Southwest Airlines Co. v. Transportation Security Administration

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2011 Decided July 1, 2011

No. 10-1227

SOUTHWEST AIRLINES CO., ET AL

PETITIONERS

v.

TRANSPORTATION SECURITY ADMINISTRATION,

RESPONDENT

Consolidated with 10-1228, 10-1229, 10-1230, 10-1231,

10-1232, 10-1236, 10-1237, 10-1238, 10-1240, 10-1241,

10-1242, 10-1243, 10-1244, 10-1246, 10-1247, 10-1248,

10-1249, 10-1250

On Petitions for Review of Final Orders

of the Transportation Security Administration

M. Roy Goldberg argued the cause for petitioners. With

him on the briefs were Robert W. Kneisley, Carl B. Nelson,

Jr., Bruce H. Rabinovitz, Jonathan B. Hill, J. Parker

Erkmann, Robert E. Cohn, Patrick R. Rizzi, Lorraine B.

Halloway, Lester M. Bridgeman, Thomas Newton Bolling,

2

Richard Mathias, and David Endersbee. Christopher T.

Handman entered an appearance.

Jeffrey Clair, Attorney, U.S. Department of Justice,

argued the cause for respondent. With him on the brief were

Tony West, Assistant Attorney General, and Scott R.

McIntosh, Attorney.

Before: HENDERSON, BROWN, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge

KAVANAUGH, with whom Circuit Judge HENDERSON joins.

Dissenting opinion filed by Circuit Judge BROWN.

KAVANAUGH, Circuit Judge: Until 2001, commercial

airlines were responsible for screening people and property at

U.S. airports. That changed after al Qaeda terrorists boarded

airplanes in Boston, Newark, and Washington, D.C., and

attacked the United States on September 11, 2001. Congress

created the Transportation Security Administration and

directed it to take responsibility for airport screening. TSA’s

screening operations are funded, in part, by fees that the

agency collects from airlines. By statute, those fees may not

exceed the amount that airlines paid for screening passengers

and property during the year 2000. 49 U.S.C.

§ 44940(a)(2)(B)(i). Because the fees airlines pay to TSA are

capped at the level of their 2000 costs, the lower the airlines’

screening costs in 2000, the better it is for the airlines now.

But determining how much the airlines spent in 2000 on

passenger and property screening at airports has proved to be

a difficult exercise. Hence, this drawn-out litigation:

Southwest and 19 other airlines allege that TSA’s

determination of their year 2000 costs was arbitrary and

3

capricious for purposes of the Administrative Procedure Act

and also unconstitutional. We disagree, and we deny the

petitions for review.

I

Shortly after the al Qaeda attacks of September 11, 2001,

Congress passed and President Bush signed the Aviation and

Transportation Security Act. Pub. L. No. 107-71, 115 Stat.

597 (2001). Under that statute, the Federal Government –

specifically, the newly created Transportation Security

Administration – assumed responsibility for airport security

functions that were previously undertaken by private airlines.

TSA took over the task of screening all passengers and

property at U.S. airports.

By statute, TSA imposes two kinds of fees to fund its

airport security services: a fee on passengers and a fee on

airlines.

The fee on airlines is at issue here. That fee may not

exceed the amount that TSA determines airlines paid for

screening passengers and property during the year 2000. 49

U.S.C. § 44940(a)(2)(B)(i). In other words, the airline fee is

designed to track the costs that airlines incurred to screen

passengers and property when airlines performed that

function.

To determine how much money airlines paid to screen

passengers and property in the year 2000, TSA initially relied

on cost data submitted by the airlines themselves. Suspicion

mounted that airlines were low-balling their 2000 costs so as

to reduce the fees they would have to pay to TSA under the

new system. In 2004, Congress directed the Government

Accountability Office to independently review airlines’ year

4

2000 screening costs. See Dep’t of Homeland Security

Appropriations Act for 2005, Pub. L. No. 108-334, Title II,

118 Stat. 1298 (2004). Upon completing that review, the

GAO concluded that total airline screening costs in the year

2000 were $448 million – $129 million more than the airlines

had claimed. Acting on that estimate, TSA assessed

additional fees on numerous airlines for 2005 and future

years.

