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Cybersecurity Threats Permit TSA to Issue Emergency Directives Without Notice-and-Comment Procedures

John C. Lane

TSA issued five successive directives requiring certain railroads to implement a number of expensive cybersecurity preventive measures. The agency bypassed the usual notice-and-comment rulemaking procedures and instead invoked emergency procedures under 49 U.S.C. 114(l)(2), allowing TSA to issue directives in emergency situations and “shall skip notice and comment.” The affected railroads petitioned the Seventh Circuit Court of Appeals to vacate the latest directive and to require TSA to follow the regular rulemaking procedures. They argued that the ongoing threat of cyber attacks does not constitute an emergency within the meaning of the statute. The Court of Appeals disagreed and upheld the agency’s directives without resort to usual rulemaking procedures. The case is styled Grand Trunk Corp. v. Transportation Security Administration, decided August 21, 2025.

Context is important here. The directives applied only to those higher risk rail operations and freight railroads that are part of the Strategic Rail Corridor Network. They include carriers with annual revenues of $900 million or more, and those that transport rail security-sensitive materials like explosives, poisonous gases, hazardous liquids, and radioactive materials. The Network railroads a part of the Department of Defense Railroads and Highways for National Defense program, which ensures that the nation’s rail infrastructure can transport military supplies in the event of conflict. The directives require railroads to develop Cybersecurity Implementation Plans, including continuous cybersecurity monitoring, and to develop Cybersecurity Assessment Plans and submit annual updates to TSA.

In this process, TSA relies upon information from the U.S. intelligence community concerning ongoing and increasing cybersecurity threats, especially from Russia and China.

TSA estimated the cost for the railroads to comply with the directives at $100 million, in large part prompting the lawsuit, according to the opinion. Despite those costs, the Court of Appeals dwelt on the “serious national security concerns that motivate the security directives.” Considering those concerns and the fact that the military relies on rail network to move supplies and equipment and that industry relies upon it to transport food and manufacturing, the Court found these directives to qualify as emergency measures under the statute. “We are also loathe to ‘second-guess’ expert agencies on potential risks to national security,” citing Supreme Court precedent.

The Circuit Court also notes that although not required, TSA has submitted these emergency measures to regular rulemaking notice-and-comment, and that the comment period has expired.

Federal Removal Jurisdiction and Procedure – A Refresher

John C. Lane

Federal courts have limited jurisdiction, governed by Congress. A Notice of Removal from state court to federal court is not a mere notice – it is a pleading, governed by strict federal statute, that commences a federal action. If those statutory requirements are not followed in full, the federal court will remand your case to state court, if indeed it gets to federal court at all. The requirements are jurisdictional and cannot be waived.

Why remove to federal court?

Reasons are myriad: to escape a state court known for very high verdicts, or to seek a perceived better judiciary or jury pool, broader discovery rules, or nation-wide subpoena power, or good case management. Also, federal judges are more familiar with subjects covered by federal law, such as transportation law. (In some cases the state court venue may be preferable. That, too, must be considered.)

So, what are those rules for federal removal jurisdiction?

For cases removed on the basis of diversity of citizenship, the most common basis, the first requirement, as in all diversity cases, is that every plaintiff must be of diverse state citizenship from every defendant. But that is only the beginning. 46 U.S.C. 1441 and 1446 list these requirements:

  • No defendant may be a citizen of the state in which the action is brought [even if the plaintiff is from a different state and there is otherwise complete diversity].
  • As with all cases based on Diversity Jurisdiction, the amount in controversy must exceed $75,000 exclusive of interest and costs.
  • The Notice of Removal must be signed and attested to by an attorney pursuant to Federal Rule 11.
  • All co-defendants who have been properly joined and served must join in or consent to the removal.
  • The notice of removal must be filed within thirty days of receipt of the initial pleading, by service or otherwise, unless the complaint does not provide sufficient information to allow a defendant to plead federal removal jurisdiction.
  • If the initial pleading does not provide the necessary information for removal, the notice of removal may be filed within thirty days of receipt of that information.
  • Caveat: A case must be removed not later than one year from commencement of the state-court proceeding, unless the federal district court finds that the plaintiff acted in bad faith in order to prevent a defendant from removing the action.

