Case: 15-2356
Document: 00116936648
Page: 1 Date Filed: 12/23/2015 Page 1/8
Entry ID: 5964523
United States Court of Appeals for the First Circuit Sai Petitioner v.
Civil Action No.: 152356
Peter Neffenger Respondent
Motion for emergency preliminary injunction and temporary restraining order On December 18, 2015, Respondent issued a "Privacy Impact Assessment Update for TSA Advanced Imaging Technology1", DHS/TSA/PIA032(d)2 ("AIT PIA"), without any APA proceeding whatsoever. The AIT PIA states that "TSA may direct mandatory AIT screening for some passengers".3 In EPIC v DHS, 653 F.3d 1 (D.C. Cir. 2011), the court ruled, in regard to TSA's introduction of optional AIT, that "TSA has not justified its failure to initiate noticeandcomment rulemaking before announcing it would use AIT scanners for primary screening. None of the exceptions urged by the TSA justifies its failure to give notice of and receive comment upon such a rule, which is legislative and not merely interpretive, procedural, or a general statement of policy." TSA has again violated the APA by promulgating a de facto regulation that, under completely unspecified circumstances, mandates travelers to submit to electronic strip searches. TSA's "Advanced Imaging Technology" is TSA's name for electronic strip search machines for screening the bodies of travelers under their clothes. 1
2
https://www.dhs.gov/sites/default/files/publications/privacytsapia32dait.pdf
Petitioner expects to be subject to TSA screening SOPs in the immediate future, and therefore has personal standing to challenge this completely unlawful change. 3
Case: 15-2356
Document: 00116936648
Page: 2 Date Filed: 12/23/2015 Page 2/8
Entry ID: 5964523
standard operating procedures, such as this de facto regulation, are subject — according to TSA — to enforcement by civil penalty.4 The D.C. Circuit's denial of EPIC's claim that the use of AIT machines violates the 4th Amendment rested crucially on the fact that, at the time, TSA's unlawfully promulgated policy made the use of AITs optional . "More telling, any passenger may optout of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive." Id. at 10. A policy of mandatory electronic strip search screening necessarily implicates stronger 4th Amendment concerns than an optional policy, and has not been approved of by any court in this country. The AIT PIA was, according to TSA, issued pursuant to a 49 USC § 46110 order, which is within the scope of this lawsuit.5 See e.g. Blitz v. Napolitano , 700 F. 3d 733 (4th Cir. 2012). Accordingly, Petitioner hereby moves for an emergency preliminary injunction and temporary restraining order , forbidding TSA from implementing any mandatory AIT screening or any other aspect of the order authorizing this SOP change, pending (a) full APA notice and comment rulemaking, and (b) further order of this Court, on de novo review of a full record, as to the constitutionality of TSA's new "order" under the 4th Amendment. 1. TSA's NPRM explicitly stipulated that AIT screening would be optional . Quoting TSA's AIT NPRM6, at 78 FR 18294 : 4
https://www.tsa.gov/sites/default/files/enforcement_sanction_guidance_policy.pdf
Petitioner does not waive this suit's due process challenge to § 46110, nor concede that TSA SOPs are properly § 46110 "orders", but takes both arguendo for the purposes of this PI/TRO. 6 From the same NPRM: "TSA has provided a detailed explanation of AIT procedures on its Web 5
Case: 15-2356
Document: 00116936648
Page: 3 Date Filed: 12/23/2015 Page 3/8
Entry ID: 5964523