It turned out, however, that GAO’s estimate of year 2000

screening costs included the costs of screening non-

passengers as well as passengers and property. The airline

fee imposed by TSA, by contrast, is capped at the amount that

TSA determines airlines “paid . . . for screening passengers

and property” in the year 2000. 49 U.S.C. § 44940(a)(2)(B)(i)

(emphasis added). Numerous airlines – including many of the

petitioners here – challenged TSA’s fee increases in this

Court, arguing that TSA “violated the plain language of the

[statute] by basing its calculation of the fees on a GAO

estimate which had included the costs of screening non-

passengers.” Southwest Airlines Co. v. TSA (“Southwest I”),

554 F.3d 1065, 1069 (D.C. Cir. 2009). This Court agreed,

and we remanded the matter to TSA for the agency to exclude

the costs of screening non-passengers from its calculation of

airline fees and to award refunds accordingly. See id. at 1070,

1076.

On remand, TSA was thus required to determine how

much of the $448 million in year 2000 screening costs was

attributable to screening passengers and property. To do so,

the agency commissioned a report from Simat, Helliesen &

Eichner, Inc., a reputable airline consultant. SH&E conducted

numerous interviews with airport and government officials

and reviewed airport survey data on year 2000 screenings.

SH&E estimated that approximately 61% of individual

5

screenings in 2000 were attributable to passengers and 39% to

non-passengers. SH&E also determined that a large

proportion of the airlines’ screening costs were fixed and

therefore would not decrease if non-passengers were

excluded. SH&E concluded that the cost of screening

passengers and property in the year 2000 was approximately

$420 million.

The airlines submitted a separate report from Campbell

Aviation Consultants, known as the Campbell report. The

Campbell report concluded that the relevant year 2000 costs

were $305 million, not $420 million.

But TSA found SH&E’s report more persuasive, and the

agency recalculated each airline’s fee liability based on the

$420 million figure. TSA sent a written notice of its refund

determinations to each airline. The airlines now seek review

of TSA’s decisions.

II

The airlines raise several challenges to TSA’s remand

decisions, but only one issue requires extended discussion.

According to the airlines, TSA’s decisions were arbitrary and

capricious because TSA should not have relied on the SH&E

report commissioned by TSA, or at least should have more

fully explained why it rejected the conclusions of the

Campbell report submitted by the airlines.1

1

As a threshold matter, TSA argues that we do not have

jurisdiction over all the airlines’ claims. It is true that the Aviation

and Transportation Security Act limits judicial review of TSA’s

airline fee determinations. See Southwest Airlines Co. v. TSA

(“Southwest I”), 554 F.3d 1065, 1069 (D.C. Cir. 2009) (“Before

reaching the merits, we need to address the effect of two ATSA

provisions for jurisdiction-stripping.”). The ATSA provides that

6

On remand, the issue before TSA concerned how much

the airlines spent in 2000 to screen passengers and property,

excluding the cost of screening non-passengers. To resolve

that issue, TSA had to determine how many individual

screenings in 2000 were of passengers versus non-passengers.

In assessing how TSA performed that task, it is important to

understand that there was no contemporaneous, objectively

verified record of the number of screenings. The number of

screenings was not tracked in the way that, for example,

attendance at a baseball game is tracked through turnstiles.