Each one of these requirements must be investigated by your attorney and specifically pleaded in the Notice of Removal. Again, the Notice must be signed and attested to by your attorney. We emphasize this: the requirements are jurisdictional and cannot be waived by any party or the federal district court.

What constitutes citizenship of the parties?

Generally, a person is a citizen of the State in which he or she resides. Issues can arise if the person has two residences in different states, or is in one state on temporary assignment, such as a member of the armed forces. Or a person who lives and works in one state but still considers her home as the place she was raised.

A corporation is a citizen of the State of its incorporation and the State where it maintains its principal place of business. A Delaware corporation having its principal place of business in Illinois is a citizen of both states for federal jurisdiction purposes. A limited liability company is a citizen of the state of its formation and the state of citizenship of each of its members. A partnership is treated similarly for federal jurisdiction purposes.

The determination of the citizenship of the various parties can require considerable time and effort on the part of your defense attorney. Helping your attorney to identify citizenship of your corporate entities is very important.

What constitutes the “amount in controversy” and how and when is it determined?

The simplest method is to look to the ad damnum clause in the complaint, if the state court rules permits such a clause in the initial pleading. New York and New Jersey do not, but they allow a defendant to demand a statement of the damages claimed. The response to that demand may be the first indication that the amount in controversy exceeds $75,000, thus meeting that element of the federal removal requirements and starting the thirty-day limit for removal. Federal courts in Manhattan and Brooklyn will not accept removal jurisdiction until it is made clear that all requirements are met, especially the amount in controversy. A discovery response may also be the trigger, by listing special damages such as medical expenses or lost earnings, again starting the removal clock.

Other possibilities exist. New York and New Jersey require a statement in the complaint that the amount sought exceeds the “jurisdictional limits of all lower courts” usually between $15,000 and $20,000 and thus not implicating federal jurisdiction. Be alert, though. Some attorneys will add a phrase like this: “and the jurisdictional minimum of the federal courts.” In our judgment, that phrase meets the amount in controversy requirement, and the thirty-day removal clock starts when that initial pleading is received by the defendant or its agent, by service or otherwise.

Some attorneys will send a pre-suit settlement demand letter to the defendant or its claims agent. If that demand exceeds $75,000, the amount in controversy has already been met and the thirty days begins to run on receipt of the complaint. If you do not provide defense counsel with a copy of that letter immediately upon assignment, the time for removal may be lost.

What can you do to help your defense attorney?

Send the lawsuit papers as soon as possible. The time to answer in state court is already running. If federal removal is your goal, your attorney will evaluate the factors and advise you. Send your attorney your complete file – including claim notes. Valuable information resides there. Finally, be prepared to help your attorney determine the citizenship of the defendants to be represented.

“A Complaint by a Dead Person is a Nullity,” says a New Jersey Appellate Court

John C. Lane

It should be obvious. This is as much a lesson for personal-injury attorneys as it is a lecture in the law. The case and the lesson grow out of a slip-and-fall injury in September 2016. Carolyn took the fall on the steps of a hospital where her son-in-law had just had surgery. She suffered a broken nose and cuts above the eye, among other injuries. Three days later Carolyn hired a lawyer to pursue a claim against the hospital. Fifteen months later, with no lawsuit yet filed, Carolyn died of unrelated causes. The lawyer had no idea that she had died.

Nine months passed. Then, in September 2018, and just before the running of the statute of limitations, the lawyer filed Carolyn’s lawsuit against the hospital. He still did not know of her death. Discovery began in the suit, and the lawyer wrote to his client to discuss the discovery. Carolyn, of course, did not respond. In time the lawyer searched public records and discovered, at last, that his client had died over a year before. He had filed a court complaint for a dead person. What was he to do?

In March and April 2019, the lawyer wrote to Carolyn’s son, who agreed to continue the personal-injury suit in the name of her estate, under the Survivor’s Act. The lawyer asked the hospital to consent to an amended complaint naming the estate as plaintiff, and having it relate back to the September 2018 filing. The hospital refused, and in October 2019 the lawyer filed a motion asking the court for the same amendment and grace period. Otherwise, the complaint would be time-barred and dismissed. But would the court agree?

