On Petitions for Review of an Order of the Federal Aviation Administration
Before: Rogers, Tatel and Garland, Circuit Judges.
The opinion of the court was delivered by: Rogers, 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.
Petitions filed by two non-resident alien pilots challenge certain aviation regulations adopted in the wake of the September 11, 2001 terrorist attacks. From the establishment of the Transportation Security Administration ("TSA") in November 2001 to the promulgation of the challenged regulations in January 2003, aviation security has undergone a fundamental transformation. The pilots contend that the new procedures resulting in the revocation of their airman certificates issued by the Federal Aviation Administration ("FAA") violated the Administrative Procedure Act ("APA") and the due process clause of the Fifth Amendment to the United States Constitution. Specifically, they contend that the January 2003 regulations were unlawfully promulgated without notice and comment, that the revocations were not supported by substantial evidence in the record, and that they were denied meaningful notice of the evidence against them and a meaningful opportunity to be heard.
Congress has delegated broad discretion to the Federal
Aviation Administration ("FAA") to prescribe regulations and
standards for safety in air commerce and national security.
See 49 U.S.C. § 44701(a)(5). The FAA may "at any time"
re-examine the issuance of an airman certificate and issue an
order "modifying, suspending, or revoking" a certificate if the
Administrator determines that such action is required for
"safety in air commerce" and "the public interest." 49 U.S.C.
§§ 44709(a), (b). With regard to issuing airman certificates
to qualified individuals, Congress distinguished between citizens and aliens, conferring broad discretion to the FAA
regarding alien pilots. See id. § 44703(e). After the September 11, 2001 terrorist attacks, Congress established the
Transportation Security Administration ("TSA") on November 19, 2001, and transferred much of the responsibility for
civil aviation security from the FAA to the TSA. See id.
§§ 114(d), (f).
This case concerns alien pilots only; citizens and resident alien pilots have challenged the applicable regulations in Coalition of Air Line Pilots Ass'ns. v. FAA, Nos. 03-1074 and 03-1076 (D.C. Cir. June 11, 2004). The two pilots, Jifry and Zarie, are citizens of Saudi Arabia who have used their FAA certificates to pilot flights abroad, but have not operated Saudi Arabian Airlines flights to the United States in the past nine and four years, respectively. On August 14, 2002, the TSA sent letters to the FAA requesting that Captain Jifry and Captain Zarie have their airman certificates revoked, stating that "[b]ased upon information available to us," they presented "a security risk to civil aviation or national security." The FAA notified Jifry and Zarie by letters of August 20, 2002, that their airman certificates would be revoked because the Acting Under Secretary of Transportation for Security, pursuant 49 U.S.C. §§ 44709(b)(1)(A) and 46105(c), had determined that they presented risks to aviation or national security. The FAA revoked the pilots' certificates, see 49 U.S.C. § 44709(b), and the pilots appealed the revocations to the National Transportation Safety Board ("NTSB"). Id. § 44709(d). An administrative law judge ("ALJ") held a telephonic pre-hearing conference on January 17, 2003, and ordered that the FAA and the TSA provide a privilege log and that depositions of key witnesses take place by mid-February.
A week later, on January 24, 2003, the FAA dismissed the revocation actions against Jifry and Zarie, and in conjunction with the TSA, published, without notice and comment, new regulations governing the suspension and revocation of airman certificates for security reasons. See 14 C.F.R. § 61.18, 49 C.F.R. § 1540.117. The new FAA regulation, 14 C.F.R. § 61.18, provides for automatic suspension by the FAA of airman certificates upon written notification from the TSA that the pilot poses a security threat and, therefore, is not eligible to hold an airman certificate. The TSA simultaneously promulgated 49 C.F.R. § 1540.117, which establishes the procedure by which the TSA initially and finally notifies nonresident aliens who hold or apply for FAA certificates that they pose a security threat, and requires the TSA to notify the FAA once the TSA has determined that a pilot is a security threat. Upon finding that a pilot poses a "security threat," see 49 C.F.R. § 1540.117(c), the TSA Assistant Administrator for Intelligence issues an Initial Notification of Threat Assessment ("Initial Notice") to the individual and serves that determination upon the FAA. See id. § 1540.117(e). The FAA then suspends the pilot's certificate. See 14 C.F.R. § 61.18(b)(2). No later than 15 days after service, the pilot may make a written request for copies of releasable materials upon which the Initial Notice was based. See 49 C.F.R. § 1540.117(e)(1) & (2). The TSA must respond not later than 30 days after receiving the request, and the pilot may submit a written reply within 15 days of receiving the TSA's response. See id. § 1540.117(e)(3) & (4). At that point, the TSA Deputy Administrator must review the entire record de novo to determine if the pilot poses a security risk. Id. § 1540.117(f)(1). If the Deputy so determines, the TSA serves a Final Notification of Threat Assessment ("Final Notice"), id. § 1540.117(f)(2), and the FAA revokes the certificate. See 14 C.F.R. § 61.18(c)(2). The pilot may appeal the certificate revocation to the NTSB. See 49 U.S.C. § 44709(d). Upon exhaustion of these administrative remedies, the pilot may seek review in the court of appeals, which may review the case on the merits. See id. §§ 44709(f), 46110.
