Petition for Writ of Certiorari — Nicholas J. Bonacci, Petitioner v. Transportation Security Administration

App. 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2018

Decided December 4, 2018

No. 17-1116.

NIcHolAs J. BoNAccI,

PETITIONER

V.

TRANSPORTATION SECURITY ADMINISTRATION,

RESPONDENT

On Petition for Review of Orders of the

Transportation Security Administration

Nicholas J. Bonacci, pro Se, argued the cause and

filed the briefs for petitioner.

Michael Shih, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the

brief were Jessie K Liu, U.S. Attorney, and Sharon

Swingle, Attorney.

Before: TATEL, Circuit Judge, and EDwARDS and

GINSBURG, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

App. 2

EDWARDS, Senior Circuit Judge. In November

2010, the Transportation Security Administration

("TSA") initiated what is now labeled as the Known

Crewmember Program ("KCP"). The first iteration of

the program allowed commercial pilots to enter "sterile

areas" of participating U.S. airports without passing

through security checkpoints used by passengers. Under the program, pilots were permitted to enter flight

arrival and departure areas through designated access

points after presenting their employee and government identification to a TSA officer. In some cases,

however, a pilot might be randomly selected for additional screening at a passenger checkpoint. In July

2012, TSA announced that it was opening the KCP to

flight attendants.

Beginning in 2015, TSA commenced studies and

planning to revise airport pat-down procedures. The

agency also initiated actions to respond to "insider

threats" to security posed by individuals with privileged access to aircraft and secure areas of airports. In

March 2017, TSA took final action to replace existing

pat-down techniques with a single, more thorough,

procedure known as the "universal pat-down." The

new pat-down procedures were applicable to both passengers and crewmembers who were randomly selected for screening at passenger checkpoints. On

March 29, 2017, TSA issued an updated edition of its

Specialized Screening Standard Operating Procedures

("SOP"), and implemented it on April 3, 2017. The new

edition of the Specialized Screening SOP includes

Known Crewmember Program policies.

App. 3

Pro se petitioner Nicholas Bonacci is a commercial

pilot based at Houston's George Bush Intercontinental

Airport. On several unspecified occasions in 2017,

Bonacci was randomly selected for passenger screening when reporting for his assigned duties. On April

11, 2017, invoking the court's jurisdiction under 49

U.S.C. § 46110(a), Bonacci filed a petition for review to

challenge the Known Crewmember Program. Bonacci's

principal claim is that TSA lacks statutory authority

to select and screen airline crewmembers in the same

manner as passengers.

We hold that Bonacci has standing to challenge

TSA's policies and will assume without deciding that

his petition for review is timely. However, we conclude

that his action fails on the merits. Our decisions have

repeatedly recognized TSA's broad statutory authority

to protect civil aviation security, as well as the deference we must show to the agency's reasoned decisionmaking. Bonacci has offered no persuasive

grounds to depart from established precedent. We

therefore deny the petition for review.

I. BACKGROUND

TSA announced the Known Crewmember Program initiative in a November 2010 press release. See

Press Release, TSA, Pilot Identity Verification Program Moves Forward (Nov. 19, 2010), reprinted in Respondent's Public Redacted Supplemental Appendix

("S.A.") 1-2. In addition to explaining the program's

main features, the announcement noted that

App. 4

participants "will also be subject to random screening."

Id. at 2. The program was launched on a preliminary

basis at seven airports in 2011. Press Release, Air Line

Pilots Ass'n, Int'l, Enhanced Airline Pilot Security

Screening Begins at Boston Logan Airport (Oct. 25,

2011), http://www.alpa.org/news-and-events/news-room/

2011-10-25-Enhanced-Pilot-Screening-Boston-Logan.

In July 2012, after a successful trial period with

pilots, TSA announced that it would open the program

to flight attendants. See Press Release, TSA, U.S. Airline Flight Attendants to Get Expedited Airport

Screening in Second Stage of Known Crewmember

Program (July 27, 2012), reprinted in S.A. 13-14. TSA

cautioned that it would "always incorporate random

and unpredictable security measures throughout the

airport screening process." Id. at 13. As of mid-2017,

the program operated at seventy-four American airports. TSA, Known Crewmember (KCM) Program

(May 2, 2017), reprinted in S.A. 137-38.

Any person who enters a sterile area through a

standard passenger security checkpoint, including

KCP participants, may be subject to physical screening. See Br. for Respondent at 8-9. TSA at times uses

pat-down searches to look for prohibited items or other

threats to security that are concealed underneath individuals' clothing. See Security Screening, TSA, https://

www.tsa.gov/travel/security-screening (last visited

Oct. 26, 2018). Pat-downs are conducted to resolve

alarms from primary screening technology, as an alternative to that technology, "for enhanced screening," or

as part of "unpredictable security measures." Id.