To be sure, airlines had at least a rough idea of the number of

passengers. But no one apparently kept records of the

number of screenings of non-passengers. And thus there was

no good way to know what percentage of screenings were of

passengers. Given the difficult task this Court assigned it, the

TSA on remand commissioned an expert report to help the

agency make the best estimate it could about the percentage

“[d]eterminations of the Under Secretary under this subparagraph

[stating the limitations on airline fees based on year 2000 costs] are

not subject to judicial review.” Pub. L. No. 107-71, Title I, § 118,

115 Stat. 597, 626 (2001). In 2007, however, Congress created an

exception to that rule for “estimates and additional collections made

pursuant to the appropriation for Aviation Security in Public Law

108-334 [i.e., collections made pursuant to the 2005 Appropriations

Act that instructed GAO to recalculate year 2000 costs]: . . .

Provided . . . [t]hat such judicial review shall be limited only to

additional amounts collected by the Secretary before October 1,

2007.” Pub. L. No. 110-161, Title V, § 540, 121 Stat. 1844, 2079

(2007), codified at 49 U.S.C. § 44940(a)(2)(B)(iv). Because the

fees at issue here were collected pursuant to the 2005

appropriations law, this Court may review TSA’s airline fee

determinations as applied to amounts collected before October 1,

2007. See Southwest I, 554 F.3d at 1069. Each of the airlines’

claims here applies in part to amounts collected by TSA before

October 1, 2007. We therefore may review the issues raised by the

airlines. Cf. id.

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of screenings attributable to passengers versus non-

passengers. SH&E performed a detailed analysis and

ultimately concluded that 61% of individual screenings were

of passengers and that airlines incurred $420 million in costs

from screening passengers and property in 2000.

The airlines provided TSA with an alternative to the

SH&E report – a report from Campbell Aviation Consultants.

The Campbell report also calculated airport screening costs

attributable to passengers and property, excluding non-

passengers. In so doing, Campbell relied heavily on an earlier

Department of Transportation report indicating that a total of

1.812 billion individuals were screened in U.S. airports during

the year 2000. Relying on that number, and on the fact that

the total number of passengers in 2000 was estimated to be

527 million (some of whom were screened more than once),

Campbell estimated that about 36% of all individual

screenings at U.S. airports in the year 2000 were of

passengers. Based on that percentage, Campbell concluded

that airlines spent about $305 million to screen passengers

and property in the year 2000.

The Campbell report’s bottom-line number of $305

million – the cost of screening passengers and property in

2000 – was thus $115 million lower than the SH&E report’s

bottom-line number of $420 million. The fundamental

dispute in this case concerns that $115 million difference.

The airlines contend that TSA should not have relied on

the SH&E report and instead should have accepted the

Campbell report, or at least better explained why it rejected

the Campbell report. But in TSA’s letter to each airline, the

agency stated that it had “conducted a thorough review of the

Campbell report that included an examination of both the data

and methodologies utilized to construct the report findings.”

8

See, e.g., Letter from Transportation Security Administration

to Gary Kelly, Chairman of the Board, Chief Executive

Officer, and President, Southwest Airlines at 2 (June 22,

2010) (J.A. 468). In light of that “thorough review,” TSA

concluded that the Campbell report was “insufficient for

further consideration due to the report’s use of limited data

and broad, simplistic methodologies that did not consider the

full spectrum of specific cost categories.” Id. The letter also

explained SH&E’s more extensive methodology. Id.

TSA thus considered the Campbell report and its

underlying data, and TSA explained why the Campbell report

was inferior to the SH&E report on which the agency relied.

TSA adequately considered the submissions of dueling

experts before determining year 2000 screening costs for

passengers and property. When an agency “adequately

considers contradictory evidence, . . . our standard of review

does not permit a reviewing court to displace the [agency’s]

choice between conflicting views.” American Wrecking

Corp. v. Sec’y of Labor, 351 F.3d 1254, 1261 (D.C. Cir.

