Electronic Privacy Information, et al v. DHS, et al

Filing 2

PETITION FOR REVIEW filed [1253217] by Electronic Privacy Information Center, Chip Pitts and Bruce Schneier of a decision by federal agency [Service Date: 07/02/2010 ] Disclosure Statement: Attached; Certificate of Parties: Not Applicable to this Filing [10-1157]

IN THE UNITED STATES COURT OF
FOR THE DISTRICT OF COLUMBIA

THE ELECTRONIC PRIVACY INFORMATION
CENTER,
CHIP PITTS, and BRUCE SCHNEIER,
Petitioners,

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No.

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JANET NAPOLITANO, in her official capacity
as Secretary of the United States Department of
Homeland Security, MARY ELLEN
CALLAHAN, in her official capacity as Chief
Privacy Officer, and THE UNITED STATES
DEPARTMENT OF HOMELAND SECURITY,
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Respondents.
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PETITION FOR REVIEW
Petitioners the Electronic Privacy Information Center ("EPIC"), Chip Pitts,
and Bruce Schneier hereby petition the Court for review of three agency actionsone failure to act, one agency Order, and one agency Rule-of

the Transportation

Security Administration ("TSA"), a Department of Homeland Security ("DHS")
component.
First, Petitioners petition the Court for review of the TSA's failure to act on
EPIC'S May 3 1, 2009 5 U.S.C. 5 553(e) petition. Second, Petitioners petition the
Court for review of the May 28,20 10 Order of the TSA refusing to process of

EPIC's April 2 1, 20 1 0 5 U.S.C. 5 553(e) petition. Third, Petitioners petition the
Court for review of 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.
Petitioner EPIC filed a Section 553(e) petition on May 3 1, 2009 ("the First
EPIC Petition"). The First EPIC Petition notes "the [TSA's] announced plan to
deploy [full body scanners] as the primary means of screening airline passengers in
the United States" and urges the DHS to undertake a "a 90-day formal public
rulemaking process to receive public input on the agency's use of [full body
scanners]." On June 19, 2009, the DHS wrote a letter to EPIC, but failed to grant
or deny EPIC's petition for the formal rulemaking concerning TSA's use of full
body scanners ("the DHS Letter").
Copies of the First EPIC Petition and the DHS Letter are attached as Exhibit
1 and Exhibit 2, respectively.
On April 21, 201 0 Petitioner EPIC' filed a Section 553(e) petition ("the
Second EPIC Petition") with the TSA seeking repeal of the TSA's "rule mandating
the use of body scanners at airport checkpoints as primary screening." On May 28,
20 10, 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

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Thirty organizations, including Petitioner EPIC, filed the April 2 1 , 20 10 petition. The other twenty-nine
organizations are not petitioners in the present action.

petition under 5 U.S.C. $553." ("the TSA Order"). The TSA Order is the final
administrative action in this matter, and constitutes the final agency order.
Copies of the Second EPIC Petition and the TSA Order are attached as
Exhibit 3 and Exhibit 4, respectively.
The TSA recently issued, on a date unknown to Petitioners, a Rule
mandating the use of "full body scanners" at airport checkpoints as primary
screening. This Rule is a final administrative action, and constitutes a final agency
rule.

Respectfully Submitted,

MARC R O T E ~ ~ & R G
JOHN VERDI
Electronic Privacy Information Center
1718 Connecticut Ave. NW
Suite 200
Washington, DC 20009
(202) 483- 1 140
Counsel for Petitioners

Dated: July 2, 2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
THE ELECTRONIC PRIVACY INFORMATION )
CENTER,
1
CHIP PITTS, and BRUCE SCHNEIER,
)
Petitioners,
1

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)

JANET NAPOLITANO, in her official capacity
as Secretary of the United States Department of
Homeland Security, MARY ELLEN
CALLAHAN, in her official capacity as Chief
Privacy Officer, and THE UNITED STATES
DEPARTMENT OF HOMELAND SECURITY,

No.

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Respondents.

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F.R.A.P 26.1 CORPORATE DISCLOSURE STATEMENT
Petitioner the Electronic Privacy Information Center EPIC) is a public
interest research center in Washington, D.C., which was established in 1994 to
focus public attention on emerging civil liberties issues and to protect privacy, the
First Amendment, and other Constitutional values. EPIC is a 50 1(c)(3) non-profit
corporation. EPIC has no parent, subsidiary, or affiliate. EPIC has never issued
shares or debt securities to the public.

Respectfully Submitted,

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rn

MARC ROTENBERG

JOHN VERDI
Electronic Privacy Information Center
1718 Connecticut Ave. NW
Suite 200
Washington, DC 20009
(202) 483- 1140
Counsel for Petitioners

Dated: July 2,201 0

CERTIFICATE OF SERVICE
The undersigned counsel certifies that on this 2nd day of July, 2010, he
caused one copy each of the foregoing Petition for Review and F.R.A.P. 26.1
Corporate Disclosure Statement to be served by courier on the following:
The Office of the General Counsel
U.S. Department of Homeland Security
Washington, DC 20528
Francine J. Kerner
Chief Counsel
Transportation Security Administration
U.S. Department of Homeland Security
60 1 South 12th St.
Arlington, VA 20598

MARC ROTENBERG
JOHN VERDI
Electronic Privacy Information Center
17 18 Connecticut Ave. NW
Suite 200
Washington, DC 20009
(202) 483- 1140
Counsel for Petitioners