"To give further effect to the Fair Information Practice Principles that are the foundation for privacy policy and implementation at DHS, individuals may optout of the AIT in favor of physical screening. TSA provides notice of the use of AIT and the optout option at the checkpoint so that individuals may exercise an informed judgment on AIT. Signs are posted that explain the technology and state “use of this technology is optional. If you choose not to be screened by this technology you will receive a thorough pat down.”7" TSA has repeatedly affirmed that AIT screening is optional. See e,g, Opting Out of AIT (Body Scanners) , TSA Blog, November 19, 20128; Advanced Imaging Technology guide, last updated January 3, 20149; Transgender Passengers , current as of today10 . Accordingly, the rule announced in the AIT PIA — that AIT screening will be "mandatory" under certain unspecified circumstances — cannot lawfully follow from TSA's pending NPRM
site at www.tsa.gov/aithowitworks (which allows opt out procedures for passengers)", 78 FR 18289 ; "AIT screening is currently optional, but when opting out of AIT screening, a passenger will receive a patdown. … The Web site states that AIT is optional.", 78 FR 18296 . The NPRM also incorporates the reasoning of EPIC v. DHS , 653 F.3d 1 (D.C. Cir. 2011) justifying AIT use by being an optional policy. "The Court also pointed out that passengers are not required to go through the AIT screening process. The Court stated “no passenger is ever required to submit to an AIT scan * * * [and] signs at the security checkpoint notify passengers they may opt instead for a patdown.”" 78 FR 18293 . The NPRM had a footnote here linking to https://www.tsa.gov/aithowitworks . That page was taken down sometime between May 3, 2014 and September 5, 2015. An archived copy is available at https://web.archive.org/web/20150503061337/http://www.tsa.gov/aithowitworks . 7
8
http://blog.tsa.gov/2012/11/optingoutofaitbodyscanners.html
"AIT is Optional for All Passengers Use of this technology is optional for all passengers. Passengers who choose not to undergo this screening will receive alternative screening, which could include a thorough pat down. If you do not wish to undergo imaging technology screening please advise the Transportation Security Officer operating the unit." 9
https://www.tsa.gov/data/guide/ait.html 10
"Requesting a PatDown: You may request to receive a patdown instead of AIT screening."
https://www.tsa.gov/transgenderpassengers
Case: 15-2356
Document: 00116936648
Page: 4 Date Filed: 12/23/2015 Page 4/8
Entry ID: 5964523
on AIT, 78 FR 18287 ("AIT NPRM"). A mandatoryAIT rule has never been publicly noticed by TSA, is not within the scope of the AIT NPRM, and violates TSA's historically and currently emphasized "optout" policy. Even if this Court permits TSA to continue using optional AIT screening despite TSA's flagrant APA violation and the lack of a rule on the matter, such indulgence should not extend to this new, mandatory AIT rule. 2. TSA repeatedly flouted the APA, and continues to do so. TSA was held to have violated the APA in EPIC v DHS , No. 101157, 653 F.3d 1, 11 (D.C. Cir. July 15, 2011). In 2012, TSA had still not yet issued an NPRM, so EPIC petitioned for mandamus . The D.C. Circuit denied EPIC's petition on the basis of TSA's representation that the NPRM would "be published … [by] February 2013", and accordingly the court "expect[ed] that the NPRM will be published before the end of March 2013". In re EPIC , No. 12-1307 (D.C. Cir. Sept. 25, 2012). TSA published the NPRM on March 26, 2013, while continuing to use AIT machines (started in early 200711), though they had not then (and still have not) been approved by any final rule. On July 15, 2015, the Competitive Enterprise Institute ("CEI") petitioned the D.C. Circuit for mandamus requiring TSA to publish a final rule. In re. CEI , No. 151224 (D.C. Cir.). That petition was denied on the basis of TSA's representation that the final rule would be "published
11
Thomas Frank, TSA Looks Into Using More Airport Body Scans , USA TODAY, Oct. 7, 2007.