2003). We will not second-guess TSA’s determination of this

obscure calculation in a “data-poor environment” in which

“[a]ny decision . . . would have required considerable

guesswork.” Southwest Airlines Co. v. TSA (“Southwest I”),

554 F.3d 1065, 1073 (D.C. Cir. 2009); cf. Marsh v. Or.

Natural Res. Council, 490 U.S. 360, 376 (1989) (controversy

presents “a classic example of a factual dispute the resolution

of which implicates substantial agency expertise”). Our

deference is particularly strong here because the statute says

that the fee is based on the amount TSA “determined” the

airlines paid in 2000. See Southwest I, 554 F.3d at 1071;

AFL-CIO v. Chao, 409 F.3d 377, 393 (D.C. Cir. 2005)

(Roberts, J., concurring in part and dissenting in part) (“We

have noted in the past the distinction between the objective

existence of certain conditions and the [agency]’s

9

determination that such conditions are present, stressing that a

statute phrased in the latter terms fairly exudes deference to

the [agency].”) (internal quotation marks omitted).

The airlines also complain that TSA, in rejecting the

Campbell report, never specifically mentioned the figure

contained in the prior Department of Transportation report on

the number of individuals screened in 2000. That argument

fails for two reasons.

First, although TSA did not mention the Department of

Transportation report by name, TSA explained that it found

the data underlying the Campbell report to be limited and thus

unreliable – and the most important piece of data in the

Campbell report was the figure contained in the Department

of Transportation report.

Second, and most importantly, the airlines presented no

evidence that the figure in the Department of Transportation

report was at all reliable. The Department of Transportation

figure was based on industry-reported data, not a government

or independent audit of some kind. At the time before

September 11 that the airlines provided that information,

moreover, they had an incentive to aim high when estimating

the number and cost of screenings – so as to convince the

Government either to shoulder some of the costs or to impose

less burdensome security requirements on the airlines.2 The

airlines here suggest that the Department of Transportation

number has talismanic significance because it was published

in “official government reports.” Reply Br. at 14. But the

2

Indeed, prior to and immediately after September 11, 2001 –

before the current system was implemented – airline industry

representatives estimated that airport security cost the airlines

nearly $1 billion per year.

10

report simply regurgitated highly speculative industry-

reported numbers when the industry had an incentive to

estimate on the high end. Shaky numbers in, shaky numbers

out.

In reality, there was no authoritative source for the

number of airport screenings during the year 2000 – no

government audit of all U.S. airports, no contemporaneous

and independently verified calculation. Determining the

figure in response to this Court’s remand thus involved a good

deal of inquiry and ultimately required a dash of art as well as

science. TSA was therefore fully justified in relying on the

estimates in SH&E’s report, which mitigated the uncertainty

by conducting a thorough inquiry and deriving data from

several independent sources. TSA reasonably concluded and

reasonably explained that the SH&E report was far more

detailed and reliable than the Campbell report. Given the

choice between the SH&E report and the Campbell report,

TSA chose the SH&E report – with good reason, and

certainly sufficient reason that we cannot overturn that

decision on Administrative Procedure Act arbitrary and

capricious review.

III

The airlines raise three other arguments, which we can

dispose of in short order.

First, the airlines contend that TSA’s decisions were

arbitrary and capricious under the Administrative Procedure

Act and also violated the Due Process Clause because the

agency did not disclose the SH&E report until the day before

it released the fee letters. That argument fails. In “informal

adjudication[s]” like these, agencies must satisfy only

“minimal procedural requirements.” Butte County, Calif. v.

11

Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010). An agency

conducting an informal adjudication has no statutory

obligation to prematurely disclose the materials on which it

relies so that affected parties may pre-rebut the agency’s

ultimate decision. See Pension Benefit Guaranty Corp. v.

LTV Corp., 496 U.S. 633, 655 (1990). The Due Process

Clause likewise does not require more in this kind of case.

See Southwest Airlines Co. v. TSA (“Southwest I”), 554 F.3d

1065, 1074 (D.C. Cir. 2009).

