FEDERAL CIRCUIT COURT SIDES WITH AIRPORT OPERATORS OVER TSA RULEMAKING DISPUTE
September 19, 2025
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On August 22, 2025, the United States Court of Appeals for the District of Columbia Circuit (the “Court”) sided with U.S. airports after TSA implemented a rulemaking to address “insider threats” in secured areas within airports without adhering to ordinary notice-and-comment procedures. The rulemaking required U.S. airport operators to physically screen aviation workers entering certain secured areas and purchase explosives-detecting equipment. Even after airport operators submitted reconsideration requests arguing that TSA should be responsible for screening aviation workers and criticizing TSA for imposing a costly requirement on airports, the agency nevertheless finalized the rulemaking in April 2023 and rejected all petitions for reconsideration. The Airport Council International-North America (“ACI-NA”) and its members then sought judicial review reasoning that TSA was required to provide the public with notice and an opportunity to comment before promulgating the rule and that the rulemaking unlawfully seized local officials to implement a federal regulatory scheme. Since the rulemaking imposed new legal requirements on airport operators across the country, the Court sided with ACI-NA and its members holding that TSA failed to comply with the APA when it promulgated the rulemaking. TSA must now adopt a new rule through notice-and-comment procedures or advise the Court within 60 days if the agency no longer considers rulemaking on this matter necessary.
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