Petition for Writ of Certiorari — Jifry v. Federal Aviation Administration

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In the Supreme Court of the Gnited States

OCTOBER TERM, 2004

TAREK H. JIFRY;

MAAN H. ZARIE

PETITIONERS,

Vv.

FEDERAL AVIATION ADMINISTRATION;

TRANSPORTATION SECURITY ADMINISTRATION; AND

NATIONAL TRANSPORTATION SAFETY BOARD

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

FoR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Thomas J. Whalen

Counsel of Record

CONDON & FORSYTH LLP

Counsel 1016 16" Street, N.W., Suite 700

Evelyn D. Sahr Washington, D.C. 20036

James G. Ehrig Tel: (202) 289-0500

Meaghan F. Molinini Fax: (202) 289-4524 .

Dated November 8, 2004 Counsel for Petitioners

QUESTIONS PRESENTED FOR REVIEW

. May the U.S. Government revoke a pilot’s FAA issued

airman’s certificate solely upon classified evidence

without notice and hearing and without meaningful

agency and judicial review as provided by statute?

- Whether regulations promulgated by the FAA and the

TSA may be construed to eliminate meaningful agency

review by the NTSB as provided by the Congress, and to

prevent a pilot from learning the basis for the revocation

of his airman’s certificate and contesting the charge

before an independent decisionmaker?

——————————

PARTIES TO THE PROCEEDING

In accordance with Rule 14.1(b), the following list

represents all of the parties before the United States Court of

Appeals for the District of Columbia:

Tarek H. Jifry and Maan H. Zarie were the Petitioners below.

The Federal Aviation Administration, the Transportation

Security Administration, and the National Transportation

Safety Board were the Respondents below.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......................... i

PARTIES TO THE PROCEEDING 200.o.ooocococccocccccccccecececesees. il

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CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED......................... 2

STATEMENT OF THE CASE..............0.c.ccceccscecosososoeseecee..... 3

I. The Initial Revocation Action...............0........... shiek 3

| os, I I cian ccal eek ee | 5

Ill. The Administrative Proceedings Under The New

OMI S00 Cine nie at BNR asa cncaasesceaessocecccnscesesesonecen, 6

IV. The Appeals to the D.C. Circuit. ............ccccccccc-----... 9

REASONS FOR GRANTING THE PETITION................... 9

I. This Case Presents Due Process Issues of

Fundamental Importance.....0............ccccccecececseseeeeeceees 11

Il. The Court of Appeals Ruling Conflicts with a

Decision of the Ninth Circuit ....0.0.....ccccccccccceceeeceee. 14

A. The Mathews Balancing Test ...........-..ccccccccecs--. 14

B. The Ninth Circuit Opinion....................... saianlibai 15

C. The D.C. Circuit Opinion in the Case at Bar ..... 17

fe III coliccbiiccech sSopeie aie Sete 19

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II]. The Decision Below Eviscerates The Procedural

Protections Afforded by Congress in The APA and The

Federal Aviation Act Of 1958. .u.......... ce cccceceeeeeeeeeeeeeeees 19

CONCLUSION ..........0....ccsccssssccsssssscscserccesensccsssscssssscnscesenees 24

TABLE OF AUTHORITIES

CASES

Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir.

1986), aff'd, 484 SE ig, SRE MINT Ee Aen 13,19

American-Arab Anti-Discrimination Comm. y.

Reno, 70 F.3d 1045

i ke 1: | SUE ee RED SAU: 13, 14, 15, 16, 17, 19

American-Arab Anti-Discrimination Committee vy.

Mette, SES US. ST CII sctiscsiass ee es 14

Chevron U.S.A. v. Nat'l Res. Def. Council, 467

OB: SSF COG sascccincccicsmulatiobsta ieee d kes 24

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532

CID iss asininanansethiuhciinsaicloie aeeeanects ieee na ra 11

Hughes Air Corp. v. C. A. B., 482 F.2d 143 (9th

tL | i | Rp Beran Nev Vinenyruin eugene, 22

Jifry v. FAA, 370 F.3d 1174 (D.C. Cir. 2004)......c.cc.00-. 1,11

Joint Anti-Fascist Refugee Comm. v. McGrath, 341

Bee UES CIE acicinenitada eee ee 11, 16

Knauff v. Shaughnessy, 338 U.S. 537 (1950) ...cccccecseseeoe--. 15

Mathews v. Eldridge, 424 U.S. 319 (1976)...... 14-15, 16, 17

Nat'l Council of Resistance of Iran v. Dep't of

State, 251 F.3d 192 (D.C. Cir. 2001).............. 12, 18, 19

Nat'l Council of Resistance of Iran v. Dep't of

State, 373 F.3d 152 (D.C. Cir. 2004) .o.cccccccccccesccsecees 19

People’s Mojahedin Org. of Iran v. United States

Dep't of State, 327 F.3d 1238 (D.C. Cir. 2003) .......... 19

Rasul v. Bush, 124 S.Ct. 2686 (2004) o...ceccccccccsccccceseccecees. 12

Reno v. NTSB, 45 F.3d 1375 (9th Cir. 1994) ..0..0.0.000000000.. 22

Sloan v. HUD, 231 F.3d 10 (D.C. Cir. 2000).................... 20

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)............. 24

CONSTITUTIONS AND STATUTES

U.S. CORBT. AGROIRE, V cccsvessoressccctacsccsssisesiccsicsentesconseoniiets 10

Administrative Procedure Act, 5 U.S.C. § § 551-

55D (BOD) ncceccscscseciesesscescccscenccsnsnbcesncteonseleenenimmubecianiatias 3

S UGC. BE Soar cccnscssssccssessccncsctsvtewesesesssetmmanananns 22

§ UBC. 6 SIGE vcccereesssnctsnintsssinnsenentvantniininniiee 20

$ UBC. 8 SST cacicscicccestocscessssecsonseatikeveunstiagaitionpiatian 20

2B U.S.C. 6 PBBGE) cxccinrinscccsonssechndsntnrscssncncensteenceatineinteien 2

Federal Aviation Act, 49 U.S.C. § 40101 ef seq.

CRIB nncaccrecnssissnrecscinstnensennrcemasecsesnbennnstanneneinenanaltinn 3

QD U.S.C. B QO TRIIOD aicccnsccsscsececcinscssascectennsnsssntaas 11,12

UBL. S SCF ncn 2, 3, 11, 12, 20, 21, 22, 23

Freedom of Information Act, 5 U.S.C. § 552 (2000)........ 24

REGULATIONS

Ce a, ORR NET See eT 8

Cid hk A, Pn Ae en RE ALT J, 2, 4-5, 6

GP CHR. § B20.0 66 BG occacececacacscscvecccccecesssoseseceses 4, 20, 21

OF lt lee sinialticaiaeli eg EI nS es 22

es PE ethinicccnamnnitidainces ae ce 22

So ct hs Re elie a 22

Gr is eR wietinhterernieccntitninaig aetna eels 22

SPOT BR. B GE8 GI) nicsesicttinscsnnaneantaicapmnisreceaesc tic 22

GE is © TE cinsttisisnnitinientieaiktcenicis oon. 2, 4, 5, 6,7

MISCELLANEOUS

68 Fed. Reg. 3762 (Jan. 24, 2003).............. iaeisbdpbieitidiccta daa 4

68 Fed. Reg. 3772 (Jan. 24, 2003) .......ccccecccccccccccccccsececeeeee. 4

H.R. Rep. No. 85-2360 (1958) ..0......ccccccecccoccsssesecesceceeeeeee. 22

Henry J. Friendly, Some Kind of Hearing, 123 U.

Pa. L. REV. 1267 (1975)................... ecccacsssnsecscsecoseccees 13

William H. Rehnquist, A// the Laws But One, 225

GUase vnretncarseitbinchanalecmuidahatidecsabeei lee tah: a 10

Vil

on the Supreme Court of the United States

OCTOBER TERM, 2004

TAREK H. JIFRY;

MAAN H. ZARIE

PETITIONERS,

FEDERAL AVIATION ADMINISTRATION;

TRANSPORTATION SECURITY ADMINISTRATION; AND

NATIONAL TRANSPORTATION SAFETY BOARD

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARi

The Petitioners respectfully petition for a writ of

certiorari to review the judgment of the United States Court

of Appeals for the District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

District of Columbia Circuit (App. A-1) is reported at 370

F.3d 1174 (D.C. Cir. 2004). The opinion of the National

Transportation Safety Board (App. A-17) is unreported. The

denial of the petition for rehearing (App. A-51) 1s reported at

2004 U.S. App. LEXIS 16389 (D.C. Cir. Aug. 9, 2004) and

the denial of the petition for rehearing en banc (App. A-56)

is reported at 2004 U.S. App. LEXIS 16390 (D.C. Cir. Aug.

9, 2004).

JURISDICTION

The Court of Appeals’ Judgment was entered on June 11,

2004 (App. A-1). A Petition for Rehearing, timely filed, was

denied by that Court on August 9, 2004 (App. A-51). A

Petition for Rehearing en banc, timely filed, was also denied

by that Court on August 9, 2004 (App. A-52). This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Fifth Amendment to the US

Constitution which provides, in relevant part:

No person shall be... deprived of life,

liberty, or property, without due process of

law; nor shall private property be taken for

public use, without just compensation.

2. This case also involves a provision of the Federal Aviation

Act regarding certificate revocations, 49 U.S.C. § 44709, and a

regulation promulgated by the Federal Aviation

Administration, 14 C.F.R. § 61.18, and by the Transportation

Security Administration, 49 C.F.R. § 1540.117, all of which

are reproduced in the Appendix (A-53 ef seq.).

STATEMENT OF THE CASE

Petitioners Tarek H. Jifry and Maan H. Zarie were senior

pilots with Saudi Arabian Airlines and citizens of Saudi

Arabia who had their airman certificates revoked by the

Federal Aviation Administration (FAA) pursuant to the

Federal Aviation Act of 1958, as amended. The Federal

Aviation Act, 49 U.S.C. § 40101 ef seg. (2000).'

I. The Initial Revocation Action

On August 14, 2002, the Transportation Security

Administration (TSA) sent two separate letters to the FAA

stating that Captain Jifry and Captain Zarie were a threat to

aviation or national security. On August 20, 2002, on the

basis of the TSA letters, the FAA revoked the pilots’

certificates under 49 U.S.C. § 44709(b). The FAA revoked

the pilots’ airmen certificates based on the letters from the

TSA which stated simply that the pilots were risks to

aviation safety and national security. The TSA did not

disclose the reason why it concluded that the pilots were

risks to aviation safety and national security. Nor did the

TSA, at any time in the course of this case, reveal to the

pilots any information or evidence upon which the

revocation was based.

' The FAA certifies all Saudi airman certificate holders pursuant to an

agreement between the Government of the United States and the

Kingdom of Saudi Arabia dating back to 1982. The Saudi Presidency of

Civil Aviation (PCA) does not independently issue certificates. Any

suspension or revocation of these certificates were subject to the

regulatory authority of the FAA and to proceedings governed by the

Federal Aviation Act, 49 U.S.C. § 44709(b) (App. A-53) and the

Administrative Procedure Act, 5 U.S.C. § § 551-559 (2000).

The pilots, not knowing the basis of the TSA’s charge,

were unable to challenge and confront the charge.

Nevertheless, the pilots denied the charges and timely

appealed the revocations to the National Transportation

Safety Board (NTSB). Rules of Practice in Air Safety

Proceedings, 49 C.F.R. Part 821 (2003).

Under procedures established by the Congress under the

Federal Aviation Act and the Administrative Procedure Act

(APA), Administrative Law Judge (ALJ) Patrick Geraghty of

the NTSB was assigned to hear the case of the pilots’

certificate revocations by the FAA.

With the case before Judge Geraghty, the pilots

attempted to learn through discovery the basis for the charge

and its evidentiary support. The pilots needed to know the

basis so they could refute it. During a January 17, 2003

teleconference, Judge Geraghty issued orders allowing

discovery to proceed against the TSA and FAA to discover

the basis of the charge. Judge Geraghty ordered (1) that the

TSA join the actions; (2) that if the FAA and TSA planned to

claim privilege, they must provide a privilege log; and (3)

that depositions of key Government TSA witnesses should

take place by the middle of February, 2003. On January 21,

2003, the TSA joined the proceeding before Judge Geraghty.

Within days of Judge Geraghty’s Order, the TSA, on

January 24, 2003, promulgated new regulations (Threat

Assessment Regarding Alien Holders of, and Applicants for,

FAA Certificates, 68 Fed. Reg. 3762 (Jan. 24, 2003) codified

at 49 C.F.R. § 1540.117), as a final rule without notice and

comment and issued Initial Notices of Threat Assessment

(INTA) against the pilots pursuant to the new regulations.

The FAA also simultaneously issued new regulations

(Ineligibility for an Airman Certificate Based on Security

Grounds, 68 Fed. Reg. 3772 (Jan. 24, 2003) codified at 14

C.F.R. § 61.18), without a notice and comment period,

voluntarily dismissed the pending revocation actions at the

NTSB, and suspended the pilots’ airman certificates under

the new regulations.”

il. The New Rules

The new FAA regulation makes any person whom the

TSA finds to be a security threat ineligible to hold an airman

certificate. 14 C.F.R. § 61.18. (App. A-56). Under this

regulation, the FAA must automatically suspend any

certificate when the TSA issues an INTA to the holder. /d.

After an INTA is issued against an individual, that

individual may request the “releasable materials from the

TSA upon which the Initial Notification was based.” 49

C.F.R. § 1540.117(e)(2). The TSA may or may not respond

and will not provide any information which is classified or is

Sensitive Security Information (SSI). 49 C.F.R. § 1540.117(e)(3),

(g). The TSA has stated that the targeted person is unlikely

to receive any response from the TSA because “[i]n most

cases, the determination that an individual poses a security

threat will be based, in large part or exclusively, on classified

national security information, [and] unclassified information

designated as SSI...” 68 Fed. Reg. at 3765.

