Inga Bernstein
Zalkind Duncan & Bernstein’s Inga Bernstein ()

A federal appellate court is poised to consider whether the Transportation Security Administration’s use of enhanced pat-downs of passengers with metal implants that set off walk-through metal detectors violates the Fourth Amendment and federal law.

On Tuesday, the U.S. Court of Appeals for the First Circuit is slated to hear Ruskai v. Pistole. Aside from the constitutional challenge, Mary Beth Ruskai has accused the agency of running afoul of the Rehabilitation Act, which bars federal programs from discriminating against people with disabilities.

Ruskai, a 69-year-old frequent traveler with metal knee and hip implants, appealed the TSA’s February 2012 final order declining to investigate her civil rights complaints. Administrators upheld the agency’s standard operating procedures for airport security checks as applied to her.

Ruskai’s brief alleged that she’s been subjected to “enormously invasive” pat-downs and that the TSA is diverting agency resources to individuals who pose a low security risk.

“[A]ny meaningful risk assessment would likely conclude that repetitive screening of low risk individuals like Ruskai inappropriately diverts screening resources that would be far more meaningfully utilized to screen those who genuinely pose some real threat to security,” the brief says.

Ruskai participates in a TSA pre-check program that offers shorter wait times for certain low-risk frequent flyers of participating airlines or members of existing Customs and Border Protection programs. She claims that at foreign airports, before boarding flights to the U.S., she’s experienced less invasive searches—either a limited pat-down with no touching of her groin or the use of a handheld metal detector with a targeted pat-down of places in her body that contain metal implants.

“[R]equiring the adoption of her proposed accommodation would fundamentally alter the checkpoint screening program by precluding TSA from conducting patdowns designed to detect both metallic and nonmetallic devices,” the agency’s brief counters.

Basic Fourth Amendment law holds that “you balance the need for intrusion against the intrusiveness of the search, and the search is highly intrusive,” said Inga Bernstein, a partner at Boston-based Zalkind Duncan & Bernstein who represents Ruskai.

Bernstein said the policy also disproportionally affects older people, not just those with disabilities. “There’s no correlation between [their devices] alarming the system and the risk they present as a traveler,” she said.

The Justice Department, representing TSA in the case, declined to comment. The TSA doesn’t comment on pending litigation, spokesman Ross Feinstein said.

Sheri Qualters can be contacted at squalters@alm.com.