This was now three years after the accident, fifteen months after Carolyn’s death, and thirteen months after the end of the statute of limitations. Had Carolyn died after filing suit, the substitution of her estate would be no problem. But a dead person has no standing to file a lawsuit. The appellate court quoted from a 1945 Chancery case: “an earthly court has no jurisdiction over the dead. Only the living can litigate here.”

And so it was. The original complaint was a nullity, ruled the court, “leaving nothing for the amended complaint to ‘relate back’ to.” The court denied the motion and ordered the original complaint dismissed with prejudice.

The lesson is clear: make sure your client is living before filing her lawsuit.

William J Brennan Courthouse, Jersey City, NJ, photo by Jim.henderson / CC BY-SA (https://creativecommons.org/licenses/by-sa/4.0)

Is a Contract’s Forum-Selection Clause Enforceable in Federal Court?

John C. Lane

Of course it is, if it meets three tests:

  1. The clause must be reasonably communicated to the other party;
  2. The clause must make the forum selection mandatory, not merely permissive; and
  3. The claims and the parties involved in the lawsuit must be subject to the forum-selection clause.

If these three tests are met, the forum-selection clause will be presumptively enforceable. The opposing party can overcome this presumption only by a sufficiently strong showing that the clause is unreasonable or unjust, or is invalid because of fraud or overreaching. These “public interest” considerations will rarely defeat a forum-selection clause that is presumptively valid.

Photo by Pixabay on Pexels.com

The operation of these rules was recently demonstrated clearly in Jones v. Povant USA LLC, in a decision by Judge Naomi Reice Buchwald of the Southern District of New York. Plaintiff Kimberly Moffitt Jones, of California, booked round-trip ocean passage for herself, her two daughters, and her autistic son, from Ushuaia, Argentina, to Antarctica, from December 20, 2018, to January 5, 2019. The total cost for the ocean voyage for the four family members was $125,028, which Ms. Jones paid in advance. Because the autistic son was not able to fly commercially, Ms. Jones chartered a private jet to fly the family, and the son’s therapist, from California to Argentina. She paid $355,000 for the private round-trip air travel. She alleges that she told Povant about this necessary additional cost in order for the family to go on the trip to Antarctica.

Problems and delays arose after the family arrived in Argentina. An issue with the ship’s propeller not only caused delays, but it also resulted in a change of the port of embarkation. Frustrated, Ms. Jones canceled the trip and demanded return of both the ocean fare and the air fare. Povant agreed to return the ocean fare but refused to pay Ms. Jones for the private jet travel from California to Argentina. Ms. Jones brought suit against Povant in federal court in New York, with allegations including intentional and negligent misrepresentation. Povant moved to dismiss based upon the forum-selection clause in the line’s General Terms and Conditions, which states that “only” the courts in Marseilles, France, have jurisdiction to hear any proceeding initiated against the line.

Judge Buchwald analyzed and followed precedent from the Supreme Court and the Second Circuit Court of Appeals governing the enforcement of forum-selection clauses. She first found the existence of the clause was properly communicated to Ms. Jones in the line’s General Terms and Conditions, not only to Ms. Jones but also to her travel agents. The payment of the ocean fare is deemed to signify agreement to the terms and conditions. Second, Judge Buchwald found that the clause was mandatory: only the courts in Marselles, France, would have jurisdiction over disputes arising from the ocean contract. Finally, the court concluded that Ms. Jones’s claims, and the parties to the lawsuit, were subject to the forum-selection clause.

Thus, the forum-selection clause was presumptively enforceable. “If a forum-selection clause is valid, then the only remaining inquiry is whether certain public interest considerations outweigh its enforcement.” Judge Buchwald found that Ms. Jones raised no public interest considerations, such as fraud in the contracting, unavailability of a convenient forum in France, or fundamental unfairness of the application of French law militating against enforcement of the clause.

The court dismissed the New York complaint without prejudice to refiling in France.

