On July 15, 2015, the Competitive Enterprise Institute filed a lawsuit against the Transportation Security Administration (TSA) for violating the law by deploying body scanners before following the required rulemaking process. The co-petitioners joining CEI in the case are the National Center for Transgender Equality (NCTE), The Rutherford Institute, and two CEI employees in their capacity as private individuals.
At issue in this case is TSA’s multi-year failure to complete its notice-and-comment rulemaking on body scanners, despite two court rulings ordering it to do so. More than eight years ago, in early 2007, TSA began deploying whole body imaging scanners in U.S. airports to screen airline passengers. Since then, more than 740 of these body scanning machines, also referred to as Advanced Imaging Technology (AIT), have since been installed in 160 airports nationwide.
In May 2009, the Electronic Privacy Information Center (EPIC), a non-profit research center, and thirty other organizations wrote a letter urging the Secretary of Homeland Security—who oversees TSA—to conduct notice-and-comment rulemaking with respect to the agency’s use of whole body imaging in airports. The agency responded to the letter, but it did not commence a rulemaking. In April 2010, EPIC and a similar set of organizations filed a formal petition asking the Secretary to issue a rule governing TSA’s use of body scanners in airports. Again, TSA did not initiate a rulemaking.
Five years ago, in July 2010, EPIC filed a petition with the D.C. Circuit Court of Appeals for review, arguing among other things that TSA’s deployment and use of body scanners were unlawful due to the agency’s failure to conduct notice-and-comment rulemaking as required by the Administrative Procedure Act (APA). In July 2011, the court held TSA’s body scanners to be in violation of the APA, and remanded it to the agency with instructions to “promptly . . . proceed in a manner consistent with [this Court’s] opinion.”
A year later, TSA had yet to publish a notice of proposed rulemaking, a necessary prerequisite to issuing a final rule. Thus, in July 2012, EPIC petitioned for a writ of mandamus to effectuate its earlier decision. In September 2012, the court denied EPIC’s petition, but emphasized that it expected TSA’s notice of proposed rulemaking would be “published before the end of March 2013.” The agency fulfilled this deadline with only five days to spare.
Now, four years after the D.C. Circuit’s July 15, 2011, mandate, and more than two years after TSA published its “notice of proposed rulemaking,” the agency has yet to issue a final rule, or take any other steps toward meeting the APA’s requirements. For more than eight years, therefore, TSA has subjected passengers flying through U.S. airports to body scanners, and the American people have not had any say in this policy, even though they are substantively affected by it.
TSA has taken far too long to heed the court’s mandate that it publish a body scanner rule despite repeated public requests to conduct notice-and-comment rulemaking. TSA’s chronic failure to timely comply with the court’s mandate illustrates crippling bureaucratic inefficiency, especially for an agency with more than 50,000 full-time equivalent employees.
On October 23, 2015, the D.C. Circuit ordered TSA to quickly complete its rulemaking regarding the body scanner issue. The court gave TSA thirty days to submit a schedule for publishing its final rule.