Brief of Amici Curiae Supporting EPIC’s Petition for Writ of Mandamus (EPIC v. DHS)

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Summary of Argument

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 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, 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 APA empowers courts to compel agency action when it is “unreasonably delayed.” Despite public assurances to the contrary, the TSA has not opened a public rulemaking since the D.C. Circuit required them to a year ago. The agency has pointed to a lack of resources as justification for its delay, but it has a discretionary budget larger than that of the entire federal judiciary and staff larger that of the Departments of Labor, Energy, Education, Housing and Urban Development, and State, combined. And this lack of capacity has not prevented the TSA from opening a new and unrelated rulemaking, adding substantial numbers of AIT scanners across the country to airports, and starting a new PreCheck program for frequent fliers in the last year.

Members of Congress have expressed concerns about the use of AIT scanners for passenger screening. Many have noted the cost of the scanners, which has been projected to be $500 million by the end of 2013. Others have emphasized the privacy interests which have been infringed, while still others have focused on the lack of evidence that the scanners are an effective means of screening passengers for explosives.

The Court should set a timetable for the TSA to open public rulemaking because it would allow facts such as these to be brought to the agency’s attention. If the TSA cannot justify the use of body-scanners to the public, then further court supervision could be required.

*One of the amici, Center for Individual Freedom (CFIF), was incorrectly identified in the corporate disclosure statement as a 501(c)(3) corporation. CFIF is a 501(c)(4) corporation.