Olivares v. Transp. Sec. Admin.

• Decision Date: 15 April 2016
• Docket Number: No. 15–1001.,15–1001.
• Parties: Alberto Ignacio Ardila OLIVARES, Petitioner v. TRANSPORTATION SECURITY ADMINISTRATION and Peter Neffenger, in his Official Capacity as Administrator of the Transportation Security Administration, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

819 F.3d 454

Alberto Ignacio Ardila OLIVARES, Petitioner

v.TRANSPORTATION SECURITY ADMINISTRATION and Peter Neffenger, in his Official Capacity as Administrator of the Transportation Security Administration, Respondents.

No. 15–1001.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 12, 2016.

Decided April 15, 2016.

Jason Goldstein argued the cause and filed the briefs for petitioner.

Dana L. Kaersvang, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Vincent Cohen, U.S. Attorney, and Sharon Swingle, Attorney.

Before: BROWN, Circuit Judge, and EDWARDS and WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge EDWARDS

.

EDWARDS

, Senior Circuit Judge:

Alberto Ardila Olivares, the Petitioner before the court, is a foreign alien from Venezuela. In 2014, he applied to attend a Federal Aviation Administration ("FAA")-certified flight school in France to obtain a pilot certification to fly large, U.S.-registered aircraft. After conducting a background check, the Transportation Security Administration ("TSA") determined that Petitioner was a risk to aviation and national security and denied his application for training. Petitioner now seeks review of TSA's action, invoking the court's jurisdiction under 49 U.S.C. § 46110(a)

, and asserting causes of action under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 555(e), 702, 704, 706(2).

If TSA, on behalf of the Secretary of Homeland Security, determines that an alien presents a "risk to aviation or national security," then flight instructors, pilot schools, and aviation training centers are prohibited from giving training to that alien on specified large, U.S.-registered aircraft. 49 U.S.C. 44939(a)

; see also 49 C.F.R. § 1552.3(a)(4), (e). As a consequence, an alien like Petitioner who has been denied clearance by TSA is ineligible to be certified by FAA to fly these U.S.-registered aircraft.

Petitioner claims that TSA failed to satisfy the requirements of 5 U.S.C. § 555(e)

when it initially rejected his application for training because the agency gave no "grounds for denial." Petitioner also claims that TSA's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), because TSA failed to consider all relevant factors regarding his application for flight training.

The record supports Petitioner's claim under § 555(e)

. In these circumstances, we would normally remand the case to the agency to explain the grounds for its denial of Petitioner's training application. However, shortly after Petitioner filed his petition for review, TSA submitted to the court internal agency materials that include the findings of TSA's background investigation of Petitioner as well as internal agency communications regarding Petitioner's application. TSA also submitted the sworn declaration of Andrea Vara, the Government official who acted on behalf of TSA to deny Petitioner's application, explaining the grounds supporting TSA's determination that Petitioner was a risk to aviation and national security. The Vara Declaration confirms that the internal agency materials express TSA's reasoned, contemporaneous explanation for its decision.

Petitioner does not question the authenticity of the Vara Declaration or the authority of the declarant; and we do not have any reason to doubt the veracity of the submission. TSA thus contends that a remand of this case would be pointless. We agree. See, e.g., Tourus Records, Inc. v. DEA, 259 F.3d 731, 737–40 (D.C.Cir.2001)

(holding that even though a letter from the Drug Enforcement Agency to the claimant was insufficient to satisfy DEA's obligation under 5 U.S.C. § 555(e) to set forth reasons for its decision against the claimant, the court would not remand the case for additional proceedings because internal DEA memoranda upon which the letter was based clarified and justified the agency's decision). The internal agency materials, as illuminated by the Vara Declaration, offer a clear and reasonable statement of the grounds upon which TSA relied in denying Petitioner's application for flight training. And, as we explain below, the Declaration and the internal agency materials to which it refers are not impermissible post hoc rationalizations. Therefore, because Petitioner and the court have a written statement explaining the grounds and rationale for TSA's action, and because we find that the agency action against Petitioner was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, we conclude that there is no need to remand the case for further consideration. We therefore deny the petition for review.

