Privacy advocates are urging a federal appeals court in Washington to pressure the Transportation Security Administration to begin the rulemaking process on the agency's controversial airport screening program.
The Electronic Privacy Information Center in July filed a petition in the U.S. Court of Appeals for the D.C. Circuit asking the court to force the transportation agency to initiate the process, which would allow the public to provide comment about the use of whole body imaging screeners.
EPIC's lawyers, including Marc Rotenberg, said in court papers filed Monday that the appeals court should not tolerate "substantial agency delay." The D.C. Circuit, he said, should require the TSA to begin rulemaking within 60 days.
The legal action flows from a ruling in the appeals court last year that said the TSA failed to conduct notice-and-comment rulemaking before using whole body-imaging scanners at airports across the country. The D.C. Circuit, however, did not vacate the agency's underlying rule, saying that such a move "would severely disrupt an essential security operation." The appeals court instead instructed TSA to "promptly on remand" fix the "defect" over the implementation of the new scanners.
"The time has come for the Court to end the agency's unreasonable delay, and to set a date certain for the agency to issue a proposed rule or, in the alternative, to vacate the rule on which the agency relies," Rotenberg said in July.
The U.S. Justice Department, representing the transportation agency, said in court papers filed August 30 that the government was not stonewalling.
The DOJ team said the transportation agency "has been keenly aware of the importance of implementing the court's directive" and has given "high priority" to the rulemaking concerning body scanners.
"[T]here has been no 'waiting' and no 'delay.' Petitioner's repeated mandamus petitions reflect a fundamental misunderstanding of the nature of notice-and-comment rulemaking and the time and resources required to develop a proposed rule," DOJ lawyers Mark Stern and John Koppel of the Civil Division said in the papers.
DOJ lawyers said the D.C. Circuit has imposed deadlines for rulemaking "only in rare circumstances involving significantly egregious delays."
The D.C. Circuit this year issued a four-month deadline for the State Department to decide whether to continue to list an Iranian dissident group as a foreign terrorist organization. The appeals court, in its decision in June, assailed the government for inaction following an earlier directive from the court.
DOJ lawyers said the litigation over the foreign terrorist designation is distinguishable because that case involved "three discrete actions for which sole responsibility was assigned to the Secretary of State."
The TSA rulemaking, on the other hand, DOJ lawyers insisted, "entails a deliberative, complex, and sophisticated process that requires a series of reviews by different entities before completion."