After the TSA responds to the request for materials, the

targeted individual is allowed to file a reply stating why he

does not pose a security threat. 49 C.F.R. § 1540.117(e)(4).

The TSA then makes a final determination, either withdrawing

the INTA or issuing a FNTA. 49 C.F.R. § 1540.117(f).

> Under the new regulations, the issuance of an INTA causes the

automatic suspension of an airman certificate by the FAA. A Final

Notice of Threat Assessment (FNTA) causes an automatic revocation.

The FAA in effect withdrew the revocation actions under the old rules

and simultaneously began suspension actions under the new rules.

Iii. The Administrative Proceedings under the New

Rules in The Case at Bar

Under the new regulation, the TSA issued INTAs to the

FAA designating Captain Jifry and Captain Zarie as security

threats. The FAA then suspended the pilots’ airman

certificates pursuant to the new regulations. (App. A-56); 14

C.F.R. § 61.18.

The pilots timely appealed the suspension of their

certificates to the NTSB on the ground that they were not

security risks. Their appeal was denied first by Judge

Geraghty and then by the full Board (NTSB). Judge

Geraghty found that because of the new regulations the

NTSB’s scope of review was limited to one issue: whether

the TSA had informed the FAA in writing (issued an INTA)

that the pilots were security threats. (App. A-33, A-42).

Judge Geraghty concluded that whether or not the pilots

were actually security threats or whether there was a basis

for such finding was irrelevant under the new regulations.

These NTSB proceedings focused solely upon the TSA’s

INTA. The TSA never disclosed the basis or any evidence

in support of its conclusory determination that the pilots

posed a security risk.

The pilots also simultaneously challenged the TSA’s

issuance of the INTA before the TSA. The INTA contained

no specific allegations and recited no evidence that the pilots

posed security threats. On February 6, 2003, the pilots

requested “releasable materials from the TSA” in accordance

with 49 C.F.R. § 1540.117(e)(2), but the TSA provided

_ documents almost completely redacted, except for identity

and passport information. The redacted pages provided no

information about why the TSA believed the pilots posed a

security threat.

In accordance with 49 C.F.R. § 1540.117(e)(4), the pilots

each filed a Reply to the INTA stating that they do not pose a

security threat and that there was no evidence that they posed

a security threat. In the Replies, the pilots denied the charge

and submitted affidavits detailing their long untarnished

record as pilots with Saudi Arabian Airlines and stating that

they were not terrorists, nor were they sympathetic to

terrorists and had no associations with people known or

rumored to be involved with terrorists or terrorist

organizations.

Captain Jifry stated that he has been employed by Saudi

Arabian Airlines as a pilot or first officer for approximately

twenty years. He had over 8,000 hours of service as a pilot.

His flying record is untarnished. Previously, he had had his

airman certificate routinely renewed by the FAA. Captain

Jifry is a family man with a wife and four children in Saudi

Arabia.

Captain Zarie stated that he has been employed by Saudi

Arabian Airlines as a pilot or first officer for approximately

eighteen years. He has over 10,000 hours of service as a

- pilot. His flying record is also untarnished. Previously, he

has had his certificate routinely renewed by the FAA.

Captain Zarie also is a family man with a wife and four

children in Saudi Arabia.

In their Replies, the pilots could not directly address the

TSA’s factual basis of the TSA’s Threat Assessment because

they did not know the basis of the Threat Assessment.

On May 8, 2003, the TSA denied the pilots’ challenge to

the INTA, without explanation, and issued a Final Notice of

Threat Assessment (FNTA). Thereupon, the FAA revoked

the pilots’ airman certificates. The pilots then appealed the

revocation of their certificates to the NTSB on the ground

that they were not security risks. Judge Geraghty, to whom

the pilots again appealed, upheld the revocations without a

hearing. Judge Geraghty held that, under the TSA and FAA

rules, he was bound by the TSA threat assessment and

upheld the FAA’s revocation.

The pilots then appealed the revocation of their

certificates to the whole NTSB on the ground that they were

not security risks. Their challenge was denied for the same

reasons as the challenge to the suspension was denied.

Although the appeal process before the NTSB

established by the Congress under the Federal Aviation Act

and the APA remained in effect, the NTSB on review of the

ALJ’s decision found that the new regulations issued by the

TSA and the FAA controlled, and in effect trumped the

NTSB appeal procedures established by the Federal Aviation

Act and the APA. (See App. A-51). The NTSB found that it

was bound by the TSA’s determination of an Initial Notice

of Threat Assessment (INTA) and Final Notice of Threat

Assessment (FNTA).

The pilots had their airman certificates revoked without

ever being told why they “posed” security risks. They have

lost their livelihood and careers as pilots. Because of these

determinations by the FAA and TSA and the revocation of

their pilot certificates, they can no longer operate aircraft,

anywhere. See Requirements for certificates. ratings, and

authorizations, 14 C.F.R. § 61.3(b) (2003).

IV. The Appeals to the D.C. Circuit

Captains Jifry and Zarie then petitioned for review to the

United States Court of Appeals for the District Of Columbia

Circuit. In particular, the pilots sought review of the

suspension and the revocation of their certificates, and the

issuance of the FNTA without any evidence that they pose

security risks. The pilots contended that they were denied

administrative due process in that they were not notified of

the basis of the Threat Assessments or given a meaningful

opportunity to challenge the evidence, which was entirely

presented in secret. The Court of Appeals upheld the

Government action which was based solely on a secret and

classified record. (App. A-1). The pilots’ petition was

denied by the D.C. Circuit on June 11, 2004. (App. A-1).

The pilots then sought rehearing and rehearing en banc

which were denied on August 9, 2004. (App. A-51, A-52).

REASONS FOR GRANTING THE PETITION

To support the TSA’s conclusion that the pilots were

security risks, the U.S. government submitted secret

classified “intelligence” to the Appeals Court, which treated

this classified “intelligence” as an administrative record, and

upheld the revocation of the pilots’ certificates. As a matter

of administrative law and due process, this case may be the

first case in this country where a person’s FAA-issued

license (airman’s certificate) was revoked based wholly upon

classified material and information. The opinion below

establishes a destructive precedent which undermines the

importance of administrative due process long established

and preserved by the Court.

In this case, the pilots’ airman certificates, issued by the

FAA were revoked because of the TSA’s finding that the

pilots were risks to national security. They were given no

notice of the basis of the TSA’s finding and were unable to

challenge the basis of the finding. The determination that

they were risks to U.S. national security was made by the

TSA (not a neutral decisionmaker) based upon secret,

classified information which was not part of the public

administrative record.

The due process and review rights established by

Congress were eviscerated by the new _ regulations

promulgated by the TSA and FAA as final rules, which, as

construed by the NTSB and the Court below, purported to

require the NTSB to accept the TSA finding as conclusive

and binding.

On review before the D.C. Circuit, there was no evidence

in the administrative record before the Court — not a morsel —

to support the TSA’s charge that the pilots were security

risks. To create a record on which the Court below could

rule, the U.S. Government, in camera (without the authority

of a statute or court rule), submitted secret, allegedly

classified material which the Appeals Court then treated as

the “administrative record.” On the basis of this secret

evidence, the Appeals Court upheld the revocation of the

pilots’ certificates.

At the heart of this case is the essential balance that must

be struck between due process rights and security concerns.

In his recent book, A// the Laws But One, Chief Justice

Rehnquist discussed this balance of civil liberties in time of

war taken by U.S. Courts throughout history. In conclusion,

he wrote “[I]t is both desirable and likely that more careful

attention will be paid by the courts to the basis for the

government’s claims of necessity as a basis for curtailing

civil liberty.” William H. Rehnquist, A// the Laws But One,

225 (1998).

I. This Case Presents Due Process Issues of

Fundamental Importance

This case raises an important question of administrative

due process: may the Government designate a person a

security threat and, on that ground, revoke his FAA-issued

certificate, entirely on the basis of secret evidence, without

notice of the basis of the charge or an opportunity to

meaningfully challenge it.

The due process clause of the Fifth Amendment

guarantees that "no person shall ... be deprived of life,

liberty, or property, without due process of law." U.S.

CONST. amend. V. Procedural due process "provides that

certain substantive rights - life, liberty, and property - cannot

be deprived except pursuant to constitutionally adequate

procedures." Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 541 (1985). See also Joint Anti-Fascist Refugee Comm.

v. McGrath, 341 U.S. 123, 162 (1951) (Frankfurter, J.

concurring).

In this case, Petitioners were deprived of their FAA-

issued airman certificates and their livelihood solely on the

basis of secret evidence without notice of the basis of the

charge or an opportunity to meaningfully challenge it. The

Court below stated that the revocations were made pursuant

to 49 U.S.C. § 44709(b). (App. A-2). That statute

specifically provides for appeal to the NTSB with the pilots

provided with “notice and an opportunity for a hearing.” 49

U.S.C. § 44709(d).

The Appeals Court, citing 49 U.S.C. § 44703(e)(2),

stated that “Congress distinguished between citizens and

aliens, conferring broad discretions to the FAA regarding

alien pilots.” Jifry v. FAA, 370 F. 3d 1174, 1176(D.C. Cir.

2004)(App. A-2 citing 49 U.S.C. § 44703(e)). However, that

statutory provision addresses issuance of certificates by the

FAA to aliens including the right to make the issuance of a

“certificate to an alien dependent on a reciprocal agreement with

the government of a foreign country.” 49 U.S.C. § 44703(e)(2).

The section which applies to revocations, 49 U.S.C. §

44709(b), however, is the applicable statute, not the one the

Court below cited which deals with the issuance of

certificates. The revocation statute, 49 U.S.C. § 44709(b),

does not distinguish between citizen and alien pilots as to the

administrative due process to which both are entitled under

the Federal Aviation Act and the APA, when such

certificates are revoked by the FAA.

No evidence of any kind was ever disclosed in the

administrative record that the pilots were a threat of any

kind. The upshot of the Appeals Court ruling is that the

Government will now be able to cite this decision for the

proposition that a Government Agency, in the name of

national security, may deprive a person, Congressional

statutes notwithstanding, of his liberty or property right in an

administrative proceeding based solely on secret evidence.

The D.C. Circuit had previously held that due process is

required when the government issues a_ stigmatizing

designation as a result of which the individual is deprived of

a right previously held. See Nat'l Council of Resistance of

Iran v. Dep't of State, 251 F.3d 192 (D.C. Cir. 2001).

Analogously, in this case, the TSA issued a threat assessment

against the pilots stigmatizing them as threats to U.S.

* Where, as here there is a statute which confers certain due process

rights, there is little reason to think that Congress intended the coverage

of the statute to vary depending upon citizenship. See Rasul v. Bush, 124

S. Ct. 2686, 2696 (2004) (“Aliens held at the base, no less than American

citizens, are entitled to invoke the federal court's authority...”).

national security which resulted in the revocation of their

FAA certificates and in the destruction of their careers as

pilots. The pilots’ certificates were revoked without having

been provided the bare minimum of due process: the right to

know the basis for the charge and the right to test the

accuracy of that evidence and counter it with their own

evidence before an independent decisionmaker.

“The right to know the evidence against one” and the

opportunity to challenge such evidence before an

independent decisionmaker is the minimal core of due

process. Henry J. Friendly, Some Kind of Hearing, 123 U.

Pa. L. REV. 1267 (1975). In addition to denying these

minimum due process requirements, the finding of the TSA

was upheld by the Appeals Court solely on the basis of secret

evidence. In the past, the Appeals Court had rejected the

proposition that a case may be decided on the basis of secret

evidence. See Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir.

1986) aff'd, 484 U.S. 1 (1987). In Abourezk, Judge Ruth

Bader Ginsburg wrote:

It is therefore the firmly held main rule

that a court may not dispose of the merits of a

case on the basis of ex parte, in camera

submissions ... Only in_ the’ most

extraordinary circumstances does our

precedent countenance court reliance upon ex

parte evidence to decide the merits of a

dispute.

Id. at 1061.

The pilots were not afforded any meaningful due process

protections. The Court should grant this Writ as it raises an -

important federal question as to whether the requisite

administrative due process can be provided when the

Government’s case is based solely on secret evidence.

Il. The Court of Appeals Ruling Conflicts with a

Decision of the Ninth Circuit

The decision in this case conflicts with the Ninth Circuit

decision in American-Arab Anti-Discrimination Comm. v.

Reno (AAADC 1), 70 F.3d 1045 (9" Cir. 1995).* The conflict

arises out of the mistaken interpretation and application of

the balancing test set out in Mathews v. Eldridge, 424 U.S.

319 (1976), to determine the level of due process which must

be afforded. A conflict between the Circuits on this due

process issue raises a fundamental Constitutional question

which this Court should resolve.

A. The Mathews Balancing Test

The Supreme Court in Mathews emphasized that “the

fundamental requirement of due process is the opportunity to

be heard ‘at a meaningful time and in a meaningful

manner.’” Mathews, 424 U.S. at 333. In Mathews, the Court

formulated a three-part "balancing" framework to address the

due process that an individual must be afforded. The

* This decision was not appealed by either party. The case was

remanded to the District Court and subsequently was appealed back to

the Ninth Circuit on different grounds. Subsequent to American-Arab

Anti-Discrimination Committee v. Reno, 70 F.3d 1045, cited herein, and

pending further appeal in the Ninth Circuit, Congress enacted the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA). The later case was granted certiorari by the Court based solely

on the question of whether the District Court had jurisdiction under the

IIRIRA. The Court then vacated the Ninth Circuit’s determination that

the federal courts had jurisdiction over the claims. American-Arab Anti-

Discrimination Committee v. Reno, 525 U.S. 471 (1999).