Palais de justice de Marseille Photo by Philippe Alès / CC BY-SA (https://creativecommons.org/licenses/by-sa/3.0)

Work Continues, At Home And In The Community

The Lane Law Letter

As we in New Jersey enter our eighth week of stay-at-home orders, we hope this finds you and your loved-ones healthy. We continue to work from home, conducting appearances via video-conference with those courts equipped to do so. As always, we can be reached 24/7 by email or by phone (press 2 for John, press 3 for Peter).

While we are able to continue working, not all have been so blessed. Food pantries nation-wide have seen an increase in clientele since the emergence of COVID-19. Northwest New Jersey is no exception. John’s grandson, Josh, has been volunteering at the Sparta Ecumenical Food Pantry for 18 months and has noted a marked increase of first-time clients. He has heard many stories of neighbors finding themselves newly out of work and in need of assistance to feed their families. New Jersey Gov. Phil Murphy highlighted this need and Josh’s work during a recent press conference.

Click on the photo to watch Gov. Murphy’s shout-out

We also invite you to watch Josh’s video, which he created to demonstrate the amazing work being done at the food pantry, as well as the urgent need. We’re proud of you, Josh!

https://www.youtube.com/watch?v=kkMI6hHsZuI&t=14s

Thank you to all who have volunteered your talents to help your neighbors during this time! Thank you to the front-line workers who protect and serve! Thank you to the supply chain workers who keep our country moving!

We Are Here For You

The Lane Law Letter

As we continue to work from home, we hope that all of you are doing well, and staying safe, healthy, and self-distanced (a reflexive verb that has entered the lexicon perhaps for as far as we can imagine).  For everyone, our work and world exist on email, phone, Skype, Zoom, and the like.  A Zoom birthday party held this week brought family together from North Carolina and New Jersey, with surprising success.  With courts largely closed for now, we anticipate in-person status conferences and motions moving from the courtroom, past the telephone, and on to Zoom and other videoconference platforms.  Depositions can work well via videoconference in many cases. Mediations, and even arbitrations, are transitioning to video, at least for the foreseeable future, in appropriate cases.  But trials, especially in personal injury cases, are another subject.  Plaintiffs’ attorneys will still want their juries in live courtroom settings . . . until the trial delays bring financial woes to their firms and their clients.  As we prepare for those trials, whenever they resume, we will keep you advised of courts’ changing rules and schedules, and of legal developments of interest.  Stay safe and healthy.

As always, we can be reached 24/7. Our phones will route your calls to John (press 2) or Peter (press 3) at any time, with immediate connection to our cell phones.

LEGISLATIVE UPDATE: Independent Contractor v. Employee

The Lane Law Letter

NJ: Proposed Legislation

NJ State House

It was all but certain to pass. New Jersey Governor Phil Murphy was waiting to sign it. Television ads proclaimed its virtues. But the State’s anti-independent contractor bill (similar to California’s AB5) was pulled from the last legislative session. Groups representing independent contractors in myriad occupations made forceful and practical arguments against the bill. Included were freelance writers, musicians, doctors, various independent teachers, truckers, graphic designers, bakers, and others. Many legitimate independent contractor businesspeople prefer the freedom of owning and operating their own businesses. They do not want to be artificially classified as employees, a move they say would harm their businesses. The legislation was re-introduced on January 14th, and referred to the Labor Committees of both the Senate and Assembly. We are watching developments in both New Jersey and New York, which is also considering similar legislation.

CA: Preliminary Injunction Granted

Much to the relief of many, on January 16th, Judge Benitez granted a preliminary injunction to the California Trucking Association, temporarily stopping the enforcement of AB5 upon motor carriers. In his decision, Judge Benitez writes, “…there is little question that the State of California has encroached on Congress’ territory by eliminating motor carriers’ choice to use independent contractor drivers, a choice at the very heart of interstate trucking. In so doing, California disregards Congress’ intent to deregulate interstate trucking, instead adopting a law that produces the patchwork of state regulations Congress sought to prevent. With AB-5, California runs off the road and into the preemption ditch of the FAAAA.”