Second, the airlines argue that TSA improperly delegated

its responsibilities to SH&E. We disagree. In U.S. Telecom

Association v. FCC, this Court identified “three specific types

of legitimate outside party input into agency decision-making

processes: (1) establishing a reasonable condition for granting

federal approval; (2) fact gathering; and (3) advice giving.”

359 F.3d 554, 566 (D.C. Cir. 2004). SH&E was involved in

the “fact gathering” stage of TSA’s decision-making process:

SH&E’s report detailed its factual findings on the screening

of non-passengers during the year 2000. TSA evaluated the

report, found it reliable, and used it to recalculate airline fees.

The agency did not improperly delegate decision-making

responsibility to SH&E.

Third, the airlines point out that the combined refunds

provided by TSA to individual airlines fall short of the total

amount due to the airlines under SH&E’s methodology. But

TSA has explained that those numbers do not match for a

number of reasons, such as that several airlines that paid fees

later went out of business. And the airlines have not pointed

to any specific problem with any individual refund decision.

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***

We deny the airlines’ petitions for review.

So ordered.

BROWN, J., dissenting. My disagreement with the

majority is a narrow albeit decisive one. When the

Transportation Security Administration calculated passenger-

and property-screening costs for the year 2000, it failed to

consider another Government agency’s estimate of the total

number of persons screened that year. Notwithstanding the

Airlines’ protestations, neither TSA nor the consultant whose

analysis it relied on even mentioned that critical data.

Although TSA’s calculation of the security fee is entitled to

broad deference, the agency’s discretion is not unlimited. I

respectfully dissent, because I think TSA impermissibly

ignored contradictory evidence.

The Department of Transportation’s Bureau of

Transportation Statistics estimated that in the year 2000, the

Airlines screened 1.812 billion persons—more than double

TSA’s estimate of 865.5 million. After we remanded TSA’s

first decision, see Southwest Airlines Co. v. TSA (Southwest

I), 554 F.3d 1065 (D.C. Cir. 2009), the Airlines provided

DOT’s estimate to TSA in a consultant’s report (the

“Campbell Report”). Accepting DOT’s estimate would have

resulted in a substantially lower security fee for the Airlines. 1

Not surprisingly, TSA did nothing of the sort. Although TSA

had promised to consider the Campbell Report, it adopted

wholesale its own consultant’s report (the “SH&E Report”),

which arrived at its estimate of 865.5 million persons

screened without even mentioning the Campbell Report or the

DOT data it cited.

1

The security fee is capped at the year 2000 cost of screening

persons and property ($448 million) minus the cost of screening

non-passengers. See Maj. Op. at 4; Southwest I, 554 F.3d at 1069

(D.C. Cir. 2009). The parties agree there were 527 million

passengers in 2000.

2

TSA’s decision on remand gives no reason for choosing

SH&E’s estimate of the total number of passengers screened

over DOT’s estimate. The decision’s treatment of the

Campbell report is confined to a two-sentence paragraph. It is

in this cursory statement that the court purports to divine

TSA’s reasoned consideration of the DOT data:

TSA conducted a thorough review of the

Campbell report that included an examination

of both the data and methodologies utilized to

construct the report findings. TSA concluded

that the Campbell report and findings were

insufficient for further consideration due to the

report’s use of limited data and broad,

simplistic methodologies that did not consider

the full spectrum of specific cost categories.

Joint Appendix (“J.A.”) 468, quoted in Maj. Op. at 7, 8. Aside

from this vague gesture toward the Campbell Report and its

data, the remand decision does not address the discrepancy

between DOT’s estimate of 1.812 billion screened persons

and SH&E’s estimate of 865.5 million. The court interprets

TSA’s reference to “broad, simplistic methodologies” and

“limited data” as an assessment of Campbell’s uncritical

adoption of DOT’s estimate. Maj. Op. at 8. TSA’s statement,

however, cannot sustain that charitable reading.

