372 F.3d 1195 (10th Cir. 2004), 02-9551, Zoltanski v. F.A.A.
| Citation | 372 F.3d 1195 |
| Party Name | Teresa ZOLTANSKI, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent. |
| Case Date | June 21, 2004 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Tenth Circuit |
Page 1195
Patricia S. Bangert of Powers Phillips, P.C., Denver, CO, for Petitioner.
Colette G. Matzzie, Attorney, Appellate Staff, Civil Division (Robert D. McCallum, Jr., Assistant Attorney General, and Thomas M. Bondy, Attorney, Appellate Staff, Civil Division, with her on the brief), Department of Justice, Washington, DC, for Respondent.
Before KELLY and HARTZ, Circuit Judges, and CASSELL, District Judge.[*]
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HARTZ, Circuit Judge.
Teresa Zoltanski seeks review of a $250 fine imposed by the Administrator of the Federal Aviation Administration (FAA). The Administrator assessed the fine after holding that on October 21, 1999, Zoltanski violated 14 C.F.R. § 107.20 (1999), which states, "No person may enter a sterile area [the area past the security checkpoint at an airport] without submitting to the screening of his or her person and property in accordance with the procedures being applied to control access to that area...." On appeal to this court Zoltanski contends that the Administrator's findings of fact were not supported by substantial evidence and that the Administrator erroneously concluded that her conduct violated the regulation. She also raises several contentions relating to the fairness of the administrative proceedings. Exercising jurisdiction under 49 U.S.C. § 46110, we affirm.
I. BACKGROUND
A. Facts
In determining the relevant facts the Administrator used as her starting point the findings in an initial decision by an Administrative Law Judge (ALJ). The following summarizes those findings, supplemented by some undisputed facts. Zoltanski, an attorney, went to Denver International Airport late in the evening of October 21, 1999, to meet an arriving passenger, the speaker at a legal-education seminar she was hosting. She wished to meet her guest at the gate where passengers would be deplaning. At that time nonpassengers were permitted to meet passengers at a gate if they successfully passed through a security checkpoint. The FAA called the area beyond a checkpoint a "sterile area." Once inside the sterile area, Zoltanski could take an escalator to the trains that transported visitors to the various concourses and gates.
At the checkpoint Zoltanski successfully passed through the metal detector, and her purse passed through the X-ray machine without incident. As she retrieved her purse from the end of the X-ray machine's conveyor belt, Stephanee Rose, a security screener, asked Zoltanski to submit her purse for explosives-trace-detection (ETD) screening, for which she had been randomly selected. Rose was an employee of Argenbright Security, a private company operating under a contract with United Airlines, as permitted by the regulatory scheme then in effect.
Zoltanski asked how long it would take to test her purse for explosives and expressed concern that it might be damaged. Rose explained the process to her and told her that she could refuse to submit her purse for screening, but did not tell her that she would not be able to proceed to the gate if she refused.
The checkpoint screening supervisor, Harold Avila, observed the interaction between Zoltanski and Rose. He walked over to them and attempted to explain the process to Zoltanski and assure her that her purse would not be damaged. Zoltanski insisted that she did not need to submit her purse for ETD screening because it had successfully passed through the X-ray machine. Avila told her that ETD screening was FAA policy, but did not inform her that refusal to submit would preclude her from proceeding to the gate. Zoltanski refused the ETD screening "in rather rude tones" and asked to speak to Avila's supervisor.
Avila told Zoltanski to wait, and left to get his supervisor. As he walked away, Zoltanski proceeded to the escalators leading to the train platforms. Patrick Badu, Avila's supervisor, observed Zoltanski on the escalator as he left his office. He loudly called out to her from the top of the escalator to stop and return to the security
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checkpoint, but she did not respond. (The ALJ concluded that this was "understandable" because Badu spoke accented English and could be difficult to understand.)