Mathews test addresses three factors: (1) the private interest

that will be affected by the official action; (2) the risk of an

erroneous deprivation of such interest through the procedures

used, and the probable value, if any, of additional or

substitute procedural safeguards; and (3) the government’s

interest. Jd. at 335.

B. The Ninth Circuit Opinion

In AAADC I, the Ninth Circuit was faced with a case

where plaintiffs alleged that the Immigration and

Naturalization Service (INS) selectively enforced the

immigration law based on their membership in a group that

allegedly advocated world communism. AAADC J, 70 F.3d at

1052. The plaintiffs challenged the INS's use of undisclosed

classified information in making their determination. The

Ninth Circuit held that the District Court had correctly

applied the Mathews balancing test in deciding that use of

undisclosed classified information under those circumstances

violates due process. /d. at 1061.

The Ninth Circuit after addressing the private interest

involved addressed the second prong of the Mathews test —

the risk of erroneous deprivation. The Court in analyzing the

use of undisclosed classified information stated that, “[o]ne

would be hard pressed to design a procedure more likely to

result in erroneous deprivations." /d. at 1069. The Court

went on to note that “[w]ithout any opportunity for

confrontation, there is no adversarial check on the quality of

the information on which the INS relies.” Jd. at 1069 (citing

Knauff v. Shaughnessy, 338 U.S. 537, 551 (1950) (Jackson,

J., dissenting) ("The plea that evidence of guilt must be

secret is abhorrent to free men, because it provides a cloak

for the malevolent, the misinformed, the meddlesome, and

the corrupt to play the role of informer undetected and

uncorrected.").

—

15 ng

The Ninth Circuit in — the importance of

disclosure stated:

Certain principles have remained relatively

immutable in our jurisprudence. One of

these is that where governmental action

seriously injures an individual, and the

reasonableness of the action depends on fact

findings, the evidence used to prove the

Government's case must be disclosed to the

individual so that he has an opportunity to

show that it is untrue.

AAADC I, 70 F.3d at 1069.

The Ninth Circuit understood that the risk of erroneous

deprivation was enormous where the Government relied on

undisclosed secret evidence. The Court stated that judges

were “necessarily wary of one-sided process: ‘democracy

implies respect for the elementary rights of men. . . and must

therefore practice fairness; and fairness can rarely be

obtained by secret, one-sided determination of facts decisive

of rights.’ /d. at 1069 (citing Anti-Fascist Comm. v.

McGrath, 341 U.S. 123, 170 (1951) (Frankfurter, J.,

concurring). The Court stated that “the very foundation of

the adversary process assumes that use of undisclosed

information will violate due process because of the risk of

error.” /d.

The Ninth Circuit then addressed the Government

interests in security. In applying the three factors, the Court

concluded that the Government interest, however valid,

could not be balanced by the almost certain risk of erroneous

deprivation caused by using secret undisclosed evidence.

The Court held that: “[b]ecause of the danger of injustice

when decisions lack the procedural safeguards that form the

core of constitutional due process, the Mathews balancing

suggests that use of undisclosed information in adjudications

should be presumptively unconstitutional.” /d. at 1070.

The Ninth Circuit ruling in this matter is unequivocal and

stands for the principle that the Government cannot use

secret evidence as a weapon to deprive a person of their

property, in this case, the pilots’ FAA-issued airman

certificates.

C. The D.C. Circuit Opinion in the Case at Bar

As in the Ninth Circuit case, the D.C. Circuit began by

applying the Mathews balancing test. The Appeals Court

stated that, “(t]he fundamental requirement of due process is

the opportunity to be heard ‘at a meaningful time and in a

meaningful manner’” (App. A-14 citing Mathews, 424 U.S.

at 333). After minimizing the pilots’ interest in their careers

and reputations, the Appeals Court dismissively addressed

the erroneous deprivation prong stating that:

Whatever the risk of erroneous deprivation,

the pilots had the opportunity to file a

written reply to the TSA's _ initial

determination and were afforded

independent de novo review of the entire

administrative record by the Deputy

Administrator of the FAA ... and ex parte,

in camera judicial review of the record.

(App. A-14).

The Court, in the above passage, basically listed three

“processes” that were afforded the pilots and held that, in

this case, this was the only “process” that was due. (/d.)

First, while the pilots were able to file a written reply to the

initial TSA determination, they could not address the basis

for the TSA’s claim that they were risks to national security,

because they had no idea of the basis for the charge.

Because the TSA determination was based solely on

undisclosed information, the pilots could only offer a general

denial that they were a threat to national security.

Secondly, in the above quote, the Court states that the

pilots were afforded independent de novo review of the

entire record by the Depufy Administrator of the FAA. No

review was ever performed by any independent agency or

Judge as to the basis of the charge or the evidence supporting

the Threat Assessment itself. The Deputy Administrator of

the FAA was not an independent decisionmaker, he was the

proponent of the revocation. The only review provided by

the ALJ or the whole NTSB was whether the TSA notified

the FAA that the pilots were a threat.

Thirdly, in the above quote, the Court states that the

pilots were provided ex parte, in camera judicial review of

the record. This is true, but the entire “record” consisted of

undisclosed classified evidence that was never at any

junction tested by an adversarial process. It is not even clear

that the “record” the Court reviewed was the same record

that was before the TSA and the NTSB. The Appeals Court,

as to this issue, cites Nat'l Council of Resistance of Iran v.

Dep't of State (NCOR 1), 251 F.3d 192 (D.C. Cir. 2001) for

the proposition that the agency “needed only to disclose the

unclassified portions of the record.” (App. A-15). In NCOR

I, however, there was a statute which authorized agency

consideration of classified evidence. See NCOR I, 251 F.3d

at 196. Nowhere in that statute, however, does it provide

that classified evidence alone may support such a

designation.

In NCOR I, there was sufficient unclassified evidence in

the public administrative record to support the agency

finding and by statute classified evidence could be

considered. /d at 196. See alse People’s Mojahedin Org. of

Iran v. United States Dep’t of State (Mojahedin 1), 327 F. 3d

1238 (D.C. Cir. 2003) (Edwards, J. concurring); Nat'/

Council of Resistance of Iran v. Department of State (NCOR

I), 373 F.3d 152 (D.C. Cir. 2004). In the case at hand, there

is no evidence in the public administrative record to support

the finding that the pilots were a threat to national security.

All the evidence or information upon which the charge was

based was deemed classified and secret. This case was based

solely on undisclosed evidence, a result, contrary to AAADC

/ and unprecedented in administrative due process.

D. Conclusion

The decision below allows the TSA to be both the

prosecutor and the judge in secret. Such a process is

repugnant to the Constitution and violative of the enactments

of Congress, and raises important concerns if this decision

stands as precedent. The decision in this case is contrary to

D.C. Circuit holdings (See Ahourezk v. Reagan, supra at p. 13)

as well as the Ninth Circuit holding in American-Arab Aniti-

discrimination League. The Court does not appear to have

ruled on the due process implications of the Government’s

use of classified evidence in a U.S. administrative or court

proceeding.

Accordingly, this case presents the opportunity for the

Court to settle a conflict between the Circuit Courts on an

important question of administrative due process which this

Court should resolve.

il. The Decision Below Eviscerates The Procedural

Protections Afforded by Congress in The APA

and The Federal Aviation Act of 1958.

The Court of Appeals’ resolution of the administrative

due process issues creates damaging precedent under the

Administrative Procedures Act (APA) and the Federal

Aviation Act of 1958. Under the APA, each party is entitled

to present his case, to submit rebuttal evidence, and to

conduct cross-examination “as may be required for a full and

true disclosure of the facts.” 5 U.S.C. § 556(d) (emphasis

added).

The Administrative Law Judge must include in the order

a statement of the findings and conclusions and the basis of

those findings “on all the material issues of fact, law or

discretion presented on the record.” 5 U.S.C. § 557. The

APA has incorporated safeguards of the party’s Fifth

Amendment due process rights in its language. See Sloan v.

HUD, 231 F.3d 10, 18 (D.C. Cir. 2000) (“An agency may

not issue an order without the ‘core requirements’ of due

process: adequate notice and a meaningful hearing.”). The

administrative record must be made up of the parties’

submissions, including the transcripts of testimony, exhibits,

and proposed findings and conclusions and_ related

documents. 5 U.S.C. §§ 556(e), 557(c).

In enacting the Federal Aviation Act of 1958 (in

particular, 49 U.S.C. § 44709), Congress created a system

whereby, if the FAA takes an action against a pilot, that pilot

can learn the factual allegations against him and challenge

those factual allegations before a neutral decision-maker—

the NTSB Administrative Law Judge. The decision of the

Appeals Court in this case disregards these congressionally

provided due process rights and renders them meaningless.

The regulations that the TSA and the FAA promulgated

in 2003 at a final rule, as interpreted by the Court of Appeals

and the NTSB bypasses all of these statutory preserved due

process rights. Under the decisions of the NTSB and the

Court below, if the TSA says a pilot is a security risk, the

FAA is bound by it; the pilots cannot challenge it, nor can

the NTSB, on review, do anything but “rubber stamp” it.

In her non-concurring opinion to the NTSB decision in

this case, NTSB member Carmody said:

I will not approve this opinion...No

intellectual power is required to agree that

the individuals had certificates and that the

TSA notified the FAA that the men were a

security threat. There is no question about

these facts. If this is the appeal process, it is

flawed and senseless. Approving such an

order gives it a legitimacy that it doesn’t

deserve. Further, it does not seem

responsive to the request for review.

(App A-20).

By act of Congress, the NTSB had jurisdiction pursuant

to the Federal Aviation Act of 1958, as amended

(particularly, 49 U.S.C. § 44709), and the NTSB Rules of

Practice (49 C.F.R. § 821.1 et seg.) to review this matter. -

The standard of review in NTSB proceedings is well-settled.

49 U.S.C. § 44709 and 49 C.F.R. § 821.1 ef seg. In

reviewing an action of the FAA, the NTSB shall set aside,

and hold unlawful, any agency finding it determines to be

arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with the law. Reno v. NTSB, 45 F.3d 1375,

1378 (9"" Cir. 1994); Hughes Air Corp. v. C. A. B., 482 F.2d

143 (9" Cir. 1973).

When enacting the Federal Aviation Act of 1958,

Congress specifically stated that an aggrieved certificate

holder may appeal to the FAA, “where he will be given a full

hearing complying in all respects with the requirements of

the Administrative Procedure Act.” H.R. REP. No. 85-2360

(1958). In accordance with the APA, the aggrieved party is

entitled to due process. See 5 U.S.C. § § 553-558. Congress

chose not only to rely on the APA, but included additional

procedural guidelines for review of FAA agency orders in

the Federal Aviation Act, which Congress expected the

NTSB and FAA to follow. 49 U.S.C. § 44709.

Under the regulations promulgated by the NTSB, the

ALJ’s decision can be overturned if the “findings of fact [are

not] each supported by a preponderance of reliable, probative,

and substantial evidence.” 49 C.F.R. § 821.49(a)(1), (b). A

certificate holder is entitled to appear and be heard, 49

C.F.R. § 821.6, and “each party shall have the right to

present a case-in-chief, or defense, by oral and documentary

evidence, to submit evidence in rebuttal, and to conduct such

cross-examination as may be required for a full and true

disclosure of the facts.” 49 C.F.R. § 821.38. A certificate

holder is allowed discovery from parties and non-parties.

See 49 C.F.R. §§ 821.19, 821.20.

The structure of these regulations, in accordance with the

statute, contemplates a hearing in which the facts relied on

by the Administrator must be presented and may be

contested by a certificate holder.

If the ALJ and the NTSB are barred from determining

the validity of the TSA Threat Assessment through an

independent review of the evidence, the right to a hearing

and review is rendered meaningless. If the new TSA and

FAA regulations are interpreted to allow a pilot to lose his

certificate on the basis of secret evidence which he can never

challenge and the NTSB cannot review, such an

interpretation would be against the clear and expressed intent

of Congress to provide certificate holders with the due

process protections contemplated by the Federal Aviation

Act of 1958 and the APA.

Pursuant to 49 U.S.C. § 44709, an individual whose

certificate is revoked by the FAA may appeal to the NTSB,

at which time the individual shall be given “notice and an

opportunity for a hearing” and the Board may “amend,

modify, or reverse the order when the Board finds...that

safety in air commerce or air transportation and the public

interest do not require affirmation of the order.” 49 U.S.C.

§ 44709(d). The Statute goes on to state:

When conducting a hearing under this

subsection, the Board is not bound by

findings of fact of the Administrior but is

bound by all validly adopted interpretations

of laws and regulations the Administrator

carries out and of written agency policy

guidance available to the public related to

sanctions to be imposed under this section

unless the Board finds an interpretation is

arbitrary, capricious, or otherwise not

according to law.

49 U.S.C. § 44709(d)(3) (emphasis added).

Since “the Board is not bound by findings of fact of the

Administrator,” the statutory scheme contemplates that a

pilot will be allowed to challenge the facts on which the

revocation of his license was based. The Appeals Court

opinion in this case, relying on the new TSA and FAA

regulations, disregards and renders meaningless the hearing

process required by statute, when as here, it holds that

pursuant to these regulations, the TSA may rely entirely on

undisclosed evidence.

The TSA and FAA by regulation cannot eliminate the

administrative due process rights established by the Congress

(“If the intent of Congress is clear, that is the end of the

matter; for the Court, as well as the agency, must give effect

to the unambiguously expressed intent of Congress”. . .

“The judiciary is the final authority on issues of statutory

construction and must reject administrative constructions

which are contrary to clear congressional intent.” Chevron

U.S.A. v. Nat'l Res. Def. Council, 467 U.S. 837, 842-3 n. 9

(1984). sa

Under the D.C. Circuit’s and the NTSB’s opinions, the

NTSB’s sole function is to “rubber stamp” the TSA security

threat determination without ever reviewing the evidence

supporting that determination. The D.C. Circuit ruling turns

the administrative review process into a “rubber stamp,”

denying the petitioners’ fundamental procedural due process

contrary to statute and the Court’s decision in Chevron.