On January 24, 2003, the TSA also served an Initial Notice of Threat Assessment designating Jifry and Zarie as security threats, and the FAA suspended their certificates. The pilots appealed the Initial Notice, and requested the materials upon which the Initial Notice had been issued. The TSA provided the releasable materials, but did not include the factual basis for TSA's determination, which was based on classified information. The pilots then appealed the suspension of their certificates to the NTSB. The ALJ granted the TSA's motion for summary judgment, ruling that the only question was procedural - whether the pilots had been duly advised by the TSA, in writing, that they posed a security threat, and finding that they had. Upon the pilots' appeals, the NTSB affirmed the ALJ's order in favor of the TSA. Jifry and Zarie then filed replies to the TSA's Initial Notice, stating that the "lack of evidence and information about the basis for the determination contained in the TSA's response" made it impossible for them to specifically rebut the TSA's allegations, and denying that they were security threats. On May 8, 2003, the TSA Deputy Administrator, upon de novo review of the administrative record, denied the pilots' challenge to the Initial Notice and issued a Final Notice based on finding that Jifry and Zarie posed security threats. See 49 C.F.R. § 1540.117(c). The FAA then revoked the pilots' airman certificates. On August 13, 2003, the NTSB denied the pilots' appeal of the revocation of their certificates for the same reasons it had denied their challenges to the suspensions, and affirmed the ALJ's grant of summary judgment to the TSA and the emergency orders of revocation.
The pilots make three challenges to the revocations of their FAA airman certificates: first, that the January 2003 regulations were unlawfully promulgated without notice and comment; second, that the revocations were not supported by substantial evidence in the record; and third, that the procedures provided by the January 2003 regulations violated their due process rights under the Fifth Amendment to the Constitution. We address each in turn.
Section 553 of the Administrative Procedure Act ("APA") requires an agency to publish a general notice of proposed rulemaking and to afford an opportunity for interested persons to participate in the rulemaking. See 5 U.S.C. § 553(b), (c). The "good cause" exception, however, provides that "when the agency for good cause finds ... that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest," the agency need not engage in notice and comment. Id. § 553(b)(3)(B). The pilots contend that the regulations of January 2003 are invalid because they were unlawfully promulgated without notice and comment, and there was no rational basis for eliminating the right to a meaningful appeal before the NTSB. They maintain that the "good cause" exception does not apply because notice and comment had not been "impracticable, unnecessary or contrary to the public interest" inasmuch as the FAA already had the authority to immediately suspend or revoke a certificate upon finding that "safety in air commerce or air transportation and the public interest" required such an action. See 49 U.S.C. § 44709, amended by Pub. L. No. 108- 176, 117 Stat. 2490 (2003).
Contrary to the position of respondents TSA, FAA, and the NTSB, the pilots' APA challenges to the FAA regulation, 49 C.F.R. § 61.18, are not mooted by the enactment of the Vision 100 - Century of Aviation Reauthorization Act ("Act"), 49 U.S.C. § 46111, on December 12, 2003. The Act provides that the FAA Administrator "shall issue an order ... suspending, or revoking any part of a certificate ... if the Administrator is notified by the Under Secretary for Border Transportation Security of the Department of Homeland Security that the holder of the certificate poses, or is suspected of posing, a risk of air piracy or terrorism or a threat to airline or passenger safety." 49 U.S.C. § 46111(a). The respondents maintain that through § 46111, Congress approved the certificate-revocation process embodied in the FAA regulation by expressly commanding the FAA to suspend or revoke certificates if requested by the TSA. The respondents have not shown a lack of a live controversy, however, because the effects of 14 C.F.R. § 61.18 remain very real for non-resident alien ...