Badu approached Zoltanski on the train platform. The ALJ made inconsistent findings regarding whether Badu was identifiable as a security officer. First, the ALJ wrote, "Like Avila, [Badu] wore a maroon blazer with an airport ID badge." R., Vol. II, Doc. 35 at 4. Later in his decision, however, he wrote: "[Badu] wore a maroon jacket; identifiable security personnel wore blue. Further, he was not wearing a badge or other marking readily associating him with security." Id. at 5 (internal citation omitted). In any event, Badu told Zoltanski that she needed to have her purse screened, but did not specifically mention explosives testing or inform her that she would need to leave the sterile area unless she submitted her purse for further screening. The ALJ found that Zoltanski could have reasonably believed that Badu was not associated with security and thus permissibly ignored this admonition. When Zoltanski insisted that she had been through screening, Badu radioed Avila to tell him to contact the police. He continued to follow Zoltanski as she boarded the train, traveled to her guest's concourse, and disembarked. Zoltanski was eventually detained by the Denver police, who released her after a search of her purse revealed nothing dangerous.
B. Section 107.20
In response to increasing threats of terrorism, the FAA promulgated 14 C.F.R. § 107.20 in 1986. 51 Fed. Reg. 1350, 1350 (Jan. 10, 1986). The regulation states: "No person may enter a sterile area without submitting to the screening of his or her person and property in accordance with the procedures being applied to control access to that area...." 14 C.F.R. § 107.20 (1999). The regulation defines "sterile area" as "an area to which access is controlled by the inspection of persons and property in accordance with an approved security program...." 14 C.F.R. § 129.25(a)(7) (1999). The "Background" section explaining the regulation contained the following:
Nonpassengers entering a sterile area generally understand that they too must be screened in order to ensure the security of the area.
There have been instances, however, in which nonpassengers have refused to be screened and intentionally entered a sterile area. Even when these persons turn out to be unarmed and have no intention of hijacking or sabotaging an aircraft, their presence requires an appropriate security response. That need to respond disrupts the orderly conduct of passenger screening and requires the diversion of security personnel from other duties. Should another incident constituting a genuine security threat occur at the same time, the ability to respond could be seriously compromised.
51 Fed. Reg. 1350. (Section 107.20 has since been recodified at 14 C.F.R. § 108.201(c) in 2001, see 66 Fed. Reg. 37330, 37356 (July 17, 2001), and then at 49 C.F.R. § 1540.107 in 2002, following the creation of the Department of Homeland Security and the Transportation Security Administration.)
Penalties for violating the regulation are authorized by 49 U.S.C. § 46301(a)(1), which in 1999 stated: "A person is liable to the United States Government for a civil penalty of not more than $1,000 for violating [certain enumerated statutory provisions or] a regulation prescribed or order issued under any [such] provision...." The FAA Administrator is authorized by 49 U.S.C. § 46301(d)(2) to impose these civil penalties.
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C. Proceedings Below
The FAA filed a Notice of Proposed Civil Penalty proposing that Zoltanski be fined $250 for violating 14 C.F.R. § 107.20. Zoltanski requested a hearing, and the FAA filed a written complaint. Zoltanski filed an answer denying the FAA's allegations and requesting that the complaint be dismissed as frivolous. The ALJ held a two-day evidentiary hearing at which Zoltanski, Badu, Avila, and Rose, among other witnesses, testified. After the hearing the parties filed closing briefs, and Zoltanski again moved to dismiss the complaint.
In his written decision the ALJ stated that the FAA had not proved its case. The ALJ prefaced his findings by stating that despite the conflicting accounts provided by the witnesses, "[h]aving observed [their] demeanor and listened to their testimony, I find that each believed in the truth of what he or she stated." R., Vol. II, Doc. 35, at 3. The ALJ found: "The preponderance of the reliable and probative evidence did not suggest that Zoltanski made a deliberate effort to evade screening procedures. Having successfully passed through the X-ray and magnetometer, she believed that she had been cleared to go to the arrival gate to meet her passenger." Id. at 4. In support of this finding regarding Zoltanski's subjective belief, the ALJ said: "Screening officials had explained to [Zoltanski] no more than that an ETD screening was optional. She never understood it to be mandatory, and understandably felt that she could proceed to the gates." Id. at 5. Despite finding that Avila had told Zoltanski to wait, the ALJ also found that she "[d]eni[ed] that Avila had told her to wait, [and] asserted that no one had told her that she could not continue to the trains." Id. at 3.
The ALJ appeared to find that Zoltanski's subjective belief was objectively reasonable. According to the ALJ,
While the behavior of screening personnel, particularly Badu's in calling her back and following her, might have reasonably suggested that the screening process had not yet concluded, it was also reasonable for Zoltanski to deduce that screening personnel were mistaken or confused because (in her mind) she had actually cleared.
Id. at...
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