9 Aug, 2012

U.S. Petitioners, Including Ex-American Airlines CEO, Win Court Order On Airport Body Scanners

Imtiaz Muqbil

Millions of dollars worth of body scanners are being deployed across airports in the United States without due process of public comment, and a U.S. Court has ordered this lapse to be rectified by August 30. The decision will be of interest to airports, airlines and consumer protection groups worldwide as security companies push for a global deployment of these expensive scanners at huge cost to taxpayers and the travelling public.

The U.S. Court of Appeals for the District of Columbia Circuit issued the order on Aug 1 in response to a “Brief Amici Curiae” filed by a coalition of organisations, including the National Association Of Airline Passengers, and one individual, Robert Crandall, former CEO of American Airlines. The original petitioner was the Electronic Privacy Information Centre (EPIC).

Other names listed on the petition are The Competitive Enterprise Institute, Electronic Frontier Foundation, Center For Individual Freedom, Cyber Privacy Project, Center For Financial Privacy And Human Rights, Digital Liberty, Liberty Coalition, And The Rutherford Institute. Its bottomline message is thus: “We petition the Obama Administration to require the Transportation Security Administration to Follow the Law!”

According to an official statement summarising the ruling, “In July 2011, a federal appeals court ruled that the Transportation Security Administration had to conduct a notice-and-comment rulemaking on its policy of using “Advanced Imaging Technology” for primary screening at airports. TSA was supposed to publish the policy in the Federal Register, take comments from the public, and justify its policy based on public input. The court told TSA to do all this “promptly.”

“A year later, TSA has not even started that public process. Defying the court, the TSA has not satisfied public concerns about privacy, about costs and delays, security weaknesses, and the potential health effects of these machines. If the government is going to “body-scan” Americans at U.S. airports, President Obama should force the TSA to begin the public process the court ordered.”

Now, the US Court of Appeals for the DC Circuit has ordered the DHS to respond to EPIC’s mandamus petition to “enforce the court’s mandate” by August 30. EPIC filed the “extraordinary writ” after a year had passed since the federal agency was ordered to begin a public rulemaking on the controversial airport body scanner program.

A coalition of organizations, led by the Competitive Enterprise Institute, filed the amicus brief in support of the EPIC petition and a separate petition to the White House has gathered more than 16,000 signatures. For more information, see EPIC v. DHS (suspension of airport body scanners).

According to the brief, “The Transportation Security Administration’s (TSA) use of body-scanners has affected millions of Americans, yet passengers still have had no opportunity to formally voice their concerns. Every day, 1.8 million Americans board a commercial flight in a U.S. airport, and each passenger is screened by the TSA.

A substantial portion of these passengers are screened by the AIT scanners, of which 700 are currently operating at nearly 190 U.S. airports. In the last half decade, as millions of Americans have undergone AIT screening, none have been afforded an opportunity to comment on or participate in the TSA’s decision-making regarding AIT scanners.”

In July 2011, the D.C. Circuit Court of Appeals ruled that the TSA impermissibly failed to engage in notice-and-comment rulemaking regarding the agency’s use of AIT scanners in airports. The court ordered the TSA to “promptly” commence notice-and-comment rulemaking regarding the use of AIT scanners in airports. This reflects the basic policy rationale of the Administrative Procedure Act (APA), which assures agencies like the TSA have to consider public views.

The full text is reproduced herebelow, after editing out all the “legalese” to facilitate easy reading.

INTEREST OF THE AMICI CURIAE

The amici include non-profit public interest organizations and associations dedicated to goals relevant to this case, such as protecting the rights of airline passengers and promoting airport safety; protecting constitutional rights to privacy and interstate travel; and promoting government accountability and the rule of law. The amici also include one individual: Robert L. Crandall, the former Chairman and CEO of AMR and American Airlines, and a current frequent flier.

Argument

I.     The TSA’s Airport Screening Policies Affect Millions of Americans, Yet Passengers Still Have No Opportunity to Participate in TSA Rulemaking.