App. 5

In 2015, an audit by the Department of Homeland

Security's Office of the Inspector General found that

TSA's existing pat-down protocol, which directed officers to use different types of pat-downs in different situations, could be simplified and made more

administrable and effective. See Memorandum from

Daniel Ronan, Dir., Operations Performance Div., to

Darby LaJoye, Assistant Adm'r, Office of Sec. Operations (Nov. 28, 2016), reprinted in S.A. 98-99. In 2016,

TSA began taking steps to implement the report's recommendations. See id.

At the same time that it was studying and planning to revise its pat-down procedures, TSA was also

taking action to respond to "insider threats" to security

posed by individuals with privileged access to aircraft

and secure areas of airports. See Deci. of Roderick Allison at ¶91 44-53, Mohamed v. Lynch, No. 11-cv-0050

(E.D.V.A. Mar. 2, 2016), reprinted in S.A. 79-82. Two

specific events heightened concerns about the insider

threat during this period. First, in December 2014, authorities discovered a gun-smuggling operation run by

airline employees at Hartsfield-Jackson Atlanta International Airport. Id. at 81-82. Second, in February

2016, a passenger on a flight leaving Mogadishu, Somalia detonated a bomb that he apparently received in

the sterile area of the airport from a person dressed as

an airport employee. Id. at 69-70.

Shortly after the Mogadishu incident, TSA updated a memorandum on insider threats, writing that

"[riecent events highlight potential airport security

vulnerabilities that could be exploited for terrorist or

3

A

criminal activity." Eddie D. Mayenschein, TSA, Info.

Circular IC 15-01B, Insider Threat 1 (Feb. 9, 2016), reprinted in S.A. 37-40. In its brief to this court, TSA

points to both the Atlanta and Mogadishu incidents as

examples supporting its "judgment" that the insider

threat "is not hypothetical" and, thus, that "random

screening [of crewmembers] is necessary." Br. for Respondent at 5.

In March 2017, TSA responded to both its greater

awareness of insider threats and issues with its patdown procedures by adjusting the screening policies

that it employs for individuals seeking to enter airport

sterile areas. TSA first replaced its existing set of patdown techniques with a single procedure known as the

"universal pat-down," a more comprehensive and thorough physical search. Br. for Respondent at 10. According to TSA, adoption of the universal pat-down did not

change the circumstances under which pat-downs are

administered but simply the technique used when a

pat-down occurs. Id.

TSA also issued an updated edition of its Specialized Screening Standard Operating Procedures. The

Specialized Screening SOP is one of several internal

agency policy manuals setting forth TSA's uniform

practices, including those governing the screening process for individuals to gain access to the sterile area of

an airport. See Elec. Privacy Info. Ctr. v. US. Dept of

Homeland Sec., 653 F.3d 1,3 (D.C. Cir. 2011). Pursuant

to statutory authority, the agency has designated its

SOPs as nonpublic Sensitive Security Information

(SSI). See 49 U.S.C. § 114(r)(1) (2012); 49 C.F.R. pt.

App. 7

1520 (2017). On March 29, 2017, TSA released a new

edition of the Specialized Screening SOP, which contains Known Crewmember Program policies; the

agency implemented it on April 3, 2017. See Br. for Respondent at 7, 26; TSA, Specialized Screening Standard Operating Procedures (Mar. 29, 2017), reprinted in

S.A. 112-19. As with all revisions to TSA's SOPs, the

new policy was issued without notice and comment

and without publication in the Federal Register.

Bonacci filed a petition for review on April 11,

2017. He asserts, and TSA does not contest, that he

was selected and sent to the passenger screening

checkpoint several times when attempting to use a

KCP access point at the Houston airport in 2017. Br.

for Petitioner at 3-4.

LI. ANALYSIS

A. Standard of Review

"Pursuant to the Administrative Procedure Act,

we must uphold TSA's decisions unless they are 'arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law." Olivares v. TSA, 819 F.3d

454,462 (D.C. Cir. 2016) (quoting 5 U.S.C. § 706(2)(A)).

"And in applying this standard of review, we remain

mindful that, because Congress has entrusted TSA

with broad authority over 'civil aviation security,' it is

ours—to strike a balance between

TSA's job—not

convenience and security." Amerijet Intl, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) (quoting

...

Suburban Air Freight, Inc. v. TSA, 716 F.3d 679, 683

(D.C. Cir. 2013) (citations omitted)).

B. Threshold Issues

1. Standing

In order to challenge the TSA policies governing

Known Crewmember Program screening, Bonacci

must have Article III standing. To establish standing

to seek review of agency action, a petitioner bears the

burden of proof "to show a 'substantial probability' that

it has been injured, that the defendant caused its injury, and that the court could redress that injury." Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002)

(quoting Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63

(D.C. Cir. 2000) (per curiam)).