TSA explicitly faulted the Campbell Report for its failure

to “consider the full spectrum of specific cost categories.”

J.A. 468. This has nothing to do with DOT’s estimate of the

total number of passengers screened in 2000. To be sure, the

SH&E Report attempts a more sophisticated comparative

analysis of the respective costs of screening passengers and

non-passengers than the Campbell Report. In particular,

SH&E accounted for fixed costs that would have remained in

the absence of non-passenger screenings, whereas Campbell

3

assumed non-passengers contributed an equal share to the

cost of screening persons. Compare J.A. 279–323 (SH&E

Report pt. 3), with J.A. 174–79 (Campbell Report). But this

issue is beside the point. Accepting SH&E’s estimates of the

respective costs of individual passenger- and non-passenger

screenings, a higher raw number of screenings would still

result in a lower security fee for the Airlines than the one

TSA calculated. There is no evidence TSA considered this

critical difference between the reports at all. 2 Without

considering the issue, TSA could not have reasonably decided

to credit SH&E’s estimate of total screenings over DOT’s.

Even if TSA’s denigration of the Campbell Report’s

“limited data” is interpreted as a reference to the DOT data,

such conclusory treatment of alternative evidence “provides

no basis upon which we could conclude that it was the

product of reasoned decisionmaking.” Butte County, Cal. v.

Hogen, 613 F.3d 190, 195 (D.C. Cir. 2010) (quoting Tourus

Records, Inc. v. DEA, 259 F.3d 731, 737 (D.C. Cir. 2001)).

To merit deference, TSA ought to have given some reason for

rejecting DOT’s estimate. See Int’l Union, United Mine

Workers of Am. v. Mine Safety & Health Admin., 626 F.3d 84,

2

A letter written by TSA’s Acting Assistant Chief Counsel after

the agency’s final remand decision confirms that the agency

misunderstood the fundamental difference between the Campbell

and SH&E Reports. Like the remand decision, the letter failed to

mention—much less refute—DOT’s estimate of 1.812 billion

screened persons. In response to the airlines’ “concern regarding

SH&E’s estimate of the ratio of passenger to non-passenger

screenings,” the letter points out that the Campbell report

“extrapolated the experience of just six aviation industry

representatives.” J.A. 504. But Campbell relied on those six

industry representatives to construct an estimate of the relative

average cost of individual passenger and non-passenger screenings.

Those surveys were irrelevant to the DOT data on the relative

volume of passenger and non-passenger screenings.

4

93 (D.C. Cir. 2010) (remanding a rule “because . . . it defies

the expert record evidence and is unexplained”). Labeling the

DOT data “limited”—if indeed that pejorative may be read as

a criticism of DOT’s estimate—is not a reasoned explanation.

In United Mine Workers, we concluded the challenged rule

was arbitrary and capricious because the agency’s only basis

for rejecting contrary evidence was the agency’s own

“knowledge and expertise.” 626 F.3d at 84. TSA’s rejection

of the Campbell Report, and its silent neglect of the DOT data

contained therein, is no more descriptive. Such “[c]onclusory

explanations for matters involving a central factual dispute

where there is considerable evidence in conflict do not suffice

to meet the deferential standards of our review.” Id. at 94

(quoting AT&T Wireless Servs. v. FCC, 270 F.3d 959, 968

(D.C. Cir. 2001)).

TSA does not even argue its decision on remand meets

the standard we applied in United Mine Workers. Instead,

TSA asks us to limit the holding of that case to situations

where the neglected “contrary evidence” is “set forth in a

congressionally-ordered study conducted by an independent

federal agency with expertise in the subject matter.”

Respondent’s Br. at 43. TSA does not explain why it is

essential that the study be “congressionally-ordered” or why

DOT’s Bureau of Transportation Statistics lacks “expertise in

the subject matter” of air transportation security statistics.