Every day, 1.8 million Americans board a commercial flight in a U.S. airport, and each passenger is screened by the Transportation Security Administration. A substantial portion of these passengers are screened by the TSA’s Advanced Imaging Technology (“AIT”) scanners, of which 700 are currently operating at nearly 190 U.S. airports.

In the last half decade, as millions of Americans have undergone AIT screening, none have been afforded an opportunity to comment on or participate in the TSA’s decision-making regarding AIT scanners.

In July 2011, this Court ruled that the TSA impermissibly failed to engage in notice-and-comment rulemaking regarding the agency’s use of AIT scanners in airports. This Court ordered the TSA to “promptly” commence notice-and- comment rulemaking regarding the use of AIT scanners in airports, but declined to vacate the agency’s rule pending such rulemaking.

Promulgated without public participation and input, the TSA’s rules regarding AIT scanners violate the notice and comment requi- rement of the Administrative Procedure Act (“APA”). This statute reflects Congress’s judgment that “notions of fairness and informed administrative decisionmaking require that agency decisions be made only after affording interested persons notice and an opportunity to comment.”

II.    The TSA’s Failure to Promptly and Meaningfully Progress Toward Complying With This Court’s Mandate Constitutes “Unreasonable Delay.”

The APA empowers this Court to, among other things, “compel agency action unlawfully withheld or unreasonably delayed.” Whether an agency’s relay is reasonable is governed by six factors.

The TSA assured this Court in a November 2011 filing that it “had an initial, very preliminary draft [rule] prepared by August 11, 2011.” The TSA further stated in January 2012 that it “has committed to significantly expediting the AIT rulemaking process . . . .”

Since the TSA initiated its rulemaking process in July 2011, however, the agency appears to have made no meaningful progress toward compliance with this Court’s mandate, nor has the agency offered a concrete timetable for the commencement of rulemaking. The TSA explains its sluggishness here by arguing, among other things, that complying with this Court’s order necessitates substantial “resources, coordination, and staffing.”

If the TSA were acting reasonably to “promptly” comply with this Court’s mandate, the agency’s nearly year-old preliminary rule, see Opp. I at 5, would presumably have materialized by now in the form of a Notice of Proposed Rulemaking.

If the TSA is unable to manage its budget of nearly $8 billion in a manner that enables it to follow well-established laws, this Court should compel the agency to do so. Judicial vigilance is especially critical where, as here, the court has remanded without vacating a rule, pending an agency’s commencement of APA rulemaking.

The obstacles responsible for the TSA’s delayed rulemaking here have not forestalled the agency’s aggressive deployment of AIT scanners in airports nationwide. In September 2011, two months after this Court’s July 2011 ruling, the TSA purchased 300 additional AIT devices, which were expected to be in operation by the end of 2011.

The TSA plans to continue buying AIT scanners through 2013, by which time taxpayers will have spent a cumulative $500 million on the scanners. This course of conduct belies the agency’s claim that it is so starved for resources that it cannot comply with this Court’s mandate. Moreover, the TSA’s purchase of hundreds of new scanners after this Court’s July 2011 decision in EPIC suggests the agency intends to continue doing as it pleases without regard to public input or duly enacted laws.

The TSA also explains its delay here by pointing to its need to “fill[] three current vacancies for economists” prior to commencing formal rulemaking. Such personnel limitations, while real, should be considered in the context of the agency’s overall capacity. “At more than 65,000 employees, TSA would rank as the 12th largest cabinet agency and is larger than the Departments of Labor, Energy, Education, Housing and Urban Development, and State, combined.”

The vast majority of the TSA’s nearly $8 billion in annual appropriations is discretionary. The TSA’s 2012 annual budget exceeds that of the entire Federal Judiciary.

While a handful of vacancies at the TSA may have reasonably justified a few months’ delay in rulemaking, a multi-billion dollar agency with enough staffers to fill a mid-size city should be able to publish a notice of rulemaking on a matter of significant national importance within one year’s time.

This Court should evaluate the TSA’s delay here under an objective reasonableness standard. Even if TSA is not acting in bad faith, its inability to do so is best explained by “bureaucratic inefficiency.” While an “agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities,” an agency may not treat its legal obligations as afterthoughts.