"The Supreme Court has stated," however, that

"there is ordinarily little question' that a regulated individual or entity has standing to challenge an allegedly illegal statute or rule under which it is regulated."

State Nat'l Bank of Big Spring v. Lew, 795 F.3d 48, 53

(D.C. Cir. 2015) (quoting Lujan v. Defs. of Wildlife, 504

U.S. 555, 561-62 (1992)). A "petitioner's standing to

seek review of administrative action is [usually] selfevident. . . if the complainant is 'an object of the action

(or forgone action) at issue. . ."Sierra Club, 292 F.3d

at 899-900 (quoting Lujan, 504 U.S. at 561); see also

Nat'l Assn of Home Builders v. EPA, 786 F.3d 34, 43

(D.C. Cir. 2015) (explaining "regulated entities' standing to challenge the rules that govern them is normally

not an issue") (internal quotation marks omitted).

.

Bonacci plainly has standing to pursue his claims

in this case. As TSA acknowledges, Bonacci is challenging the agency's policies "for expediting the screening

of pilots and flight attendants." Br. for Respondent at

3. And it is undisputed that, since the KCP was updated in March 2017, Bonacci has been made subject

to TSA's pilot and flight attendant screening program.

He is an "object of the action" at issue, so there is "little

question that [it] has caused him injury; and that a

judgment preventing. the action will redress it." Sierra Club, 292 F.3d at 900 (quoting Lujan, 504 U.S. at

561-62).

.

.

TSA challenges Bonacci's standing by pointing to

a statement in his petition for review that says that he

"is not harmed, per se, by enhanced searching." Br. for

Respondent at 16, 21, 26 (quoting Petition for Review

at 8, Bonacci v. TSA, No. 17-1116 (D.C. Cir. Apr. 11,

2017)). In our view, it would be inappropriate to treat

these innocuous words as a fatal concession, as TSA

would have it, in light of our "obligation to construe pro

se filings liberally." Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 583 (D.C. Cir. 2002); see also Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir.

1999). In sum, Bonacci's alleged injuries are sufficiently concrete and particularized, Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016), to support his

standing in this case. His alleged injuries are caused

by TSA's polices, and those injuries would be redressed

by a favorable court ruling. We therefore reject TSA's

claim that Bonacci lacks standing.

App. 10

2. Timeliness

Under 49 U.S.C. § 46110(a), petitions for review of

TSA orders must be filed "not later than 60 days after

the order is issued." We have interpreted this provision

to mean that "the filing period begins to run on the

date the order is officially made public." Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 519 (D.C. Cir. 2011). TSA

concedes that Bonacci's challenge to the universal patdown procedure is timely. Br. for Respondent at 12. The

agency argues, however, that Bonacci's challenge to

TSA's policy of randomly designating participants in

the Known Crewmember Program for additional

screening is untimely because the disputed policy was

initiated in 2010. See id. at 14-15. We need not decide

whether we agree with TSA's framing of the issues, because there is no good reason for us to decide whether

Bonacci's challenge is timely.

We have several concerns about applying the time

bar here given the peculiar circumstances of this case.

First, it is not clear that the agency itself ever issued

an official public notice of the KCP when it was first

adopted, as is traditionally done when an agency issues a rule after a rulemaking or an order after an adjudication. Second, there is no indication that Bonacci

had any actual notice of the KCP when it was first

promulgated, which is not necessary but adds to our

concerns. Third, it is undisputed that the agency deliberated and then changed its policies affecting screening of both crewmembers and the public within the

60-day period preceding Bonacci's April 11, 2017 petition for review.

App. 11

In any case, we need not decide the timeliness

question because the § 46110(a) deadline is not jurisdictional, Avia Dynamics, Inc., 641 F.3d at 519, and

therefore it need not be addressed before we address

the merits. Therefore we will simply assume without

deciding that the petition is timely and move on to the

merits.

C. Merits

On the merits, Bonacci's claims fail. He asserts

that TSA lacks statutory authority to subject airline

crewmembers to "passenger screening," including patdowns, and that regulations establishing such policies

are therefore arbitrary and capricious and unlawful

under the Administrative Procedure Act. Br. for Petitioner at 4-5,22-24. We disagree. Congress plainly has

given TSA such authority and we accord substantial

deference to TSA's judgments in carrying out its statutory. mandate.

As TSA correctly asserts, an array of statutes provide sufficient authority for the agency to screen

Known Crewmember Program participants in the

manner it has currently chosen. To begin, Congress has

made TSA responsible for "security in all modes of

transportation," 49 U.S.C. § 114(d), including "civil aviation security," id. § 114(d)(1). The Administrator of

the agency must "assess current and potential threats

to the domestic air transportation system," id.