The Court should grant the Writ and review this highly

destructive precedent which represents a radical and

unprecedented departure from the well established principles

of administrative due process codified by acts of Congress:

administrative due process rights of notice and an

opportunity to challenge, an independent decisionmaker, a

> Even under the Freedom of Information Act, 5 U.S.C. § 552 (2000),

usually any person (not just an aggrieved party like the pilots who are in

jeopardy of losing their certificates, their livelihood, and their reputation)

is entitled to segregated parts or summaries and a Vaughn Index where

issues of national security are implicated. Vaughn v. Rosen, 484 F.2d

820 (D.C. Cir. 1973).

public administrative record enabling administrative review

by the NTSB and judicial review by the Court below. The

pilots in this case received none of these basic due process

rights.

The Petitioners request the Court to accept this case for

review, overturn the damaging precedent of this case, and

affirm the continuing importance and validity of these tenets

of administrative due process.

CONCLUSION

Wherefore, for the foregoing reasons, the petition for a

writ of certiorari should be granted.

Respectfully submitted,

homas J. Whalen

Counsel: Counsel of Record

Evelyn D. Sahr CONDON & FORSYTH LLP

James G. Ehrig 1016 16" Street, N.W., Suite 700

Meaghan F. Molinini Washington, D.C. 20036

Tel: (202) 289-0500

Fax: (202) 289-4524

Dated November 8, 2004 Counsel for Petitioners

Appendix

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

hnmeal March 30, 2004 Decided June 11, 2004

No. 03-1085

TAREK H. JIFRY AND MAAN H. ZARIE, PETITIONERS

FEDERAL AVIATION ADMINISTRATION, ET AL.,

RESPONDENTS

Consolidated with Nos. 03-1143, 03-1144, 03-1282

On Petitions for Review of an Order of the Federal Aviation

Administration

Thomas J. Whalen argued the cause for petitioners. With

him on the briefs was Evelyn D. Sahr.

Douglas N. Letter, Attorney, U.S. Department of Justice,

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

Peter D. Keisler, Assistant Attorney General, and E. Roy

Hawkens and Catherine Y. Hancock, Attorneys.

Before: ROGERS, TATEL and GARLAND, Circuit

Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

A-|l

ROGERS, Circuit Judge: 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 opportun’ty 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"

reexamine 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 "based

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

A-3

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. § 1540.1 17(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 CFR. §

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. Jd §

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

A-4

OL ———

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 "Jack 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. § 1540.1 17(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

A-5

"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. /d. § 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 responcents TSA, FAA, and the

NTSB, the pilots' APA challenges to the FAA regulation, 14

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

ofa live controversy, however, because the effects of 14 C.F.R.

§ 61.18 remain very real for non-resident alien pilots like Jifry

and Zarie. The FAA has applied this regulation against the two

A-6

pilots, and it remains in effect notwithstanding the Act. The

pilots therefore retain "a legally cognizable interest in the

outcome," Powell v. McCormack, 395 U.S. 486, 496 (1 969), of

their APA claims.

Generally, the "good cause" exception to notice and

comment rulemaking, see 5 U.S.C. § 553(b)(3)(B), is to be

"narrowly construed and only reluctantly countenanced."

Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144

(D.C. Cir. 1992) (quoting New Jersey v. EPA, 626 F.2d 1038,

1045 (D.C. Cir. 1980)). The exception excuses notice and

comment in emergency situations, Am. Fed'n of Gov't

Employees v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981), or

where delay could result in serious harm. See Hawaii

Helicopter Operators Ass'n v. FAA, 51 F.3d 212, 214 (9th Cir.

1995). The latter circumstance is applicable here in examining

the TSA's determination that "the use of notice and comment

prior to issuance of the [January 2003 regulations] could delay

the ability of TSA and the FAA to take effective action to keep

persons found by TSA to pose a security threat from holding an

airman certificate," and was "necessary to prevent a possible

imminent hazard to aircraft, persons, and property within the

United States."

The pilots contend that the "good cause" exception does

not apply because the FAA already had unlimited power to

revoke a certificate immediately if it believed an airman to be

a security risk, see 49 U.S.C. § 44709, and the TSA was

already authorized to make security assessments under 49

U.S.C. § 114(f). While true, the pilots fail to acknowledge that

at the time the challenged regulations were adopted, the FAA's

power to suspend or revoke certificates was permissive only.

See 49 U.S.C. § 44709. Congress had not yet enacted 49

U.S.C. § 46111, which formalized the requirement that the

FAA shall suspend, modify, or revoke a certificate if notified

by the TSA that an individual posed a security risk. As the

respondents explain, the January 2003 regulations mandated a

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"streamlined process" by which an individual's pilot certificate

would be automatically suspended or revoked by the FAA

upon notification by the TSA that a pilot posed a security

threat. The TSA and FAA deemed such regulations necessary

"in order to minimize security threats and potential security

vulnerabilities to the fullest extent possible." Given the

respondents’ legitimate concern over the threat of further

terrorist acts involving aircraft in the aftermath of September

11, 2001, see Declaration of TSA Deputy Administrator

Stephen McHale (hereinafter McHale Decl.) at 4, the agencies

had "good cause" for not offering advance public participation.

See Utility Solid Waste Activities Group v. EPA, 236 F.3d 749,

754-55 (D.C. Cir. 2001).

On the merits, the pilots' APA challenge fails. The court's

review of agency rulemaking is highly deferential, limited to

determining "whether the agency has considered the relevant

factors and articulated a ‘rational connection between the facts

found and the choice made.'" United States Air Tour Ass nV.

FAA, 298 F.3d 997, 1005 (D.C. Cir. 2002) (quoting Motor Veh.

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

(1983)). In BellSouth Corp. v. FCC, 162 F.3d 121 5, 1221 (D.C.

Cir. 1999), the court observed that "when ... an agency is

obliged to make policy judgments where no factual certainties

exist or where facts alone do not provide the answer, [the

reviewing court's] role is more limited: we require only that the

agency so state and go on to identify the considerations it

found persuasive."

Contrary to the pilots' position, the regulations are not

arbitrary and capricious for bearing no rational connection to

the problem identified by the FAA. It is self-evident that the

regulations are related to the TSA's and FAA's goals of

improving the safety of air travel. Nor is the court ina position

to second-guess the respondents’ judgment that imposing

stricter procedures for coordinating security risks and

restricting individuals who pose security threats from holding

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airman certificates was necessary to further that goal. See

BellSouth Corp. v. FCC, 162 F.3d at 1221-22. Moreover, the

pilots' contention that the risk posed by the certificate holders

alleged to be security threats was not remedied by providing

fewer procedural protections to the certification holders and

narrowing their right to NTSB review is to no avail because 49

U.S.C. § 46111 produces the same result. Section 46111 makes

no provision for NTSB review even for citizens, and the

Conference Report states that non-resident aliens "have the

right to the appeal procedures that [TSA] has already provided

for them." H.R. Conf. Rpt. 108-334 at 152 (2003). In addition,

§ 46111(a) requires the FAA to respond automatically to TSA

threat assessments, providing that the FAA "shall issue an

order amending, modifying, suspending, or revoking any part

of a certificate issued under this title if the Administrator is

notified by ... 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). Accordingly, if these pilots

retain any right to NTSB review at all, it is no broader than the

review for procedural regularity that they have received, and

they would therefore garner no benefit from a remand. Indeed,

an additional ground for rejecting the pilots’ challenge to the

promulgation of the FAA regulation without notice and

comment exists precisely because § 46111 now provides an

express statutory authorization for the automatic revocation

that was previously predicated on the regulations alone; even

were the court to invalidate the regulations for lack of notice

and comment, the statute would compel the FAA to honor the

TSA's notification and take immediate action against the pilots'

certificates.

The scope of the court's review of the pilots' challenges to

the TSA's actions is limited to aetermining whether the actions

were "arbitrary, capricious, an abuse of discretion, or otherwise

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not in accordance with law." 5 U.S.C. § 706(2)(A). Under this

standard, the court must consider whether those actions were

"based on a consideration of the relevant factors and whether

there has been a clear error of judgment." Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402, 416 (1971) (overruled

on other grounds). See Motor Veh. Mfrs. Ass'n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The court must

affirm the agency's findings of fact if they are supported by

"substantial evidence" and there is a "rational connection

between the facts found and the choice made." Burlington

Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962).

"Substantial evidence" is simply such relevant evidence as a

reasonable person might accept as proof of a conclusion. See

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1981)

(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229

(1938)).

In contending that the revocations of their airman

certificates are unsupported by substantial evidence in the

record, the pilots do not challenge the definition of "security

threat" under the TSA regulations. An individual poses a

"security threat" if the individual "is suspected of posing, or is

known to pose (1) A threat to transportation or national

security; (2) A threat to air piracy or terrorism; (3) A threat to

airline or passenger security; or (4) A threat to civil aviation

security." 49 C.F.R. § 1540.117(c). Consistent with Camp v.

Pitts, 411 U.S. 138, 143 (1973), where the Supreme Court

stated that when an agency official fails to adequately explain

its decision, the agency should submit "either through

affidavits or testimony, such additional explanation of the

reasons for the agency decision as may prove necessary," the

affidavit of TSA Deputy Administrator Stephen McHale

provides an adequate basis for the TSA's determination that

Jifry and Zarie each posed a "security threat" within the

meaning of § 1540.117(c). The unsealed affidavit recounts that

the Deputy Administrator affirmed the TSA's determination on

the basis of classified intelligence reports, combined with

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reports from the intelligence community that aircraft would

continue to be used as weapons of terrorism, and consideration

of "the ease with which an individual may obtain access to

aircraft in the United States once he or she has a pilot license."

McHale Decl. at 4. The Deputy Administrator attested that

"because it would be very difficult to avert harm once a

terrorist had control of an aircraft, | concluded that it was

important to err on the side of caution in determining whether

[the two pilots] ... pose a security threat..." Jd. at 4-5.

Viewing as a whole the record evidence before the TSA,

including ex parte in camera review of the classified

intelligence reports, we hold that there was substantial

evidence to support the TSA's determination that the pilots

were security risks. While we reject the pilots' contention that

the court apply a de novo standard of review, we have carefully

reviewed the classified intelligence reports on which TSA

relied. The record is not lengthy and the basis for the TSA's

conclusion is obvious. The court's review is limited, moreover,

to the administrative record that was before the TSA when it

determined that the pilots were security risks. See 5 U.S.C. §

706; cf. United States v. Carlo Bianchi & Co., 373 U.S. 709,

715 (1963). Hence, the pilots' post-argument submission of

May 3, 2004 is not properly before the court, although we note

that the information it contains was known to the pilots in

2001 and could have, and still can be, submitted to the TSA.

The pilots' motion to bar the respondents’ reliance on

classified information in this court is not well-taken. Even

assuming the respondents' failure to provide notice of its

intention to rely on classified information on appeal until one

month after the pilots filed their opening brief prevented the

pilots from timely addressing the "classified information"

question in their opening brief, the pilots' motion fails on its

merits for several reasons. First, because the court reviewed the

information designated by the respondents as "classified," the

court is in a position to determine whether it was properly

A-1I1

classified without the Vaughn Index, see Vaughn v. Rosen, 484

F.2d 820, 826-28 (D.C. Cir. 1973), that the pilots urge be

obtained. Reliance on Vaughn is misplaced, in any event,

because that case involved the Freedom of Information Act and

presented a very different situation than that presented here.

Second, the court has inherent authority to review classified

material ex parte, in camera as part of its judicial review

function. See Molerio v. FBI, 749 F.2d 815, 822 & n.2 (D.C.

Cir. 1984). See also Holy Land Found for Relief & Dev. v.

Ashcroft, 333 F.3d 156, 164 (D.C. Cir. 2003); Nat'l Council of

Resistance of lran v. Dep't of State, 251 F.3d 192, 208-09 (D.C.

Cir. 2001). The pilots’ focus on the TSA Deputy

Administrator's reliance on "sensitive security information," as

defined by 49 U.S.C. § § I 14(s), 40119(b)(1), and 49 C.F.R.

Part 1520, and "law enforcement sensitive" information, see

McHale Decl. at 5, fares no better. Although 49 C.F.R. §

1520.5(b) provides that a person has a "need to know sensitive

security information" when the information is necessary to

represent an individual in a judicial or administrative

proceeding, § 1520.5(b)(5) applies only to individuals

representing persons listed in § 1520.5(a), and the pilots are not

among the persons listed in subsection (a) who are required to

restrict disclosure of and access to sensitive security

information to those with a "need to know." See 49 C_F .R. §

1520.5(a).

IV.

The court reviews de novo the pilots challenge to the

constitutionality of the procedures under the January 2003

regulations. See Vt. Yankee Nuclear Power Corp. v. NRDC,

435 U.S. 519, 543 (1978); Ramirez-Alejandre v. Ashcroft, 319

F.3d 365, 377 (9th Cir. 2003); Grace Towers Tenants Ass'n v.

Grace Housing Dev. Fund Co., 538 F.2d 491, 496 (2d Cir.

1976). They contend that the TSA and FAA procedures violate

the Fifth Amendment of the Constitution by depriving the

pilots of their property interest in their airman certificates

without due process of law.

The Supreme Court has long held that non-resident aliens

who have insufficient contacts with the United States are not

entitled to Fifth Amendment protections. See Johnson v.

Eisentrager, 339 U.S. 763, 771 (1950); Yamataya v. Fisher

(Japanese Immigrant Case), 189 U.S. 86, 101 (1903); Yick Wo

v. Hopkins, 118 U.S. 356, 369 (1886). See also United States

v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936);

Pauling v. McElroy, 278 F.2d 252, 253 n.3 (D.C. Cir. 1960).

