PUBLISHED:July 23, 2010

Clinic students prevail in D.C. Circuit

A three-judge panel on the United States Court of Appeals for the D.C. Circuit agreed with students and faculty from Duke’s Appellate Litigation Clinic that the Transportation Security Administration acted capriciously in barring a commercial truck driver from obtaining a hazardous materials endorsement (HME) for his commercial driver’s license in an opinion issued Friday.

The opinion and concurring opinion in Boniface v. Department of Homeland Security, both authored by Judge Douglas Ginsburg, ordered the Transportation Security Administration (TSA) to reconsider clinic client Lewis Boniface’s application for an HME.

“The Court cannot say whether Boniface is entitled to a waiver of the TSA’s regulation deeming him a security risk; that is for the agency to determine,” Judge Ginsburg wrote in the concurring opinion. “I can say, however, that he was entitled to an administrative process that was not riddled with errors. 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.”

The D.C. Circuit appointed Sean Andrussier, co-director of the Appellate Litigation Clinic, to represent Boniface, who in 2008 had his trucking license taken away by the Department of Homeland Security based on a conviction for an offense he committed in 1975. Boniface’s appeal challenged the use of the 33-year-old conviction on the grounds that it was obtained in violation of an interstate compact that has the force of federal law.

The appeal further challenged the agency's regulations, enacted under the USA PATRIOT Act, which automatically disqualify truckers based on certain past convictions, and the agency's adjudication deeming him ineligible for a waiver.

Under Andrussier's supervision, a team of clinic students — Sam Burness, Kristin Collins Cope, Lisa Hoppenjans, and Meghan Ferguson, all 2010 graduates of the Law School — worked on the appeal. Ferguson argued the case before a panel consisting of judges Ginsburg, Judith Rogers, and Janice Rogers Brown on April 13.

"I couldn't be more happy with the work that Sean Andrussier and the team of Duke Law students did on my behalf in the appeal," Boniface said after hearing of the court's decision. "The students were so talented and dedicated in presenting my case."

Andrussier and Professor James E. Coleman, Jr. direct Duke's Appellate Litigation Clinic. The clinic handles federal appeals in the D.C. Circuit and Fourth Circuit.