III. In Creating the TSA, Congress Intended That the Agency Promptly Commence APA Rulemaking Regarding Explosive Detection Equipment at Airports.

In determining whether an agency has “unreasonably delayed” rulemaking, this Court considers, among other factors, whether “Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute.” The TSA’s 2001 enabling statute required the agency to “submit to the appropriate congressional committees a strategic plan to promote the optimal utilization and deployment of explosive detection equipment at airports” “[n]ot later than 90 days after the date of enactment of this section.” Thus, Congress expected that the TSA would act swiftly, but not without notice. Had Congress intended for the TSA to deploy explosive detection equipment before engaging in notice-and-comment rulemaking, Congress could have exempted the TSA from APA rulemaking provisions.

When Congress enacted the TSA’s enabling statute in 2001, it did not refer to the APA’s rulemaking provisions. Nevertheless, as this Court held, the TSA is still subject to APA requirements, which generally govern federal administrative agencies. In evaluating EPIC’s petition, this Court should assume that Congress intended for the sense of urgency embodied in the TSA’s enabling statute, to be construed in conjunction with the APA’s notice-and-comment rule- making provision. Here, the TSA’s lackadaisical approach to fun- damental APA requirements is at odds with Congress’s intent.

IV. Members of Congress Have Repeatedly Expressed Concerns About the TSA’s Policies Regarding the Use of AIT Scanners for Passenger Screening.

This Court noted in TRAC that agency “delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake,” and that “the court should also take into account the nature and extent of the interests prejudiced by delay . . . .” Here, the breadth of the interests at stake is unusually significant, as are the practical human impacts of AIT scanners. From frequent flyers, who encounter AIT scanners in most major airports, to taxpayers, who will spend a half of a billion dollars on the scanners, the TSA’s use of AIT scanners stands out among federal regulations for its substantial impact on the general public.

The gravity of public concerns about AIT scanners has been demonstrated by the widespread opposition they have provoked, especially in Congress. In 2009, when a bill to reauthorize the TSA reached the floor of the House of Representatives, over 300 Members voted for an amendment by Rep. Jason Chaffetz to bar the TSA from using “whole-body imaging technology” to screen passengers “unless another method of screening . . .demonstrates cause for preventing such passenger from boarding an aircraft.”

More recently, as AIT scanners have proliferated in U.S. airports, many members of Congress have expressed concern about of the scanners. In 2011, Rep. John Mica, a coauthor of the TSA’s enabling statute and Chairman of the House Committee on Transportation and Infrastructure, stated “I’ve had [the AIT scanners] tested [by the Government Accountability Office], and to me [they are] not acceptable. If we could reveal the failure rate, the American public would be outraged.”

Rep. Mike Rogers, Chairman of the House Permanent Select Committee on Intelligence, told TSA Administrator John Pistole in a June 2012 congressional hearing that “[p]rogress at TSA has come at a snail’s pace and in some ways has gone backwards … the American people need to see immediate changes that impact them.”

In the same hearing, Rep. Bennie Thompson, Ranking Member of the House Committee on Homeland Security, chastised the agency’s responses to questions about the effectiveness of AIT scanners, suggesting that “we ought to have a fresh set of eyes [on the agency].”  Notice-and- comment rulemaking would supply just that.

This bipartisan congressional opposition to the TSA’s deployment of AIT scanners underscores the “nature and extent of the interests prejudiced by delay” and its implications for “human health and welfare.” Concerns about the effectiveness of AIT scanners also militate against the TSA’s delays, as public rulemaking may well reveal that AIT scanners are not an effective means of screening passengers for explosives. If the TSA continues to buy AIT scanners while delaying rulemaking, the potential error-costs of the agency’s decision-making will only grow.

CONCLUSION

For the reasons set forth above, Amici respectfully urge that a Writ of Mandamus be granted. In order to effectuate this Court’s ruling in EPIC v. DHS, an order should be entered directing the TSA to commence rulemaking on the use of AIT scanners within 60 days. Absent such an order, the TSA will be able to continue to evade judicial review, leaving the public with no meaningful recourse.