Cf. United States v. Verdugo-Urquidez, 494 U.S. 259, 261

(1990). Exceptions may arise where aliens have come within

the territory of the United States and established "substantial

connections" with this country, Verdugo-Urquidez, 494 U.S. at

271, or "accepted some societal obligations." /d. at 273. In such

situations, the Court has recognized that aliens may be

accorded protections under the Constitution. See Plyler v. Doe,

457 U.S. 202, 211-12 (1982); Kwong Hai Chew v. Colding,

344 U.S. 590, 596 (1953); Russian Volunteer Fleet v. United

States, 282 U.S. 481, 489 (1931). This court has applied these

principles in a series of cases concerning the designation of

certain dissident organizations as "foreign terrorist

organizations." See People's Mojahedin Org. of Iran v. Dep't

of State, 327 F.3d 1238, 1241 (D.C. Cir. 2003) ("People's

Mojahedin II"); Nat'l Council, 251 F.3d at 201; People's

Mojahedin Org. of Iran v. Dep't of State, 182 F.3d 17,22 (D.C.

Cir. 1999) ("People's Mojahedin I"). See also 32 County

Sovereignty Comm. v. Dep't of State, 292 F.3d 797, 799 (D.C.

Cir. 2002). In People's Mojahedin I, 182 F.3d at 22, the court

explained that "[a] foreign entity without property or presence

in this country has no constitutional rights, under the due

process clause or otherwise." We need not decide whether or

not Jifry and Zarie are entitled to constitutional protections

because, even assuming that they are, they have received all the

process that they are due under our precedent.

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"The fundamental requirement of due process is the

opportunity to be heard ‘at a meaningful time and in a

meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333

(1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965)). Generally, in determining whether administrative

procedures are constitutionally adequate, courts weigh three

factors:

First, the private interest that will be affected by

the official action; second, the risk of an erroneous

deprivation of such interest through the

procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and

finally, the Government's interest, including the

function involved and the fiscal and

administrative burdens that the additional or

substitute procedural requirement would entail.

Mathews, 424 U.S. at 335. The pilots' interests at stake here -

their interest in possessing FAA airman certificates to fly

foreign aircraft outside of the United States - pales in

significance to the government's security interests in preventing

pilots from using civil aircraft as instruments of terror. As the

Supreme Court has noted, "It is ‘obvious and unarguable' that

no governmental interest is more compelling than the security

of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981)

(quoting Aptheker v. Secretary of State, 378 U.S. 500, 509

(1964)). Whatever the risk of erroneous deprivation, the pilots

had the opportunity to file a written reply to the TSA's initial

determination and were afforded independent de novo review

of the entire administrative record by the Deputy Administrator

of the FAA, see 49 C.F.R. § 1540.1 17(e)(4), (f), and ex parte,

in camera judicial review of the record. In light of the

governmental interests at stake and the sensitive security

information, substitute procedural safeguards may be

A-14

impracticable, and in any event, are unnecessary under our

precedent.

In Nat'l Council of Resistance of Iran, 251 F.3d at 208, the

court concluded that in designating organizations as foreign

terrorist organizations under the Anti-Terrorism and Effective

DeathPenalty Act, the Secretary of State had to "afford to the

~-entities under consideration notice that the designation is

impending," id., and "the opportunity to present, at least in

written form, such evidence as those entities may be able to

produce to rebut the administrative record or otherwise negate

the proposition that they are foreign terrorist organizations." Jd.

at 209. In light of the Supreme Court's instruction that "due

process is flexible and calls for such procedural protections as

the particular situation demands," Morrissey v. Brewer, 408

U.S. 471, 481 (1972), the court held that because of the extent

to which security concerns were implicated in that case, the

Secretary could upon "adequate showing to the court," provide

the requisite notice after the designation of the organization as

a terrorist organization, and needed only to disclose the

unclassified portions of the record. Nat'l Council of Resistance

of Iran, 251 F.3d at 208. In People's Mojahedin II, 327 F.3d at

1242-43, another case involving the designation of terrorist

organizations, the court underscored that it "had established in

[National Council] the process which is due under the

circumstances of this sensitive matter of classified intelligence

in the effort to combat foreign terrorism," and that "nothing

further is due." /d. See also Holy Land, 333 F.3d at 163-64.

The TSA Assistant Administrator's Initial Notices informed

the pilots that "based upon materials available to the [TSA],

which I have personally reviewed, I have determined that you

pose a security threat." The pilots were afforded an opportunity

to respond to the designation and both filed written challenges

to the TSA's Initial Notice, along with affidavits that they did

not pose a threat to aviation or national security. See 49 C.F.R.

§ 1540.117(e)(4). These materials were considered by the TSA

A-1I5

Deputy Administrator when he conducted a de novo review of

the administrative record before issuing the Final Notice.

While the pilots protest that without knowledge of the specific

evidence on which TSA relied, they are unable to defend

against the charge that they are security risks, the court has

rejected the same argument in the terrorism listing cases. The

due process protections afforded to them parallel those

provided under similar circumstances in National Council and

People’s Mojahedin II, and are sufficient to satisfy our case

law.

Accordingly, we affirm the NTSB revocation order of

August 13, 2003, and deny the petitions for review and the

pilots’ motion to bar the respondents' reliance on classified

information.

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APPENDIX B

SERVED: August 14, 2003

NTSB Order No. EA-5052

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION SAFETY BOARD

WASHINGTON, D.C.

Adopted by the NATIONAL TRANSPORTATION

SAFETY BOARD

at its office in Washington, D.C.

on the 13th day of August, 2003

MARION C. BLAKEY,

Administrator,

Federal Aviation Administration,

Complainant,

Dockets SE-16922

V. and SE-16923

TAREK HASSAN JIFRY and

MAAN HASSAN ZARIE,

Respondents.

OPINION AND ORDER

The respondents have appealed from an_ order

Administrative Law Judge Patrick G. Geraghty served in this

proceeding on July 15, 2003.' That order granted the

Administrator's motion for summary judgment on

emergency orders she had issued on June16, 2003, revoking

any airman certificate held by respondents, including Airline

'A copy of the law judge's order is attached. 7579

A-17

Transport Pilot Certificates (No. 2293881 and No. 2339384,

held by respondents Zarie and Jifry, respectively), -pursuant

to section 61.18(a) of the Federal Aviation Regulations

(“FAR,” 14 C.F.R. Part 61). The consolidated appeal will be

denied.

Individuals that the Transportation Security

Administration (TSA) has determined pose a security threat

are not eligible to hold an airman certificate, rating, or

authorization under FAR Part 61.2 Because TSA has made

such determinations with respect to both of the respondents,

the law judge concluded that the Administrator's revocation

orders were required under the terms of her regulation. In so

concluding, the law judge relied on recent Board precedent,

involving appeals from the same two respondents, which

unequivocally held that the Board does not have jurisdiction

to review the validity of TSA security threat assessments

entered under authority given to it in the Aviation and

Transportation Security Act.’

*FAR section 61.18 provides as follows:

§ 61.18 Security Disqualification.

(a) Eligibility Standard. No person is eligible to hold a

certificate, rating or authorization issued under this part when the

Transportation Security Administration (TSA) has notified the FAA in

writing that the person poses a security threat.

(b) Effect of the Issuance by the TSA of an Initial Notification of

Threat Assessment. The FAA will Suspend any certificate, rating, or

authorization issued under this part after the TSA issues to the holder an

Initial Notification of Threat Assessment.

“Administrator v. Zarie, NTSB Order No. EA-5033 (April 1,

2003), and Administrator v. Jifry, NTSB Order No. EA-5034 (April 1,

2003). These appeals challenged emergency suspensions predicated on

preliminary security threat assessments TSA had made concerning the

respondents. See FAR section 61.18(b). The instant appeals involve

TSA's final judgments that the respondents pose security threats.

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Respondents' renewed position in this round of

appeals that they are entitled to a hearing before the Board

on the factual basis for TSA's threat assessment rests in

effect on the same arguments that the law judge and the

Board found unpersuasive in their earlier cases. We perceive

no need to revisit those arguments, for, in our view, they do

not establish that the Board is mistaken in its view that

"where, as in this matter, the Administrator has incorporated

in a regulation a judgment about the eligibility for airman

certification of a class of persons that another federal agency

has identified as presenting a risk to aviation security, the

Board has no authority to look behind that choice." Zarie,

supra, at 3. The law judge’s ruling must therefore be

sustained.

ACCORDINGLY, IT IS ORDERED THAT:

|. The respondents’ appeal is denied: and

2. The order of the law judge granting summary

judgment for the Administrator and affirming the emergency

orders of revocation is affirmed.

ENGLEMAN, Chairman, ROSENKER, Vice Chairman, and

GOGLIA and HEALING, Members of the Board, concurred

in the above opinion and order. CARMODY, Member, did

not concur, and submitted the following dissenting

statement.

I had misgivings about notations 7541

and 7542 (Zarie and Jifry) when the Board

considered them a few months ago. The

Board was asked to affirm that the

respondents held airmen certificates and that

the Transportation Security Administration

(TSA) had notified the Administrator that the

A-19

two men posed a security threat. The law

judge concluded that the NTSB lacked the

jurisdictional authority to review the TSA’s

determination. Although I voted to approve

the judge's decision and the revocation order,

I filed a statement saying my decision did not

reflect any judgment on the TSA process or

determination since everything was based on

information which we had neither received

nor had authority to review.

Now the second round of appeals

comes before us with notation 7579. The

respondents are seeking a hearing on the

factual basis for the TSA's assessment. The

proposed opinion and order denies the appeal

citing, once again, that the Board lacks

jurisdiction to review the TSA assessment.

I will not approve this opinion and

order and I| regret my earlier vote on 7541 and

7542. | agree that the NTSB does not have

jurisdiction. Why then should we exercise

judgment over something we have absolutely

no information about? No intellectual power

is required to agree that the individuals had

certificates and that the TSA notified the FAA

that the men were a security threat. There is

no question about these facts. If this is the

appeal process, it is flawed and senseless.

Approving such an order gives it a legitimacy

that it doesn't deserve. Further, it does not

seem responsive to the request for review.

I do not believe the NTSB is the

correct body to review cases of this type.

A-20

National security is not within the NTSB's

jurisdiction. Cases like these put the Board in

the position of having to pass judgment where

the facts are unavailable, and the possibility

of exercising meaningful review does not

exist.

A-21

SERVED JULY 15, 2003

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION SAFETY BOARD

OFFICE OF ADMINISTRATIVE LAW JUDGES

MARION C. BLAKEY,

Administrator, EMERGENCY

Federal Aviation Administration,

Complainant,

Docket No.: SE-16922

v. Docket No.: SE-16923

CONSOLIDATED

TAREK HASSAN JIFRY and JUDGE GERAGHTY

MAAN HASSAN ZARIE,

Respondents.

SERVICE: BY FAX & REGULAR MAIL

ALLAN HOROWITZ, ESQ.

FAA/AGC-300

800 INDEPENDENCE AVE., SW

WASHINGTON, DC 20591

BY FAX & CERTIFIED MAIL, RRR

THOMAS WHALEN, ESQ.

EVELYN SAHR, ESQ.

JIM EHRIG, ESQ.

CONDON & FORSYTH, LLP

1016 16™ ST., NW

WASHINGTON, DC 20036

DECISIONAL ORDER

These proceedings are before the Board on the

respective Appeals of Respondents from their individual

Emergency Order of Revocation, herein the Complaints,

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which, in each instance, seeks to revoke the Airline Transport

Pilot and any other airman Certificates held by them.

For the reasons and circumstances stated in the

Complaints,' it is further alleged that by consequence of the

provisions of Section 61.18(a), Federal Aviation Regulations

(FARs),’ Respondents are not eligible to hold any airman

certificate.

Complainant has filed a Motion for Summary

Judgment in each of the consolidated cases. Summary

Judgment is appropriate where the pleadings reveal that there

are material facts in dispute as would require trial for

resolution. Attached to the Motions is a copy of the May 8,

2003 letter addressed to each Respondent, individually, from

the Transportation Security Administration (TSA), advising

and giving notice of TSA's Final Threat Assessment that

Respondents pose a security threat. The attachment also

indicated that a copy of that May 8, 2003 TSA Final

Notification of Threat Assessment, in each case, was served

upon the Administrator, Federal Aviation Administration

(FAA).°

‘Copies of the respective Emergency Orders of Revocation are

attached as Exhibit 1.

"Section 61 .18(a), FAR, Security Disqualification, provides:

(a) (a) Eligibility Standard. No person is eligible to hold a

certificate rating or authorization issued under this part

when the Transportation Security Administration

(TSA) has notified the FAA in writing that the person

poses a security threat.

. Complainant also moved to amend her Order (Complaint) in

Jifry to correct error in dates cited in Paragraph 2 therein from that of:

May 6, 2003, to that of: May 8, 2003. The error appears harmless as

Respondent would have knowledge of the correct date and, further,

appears as merely typographical. The Motion to Amend is granted.

A-23

Pitei me $ . .

a ela Le boas Seen d eae at ete

WOR BERNER apes sissiststtiay reas stn ws ts ise

Answers were filed on behalf of the Respondents and

therein the allegation of Paragraph | was admitted, while

denial was entered as to Paragraphs 2 and 3. In their denial

of Paragraph 2, the Respondents deny that they present a

security threat. Such denial, however, does not address the

essential allegation of Paragraph 2; that is, whether or not

TSA advised both the Respondent and Administrator FAA,

by letter of May 8, 2003, of TSA's final threat assessment.

Paragraph 3 is, on its face, a conclusionary statement of law

for the Board to resolve upon the material facts established

herein.

Counsel for Respondents has filed a joint response in

opposition to Complainant's Motion. In their response,

Respondents advance basically the same argument that they

raised in the prior cases before the Board.’ The crucial issue

raised is that of the Board's jurisdiction as pertains to review

of the TSA's determination of Respondents’ threat status,

and, secondly, whether the established facts confirm the

operative provisions of the FAR cited by Complainant as the

basis of the FAA's action to revoke.

