Judge Douglas Ginsburg wrote a 13-page opinion last week criticizing a federal agency for its "multiple foul-ups" in blocking a commercial truck driver's effort to get a hazardous materials endorsement on his license. Then, in a one-paragraph concurrence, the judge stepped up the criticism.
Ginsburg, who sits on the U.S. Court of Appeals for the D.C. Circuit, said he cannot determine whether the driver, Lewis Boniface, is entitled to a waiver of the Transportation Security Administration’s regulations that deem him a security risk for a 1975 conviction of possession of an unregistered explosive device. That's up to the agency, the judge said.
“I can say, however, that he was entitled to an administrative process that was not riddled with errors,” Ginsburg wrote in his July 23 concurrence. “The Keystone Kops might have done a better job than did the TSA in this case. Instead of sending Government counsel into battle to defend the indefensible, the agency should have long ago confessed error, apologized to the appellant, and tried to do right by him.”
Ginsburg and Judges Judith Rogers and Janice Rogers Brown remanded the dispute to the TSA and ordered additional proceedings. Boniface, 61, will have another shot to convince the agency that the decades-old offense does not disqualify him from obtaining a hazardous materials endorsement.
The court’s ruling was also a win for the Duke Law School appellate litigation clinic. A team of third-year students, including Meghan Ferguson, who argued the case in the D.C. Circuit in April, represented Boniface’s interests as an amicus. Boniface was proceeding pro se.
The four-person Duke law school team--including Samuel Burness, Kristin Cope and Lisa Hoppenjans--was led by Sean Andrussier, co-director of the appellate litigation clinic. Ferguson was not immediately available for comment on her experience in the D.C. Circuit.
Ferguson argued against Benjamin Shultz, a Harvard Law School graduate who is a Justice Department attorney in the Civil Division appellate section.
The Duke appellate clinic works on cases in the D.C. Circuit and the 4th Circuit. Last year, a third-year Duke law student, Sarah Campbell, successfully argued as an amicus in a dispute over the dismissal of a grand juror from District of Columbia Superior Court.