Elec. Privacy Info. Ctr. v. United States Dep't of Homeland Sec., No. 10–1157.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore: GINSBURG, HENDERSON and TATEL, Circuit Judges.
PartiesELECTRONIC PRIVACY INFORMATION CENTER, et al., Petitionersv.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Respondents.
Docket NumberNo. 10–1157.
Decision Date12 September 2011

653 F.3d 1
397 U.S.App.D.C.
313

ELECTRONIC PRIVACY INFORMATION CENTER, et al., Petitioners
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Respondents.

No. 10–1157.

United States Court of Appeals, District of Columbia Circuit.

Argued March 10, 2011.Decided July 15, 2011.Rehearing En Banc Denied Sept. 12, 2011.


[653 F.3d 2]

On Petition for Review of an Order of the U.S. Department of Homeland Security.Marc Rotenberg argued the cause for petitioners. With him on the briefs was John Verdi.Beth S. Brinkmann, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for respondents. On the briefs were Douglas N. Letter and John S. Koppel, Attorneys.Before: GINSBURG, HENDERSON and TATEL, Circuit Judges.Opinion for the Court filed by Circuit Judge GINSBURG.GINSBURG, Circuit Judge:

The Electronic Privacy Information Center (EPIC) and two individuals petition for review of a decision by the Transportation Security Administration to screen airline passengers by using advanced imaging

[653 F.3d 3]

technology instead of magnetometers. They argue this use of AIT violates various federal statutes and the Fourth Amendment to the Constitution of the United States and, in any event, should have been the subject of notice-and-comment rulemaking before being adopted. Although we are not persuaded by any of the statutory or constitutional arguments against the rule, we agree the TSA has not justified its failure to issue notice and solicit comments. We therefore grant the petition in part.
I. Background

By statute, anyone seeking to board a commercial airline flight must be screened by the TSA in order to ensure he is not “carrying unlawfully a dangerous weapon, explosive, or other destructive substance.” 49 U.S.C. §§ 44901(a), 44902(a)(1). The Congress generally has left it to the agency to prescribe the details of the screening process, which the TSA has documented in a set of Standard Operating Procedures not available to the public. In addition to the SOPs, the agency has promulgated a blanket regulation barring any person from entering the so-called “sterile area” of an airport, the area on the departure side of the security apparatus, “without complying with the systems, measures, or procedures being applied to control access to, or presence or movement in, such area[ ].” 49 C.F.R. § 1540.105(a)(2). The Congress did, however, in 2004, direct the TSA to “give a high priority to developing, testing, improving, and deploying” at airport screening checkpoints a new technology “that detects nonmetallic, chemical, biological, and radiological weapons, and explosives, in all forms.” Intelligence Reform and Terrorism Prevention Act of 2004, Pub.L. No. 108–458, § 4013(a), 118 Stat. 3719 (codified at 49 U.S.C. § 44925(a)).

The TSA responded to this directive by contracting with private vendors to develop AIT for use at airports. The agency has procured two different types of AIT scanner, one that uses millimeter wave technology, which relies upon radio frequency energy, and another that uses backscatter technology, which employs low-intensity X-ray beams. Each technology is designed to produce a crude image of an unclothed person, who must stand in the scanner for several seconds while it generates the image. That image enables the operator of the machine to detect a nonmetallic object, such as a liquid or powder—which a magnetometer cannot detect—without touching the passengers coming through the checkpoint.

The TSA began to deploy AIT scanners in 2007 in order to provide additional or “secondary” screening of selected passengers who had already passed through a magnetometer. In 2009 the TSA initiated a field test in which it used AIT as a means of primary screening at a limited number of airports. Based upon the apparent success of the test, the TSA decided early in 2010 to use the scanners everywhere for primary screening. By the end of that year the TSA was operating 486 scanners at 78 airports; it plans to add 500 more scanners before the end of this year.

No passenger is ever required to submit to an AIT scan. Signs at the security checkpoint notify passengers they may opt instead for a patdown, which the TSA claims is the only effective alternative method of screening passengers. A passenger who does not want to pass through an AIT scanner may ask that the patdown be performed by an officer of the same sex and in private. Many passengers nonetheless remain unaware of this right, and some who have exercised the right have complained that the resulting patdown was unnecessarily aggressive.

