Elec. Privacy Info. Ctr. v. United States Dep't of Homeland Sec. - 397 U.S. App. D.C. 313, 653 F.3d 1 (2011)

Rule:

5 U.S.C.S. §§ 553(b) and (c) of the Administrative Procedure Act generally require an agency to publish notice of a proposed rule in the Federal Register and to solicit and consider public comments upon its proposal. The United States Court of Appeals for the District of Columbia Circuit and many commentators have generally referred to the category of rules to which the notice-and-comment requirements do apply as "legislative rules." However, the statute does provide certain exceptions to this standard procedure; in particular, as set forth in § 553(b)(3)(A), the notice and comment requirements do not apply to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.

Facts:

Petitioners, The Electronic Privacy Information Center (EPIC) and two individuals, petitioned for review of a decision by the Transportation Security Administration (“TSA”) to screen airline passengers by using advanced imaging technology (“AIT”) instead of magnetometers. Petitioners argued that the use of AIT violated various federal statutes and the Fourth Amendment to the Constitution of the United States and, in any event, should have been the subject of notice-and-comment rulemaking before being adopted.

Issue:

1. Did the use of AIT violate federal statutes and the Fourth Amendment to the Constitution? 
2. Did the TSA violate the notice-and-comment rule in its adoption of the policy in question? 

Answer:

1) No. 2) Yes.

Conclusion:

The court held that, though it was not persuaded by the statutory and constitutional arguments, the TSA did not justify its failure to issue notice and solicit comments before announcing it would use AIT scanners for primary screening; moreover, the rule was legislative rather than interpretive, procedural, or a general policy statement and thus was not exempted from the notice and comment requirements by § 553(b)(3)(A). The court dismissed Religious Freedom Restoration Act (RFRA) claim for lack of standing and denied the petition as to the remaining statutory and Fourth Amendment claims. However, due to the TSA’s obvious need to continue its airport security operations without interruption, the court remanded the rule to the TSA but did not vacate it, and instructed the agency promptly to proceed in a manner consistent with this opinion.