On Petitions for Review of Orders of the Federal Aviation Administration and the Transportation Security Administration
Before: Rogers, Tatel, and Garland, Circuit Judges.
The opinion of the court was delivered by: Tatel, Circuit Judge
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
Several unions representing aviation workers challenge regulations promulgated by the Transportation Security Administration and the Federal Aviation Administration to prevent individuals who pose security threats from flying, repairing, or navigating airplanes in the United States. After the TSA and FAA promulgated these rules, Congress enacted a new law directing the agencies to accomplish this mission in a different way, prompting them to pledge formally that they would no longer enforce the regulations as written. Because these intervening events have mooted the unions' claims, we dismiss the petitions for review.
Recognizing that "the terrorist hijacking and crashes of passenger aircraft on September 11, 2001, which converted civil aircraft into guided bombs for strikes against the United States, required a fundamental change in the way [the government] approaches the task of ensuring the safety and security of the civil air transportation system," Congress enacted the Aviation and Transportation Security Act, Pub. L. No. 107-71, 115 Stat. 597 (2001), to improve security in the
nation's transportation system. H.R. CONF. REP. NO. 107-
296, at 53 (2001), reprinted in 2001 U.S.C.C.A.N. 589, 590. In
order to achieve this goal, Congress created the Transportation Security Administration within the Department of Transportation and charged it with assuring "security in all modes
of transportation." 49 U.S.C. § 114(d) (Supp. III 2003).
Under the Act, the TSA assumed responsibility not only for
day-to-day security screening at the nation's airports, id.
§ 114(e), but also for receiving, assessing, and distributing
intelligence information concerning transportation security,
id. § 114(f)(1).
To address the possibility that pilots, aircraft mechanics, or
others working in civil aviation might engage in terrorist
activities, the Act requires the nascent agency to "establish
procedures for notifying the Administrator of the Federal
Aviation Administration... of the identity of individuals
known to pose, or suspected of posing, a risk of air piracy or
terrorism or a threat to airline or passenger safety." Id.
§ 114(h)(2). The statute also directs the FAA to modify its
system for issuing airman certificates in order to make it
more effective at combating terrorism. Id. § 44703(g) (2000
& Supp. III 2003). Such certificates are required for individuals who wish to work as pilots, flight instructors, aircraft
mechanics, or other civil aviation employees. One year after
creating the TSA, Congress transferred the agency to the
Department of Homeland Security, placing it under that
Department's Under Secretary for Border and Transportation Security. See Homeland Security Act of 2002, Pub. L.
No. 107-296, § 424, 116 Stat. 2135, 2185 (codified at 6 U.S.C.
§ 234 (Supp. IV 2004)).
In January 2003, the TSA and FAA issued three new rules
designed to coordinate their efforts to keep dangerous individuals from infiltrating the commercial aviation system. See
Threat Assessments Regarding Citizens of the United States
Who Hold or Apply for FAA Certificates, 68 Fed. Reg. 3756
(Jan. 24, 2003) (codified at 49 C.F.R. § 1540.115); Threat
Assessments Regarding Alien Holders of, and Applicants for,
FAA Certificates, 68 Fed. Reg. 3762 (Jan. 24, 2003) (codified
zat 49 C.F.R. § 1540.117); Ineligibility for an Airman Certificate Based on Security Grounds, 68 Fed. Reg. 3772 (Jan. 24,
2003) (codified at 14 C.F.R. §§ 61.18, 63.14, 65.14). Together,
these three rules -- a TSA rule applicable to citizens, a TSA
rule applicable to non-citizens, and an FAA rule applicable to
both citizens and non-citizens -- establish a system by which
the TSA determines whether any airman certificate holder (or
applicant for such certificate) poses a security threat. If the
TSA makes such a determination, it informs the FAA of the
threat, and the FAA in turn revokes or denies the certificate.
Specifically, TSA's rules, codified at 49 C.F.R. § 1540.115 for
citizens and section 1540.117 for non-citizens, provide that
when TSA's Assistant Administrator for Intelligence finds
that any individual is "suspected of posing, or is known to
pose" a security threat, 49 C.F.R. §§ 1540.115(c), 1540.117(c),
the agency will serve that person, as well as the FAA, with an
Initial Notification of Threat Assessment, id.