[653 F.3d 4]

The TSA has also taken steps to mitigate the effect a scan using AIT might have upon passenger privacy: Each image produced by a scanner passes through a filter to obscure facial features and is viewable on a computer screen only by an officer sitting in a remote and secure room. As soon as the passenger has been cleared, moreover, the image is deleted; the officer cannot retain the image on his computer, nor is he permitted to bring a cell phone or camera into the secure room. In addition to these measures to protect privacy, the agency has commissioned two studies of the safety of the scanners that use backscatter technology, each of which has found the scanners emit levels of radiation well within acceptable limits. Millimeter wave scanners are also tested to ensure they meet accepted standards for safety.

The petitioners, for their part, have long been unsatisfied with the TSA's efforts to protect passengers' privacy and health from the risks associated with AIT. In May 2009 more than 30 organizations, including the petitioner EPIC, sent a letter to the Secretary of Homeland Security, in which they objected to the use of AIT as a primary means of screening passengers. They asked that the TSA cease using AIT in that capacity pending “a 90–day formal public rulemaking process.” The TSA responded with a letter addressing the organizations' substantive concerns but ignoring their request for rulemaking.

Nearly a year later, in April 2010, the EPIC and a slightly different group of organizations sent the Secretary and her Chief Privacy Officer a second letter, denominated a “petition for the issuance, amendment, or repeal of a rule” pursuant to 5 U.S.C. § 553(e). They argued the use of AIT for primary screening violates the Privacy Act; a provision of the Homeland Security Act requiring the Chief Privacy Officer upon the issuance of a new rule to prepare a privacy impact assessment; the Religious Freedom Restoration Act (RFRA); and the Fourth Amendment. In May the TSA again responded by letter, clarifying some factual matters, responding to the legal challenges, and taking the position it is not required to initiate a rulemaking each time it changes screening procedures. In July, the EPIC, joined by two members of its advisory board who travel frequently and have been subjected to AIT screening by the TSA, petitioned this court for review.

II. Analysis

The petitioners focus their opening brief upon their substantive challenges to the TSA's decision to use AIT for initial screening. They raise all the legal claims foreshadowed in their request for rulemaking, as well as a claim under the Video Voyeurism Prevention Act. As explained below, however, our attention is most drawn to their procedural argument that the TSA should have engaged in notice-and-comment rulemaking.

A. Notice and Comment

In their opening brief, the petitioners argue the TSA “refus[ed] to process” and “effectively ignored” their 2010 letter, which was “explicitly marked as a ‘petition’ ” for rulemaking under § 553. The TSA responds that the petitioners did not petition “for the issuance, amendment, or repeal of a rule,” as authorized by § 553(e), because “the relief actually sought [was] ... the immediate suspension of the AIT program.” A construction of § 553(e) that excludes any petition with a goal beyond mere process is dubious at best, and the agency offers no authority for it. The petitioners were clearly seeking “amendment[ ] or repeal of a rule”; that their aim was expressed in terms of

[653 F.3d 5]

the substance of the rule surely does not work against them. Indeed, we would be surprised to find many petitions for rulemaking that do not identify the substantive outcome the petitioner wants the agency to reach. *

Anticipating this conclusion, the TSA next argues it responded appropriately to the petition by denying it. We will set aside an agency's decision to deny a petition for rulemaking only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Moreover, “an agency's refusal to institute rulemaking proceedings is at the high end of the range of levels of deference we give to agency action under our arbitrary and capricious review.” Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 919 (D.C.Cir.2008) (internal quotation marks omitted). Here, however, the TSA denied the petition on the ground it “is not required to initiate APA rulemaking procedures each time the agency develops and implements improved passenger screening procedures.” Because this position rests upon an interpretation of the Administrative Procedure Act, the crux of our review turns upon our analysis of that statute. See Am. Horse Prot. Ass'n, Inc. v. Lyng, 812 F.2d 1, 5 (D.C.Cir.1987) (court may overturn decision to deny petition for rulemaking if based upon “plain errors of law” (internal quotation marks omitted)).

We turn, then, to § 553(b) and (c) of the APA, which generally require an agency to publish notice of a proposed rule in the Federal Register and to solicit and consider public comments upon its proposal. See U.S. Telecom Ass'n v. FCC, 400 F.3d 29, 34 (D.C.Cir.2005) (“This court and many commentators have generally referred to the category of rules to which the notice-and-comment requirements do apply as ‘legislative rules' ”). As the TSA points out, however, the...

