The defendants are expected to appeal the grant of the preliminary injunction to the Ninth Circuit Court of Appeals. The judge refused to stay the injunction while the defendants appeal his ruling.

Gebin et al. v. Mineta et al., No. 02-0493 (N.D. Cal. Jan. 2002).