Case: 15-2356
Document: 00116936648
Page: 5 Date Filed: 12/23/2015 Page 5/8
Entry ID: 5964523
… by March 3, 2016". CEI , Dec. 15, 2015. TSA is in violation of the court's order in EPIC v DHS , and its promulgation of the mandatoryAIT rule / § 46110 order is likewise unlawful. 3. The APA mandates public notice and comment rulemaking prior to the adoption of policies such as the one "announced"12 in the AIT PIA. See 5 USC 553(c) . "Congress made a judgment that notions of fairness and informed administrative decisionmaking require that agency decisions be made only after affording interested persons notice and an opportunity to comment." Chrysler Corp. v. Brown , 441 U.S. 281, 316 (1979). "It is antithetical to the structure and purpose of the APA for an agency to implement a rule first, and then seek comment later." Paulsen v. Daniels , 413 F.3d 999, 1005 (9th Cir. 2005). 4. A mandatoryAIT policy implicates important civil rights of millions of travelers. This motion does not attempt to argue the constitutionality of the mandatoryAIT policy; that is a question that this Court should address after a full, nonemergency briefing, with benefit of counsel for Petitioner. Petitioner acknowledges that other Circuits have held that an optional AIT policy does not violate the 4th Amendment. (This Circuit has not ruled on the question.) However, the balance of remedies for a preliminary injunction / temporary restraining order must consider the seriousness and breadth of the potential harm from a mandatory AIT policy.
It is difficult to fairly call the issuance of a privacy impact assessment a reasonable APA "notice" of TSA's alreadyissued rule — especially when the SOP from which it stems is, to date, being kept as secret law under 49 USC 114(r) ("sensitive security information"). 12
Case: 15-2356
Document: 00116936648
Page: 6 Date Filed: 12/23/2015 Page 6/8
Entry ID: 5964523
Millions of passengers travel through TSA checkpoints every day.13 Many, including Petitioner, cannot or will not go through AIT screening, for reasons including (but not limited to): ● inability to hold arms up as needed for the AIT scan, e.g. due to temporary or permanent disability, see e.g. Rehabilitation Act; ● religious edicts against any form of strip search, whether done by machine or human, see e.g. Religious Freedom Restoration Act; ● being transgender, and therefore being falsely flagged by AIT as having an "anomaly" (i.e. anatomy or prosthetics that do not match the screener's gender expectations), see e.g. Rehabilitation Act; and ● asserting fundamental 1st, 4th, and 5th amendment rights, see e.g. Bivens, FTCA, APA, and United States Constitution . TSA has apparently issued a § 46110 order that, under some circumstances, mandates that passengers undergo electronic strip search through AIT machines. There is no urgent security reason for this sufficient to justify TSA's lawless refusal to obey the APA with regard to this new rule. TSA has followed an optional AIT policy since 2007 without asserting any urgent problem. According to the AIT PIA, TSA will arbitrarily and capriciously subject travelers to mandatory AIT screening, with no provision for the considerations above, no notice of the rules governing the selection for mandatory screening, and no final rule (even on the optional AIT NPRM). Petitioner, and millions of similarly situated travelers, can expect to imminently be adversely affected by this new rule. If they do not comply with this unlawful new rule, they may be subject
13
In particular, Petitioner expects to do so on December 31, 2015.
Case: 15-2356
Document: 00116936648
Page: 7 Date Filed: 12/23/2015 Page 7/8
Entry ID: 5964523
to civil penalties or to refusal of boarding.14 Accordingly, Petitioner urges this Court to immediately enjoin TSA's new rule, pending both full APA notice and comment rulemaking explicitly on the topic of mandatory AIT screening, and full briefing and opinion of this Court on the legality thereof. This Court need not, and should not, reach a holding on the constitutionality of the new rule in response to this motion. The APA alone requires that it be enjoined; the constitutional concerns justify immediate relief. Respectfully submitted, Sai, petitioner pro se
[email protected] +1 510 394 4724 phone / +1 206 203 2827 fax 500 Westover Dr. #4514, Sanford, NC 273308941
Petitioner's upcoming travel on Dec. 31, 2015 crosses US borders (both in and out). A denial of boarding would thus violate Petitioner's fundamental right, as a citizen, to enter and leave the United States. Petitioner will not consent to, and is not able to undergo, an AIT screening. 14
Case: 15-2356
Document: 00116936648
Page: 8 Date Filed: 12/23/2015 Page 8/8
Entry ID: 5964523
Certificate of service I hereby certify that today, December 23, 2015, I filed this paper on Respondent by CM/ECF.