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62 practice notes
  • Grissom v. Columbia, Civil Action No. 11–1604 (JEB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 6, 2012
    ...seriously challenge her claim that she was subjected to a search. Cf. Electronic Privacy Information Ctr. v. U.S. Dep't of Homeland Sec'y, 653 F.3d 1, 10–11 (D.C.Cir.2011) (use of advanced imaging technology at airport is search); United States v. Epperson, 454 F.2d 769, 770 (4th Cir.1972) ......
  • Time Warner Cable Inc. v. Fed. Commc'ns Comm'n, Docket Nos. 11–4138(L), 11–5152(Con).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 4, 2013
    ...196, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) (quoting 5 U.S.C. § 553(b)); see Electronic Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 653 F.3d 1, 5 (D.C.Cir.2011). In determining whether an agency has promulgated a substantive or a procedural rule, “the label that the particular agency......
  • Casa De Md. v. U.S. Dep't of Homeland Sec., No. 18-1521
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 17, 2019
    ...of present binding effect; if it is, then the APA calls for notice and comment." Elec. Privacy Info. Ctr. v. DHS ("EPIC "), 653 F.3d 1, 7 (D.C. Cir. 2011) (internal quotation marks and ellipsis omitted). "[S]ubstantive or legislative rule[s], pursuant to properly delegat......
  • Poet Biorefining, LLC v. Envtl. Prot. Agency, No. 19-1139
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 14, 2020
    ...regulatory change to the statutory or regulatory regime.’ " (quoting Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 653 F.3d 1, 6–7 (D.C. Cir. 2011) )); Office of Commc'n of United Church of Christ v. FCC , 826 F.2d 101, 105 (D.C. Cir. 1987) ("Since the court reviews not......
  • Request a trial to view additional results
61 cases
  • Grissom v. Columbia, Civil Action No. 11–1604 (JEB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 6, 2012
    ...seriously challenge her claim that she was subjected to a search. Cf. Electronic Privacy Information Ctr. v. U.S. Dep't of Homeland Sec'y, 653 F.3d 1, 10–11 (D.C.Cir.2011) (use of advanced imaging technology at airport is search); United States v. Epperson, 454 F.2d 769, 770 (4th Cir.1972) ......
  • Time Warner Cable Inc. v. Fed. Commc'ns Comm'n, Docket Nos. 11–4138(L), 11–5152(Con).
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 4, 2013
    ...196, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) (quoting 5 U.S.C. § 553(b)); see Electronic Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 653 F.3d 1, 5 (D.C.Cir.2011). In determining whether an agency has promulgated a substantive or a procedural rule, “the label that the particular agency......
  • Casa De Md. v. U.S. Dep't of Homeland Sec., No. 18-1521
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 17, 2019
    ...of present binding effect; if it is, then the APA calls for notice and comment." Elec. Privacy Info. Ctr. v. DHS ("EPIC "), 653 F.3d 1, 7 (D.C. Cir. 2011) (internal quotation marks and ellipsis omitted). "[S]ubstantive or legislative rule[s], pursuant to properly delegat......
  • Poet Biorefining, LLC v. Envtl. Prot. Agency, No. 19-1139
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 14, 2020
    ...regulatory change to the statutory or regulatory regime.’ " (quoting Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 653 F.3d 1, 6–7 (D.C. Cir. 2011) )); Office of Commc'n of United Church of Christ v. FCC , 826 F.2d 101, 105 (D.C. Cir. 1987) ("Since the court reviews not......
  • Request a trial to view additional results
1 books & journal articles
  • Agency Control and Internally Binding Norms.
    • United States
    • Yale Law Journal Vol. 131 Nbr. 4, February 2022
    • February 1, 2022
    ...personnel at every level act under the shadow of judicial review"). (97.) See, e.g., Elec. Priv. Info. Ctr. v. Dep't of Homeland Sec, 653 F.3d 1, 7 (D.C. Cir. 2011); Nat. Res. Def. Council v. Env't Prot. Agency, 643 F.3d 311, 321 (D.C. Cir. 2011); Cohen v. United States, 578 F.3d 1, 6-7 (D.......

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