U.S. Court of Appeals for the D.C. Circuit, 2017

Competitive Enterprise Institute v. United States Department of Homeland Security

U.S. Court of Appeals for the D.C. Circuit · Decided May 26, 2017 · Silberman, Tatel, Wilkins

688 F. App'x 20

Counsel

Hans Frank Bader, Sam Kazman, General Counsel, Competitive Enterprise Institute, Washington, DC, for Petitioners Competitive Enterprise Institute, The Rutherford Institute, Iain Murray, Marc Scribner, Alan Jay Butler, Senior Counsel, Marc Rotenberg, Electronic Privacy Information Center, Washington, DC, for Petitioner Electronic Privacy Information Center, Benjamin Charles Mizer, Solicitor, Mark B. Stern, Attorney, Sharon Swingle, U.S. Department of Justice, (DOJ) Civil Division, Appellate Staff, Washington, DC, for Respondents United States Department of Homeland Security, Transportation Security Administration, John F. Kelly, Peter Neffenger, Mahesha Padmanabhan Subbaraman, Attorney, Subbaraman PLLC, Minneapolis, MN, for Amici Curiae for Petitioner Freedom to Travel USA, National Association of Airline Passengers, Bill of Rights Defense Committee/Defending Dissent Foundation, Consumer Watchdog

Cases that cite this one

1 later published case cites this decision.

(PC) Porter v. Icban (United States District Court for the Eastern District of California 2024)

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Opinion of the Court

JUDGMENT

Per Curiam

These cases were considered on the record from the agency and on the briefs of the parties. The court has accorded the issues full consideration and determined that they do not warrant a published opinion. See D.C. Cir. Rule 36(d). It is

ORDERED AND ADJUDGED that the petitions for review be denied for the reasons stated in the memorandum accompanying this judgment.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en bane. See Fed R. App. P. 41(b); D.C. Cir. R. 41.

MEMORANDUM

Several petitioners challenge TSA’s regulation adopting body scanners to screen airline passengers. Passenger Screening Using Advanced Imaging Technology, 81 Fed. Reg. 11,364 (March 3, 2016). We think none of the arguments presented are sufficiently meritorious to justify a published opinion.

Petitioners essentially oppose the encroachment into individual privacy the *21body scanners present. They argue, generally, that the TSA insufficiently considered the privacy interests of passengers. Specifically, it was also contended that the agency inadequately responded to the proposition that passengers who did not wish to experience the body scanner might choose to drive — which is statistically more dangerous than airline travel — and that the TSA did not provide evidence that body scanners were the best method of screening passengers. Finally, one of the petitioners contended that the final agency rule, which did not provide a pat-down option in all eases, was not a “logical outgrowth” of the Notice of Proposed Rule-making.

We think the agency adequately responded to petitioners’ contentions in the final rule. We defer to TSA’s judgment on such an issue of national security. E.g., Olivares v. TSA, 819 F.3d 454, 462 (D.C. Cir. 2016). And the final rule was indeed a logical outgrowth of the Notice of Proposed Rulemaking; the opt-out notion was expressly at issue.

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