§§ 1540.115(e)(1), 1540.117(e)(1). The individual then has
fifteen days in which to request any "releasable materials" on
which the Initial Notification was based, meaning information
that is not classified or otherwise sensitive for security reasons. Id. §§ 1540.115(e)(2), 1540.117(e)(2). The individual
may also file a written reply responding to the notification.
Id. §§ 1540.115(e)(4), 1540.117(e)(4). For citizens and aliens
(both resident and non-resident), TSA's Deputy Administrator then reviews the Initial Notification, any information
collected by the agency, and the individual's reply to determine whether the individual poses a security threat. Id.
§§ 1540.115(f)(1), 1540.117(f)(1). In the case of alien certificate holders, the Deputy Administrator then decides whether
to issue a Final Notification of Threat Assessment or to
withdraw the Initial Notification. Id. § 1540.117(f). In the
case of citizen certificate holders, if the Deputy Administrator
determines that the individual poses a security threat, TSA's
Administrator will conduct a separate, independent review of
the Initial Notification before issuing a Final Notification.
Id. § 1540.115(f)(2). Under the rules, the TSA must serve on
the FAA any Final Notification issued to either a citizen or
alien certificate holder. Id.; id. § 1540.117(f)(2). Although
acknowledging that in most cases the TSA will rely on
classified or otherwise sensitive information in determining
whether an individual poses a security threat, 68 Fed. Reg. at
3758, 3765, the rules provide that the TSA need not disclose
such information to the certificate holder, 49 C.F.R.
§§ 1540.115(g), 1540.117(g).
Under the FAA's rule, any person deemed a security threat by the TSA automatically becomes ineligible to hold an airman certificate. 14 C.F.R. §§ 61.18(a) (pilots, flight instructors, and ground instructors), 63.14(a) (flight crewmembers other than pilots), 65.14(a) (airmen other than flight crewmembers). Thus, under this regulatory scheme, the FAA will suspend the airman certificate of any person to whom the TSA issues an Initial Notification of Threat Assessment and then revoke the certificate upon the TSA's issuance of a Final Notification. See, e.g., 14 C.F.R. §§ 61.18(b)(2) (suspension), 61.18(c)(2) (revocation).
Declaring that prior notice and comment would delay their ability to keep dangerous persons from holding airman certificates, the TSA and FAA both found that section 553(b) of the Administrative Procedure Act, which permits agencies to issue rules without notice and comment when they find "good cause" that "notice and public procedure ... are impracticable, unnecessary, or contrary to the public interest," 5 U.S.C. § 553(b) (2000), excused advance public participation here. See 68 Fed. Reg. at 3759 (TSA rule governing citizens), 3766 (TSA rule governing aliens), 3773 (FAA rule). Accordingly, the agencies promulgated all three rules without notice and comment and made each immediately effective upon adoption.
In March 2003, the Coalition of Airline Pilots Associations, along with several labor organizations (collectively, "the Coalition"), filed petitions for review that asserted facial challenges to all three rules insofar as they affect citizen and resident alien airmen. (Challenges to these regulations insofar as they apply to non-resident alien airmen are resolved in Jifry v. FAA, No. 03-1085 (D.C. Cir. June 11, 2004), issued simultaneously with this opinion.) The Coalition claims that the regulations violate the Fifth Amendment's Due Process Clause by failing to give affected airmen a meaningful opportunity to be heard at a meaningful time, that the rules are unconstitutionally vague and overbroad, that the TSA and FAA lacked statutory authority to promulgate the rules, and that the agencies violated the APA by promulgating the rules without prior notice and comment.
Nine months after the Coalition filed its petitions, Congress enacted the Vision 100-Century of Aviation Reauthorization Act, Pub. L. No. 108-176, 117 Stat. 2490 (2003). Significantly changing the legal landscape for threat assessments and certificate revocations, this new Act, in a section now codified as 49 U.S.C. § 46111 (Supp. IV 2004), expressly ...