Those arguments were definitely addressed by the

Board in its Opinion and Order in Administrator v. Zarie,

EA-5033; therefore, extensive exposition is_ herein

unnecessary. In Zarie, the Board explained that its "...

authority to review the validity of or justification for a

certificate action is not absolute ... but is circumscribed ... by

the regulatory contest..."" The Board further held that where

the FAA has incorporated in its Regulation (FAR) as it has

in Section 61.18, FAR, its judgment on airman eligibility

‘Administrator v. Jifry, SE-16794; EA-5034 (2003);

Administrator v. Zarie, SE-16793; EA-5033 (2003).

> Administrator v. Zarie, SE-16793; EA-5033, at 2 (2003).

A-24

based upon another federal agency's determination that “the

person(s) present a risk to aviation security, ... the Board has

no authority to look behind that choice...” As the Board

stated in Zarie, the issue in the reviewable issue “... is simply

whether the evidence supports the Administrator's allegation

... In terms of the applicable Regulation, and if it does, “...

our (the Board's) inquiry is ended and the appeal fails...”

Summary judgment is appropriate where the record

in the proceeding demonstrates that there does not exist any

material issue of fact remaining in dispute. Upon review and

consideration of all pleadings submitted and supporting

attachments, it is determined that the material facts in the

respective Complaints are established on the preponderance

of evidence and, thus, no material facts remain for

resolution. | find and concede, therefore, upon the record in

its entirety and Board precedent that, as the evidence clearly

establishes that the elements of Section 61.18, FARS, are

proven, the required conclusion is that Respondents’ Airman

Certificates, by terms of said Regulation, must be held to be

revoked.

It is held, accordingly, that Complainant's Motions

for Summary Judgment are granted; the Complaints/Orders

of Revocation are affirmed; and these proceedings are

terminated.*

SO ORDERED.

“Id at 3.

"Supra, note 5 at 3.

‘The Affirmative Defenses raised in Respondents’ Answers are

not issue reviewable; they are to be viewed as raised and preserved for

any further appeal aczion.

A-25

GRPR IAI egies MaMa UNO eg Mp adh ah Shy RyRy

ENTERED this 15" day of July 2003 at Denver,

Colorado.

/s/ Patrick G. Geraghty

PATRICK G. GERAGHTY

ADMINISTRATIVE LAW JUDGE

A-26

SERVED: April 1, 2003

NTSB Order No. EA-5033

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION SAFETY BOARD

WASHINGTON, D.C.

Adopted by the NATIONAL TRANSPORTATION

SAFETY BOARD

at its office in Washington, D.C.

on the Ist day of April, 2003

MARION C. BLAKEY,

Administrator,

Federal Aviation Administration,

Complainant,

v. Docket SE-16793

MAAN HASSAN ZARIE,

Respondent.

OPINION AND ORDER

The respondent has appealed from an _ order

Administrative Law Judge Patrick G. Geraghty served in this

proceeding on March 17, 2003.' That order granted the

Administrator's motion for summary judgment on an

emergency order she had issued on January 24, 2003,

suspending, indefinitely, any airman certificate held by

respondent, including his Airline Transport Pilot Certificate

(No. 2293881), pursuant to section 61.18 of the Federal

'A copy of the law judge's decision is attached. 7541

A-27

Aviation Regulations (“FAR,” 14 C.F.R. Part 61). The

appeal will be denied.

Briefly stated, newly enacted FAR section 61.18

requires, on receipt of written notification by the

Transportation Security Administration (TSA), that the

Administrator suspend any airman certificate held by an

individual who the TSA has determined poses a security

threat. The law judge ruled, after considering essentially the

same arguments that the respondent presses on appeal to us,

that the Board does not have jurisdiction to review the

validity of the TSA security threat assessment. Rather, the

Board's authority is limited to determining whether the

Administrator’s action complies with the terms of her

regulation, which is not in dispute in this matter. We see no

need to expand at length upon the law judge's resolution of

the question of jurisdiction, for we agree with his decision,

which adequately discusses all of the relevant facts and legal

issues.

The Board’s authority to review the validity of or

justification for a certificate action is not absolute, as

respondent suggests, but is circumscribed, if not defined, by

the regulatory context. For example, the Board is empowered

to review the denial by the Administrator of a medical

certificate, but that review is abbreviated where the reason

for denial is the history or existence of a medical

circumstance or condition, such as, for instance, cardiac

valve replacement, that is per se disqualifying under the

Administrator’ s medical regulations (see 14 C.F.R. Part 67) .

The issue in such a case is not whether the Board agrees that

the medical condition the individual is alleged to have is one

that is not compatible with flight safety or should always be

disqualifying. Rather, the issue is simply whether the

A-28

evidence supports the Administrator's allegation.’ If it does,

Our inquiry is ended, and the appeal fails.

Similarly, where, as in this matter, the Administrator

has incorporated in a regulation a judgment about the

eligibility for airman certification of a class of persons that

another federal agency has identified as presenting a risk to

aviation security, the Board has no authority to look behind

that choice. Whether the Administrator’s regulation

represents a sustainable exercise of her rulemaking authority

and whether the TSA’s procedure for challenging a security

threat judgment accord individuals all rights to which they

are entitled as a matter of due process are questions reserved

for the courts to decide.

ACCORDINGLY, IT IS ORDERED THAT:

1. The respondent's appeal is denied; and

2. The order of the law judge granting summary

judgment for the Administrator and affirming the emergency

order of suspension is affirmed.

-ENGLEMAN, Chairman, and GOGLIA, CARMODY,

ROSENKER, and HEALING, Members of the Board,

concurred in the above opinion and order. Member

CARMODY submitted the following concurring statement,

in which Member GOGLIA joined.

2 ° . .

“In these cases, it would be of no significance, for purposes of

the Board's review authority, that reasonable medical minds might have

differed over the necessity for an individual’s valve replacement. The

Board does not provide a forum either for second-guessing the

Administrator's determination that those with replaced heart valves

should not be certificated to fly or for re-litigating the wisdom of medical

judgments of those who determined that the surgery was necessary.

A-29

The decision here does not reflect any

judgment either on the process TSA, in

concert with the Administrator, has put in

place to enhance aviation security by de-

certifying airmen who pose a security threat,

or on TSA’s threshold determination that the

respondent in this case may present such a

risk. The decision recognizes that the validity

of the TSA assessment does not fall within

the scope of our statutory charter.

A-30

SERVED: April 1, 2003

NTSB Order No. EA-5034

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION SAFETY BOARD

WASHINGTON, D.C.

Adopted by the NATIONAL TRANSPORTATION

SAFETY BOARD

at its office in Washington, D.C.

on the Ist day of April, 2003

MARION C. BLAKEY,

Administrator,

Federal Aviation Administration,

Complainant,

V. Docket SE-16794

TAREK HASSAN JIFRY,

Respondent.

ORDER

We have today issued an opinion and order in

Administrator v. Zarie, NTSB Order No. EA-5033 (served

April 1, 2003), a case also decided by Administrative Law

Judge Patrick G. Geraghty that involves the identical factual

setting, allegations, and legal issues as are posed by this

A-3] 7542

appeal.' For the reasons set forth in Zarie, we affirm the law

judge's grant, in the same language, of summary judgment

for the Administrator in this proceeding.

ACCORDINGLY, IT IS ORDERED THAT:

1. The respondent's appeal is denied; and

2. The order of the law judge affirming the

emergency suspension of respondent Jifry’s Airline Pilot

Certificate No. 2339384 under section 61.18 of the Federal

Aviation Regulations is affirmed.

ENGLEMAN, Chairman, and GOGLIA, CARMODY,

ROSENKER, and HEALING, Members of the Board,

concurred in the above opinion and order. Member

CARMODY submitted the following concurring statement,

in which Member GOGLIA joined.

The decision here does not reflect any

judgment either on the process TSA, in

concert with the Administrator, has put in

place to enhance aviation security by de-

certifying airmen who pose a security threat,

or on TSA's threshold determination that the

respondent in this case may present such a

risk. The decision recognizes that the validity

of the TSA assessment does not fall within

the scope of our statutory charter.

| ' : als : ‘

A copy of the law judge's decision is attached, as is a copy of

the Board's opinion and order in the Zarie case.

A-32

SERVED MARCH 17, 2003

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION SAFETY BOARD

OFFICE OF ADMINISTRATIVE LAW JUDGES

MARION C. BLAKEY,

Administrator,

Federal Aviation Administration,

Complainant,

Docket No.: SE-16794

v. JUDGE GERAGHTY

TAREK HASSAN JIFRY,

Respondent.

SERVICE:

BY FAX & REGULAR MAIL

ALLAN HOROWITZ, ESQ.

MANAGER, ENFORCEMENT DIV.

FAA/AGC-300, OFFICE OF CHIEF COUNSEL

800 INDEPENDENCE AVE., SW

WASHINGTON, DC 20591

BY FAX & OVERNIGHT MAIL

THOMAS WHALEN, ESQ.

EVELYN SAHR, ESQ.

JIM EHRIG, ESQ.

CONDON & FORSYTH, LLP

1016 16™ ST., NW

WASHINGTON, DC 20036

DECISIONAL ORDER

This proceeding comes before the National

Transportation Safety Board (the Board) on the Appeal of

A-33

Tarek Hassan Jifry, herein Respondent, for review of the

Emergency Order of Suspension, as amended, issued against

Respondent by the Administrator, Federal Aviation

Administration (FAA), the Complainant. That Order, issued

on an emergency basis, suspended, effective as of the date of

said Order, the Respondent's Airline Transport Pilot

Certificate, and any other airman certificate held, for an

indefinite period of time.

The Complainant's action against Respondent's

Airman Certificates is based upon the allegations stated in its

Emergency Order of Suspension,’ the Complaint herein, and

the provisions of Section 61.18, Federal Aviation

Regulations (FARs).”

As this proceeding raised issues of first impression to

the Board, an Order was entered soliciting from the Parties

their Briefs expressing their respective views of the Board's

adjudicatory authority, and scope of review on the subject

matter of this proceeding. The Parties have submitted Briefs

and also their responses to the opposing Briefs. Those initial

'C omplainant’s Amended Emergency Order of Suspension (the

Complaint).

Section 61.18 FARs, Security Disqualification, provides as

pertinent herein:

(a) (a) Eligibility Standard. No person is eligible to hold a

certificate, rating or authorization issued under this part

when the Transportation Security Administration

(TSA) has notified the FAA in writing that the person

poses a security threat.

(b) (b) Effect of the Issuance by the TSA of an Initial

Notification of Threat Assessment. (2) The FAA will

suspend any certificate, rating, or authorization issued

under this part after the TSA issues to the holder an

Initial Notification of Threat Assessment.

A-34

Briefs, the replies and attachments have been duly reviewed

and considered.

The Complainant issued her Order (Complaint) after

receiving, by letter dated January 24, 2003, issued by the

Transportation Security Administration (TSA), to both

Respondent and FAA, the TSA's Initial Notification of

Threat Assessment’ by which TSA advised that it had

determined Respondent poses a security threat. The action

taken by TSA is within its authority as provided by

provisions of the Aviation and Transportation Security Act

(ATSA) and TSA’s Regulations.*

Upon review of the ATSA and the TSA Regulations,

it is determined that neither contains any language extending

the Board's adjudicatory authority for the Board to review

the determinations, actions taken by TSA _ concerning

Respondent. Absent an express statutory grant of

adjudicatory authority, one administrative agency, herein the

Board, does not have the authority to review determinations

and/or actions taken by another independent

agency/administration, i.e., TSA. I conclude, therefore, that

the Board does not possess direct jurisdictional authority to

review the TSA's action and determination concerning the

Respondent as allegedly posing a security threat.°

The Complainant has issued her Emergency Order of

Suspension, as amended, the Complaint, in accordance with

°C omplainant’s Motion for Summary Judgment, Exhibit D.

*ATSA, Public Law 107-7 (2001); 49 USC 114, 49 CFR

1540.117.

*On review, it is concluded that there is no provision of the

Independent Safety Board Act, 1984 (49 USC 1133) that can be construed

as extending review authority to the Board over TSA's determinations.

A-35

acer Seon ov "

authority delegated and vested in Complainant pursuant to

49 USC 44709, 46105. As provided by 49 USC 44709(d)(1),

Respondent has appealed to the Board from _ that

Order/Complaint, and as further provided, the Board, as

pertinent here, may modify or reverse the Complainant’s

Order after Hearing wherein the Board is not bound by the

findings of fact of the Administrator FAA, providing only

that the Board is bound by all validly adopted laws and

regulations the Administrator is charged with carrying out,

49 USC 44709(d)(3).

In the conduct of its proceeding, the Board's authority

is restricted to the question of whether the public interest and

safety require affirmation of the Administrator's Order. !n its

proceeding, the Board does not have the authority to

consider arguments directed to the constitutionality of FAA

Regulations, nor to pass upon either the reasonableness, or

validity, of said Regulations, but, rather, is limited to review

of the Administrator FAA's findings of fact and action

thereunder.® In the exercise of its review authority, therefore,

the Board is limited to determination of whether the

allegations of the particular Complaint/Order are established

by a preponderance of evidence and whether such evidence

confirms the operative provisions of the particular FAR

relied upon by the FAA in taking action against the

particular Respondent.’

In the instant case, accordingly, to determine what

“facts” the Board is to review in its adjudicatory proceeding,

it is necessary to begin with consideration of the provisions

of the FAR upon which Complainant relies in this matter,

° Administrator v. Komjathy, 5 NTSB 140, 142 (1986).

"Administrator v. Lloyd, 1 NTSB 1826, 1828 (1972):

Administrator v. Ewing, 1 NTSB 1192, 1194 (1971).

