Case: Electronic Privacy Information Center (EPIC) v. U.S. Department of Homeland Security

10-cv-01157 | U. S. Court of Appeals for the District of Columbia Circuit

Filed Date: 2010

Closed Date: 2012

Clearinghouse coding complete

Case Summary

This case was filed directly in the United States Court of Appeals for the District of Columbia Circuit. Along with this case, there is a related mandamus matter with a different docket number.The Plaintiff is an independent nonprofit research center in Washington, D.C. Its mission is to protect the public's privacy and human rights. On July 2, 2010, the Plaintiff filed a petition for review with the Appellate Court. This case was about three agency actions of the Transportation Security Admini…

This case was filed directly in the United States Court of Appeals for the District of Columbia Circuit. Along with this case, there is a related mandamus matter with a different docket number.

The Plaintiff is an independent nonprofit research center in Washington, D.C. Its mission is to protect the public's privacy and human rights. On July 2, 2010, the Plaintiff filed a petition for review with the Appellate Court. This case was about three agency actions of the Transportation Security Administration (TSA) and Department of Homeland Security (DHS). EPIC petitioned the Court for review of these three actions:

(1) failure to act on EPIC'S May 31, 2009, 5 U.S.C. § 553(e) petition (the First EPIC Petition): The First EPIC Petition noted the TSA's announcement of a plan to deploy full body scanners (also called "advanced imaging technology" or AIT in the court documents) as the primary means of screening airline passengers in the United States and urged the DHS to undertake a 90-day formal public rulemaking process to receive public input on the agency's use of full body scanners. The DHS wrote a letter to EPIC on June 19, 2009, but failed to grant or deny EPIC's petition for the formal rulemaking concerning TSA's use of full body scanners (the DHS Letter).

(2) the May 28, 2010 Order of the TSA refusing to process of EPIC's April 21, 2010 5 U.S.C. § 553(e) petition ("the Second EPIC Petition"): The Second EPIC Petition sought repeal of the TSA's rule mandating the use of body scanners at airport checkpoints as primary screening. On May 28, 2010, the TSA issued an order refusing to process the Second EPIC Petition, asserting "TSA does not interpret your letter to seek a rulemaking or to constitute a petition under 5 U.S.C. $553." (the TSA Order).

(3) the TSA Rule mandating the use of "full body scanners" at airport checkpoints as primary screening. The TSA entered this Rule recently, but failed to make public the text of the Rule or its date. The TSA recently issued this Rule on a date unknown to Petitioners. This Rule is a final administrative action, and constitutes a final agency rule.

On July 15, 2011, the judges granted in part and denied in part the petition, and ordered, without vacating the rule, that the rule be remanded to TSA to promptly conduct notice-and-comment rulemaking proceedings (notifying the public of the proposed new or changed rule and to accept public comments). In summary, the Court ruled for EPIC on the Administrative Procedure Act (APA) claim. One of the factors that the court considered was the need for the TSA to continue its airport security operations without interruption. The court instructed the agency promptly to proceed in a manner consistent with its opinion.

According to the court, the TSA's denial of the petition on the ground that it “is not required to initiate the APA rulemaking procedures each time the agency develops and implements improved passenger screening procedures” rested upon an interpretation of the APA. Therefore, the court focused on the analysis of the APA and certain exceptions to the rulemaking standard procedure in the APA. Specifically, the court analyzed whether the several exceptions that the TSA claimed fit within the APA's exceptions.

In its decision, the court explained that the APA's exceptions urged by the TSA did not apply in this case to justify the TSA's failure to give notice of and receive comment upon such a rule. The court determined that the rule is legislative and not merely interpretive, procedural, or a general statement of policy. In summary, the court determined that the TSA has not justified its failure to initiate notice-and-comment rulemaking before announcing it would use AIT scanners for primary screening.

As for the petitioners' claims, the court denied the petition with respect to the statutory arguments and claim under the Fourth Amendment and the Religious Freedom Restoration Act (RFRA).

EPIC in August 2011 petitioned for panel rehearing and rehearing en banc. On September 12, 2011, the court denied both petitions. The case is now closed.

Summary Authors

MJ Koo (2/16/2017)

Lisa Koo (3/23/2019)

People


Judge(s)

Ginsburg, Douglas Howard (District of Columbia)

Attorneys(s) for Defendant

Brinkmann, Beth S (District of Columbia)

Koppel, John S. (District of Columbia)

Letter, Douglas (District of Columbia)

Singer, Michael Jay (District of Columbia)

Expert/Monitor/Master

Rotenberg, Marc (District of Columbia)

Verdi, John Arthur (District of Columbia)

Judge(s)

Ginsburg, Douglas Howard (District of Columbia)

Attorneys(s) for Defendant

Brinkmann, Beth S (District of Columbia)

Koppel, John S. (District of Columbia)

Letter, Douglas (District of Columbia)

Singer, Michael Jay (District of Columbia)

Expert/Monitor/Master

Rotenberg, Marc (District of Columbia)

Verdi, John Arthur (District of Columbia)

Documents in the Clearinghouse

Document

Docket [PACER]

Electronic Privacy Information v. Department of Homeland Security

May 3, 2012 Docket
BL-2

Petition for Review

Electronic Privacy Information Center v. United States Department of Homeland Security

July 2, 2010 Complaint
1318805

On Petition for Review of an Order of the U.S. Department of Homeland Security

Electronic Privacy Information v. DHS

653 F.3d 1

July 15, 2011 Order/Opinion

Resources

Title Description External URL

EPIC v. DHS (Suspension of Body Scanner Program)

Epic.org

EPIC has challenged the use of airport body scanners since they were first tested and introduced by the TSA in the mid 2000s. First, EPIC sued to obtain records outlining the invasive screening capab… May 26, 2017 https://epic.org/privacy/litigation/apa/tsa/bodyscanner/#:~:text=In%20EPIC%20v.,x%2Dray%20devices%20from%20airports.

EPIC v. DHS (Suspension of Body Scanner Program)

Epic.org

EPIC has challenged the use of airport body scanners since they were first tested and introduced by the TSA in the mid 2000s. First, EPIC sued to obtain records outlining the invasive screening capab… May 26, 2017 https://epic.org/privacy/litigation/apa/tsa/bodyscanner/#:~:text=In%20EPIC%20v.,x%2Dray%20devices%20from%20airports.

EPIC v. DHS

This resource includes litigation documents that were filed in this lawsuit. April 8, 2019 https://epic.org/privacy/litigation/apa/tsa/bodyscanner/

Docket

Last updated May 11, 2022, 8 p.m.

Docket sheet not available via the Clearinghouse.

State / Territory: District of Columbia

Case Type(s):

National Security

Key Dates

Filing Date: 2010

Closing Date: 2012

Case Ongoing: No

Plaintiffs

Plaintiff Description:

A non-profit research organization involved with civil liberties, including a right to privacy.

Plaintiff Type(s):

Non-profit NON-religious organization

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Department of Homeland Security (District of Columbia), Federal

Defendant Type(s):

Jurisdiction-wide

Case Details

Causes of Action:

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812

Constitutional Clause(s):

Unreasonable search and seizure

Special Case Type(s):

Appellate Court is initial court

Availably Documents:

Trial Court Docket

Complaint (any)

Injunctive (or Injunctive-like) Relief

Any published opinion

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Injunction / Injunctive-like Settlement

Source of Relief:

Litigation

Order Duration: 2012 - 2012

Issues

General:

Other

Religious programs / policies

Type of Facility:

Government-run