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Case Name Electronic Privacy Information Center (EPIC) v. U.S. Department of Homeland Security NS-DC-0100
Docket / Court USCA Case #10-1157 ( D.D.C. )
State/Territory District of Columbia
Case Type(s) National Security
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 ... read more >
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.

MJ Koo - 02/16/2017
Lisa Koo - 03/23/2019


compress summary

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Issues and Causes of Action
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Issues
Constitutional Clause
Unreasonable search and seizure
Defendant-type
Jurisdiction-wide
General
Other
Religious programs / policies
Plaintiff Type
Non-profit NON-religious organization
Special Case Type
Appellate Court is initial court
Type of Facility
Government-run
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
Defendant(s) Department of Homeland Security
Plaintiff Description A non-profit research organization involved with civil liberties, including a right to privacy.
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Litigation
Order Duration 2012 - 2012
Filing Year 2010
Case Closing Year 2012
Case Ongoing No
Additional Resources
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  EPIC v. DHS
epic.org- litigation documents
Date: Apr. 8, 2019
(Electronic Privacy Information Center (EPIC))
[ Detail ] [ External Link ]

Docket(s)
10-1157 (U.S. Court of Appeals)
NS-DC-0100-9000.pdf | Detail
Date: 05/03/2012
Source: PACER [Public Access to Court Electronic Records]
General Documents
Petition for Review [Ct. of App. ECF# BL-2]
NS-DC-0100-0001.pdf | Detail
Date: 07/02/2010
Source: PACER [Public Access to Court Electronic Records]
On Petition for Review of an Order of the U.S. Department of Homeland Security [Ct. of App. ECF# 1318805 ] (653 F.3d 1)
NS-DC-0100-0002.pdf | WESTLAW| LEXIS | Detail
Date: 07/15/2011
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Ginsburg, Douglas Howard (D.C. Circuit) show/hide docs
NS-DC-0100-0002
Plaintiff's Lawyers Rotenberg, Marc (District of Columbia) show/hide docs
NS-DC-0100-0001 | NS-DC-0100-9000
Verdi, John Arthur (District of Columbia) show/hide docs
NS-DC-0100-0001
Defendant's Lawyers Brinkmann, Beth S (District of Columbia) show/hide docs
NS-DC-0100-9000
Koppel, John S. (District of Columbia) show/hide docs
NS-DC-0100-9000
Letter, Douglas (District of Columbia) show/hide docs
NS-DC-0100-9000
Singer, Michael Jay (District of Columbia) show/hide docs
NS-DC-0100-9000

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