A-36

1.e., Section 61.18(a)(2) FARs. The operative fact under that

FAR is whether or not the Administrator/Complainant has

been advised, in writing, by TSA that Respondent poses a

security threat. Of course, as the Board is not bound by

FAA’s findings of fact, in any particular case, an airman may

challenge and prevail if the evidence showed that the TAS

[sic] had failed to notify FAA in writing of issuance of its

initial threat assessment. Neither 49 USC 44709(a)(3), the

provisions of Section 61.18(a)(2), nor Board precedent

expand the Board's adjudicatory authority in the instant

proceeding as to permit the Board to go behind the operative

provisions of that FAR. If the Board were to attempt to

review the basis for TSA's threat assessment, the Board

would improperly, as discussed above, be extending its

review authority to actions and determinations of an

agency/administration, TSA, in absence of a statutory or

regulatory grant of authority. | conclude, therefore, that in

this proceeding the Board's adjudicatory authority extends

only to whether Complainant has been advised by the TSA,

in writing, that Respondent poses a security threat, that is,

has FAA received an Initial Notification of Threat

Assessment concerning Respondent?

Complainant has filed a Motion seeking Summary

Judgment with attached supporting material. Respondent has

submitted his Brief in opposition thereto. Those pleadings

have, as has the entire record, been duly reviewed and

considered.

Summary judgment is warranted where the record

demonstrates that there does not exist any material issue of

fact remaining as would necessitate trial for resolution. The

Opposing party may not rest upon mere allegations, or a

general denial to defeat the pending Motion, but, rather, must

set forth specific facts demonstrating that there is a genuine

issue of material fact in dispute.

A-37

Upon examination of Respondent's Reply Brief and

his Answer, it is determined that the material facts alleged in

the Complaint are not in dispute.” Hence, upon the entire

record, it is found that there does not remain in dispute any

material fact. Further, upon such review, in conjunction with

consideration of the elements of the cited FARs, Section

61.18(a)(2), it is concluded and held that it is established that

the cited FAR and the established record requires the

conclusion, which I reach, that Respondent is suspended

from holding an airman certificate.

On this record and finding, it is further held that

Complainant's Motion for Summary Judgment must be and

hereby is granted, the Complaint is affirmed, and _ this

proceeding terminated.”

SO ORDERED.

ENTERED this 17" day of March 2003 at Denver,

Colorado.

/s/ Patrick G. Geraghty

PATRICK G. GERAGHTY

ADMINISTRATIVE LAW JUDGE

“Respondent’s denial that he received “substantive notice” is

deemed insufficient to rebut the TSA’s January 24, 2003 letter: Initial

Notification of Threat Assessment, receipt of which is not denied.

Respondent’s denial that he poses a security threat does not dispute the

allegation contained in Paragraph 5 of the Complaint. Further, Exhibit D,

Complainant’s Motion, establishes that TSA advised FAA.

9. 7 : : : >

The Affirmative Defenses raised in Respondent's Answer are

not issues reviewable; however, they are to be considered as raised and

preserved for any further appeal purposes.

A-38

[LOGO]

U.S. Department 800 Independence Avenue

of Transportation Washington, D.C. 20591

Federal Aviation

Administration

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

AND FACSIMILE

January 29, 2003

Tarek Hassan Jifry

c/o Thomas J. Whalen, Esq.

Condon & Forsyth LLP

1016 Sixteenth St. N.W.

Washington, D.C. 20036

Re: Case No. 2003 AGC10003

AMENDED EMERGENCY ORDER OF SUSPENSION

Based upon an investigation and by reason of the following

circumstances the Administrator of the Federal Aviation

Administration (FAA) has determined the following:

l. You are now, and at all times mentioned herein, were

the holder of Airline Transport Certificate No. 2339384, with

Airplane Multi-engine Land Rating and B-737, B-747, and

DC-9 Type Ratings, issued under part 61 of the Federal

Aviation Regulations, 14 C.F.R. part 61; an Airplane Single-

engine Land Rating 1s attached to the private pilot privileges

of Airline Transport Certificate No. 2339384.

. On January 21, 2003, the FAA and _ the

Transportation Security Administration (TSA) issued final

A-39

rules, which were placed on display at the Federal Register

on January 22, 2003. The rules became effective on January

24, 2003.

3. The TSA, which published two final rules, has

established a process for notifying an individual that he or

she has been determined to pose a security threat and to

advise the FAA of its determination. One rule prescribes the

process that applies to aliens (Attachment A); the other rule

applies to citizens of the United States of America

(Attachment B).

4. That portion of the FAA rule that pertains to airman

pilot certificates, which will be codified at 14 C.F.R. § 61.18

(Attachment C), expressly makes a person ineligible to hold

such a certificate if the TSA notifies the FAA in writing that

the person poses a security threat.

5. On January 24, 2003, the Assistant Administrator for

Intelligence of TSA informed the FAA that upon his

personal review of materials available to TSA, he has

"determined that you pose a security threat." The Assistant

Administrator further informed you of the process available

under 49 C.F.R. § 1540.117 to challenge the TSA’s Initial

Notification.

6. As a result of the TSA Assistant Administrator’s

Initial Notification of Threat Assessment described above,

you are not eligible under Section 61.18 of the Federal

Aviation Regulations, 14 C.F.R. § 61.18, to hold an airman

certificate, rating, or authorization issued under Part 61.

By reason of the foregoing facts and circumstances, the

Administrator has determined that you presently lack the

qualifications required of the holder of an airman certificate.

The Administrator also has determined that safety in air

A-40

commerce or air transportation and the public interest

require the indefinite suspension of any airman certificate

held by you, including your Airline Transport Certificate No.

2293881 [sic]. Furthermore, the Administrator finds that an

emergency exists and that safety in air commerce or air

transportation and the public interest require the immediate

effectiveness of this Order.

NOW, THEREFORE, IT IS ORDERED, pursuant to the

authority vested in the Administrater by 49 U.S.C. §§

44709(b)(1 (A) and 46105(c), that:

l. Any airman certificate held by you, including

your Airline Transport Certificate No.

2293881 [sic], is suspended for an indefinite

period of time.

2. Such suspension shall become effective as of

the date of this order.

/s/ James W. Whitlow

James W. Whitlow

Deputy Chief Counsel

A-4l

SERVED MARCH 17, 2003

UNITED STATES OF AMERICA

NATIONAL TRANSPORTATION SAFETY BOARD

OFFICE OF ADMINISTRATIVE LAW JUDGES

MARION C. BLAKEY,

Administrator,

Federal Aviation Administration,

Complainant,

Docket No.: SE-16793

V. : JUDGE GERAGHTY

MAAN HASSAN ZARIE,

Respondent.

SERVICE:

BY FAX & REGULAR MAIL

ALLAN HOROWITZ, ESQ.

MANAGER, ENFORCEMENT DIV.

FAA/AGC-300, OFFICE OF CHIEF COUNSEL

800 INDEPENDENCE AVE., SW

WASHINGTON, DC 20591

BY FAX & OVERNIGHT MAIL

THOMAS WHALEN, ESQ.

EVELYN SAHR, ESQ.

JIM EHRIG, ESQ.

CONDON & FORSYTH, LLP

1016 16 ST., NW

WASHINGTON, DC 20036

DECISIONAL ORDER

This proceeding comes before the National

Transportation Safety Board (the Board) on the Appeal of

A-42

Maan Hassan Zarie, herein Respondent, for review of the

Emergency Order of Suspension, as amended, issued against

Respondent by the Administrator, Federal Aviation

Administration (FAA), the Complainant. That Order, issued

on an emergency basis, suspended, effective as of the date of

said Order, the Respondent's Airline Transport Pilot

Certificate, and any other airman certificate held, for an

indefinite period of time.

The Complainant's action against Respondent's

Airman Certificates is based upon the allegations stated in its

Emergency Order of Suspension,' the Complaint herein, and

the provisions of Section 61.18, Federal Aviation

Regulations (FARs).’

As this proceeding raised issues of first impression to

the Board, an Order was entered soliciting from the Parties

their Briefs expressing their respective views of the Board's

adjudicatory authority, and scope of review on the subject

matter of this proceeding. The Parties have submitted Briefs

and also their responses to the opposing Briefs. Those initial

'C omplainant’s Amended Emergency Order of Suspension (the

Complaint).

*Section 61.18 FARs, Security Disqualification, provides as

pertinent herein:

(a) (a) Eligibility Standard. No person is eligible to hold a

certificate, rating or authorization issued under this part

when the Transportation Security Administration

(TSA) has notified the FAA in writing that the person

peses a security threat.

(b) (b) Effect of the Issuance by the TSA of an Initial

Notification of Threat Assessment. (2) The FAA will

Suspend any certificate, rating, or authorization issued

under this part after the TSA issues to the holder an

Initial Notification of Threat Assessment.

A-43

Briefs, the replies and attachments have been duly reviewed

and considered.

The Complainant issued her Order (Complaint) after

receiving, by letter dated January 24, 2003, issued by the

Transportation Security Administration (TSA), to both

Respondent and FAA, the TSA's Initial Notification of

Threat Assessment? by which TSA advised that it had

determined Respondent poses a security threat. The action

taken by TSA is within its authority as provided by

provisions of the Aviation and Transportation Security Act

(ATSA) and TSA’s Regulations.*

Upon review of the ATSA and the TSA Regulations,

it is determined that neither contains any language extending

the Board's adjudicatory authority for the Board to review

the determinations, actions taken by TSA concerning

Respondent. Absent an express statutory grant of

adjudicatory authority, one administrative agency, herein the

Board, does not have the authority to review determinations

and/or actions taken by another independent

agency/administration, i.e., TSA. I conclude, therefore, that

the Board does not possess direct jurisdictional authority to

review the TSA's action and determination concerning the

Respondent as allegedly posing a security threat.”

The Complainant has issued her Emergency Order of

Suspension, as amended, the Complaint, in accordance with

*Complainant’s Motion for Summary -udgment, Exhibit D.

4ATSA, Public Law 107-7 (2001); 49 USC 114, 49 CFR

1540.117.

On review, it is concluded that there is no provision of the

Independent Safety Board Act, 1984 (49 USC 1133) that can be construed

as extending review authority to the Board over TSA's determinations.

A-44

authority delegated and vested in Complainant pursuant to

49 USC 44709, 46105. As provided by 49 USC 44709(d)(1),

Respondent has appealed to the Board from __ that

Order/Complaint, and as further provided, the Board, as

pertinent here, may modify or reverse the Complainant’s

Order after Hearing wherein the Board is not bound by the

findings of fact of the Administrator FAA, providing only

that the Board is bound by all validly adopted laws and

regulations the Administrator is charged with carrying out,

49 USC 44709(d)(3).

In the conduct of its proceeding, the Board's authority

is restricted to the question of whether the public interest and

Safety require affirmation of the Administrator's Order. In its

proceeding, the Board does not have the authority to

consider arguments directed to the constitutionality of FAA

Regulations, nor to pass upon either the reasonableness, or

validity, of said Regulations, but, rather, is limited to review

of the Administrator FAA's findings of fact and action

thereunder.° In the exercise of its review authority, therefore,

the Board is limited to determination of whether the

allegations of the particular Complaint/Order are established

by a preponderance of evidence and whether such evidence

confirms the operative provisions of the particular FAR

relied upon by the FAA in taking action against the

particular Respondent.’

In the instant case, accordingly, to determine what

“facts” the Board is to review in its adjudicatory proceeding,

it is necessary to begin with consideration of the provisions

of the FAR upon which Complainant relies in this matter,

“Administrator v. Komjathy, 5 NTSB 140, 142 (1986).

“Administrator v. Lloyd, 1 NTSB 1826, 1828 (1972):

Administrator v. Ewing, 1 NTSB 1192, 1194 (1971).

A-45

i.e., Section 61.18(a)(2) FARs. The operative fact under that

FAR is whether or not the Administrator/Complainant has

~~ ~~~ been advised, in writing, by TSA that Respondent poses a

security threat. Of course, as the Board is not bound by

FAA’s findings of fact, in any particular case, an airman may

challenge and prevail if the evidence showed that the TAS

[sic] had failed to notify FAA in writing of issuance of its

initial threat assessment. Neither 49 USC 44709(a)(3), the

provisions of Section 61.18(a)(2), nor Board precedent

expand the Board's adjudicatory authority in the instant

proceeding as to permit the Board to go behind the operative

provisions of that FAR. If the Board were to attempt to

review the basis for TSA's threat assessment, the Board

would improperly, as discussed above, be extending its

review authority to actions and determinations of an

agency/administration, TSA, in absence of a statutory or

regulatory grant of authority. | conclude, therefore, that in

this proceeding the Board's adjudicatory authority extends

only to whether Complainant has been advised by the TSA,

in writing, that Respondent poses a security threat, that is,

has FAA received an Initial Notification of Threat

Assessment concerning Respondent?

Complainant has filed a Motion seeking Summary

Judgment with attached supporting material. Respondent has

submitted his Brief in opposition thereto. Those pleadings

have, as has the entire record, been duly reviewed and

considered.

Summary judgment is warranted where the record

demonstrates that there does not exist any material issue of

fact remaining as would necessitate trial for resolution. The

opposing party may not rest upon mere allegations, or a

general denial to defeat the pending Motion, but, rather, must

set forth specific facts demonstrating that there is a genuine

issue of material fact in dispute.

A-46

Upon examination of Respondent's Reply Brief and

his Answer, it is determined that the material facts alleged in

the Complaint are not in dispute.* Hence, upon the entire

record, it is found that there does not remain in dispute any

material fact. Further, upon such review, in conjunction with

consideration of the elements of the cited FARs, Section

61.18(a)(2), it is concluded and held that it is established that

the cited FAR and the established record requires the

conclusion, which I reach, that Respondent is suspended

from holding an airman certificate.