§ 44904(a), and "shall take necessary actions to improve domestic air transportation security," id.

App. 12

§ 44904(e). The agency must also "develop policies,

strategies, and plans for dealing with threats to transportation security," id. § 114(f)(3), "oversee the implementation, and ensure the adequacy, of security

measures at airports and other transportation facilities," id. § 114(f)(11), and "carry out such other duties,

and exercise such other powers, relating to transportation security as the Administrator considers appropriate, to the extent authorized by law," id. § 114(f)(16).

Congress explicitly delegated TSA authority "to issue,

rescind, and revise such regulations as are necessary

to carry out the functions of the Administration," id.

§ 114(l), including "regulations to protect passengers

and property. against an act of criminal violence or

aircraft piracy," id. § 44903(b).

.

.

We need not delineate the precise scope of the authority granted by these statutes. We simply conclude

that together they provide more than sufficient

grounds for TSA to randomly select airline crewmembers for screening at passenger checkpoints, including

using comprehensive pat-downs, as a means of addressing threats to aviation security. Furthermore, no

statutory or regulatory provision bars TSA from enacting and executing these policies. We reject Bonacci's argument that 49 U.S.C. § 44901, which does not mention

crewmembers when it instructs TSA to "provide for the

that will

screening of all passengers and property

be carried aboard a passenger aircraft," should be read

to prohibit passenger-style screening of pilots and

flight attendants. See Br. for Petitioner at 24-25 (citing

49 U.S.C. § 44901(a)). There is no evidence that § 44901

.

.

.

App. 13

limits or repeals the authority provided by the statutes

noted above, none of which Bonacci addresses.

To the extent that Bonacci challenges TSA's policy

choices in implementing its statutory authority, we

must reject these claims as well. "[I]n cases of this sort,

we must defer to TSA actions that reasonably interpret

and enforce the safety and security obligations of the

agency." Olivares, 819 F.3d at 462. "[We remain mindful that, because Congress has entrusted TSA with

broad authority over 'civil aviation security,' it is 'TSA's

job—not. ours—to strike a balance between convenience and security." Amerijet Intl, Inc., 753 F.3d at

1350 (quoting Suburban Air Freight, Inc., 716 F.3d at

683 (citations omitted)). "[C]ourts do not second-guess

expert agency judgments on potential risks to national

security," but rather "defer to the informed judgment

of agency officials whose obligation it is to assess [such]

risks." Olivares, 819 F.3d at 462.

.

.

Applying this deferential standard of review, we

find no aspect of the current Known Crewmember Program to which participants are subject that is "arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law." Id. (quoting 5 U.S.C.

§ 706(2)(A)). For instance, Bonacci objects to TSA's decision to screen crewmembers differently from airport

employees. Assuming that TSA in fact screens crewmembers more stringently—which TSA disputes—we

decline to second-guess TSA's decision to do so. Just as

in Jifry v. FAA, in which we upheld TSA's procedures

for revoking foreign pilots' permission to fly in the

United States, lilt is self-evident that the regulations

App. 14

[at issue in this case] are related to the TSA's.. goals

of improving the safety of air travel." 370 F.3d 1174,

1180 (D.C. Cir. 2004). "[Tlhe court [is not] in a position

to second-guess [TSA's] judgment that imposing

stricter procedures for coordinating security risks

[is] necessary to further that goal." Id.

.

.

As TSA contends, it has reasonably concluded that

a random-screening regime is required to protect airline travelers from the unique threat posed by insiders

with privileged access to airport sterile areas. Br. for

Respondent at 24. Recognizing the limits of our review,

and seeing no persuasive evidence that TSA's policies

are unauthorized or otherwise impermissible, we decline to overturn the agency's reasoned decisionmaking.

III.

CONCLUSION

For the reasons set forth above, the petition for review is denied.

So ordered.

App. 15

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2018

No. 17-1116

TSA-03/02117 Order

Filed On: January 16, 2019

Nicholas J. Bonacci,

Petitioner

V.

Transportation Security Administration,

Respondent

BEFORE: Garland, Chief Judge; Henderson,

Rogers, Tatel, Griffith, Srinivasan,

Millett, Pillard, Wilkins, and Katsas,

Circuit Judges; Edwards and Ginsburg, Senior Circuit Judges

ORDER

Upon consideration of petitioner's petition for rehearing en banc, and the absence of a request by any

member of the court for a vote, it is

ORDERED that the petition be denied.

App. 16

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Is!

Ken R. Meadows

Deputy Clerk

Additional material

from this filing is

available in the

Clerk's Office.