Recently enacted FAR Section 61.18 disqualifies a person from holding a certificate, rating or authorization issued by the FAA when the Transportation Security Administration (“TSA”) notifies the FAA in writing that the person poses a “security threat”.
Further, the FAA must “suspend any certificate, rating or authorization” when the TSA issues an Initial Notification of Threat Assessment to the certificate holder. This action can be taken on an emergency basis.
However, unlike enforcement actions that are based upon other sections of the FAR’s, no real appeal or review of the FAA’s action is available to a certificate holder when the certificate action is taken under FAR Section 61.18. Yes, the certificate holder can still technically appeal to the NTSB board. However, the appeal is an exercise in futility.
In the meantime, the certificate holder can file a written reply with the TSA responding the “security threat” determination. However, no discovery is permitted nor is any other procedure provided for investigating the basis upon which the TSA made its determination. The reply is considered by the TSA and ultimately a final decision is issued.
If the “security threat” assessment is removed, the Initial Notification is withdrawn and the FAA removes the certificate suspension. If the assessment remains, the FAA will then immediately seek revocation of the certificate holder’s certificate on an emergency basis.
Based upon two recent cases in which the NTSB Board twice refused to review the underlying basis for the TSA’s finding that the pilots were “security threats”, whether the certificate holder appeals the suspension or appeals the revocation, in either case the certificate holder has little or no hope of success at the NTSB Board level.
In Blakey v. Jifry and Blakey v. Zarie, the TSA issued Initial Notifications of Threat Assessment to the certificate holders. The FAA sought emergency suspension of both airmen’s certificates based upon the TSA’s determination that the airmen posed a “security threat”. At the hearing, the law judge granted the FAA’s summary judgment motion and suspended the airman’s certificates. The law judge ruled that the “security threat” assessment supported the suspension and that he did not have the jurisdiction to review the validity of the TSA’s “security threat” assessment.
In the first appeal to the NTSB the Board, the Board affirmed the law judge holding 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”.
Subsequently, when the TSA did not remove the “security threat” assessment, the law judge granted the FAA’s summary judgment motion and revoked the airman’s certificates. The airman again appealed to the NTSB Board. In Blakey v. Jifry and Zarie, the airman requested that the Board grant the airman a hearing on the factual basis for the TSA’s threat assessment. However, the Board felt that the airmen’s appeal rested upon the same grounds as their initial appeal and thus refused to review its decision that it did not have the jurisdiction to engage in a review of the TSA’s determination.
Interestingly, in its decision on the first round of appeals, the Board raised two issues that could present avenues for appeal to the circuit court. The Board stated: “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 due process are questions reserved for the courts to decide”.
Thus, currently the only apparent way to challenge a “security threat” assessment will be appeal to the federal appeals court arguing either that the FAA exceeded its rulemaking authority when it adopted FAR Section 61.18 or that the procedures used by the TSA to determine whether a person is a “security threat” are unconstitutional because they do not provide that person with any due process rights to discover the basis for such an assessment or otherwise appeal the determination.
However, the U.S. House of Representatives passed a bill, The Century of Aviation Reauthorization Act, H.R. 2115, which contains provisions expressly granting appeal and review rights to an affected certificate holder. The U.S. Senate passed a similar bill, S. 824. Both bills were sent to conference committee to resolve differences between them. Fortunately, the final bill emerging from the conference committee retained the appeal and review provisions.
At this point, the final bill is set for signature by President Bush. If the President signs the bill into law, at least mechanisms will be authorized for appeal and review of adverse actions by the FAA and TSA. Whether these mechanisms will be meaningful is yet to be determined.
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