On this record and finding, it is further held that

Complainant's Motion for Summary Judgment must be and

hereby is granted, the Complaint is affirmed, and _ this

proceeding terminated.”

SO ORDERED.

ENTERED this 17" day of March 2003 at Denver,

Colorado.

/s/ Patrick G. Geraghty

PATRICK G. GERAGHTY

ADMINISTRATIVE LAW JUDGE

[LOGO]

U.S. Department 800 Independence Avenue

of Transportation Washington, D.C. 20591

‘Respondent’s denial that he received “substantive notice” is

deemed insufficient to rebut the TSA’s January 24, 2003 letter: Initial

Notification of Threat Assessment, receipt of which is not denied.

Respondent’s denial that he poses a security threat does not dispute the

allegation contained in Paragraph 5 of the Complaint. Further, Exhibit D,

Complainant’s Motion, establishes that TSA advised FAA.

"The Affirmative Defenses raised in Respondent’s Answer are

not lissues reviewable; however, they are to be considered as raised and

preserved for any further appeal purposes.

A-47

Federal Aviation

Administration

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

AND FACSIMILE

January 29, 2003

Maan Hassan Zarie

c/o Thomas J. Whalen, Esq.

Condon & Forsyth LLP

1016 Sixteenth St. N.W.

Washington, D.C. 20036

Re: Case No. 2003AGC10006

AMENDED EMERGENCY ORDER OF SUSPENSION

Based upon an investigation and by reason of the following

circumstances the Administrator of the Federal Aviation

Administration (FAA) has determined the following:

B; You are now, and at all times mentioned herein, were

the holder of Airline Transport Certificate No. 2293881, with

Airplane Multi-engine Land Rating, issued under part 61 of

the Federal Aviation Regulations, 14 C.F.R. part 61; an

Airplane Single-engine Land Rating is attached to the private

pilot privileges of Airline Transport Certificate No. 2293881.

2. On January 21, 2003, the FAA and _ the

Transportation Security Administration (TSA) issued final

rules, which were placed on display at the Federal Register

on January 22, 2003. The rules became effective on January

24, 2003.

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3: The TSA, which published two final rules, has

established a process for notifying an individual that he or

she has been determined to pose a security threat and to

advise the FAA of its determination. One rule prescribes the

process that applies to aliens (Attachment A); the other rule

applies to citizens of the United States of America

(Attachment B).

4. That portion of the FAA rule that pertains to airman

pilot certificates, which will be codified at 14 C.F.R. § 61.18

(Attachment C), expressly makes a person ineligible to hold

such a certificate if the TSA notifies the FAA in writing that

the person poses a security threat.

3 On January 24, 2003, the Assistant Administrator for

Intelligence of TSA informed the FAA that upon his

personal review of materials available to TSA, he has

"determined that you pose a security threat." The Assistant

Administrator further informed you of the process available

uider 49 C.F.R. § 1540.117 to challenge the TSA’s Initial

Notification.

6. As a result of the TSA Assistant Administrator’s

Initial Notification of Threat Assessment described above,

you are not eligible under Section 61.18 of the Federal

Aviation Regulations, 14 C.F.R. § 61.18, to hold an airman

certificate, rating, or authorization issued under Part 61.

By reason of the foregoing facts and circumstances, the

Administrator has determined that you presently lack the

qualifications required of the holder of an airman certificate.

The Administrator also has determined that safety in air

commerce or air transportation and the public interest

require the indefinite suspension of any airman certificate

held by you, including your Airline Transport Certificate No.

2293881. Furthermore, the Administrator finds that an

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emergency exists and that safety in air commerce or air

transportation and the public interest require the immediate

effectiveness of this Order.

NOW, THEREFORE, IT IS ORDERED, pursuant to the

authority vested in the Administrator by 49 U.S.C. §§

44709(b)(1)(A) and 46105(c), that:

: Any airman certificate held by you, including

your Airline Transport Certificate No.

2293881, is suspended for an indefinite

period of time.

2. Such suspension shall become effective as of

the date of this order.

/s/ James W. Whitlow

James W. Whitlow

Deputy Chief Counsel

APPENDIX C

United States Court of Appeals

For the District of Columbia Circuit

No. 03-1085 September Term, 2003

Filed On: August 9, 2004 [841303]

Tarek H. Jifry and Maan H. Zarie,

Petitioners

Vv,

Federal Aviation Administration,

Respondent

Consolidated with 03-1143, 03-1144, 03-1282

BEFORE: Rogers, Tatel, and Garland, Circuit Judges

ORDER

Upon consideration of petitioners’ petition for rehearing

filed July 26, 2004, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Michael C. McGrail

Deputy Clerk

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United States Court of Appeals

For the District of Columbia Circuit

No. 03-1085 September Term, 2003

Filed On: August 9, 2004 [841300]

Tarek H. Jifry and Maan H. Zarie,

Petitioners

Federal Aviation Administration,

Respondent

Consolidated with 03-1143, 03-1 144, 03-1282

BEFORE: — Ginsburg, Chief Judge, and Edwards,

Sentelle, Henderson, Randolph, Rogers, Tatel,

Garland, and Roberts, Circuit Judges

ORDER

Upon consideration of petitioners’ 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.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Michael C. McGrail

Deputy Clerk

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APPENDIX D

49 U.S.C. § 44709. Amendments, modifications,

suspensions, and revocations of certificates

(a) Reinspection and Reexamination — The Administrator

of the Federal Aviation Administration may reinspect at any

time a civil aircraft, aircraft engine, propeller, appliance, air

navigation facility, or air agency, or reexamine an airman

holding a certificate issued under section 44703 of this title.

(b) Actions of the Administrator— The Administrator may

issue an order amending, modifying, suspending, or

revoking—

(1) any part of a certificate issued under this chapter if—

(A) the Administrator decides after conducting a

reinspection, reexamination, or other investigation that

safety in air commerce or air transportation and the public

interest require that action; or

(B) the holder of the certificate has violated an aircraft noise

or sonic boom standard or regulation prescribed under

section 44715 (a) of this title; and

(2) an airman certificate when the holder of the certificate is

convicted of violating section 13(a) of the Fish and Wildlife

Act of 1956 (16 U.S.C. 742j-1 (a)).

Answer.— Before acting under subsection (b) of this section,

the Administrator shall advise the holder of the certificate of

the charges or other reasons on which the Administrator

relies for the proposed action. Except in an emergency, the

Administrator shall provide the holder an opportunity to

answer the charges and be heard why the certificate should

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not be amended, modified, suspended, or revoked.

(d) Appeals.—

(1) A person adversely affected by an order of the

Administrator under this section may appeal the order to the

National Transportation Safety Board. After notice and an

opportunity for a hearing, the Board may amend, modify, or

reverse the order when the Board finds—

(A) if the order was issued under subsection (b)(1)(A) of this

section, that safety in air commerce or air transportation and

the public interest do not require affirmation of the order; or

(B) if the order was issued under subsection (b)(1)(B) of this

section—

(i) that control or abatement of aircraft noise or sonic boom

and the public health and welfare do not require affirmation

of the order; or

(ii) the order, as it is related to a violation of aircraft noise or

sonic boom standards and regulations, is not consistent with

safety in air commerce or air transportation.

(2) The Board may modify a suspension or revocation of a

certificate to imposition of a civil penalty.

(3) When conducting a hearing under this subsection, the

Board is not bound by findings of fact of the Administrator

but is bound by all validly adopted interpretations of laws

and regulations the Administrator carries out and of written

agency policy guidance available to the public related to

sanctions to be imposed under this section unless the Board

finds an interpretation is arbitrary, capricious, or otherwise

not accor‘ing to law.

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(e) Effectiveness of Orders Pending Appeal._—

(1) In general— When a person files an appeal with the

Board under subsection (d), the order of the Administrator is

stayed.

(2) Exception.— Notwithstanding paragraph (1), the order of

the Administrator is effective immediately if the

Administrator advises the Board that an emergency exists

and safety in air commerce or air transportation requires the

order to be effective immediately.

(3) Review of emergency order.— A person affected by the

immediate effectiveness of the Administrator’s order under

paragraph (2) may petition for a review by the Board, under

procedures promulgated by the Board, of the Administrator’s

determination that an emergency exists. Any such review

shall be requested not later than 48 hours after the order is

received by the person. If the Board finds that an emergency

does not exist that requires the immediate application of the

order in the interest of safety in air commerce or air

transportation, the order shall be stayed, notwithstanding

paragraph (2). The Board shall dispose of a review request

under this paragraph not later than 5 days after the date on

which the request is filed.

(4) Final disposition.— The Board shall make a final

disposition of an appeal under subsection (d) not later than

60 days after the date on which the appeal is filed.

(f) Judicial Review.— A person substantially affected by an

order of the Board under this section, or the Administrator

when the Administrator decides that an order of the Board

under this section will have a significant adverse impact on

carrying out this part, may obtain judicial review of the order

under section 461 10 of this title. The Administrator shall be

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made a party to the judicial review proceedings. Findings of

fact of the Board are conclusive if supported by substantial

evidence.

RKEKK

§ 61.18 Security disqualification.

(a)Eligibility standard. No person is eligible to hold a

certificate, rating, or authorization issued under this part

when the Transportation Security Administration (TSA) has

notified the FAA in writing that the person poses a security

threat.

(b) Effect of the issuance by the TSA of an Initial Notification

of Threat Assessment. (1) The FAA will hold in abeyance

pending the outcome of the TSA's final threat assessment

review an application for any certificate, rating, or

authorization under this part by any person who has been

issued an Initial Notification of Threat Assessment by the

TSA.

(2) The FAA will suspend any certificate, rating, or

authorization issued under this part after the TSA issues to

the holder an Initial Notification of Threat Assessment.

of Threat Assessment. (1) The FAA will deny an application

for any certificate, rating, or authorization under this part to

any person who has been issued a Final Notification of

Threat Assessment.

(2) The FAA will revoke any certificate, rating, or

authorization issued under this part after the TSA has issued

to the holder a Final Notification of Threat Assessment.

[Doc. FAA—2003—14293, 68 FR 3774, Jan. 24, 2003]

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3 1540.117 Threat assessments regarding aliens holding

or applying for FAA certificates, ratings, or

authorizations.

(a) Applicability. This section applies when TSA has

determined that an individual who is not a citizen of the

United States and who holds, or is applying for, an airman

certificate, rating, or authorization issued by the FAA

Administrator, poses a security threat.

(b) Definitions. The following terms apply in this section:

Assistant Administrator means the Assistant Administrator

for Intelligence for TSA.

Date of service means—

(1) The date of personal delivery in the case of personal

service;

(2) The mailing date shown on the certificate of service;

(3) The date shown on the postmark if there is no certificate

of service; or

(4) Another mailing date shown by other evidence if there is

no certificate of service or postmark.

Deputy Administrator means the officer next in rank below

the Administrator.

FAA Administrator means the Administrator of the Federal

Aviation Administration.

Individual means an individual whom TSA determines poses

a security threat.

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when the individual is suspected of posing, or is known to

pose—

(1) A threat to transportation or national security;

(2) A threat of air piracy or terrorism;

(3) A threat to airline or passenger security; or

(4) A threat to civil aviation security.

(d) Representation by counsel. The individual may, if he or

she so chooses, be represented by counsel at his or her own

expense.

(e) Initial Notification of Threat Assessment. (1) Issuance. \f

the Assistant Administrator determines that an individual

poses a security threat, the Assistant Administrator serves

upon the individual an Initial Notification of Threat

Assessment and serves the determination upon the FAA

Administrator. The Initial Notification includes—

(i) A statement that the Assistant Administrator personally

has reviewed the materials upon which the Initial

Notification was based; and

(ii) A statement that the Assistant Administrator has

determined that the individual poses a security threat.

(2) Request for materials. Not later than 15 calendar days

after the date of service of the Initial Notification, the

individual may serve a written request for copies of the

releasable materials upon which the Initial Notification was

based.

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(3) TSA response. Not later than 30 calendar days, or such

longer period as TSA may determine for good cause, after

receiving the individual's request for copies of the releasable

materials upon which the Initial Notification was based, TSA

serves a response. TSA will not include in its response any

classified information or other information described in

paragraph (g) of this section. -

(4) Reply. The individual may serve upon TSA a written

reply to the Initial Notification of Threat Assessment not

later than 15 calendar days after the date of service of the

Initial Notification, or the date of service of TSA's response

to the individua!'s request under paragraph (e)(2) if such a

request was served. The reply may include any information

that the individual believes TSA should consider in

reviewing the basis for the Initial Notification.

(5) TSA final determination. Not later than 30 calendar days,

or such longer period as TSA may determine for good cause,

after TSA receives the individual's reply, TSA serves a final

determination in accordance with paragraph (f) of this

section.

(f) Final Notification of Threat Assessment. (1) In general.

The Deputy Administrator reviews the Initial Notification,

the materials upon which the Initial Notification was based,

the individual's reply, if any, and any other materials or

information available to him.

(2) Issuance of Final Notification. If the Deputy

Administrator determines that the individual poses a security

threat, the Deputy Administrator serves upon the individual a

Final Notification of Threat Assessment and serves the

determination upon the FAA Administrator. The Final

Notification includes a statement that the Deputy

Administrator personally has reviewed the Initial

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Notification, the individual's reply, if any, and any other

materials or information available to him, and has

determined that the individual poses a security threat.

(3) Withdrawal of Initial Notification. If the Deputy

Administrator does not determine that the individual poses a

security threat, TSA serves upon the individual a Withdrawal

of the Initial Notification and provides a copy of the

Withdrawal to the FAA Administrator.

(g) Nondisclosure of certain information. In connection with

the procedures under this section, TSA does not disclose to

the individual classified information, as defined in Executive

Order 12968 section 1.1(d), and TSA reserves the right not

to disclose any other information or material not warranting

disclosure or protected from disclosure under law.

[68 FR 3768, Jan. 24, 2003]

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.