I. BACKGROUND

In the aftermath of the tragic terrorist attacks on September 11, 2001, Congress created the Transportation Security Administration to shore up our nation's civil aviation security. See 49 U.S.C. § 114

. TSA was initially housed in the Department of Transportation and headed by the Under Secretary of Transportation for Security. Id. § 114(a) -(b). In 2002, TSA was moved to the newly created Department of Homeland Security under the direction of the Secretary of Homeland Security. See 6 U.S.C. § 203(2).

This case involves TSA's role in determining whether alien pilots may be certified to operate large, U.S.-registered aircraft. "Large aircraft means aircraft of more than 12,500 pounds, maximum certificated takeoff weight." 14 C.F.R. § 1.1

(emphasis omitted). No pilot may "serve in any capacity as an airman with respect to a civil aircraft ... in air commerce ... without an airman certificate" from FAA. 49 U.S.C. § 44711(a)(2) ; see also 14 C.F.R. § 61.3(a). For large aircraft, pilots must obtain additional certification known as a Type Rating. 14 C.F.R. § 61.31(a)(1). Aliens who seek training and certification to operate large, U.S.-registered aircraft must first secure clearance by TSA. See 49 U.S.C. § 44939(a). If TSA "determine [s] that [an alien applicant] presents a risk to aviation or national security," then that applicant is ineligible to receive the training necessary to secure a large aircraft Type Rating from FAA. See id.; see also 49 C.F.R. § 1552.3(a)(4), (e).

Petitioner is an alien pilot who formerly lived and worked in the United States. On February 14, 2007, he was convicted in federal court of conspiracy to possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846

. He was sentenced to serve 80 months in prison, followed by 60 months of supervised release. On December 17, 2007, FAA sent Petitioner a letter revoking his pilot certification, effective January 7, 2008. Petitioner was subsequently deported on March 3, 2010.

After being deported, Petitioner worked as a pilot in Venezuela. In 2011, he was presented with an opportunity to fly a large, U.S.-registered aircraft, which required him to receive training for the appropriate Type Rating and then seek the appropriate certification from FAA. To achieve these ends, Petitioner applied for admission to an FAA-certified flight school in France. TSA then conducted a background investigation of Petitioner. Although TSA uncovered Petitioner's 2007 drug conviction, TSA granted him permission to attend flight school. Petitioner successfully completed flight school and obtained his Type Rating as well as various other FAA certifications.

In 2012, the U.S. Government Accountability Office ("GAO") published a report criticizing TSA's background investigations of alien pilots. GAO, WEAKNESSES EXIST IN TSA'S PROCESS FOR ENSURING FOREIGN FLIGHT STUDENTS DO NOT POSE A SECURITY THREAT (July 2012) ("GAO Report" or "Report"). The Report highlighted that TSA's investigation methods did not always thoroughly examine an alien's immigration status, and expressed concern that, as a result, the investigation might not identify all alien flight-school applicants presenting a security threat. See id. at 28–33. In response to the Report, TSA revised its background check procedures. Under the new procedures, TSA thoroughly examines the immigration statuses of flight-school applicants. If an applicant is not eligible for admission into the United States and is seeking permission to attend an FAA-certified flight training program outside of the United States, TSA pursues a more searching investigation to determine whether the applicant presents a risk to aviation or national security.

In 2014, Petitioner received another opportunity to pilot a large, U.S.-registered aircraft. Although his general FAA credentials remained valid, Petitioner's Type Rating had expired. As before, Petitioner applied to attend an FAA-certified flight school in France, and TSA conducted a background investigation.

Pursuant to TSA's new procedures, the agency's investigation flagged that Petitioner was inadmissible to enter the United States due to his 2007 drug conviction. As a result, Petitioner's application was referred for further investigation. The investigation uncovered that, in addition to his 2007 drug conviction, Petitioner had been suspected of firearms trafficking in 1998 in Aruba. TSA also discovered that, even though he had been deported with no right to return to the United States, Petitioner maintained a local address in Massachusetts.

TSA apparently believed that Petitioner was seeking to attend a flight school in the United States. As a result, the agency initially declined to process Petitioner's application. On October 27, 2014, TSA sent Petitioner the following email message:

This training request cannot be processed for the following reason(s): [TSA] has received information in regards to your immigration status. As a result, your current training request to attend flight training at a United States flight school has been cancelled. If you resolve your immigration status and provide the appropriate supporting documentation this

...