Regardless of the specific character of the contrary evidence,

an agency is required by “[b]asic principles of administrative

law” to “examine the relevant data and articulate a

satisfactory explanation for its action including a rational

connection between the facts found and the choice made.”

AT&T Wireless, 270 F.3d at 968 (quoting Motor Vehicle

Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983)).

5

Our deference to the substance of an agency’s decision

does not permit us to ignore the process by which the agency

makes it. The court rightly observes that an agency is entitled

to especially strong deference where the relevant statute turns

on “the [agency’s] determination that certain conditions are

present”—here the cost of screening passengers and property

in 2000, as determined by the TSA—rather than “the

objective existence of [those] conditions.” Maj. Op. at 8

(quoting Southwest I, 554 F.3d at 1071). But even when our

review is at its most deferential, we may not allow an agency

to shirk its duty to provide a reason for choosing one body of

evidence over another. In AEP Texas North Co. v. STB, 609

F.3d 432 (D.C. Cir. 2010), the court noted that the Surface

Transportation Board was “entitled to particular deference”

because the rate-setting decision at issue was one in which the

Board acts “at the zenith of its powers.” Id. at 438.

Nevertheless, the court held that the Board acted arbitrarily

and capriciously when it “entirely failed to consider an

important aspect of the problem.” Id. at 441. For the same

reason, TSA should not be able to hide its neglect of DOT’s

estimate behind our standard of review.

The court’s “most important[]” response to the Airlines’

argument that TSA failed to consider the DOT data is that

“the airlines presented no evidence that the figure in the

[DOT] report was at all reliable.” Maj. Op. at 9. The court

conducts its own analysis of the DOT estimate, finds it to be

based on self-serving, industry-reported data, and then

concludes the SH&E Report’s estimate of total screenings

was more reliable. Id. at 9–10. This is exactly the sort of

analysis TSA should have undertaken, and it is exactly the

sort of reasoning to which a court may defer. 3 But TSA’s

3

This is not to say the court’s reasoning is self-evidently correct.

The SH&E Report’s estimate of the ratio of passenger to non-

passenger screenings was based on “passenger surveys” conducted

6

remand decision makes none of these findings, which appear

for the first time as arguments in the agency’s appellate brief.

See Respondent’s Br. at 38–42. Such post hoc justifications

cannot satisfy the agency’s obligation to give reasons for

rejecting alternative evidence. See SEC v. Chenery Corp., 332

U.S. 194, 196–97 (1947); United Mine Workers, 626 F.3d at

94.

Especially where an agency adopts the reasoning of an

outside consultant in toto, as TSA did here, the agency must

articulate its reasons for rejecting evidence the consultant

ignored. TSA’s failure to do so leaves me with the sneaking

suspicion that neither the agency nor its consultant ever

seriously considered DOT’s estimate. I would remand once

again for further consideration and an explanation. See United

Mine Workers, 626 F.3d at 94; AT&T Wireless, 270 F.3d at

968.

at two airports and on interviews with airport personnel. It is not

obvious that the resulting estimate is more reliable than DOT’s.

The Campbell Report gives an intuitive explanation for DOT’s

large estimate of the number of non-passengers screened in 2000,

relative to the present. Before 9/11, it was common for non-

passengers to drop off and pick up passengers; screenings were less

onerous; and airline, airport, vendor, and contractor employees

passed easily and often through screenings. Most persuasively, the

Campbell Report shows that the large reduction in screened persons

between 2000 and 2006 (a drop from 1.812 billion to 708 million)

corresponds to the increased transaction costs associated with

TSA’s management of the screening process and new rules

restricting non-passengers from the “sterile” area of the airport. It is

impossible to perform a similar comparison with the SH&E data

TSA relied on, because SH&E did not estimate screening volume

for any year besides 2000. Of course, TSA may have had a

reasonable basis for favoring SH&E’s much smaller estimate of

year 2000 screenings, but the agency was obliged to explain its

reasons.