Pilot Counsel

Update on the pilot 'insecurity' rule

September 1, 2004

General Counsel John S. Yodice represents AOPA and its members in litigation and rulemaking matters.

In this column (see " Pilot Counsel: Pilots as Security Threats," June 2003 Pilot) we reported on a combination of rules adopted by the FAA and the Transportation Security Administration (TSA). These rules have a great potential for abuse against pilots. Of course, we realized that the rules were a reaction to the events of September 11, 2001, in which terrorists actually piloted hijacked airliners, using them as airborne bombs to attack the United States. We felt compelled to note that these rulemaking actions are a perfect illustration of the legal maxim that "hard cases make bad law." Since the original adoption of the rules, things have been happening, but have not yet settled down.

These rules, as originally adopted, require that the FAA suspend and revoke a pilot certificate if the TSA determines that the pilot poses, or is "suspected" of posing, a "security threat." These same grounds were also made disqualifying for the issuance of any new rating, authorization, or pilot certificate. The "due process" procedures that pilots have historically enjoyed to protect their certificates from arbitrary and groundless government action were written out of the law.

No one would argue with taking pilot certificates away from terrorists or persons who are security threats. But the processes by which these determinations are made are what make the rules subject to abuse. The TSA makes these decisions behind closed doors, without any required prior notification to the affected pilot. After the determination is made, the FAA is then notified, incidentally, at the same time notification for the first time is required to be made to the affected pilot. The FAA must immediately suspend the pilot's certificate on an emergency basis, that is, an immediate grounding, before the pilot has an opportunity to be heard by the FAA or TSA as to why such drastic action should not be taken. It can be done without the FAA or TSA ever having to disclose the evidence on which they relied in taking this drastic action, even after the fact. And it can be done without affording the airman any effective appeal to the NTSB, such as pilots now enjoy in nonsecurity cases.

After a pilot's certificate is suspended there are review procedures internal to the TSA, one set for citizens and one for aliens. At this stage the individual can ask for copies of "releasable" materials upon which the initial notification was based. Releasable is a key word because the TSA will not include in its response any classified information or other information it does not want to disclose. The TSA is frank to acknowledge that in most cases it will be relying on classified or otherwise sensitive information in determining whether an individual poses a security threat — precisely the type of information that the TSA will not disclose.

Under these internal TSA procedures, an individual may provide a written reply to the initial notification. Then a higher-level TSA official reviews the case, still internal. There is no hearing before the TSA. No discovery. No right to confront one's accusers. No right of cross-examination. The individual likely will never know the information that caused the FAA to suspend or deny the certificate, which, as we noted, could be mere suspicion. Ultimately, the TSA issues a final decision. In the case of a citizen, it is a still higher official of the TSA who issues the final determination; in the case of an alien, the final determination is made at a lower level. Based on the final determination, if favorable, the initial notification will be withdrawn and the FAA suspension ended. If unfavorable, the airman's certificate, which already is suspended, will be revoked by the FAA (or denied if it is an application for a certificate or rating). The rules for these internal TSA procedures don't contain the usual and minimal "Chinese wall" that other federal agencies erect between the agency personnel that prosecute and the personnel that judge. In the absence of such a procedural wall, these bureaucrats, who have free and private access to one another, constitute the proverbial "prosecutor, judge, and jury."

These rules were issued without the usual public notice and opportunity for prior public input to the rulemaking. The rules became immediately effective upon adoption. As you can imagine, once these rules became public, the pilot community reacted strongly. AOPA and others mustered their legislative forces to seek relief from Congress. In a different arena, a coalition of airline pilot associations legally challenged the rules in a federal appellate court. In the face of this strong reaction, the TSA and FAA backed off from initiating any prosecutions after the rules were adopted, though there were several cases that had been initiated under other rules and then transferred into the new rules. More about two of those later.

Congress did provide relief. It amended the law by giving U.S. citizens more procedural protections that include a hearing on the record before an administrative law judge, an appeal from the law judge to the Transportation Security Oversight Board, and an opportunity for judicial review of these administrative actions. It also provides more reasonable access to the information on which the TSA and FAA relied, though still allowing the withholding of sensitive security information.

The proceedings before Congress and the court sent the TSA and FAA scrambling back to the drawing board. For starters, the TSA and FAA suspended the effectiveness of the rules as applied to citizens and resident aliens (but not nonresident aliens). It promised to develop new procedures giving greater procedural rights, including the ones mandated by Congress for citizens. And it promised to do so by a published notice of proposed rulemaking and an advance opportunity for public comment, the more usual method for this type of rulemaking.

Because the rules as to citizens and resident aliens were declared effectively dead by the TSA and FAA, the legal challenge brought by the airline pilot associations became moot. So the petitions for review in federal court were dismissed. But there was one other proceeding in the same court that is worth noting. It was not mooted because it involved two nonresident alien pilots, and the rules, as they apply to nonresident alien pilots, are still effective. The rulings in this case suggest that even the congressional relief we described may not be enough. The court seems to be saying that the TSA still may rely on classified information that is not disclosed to the affected pilot. The court rejected the pilots' argument that without knowledge of the specific evidence on which the TSA relied in declaring them security risks, they are unable to defend against the charges.

The facts of the case are straightforward but the procedures are not. The procedures are complicated because they bridge the time before the adoption of the new rules and the time after. The two pilots are citizens of Saudi Arabia who have used their FAA certificates to pilot flights abroad for Saudi Arabian Airlines (they have not flown to the United States for several years). Prior to the adoption of the new FAA and TSA rules, the TSA asked the FAA to revoke their FAA certificates because the pilots presented a security risk to civil aviation. The FAA responded to the TSA's request by revoking the certificates under the more traditional procedures. We have written about these "safety" enforcement procedures many times in this column. They afford an appeal to the NTSB. And the pilots did appeal to the NTSB. On appeal, an NTSB administrative law judge held a prehearing conference at which the pilots were seeking to know the evidence against them. The judge ordered the FAA and TSA to provide a privilege log and ordered that depositions of key witnesses take place by a certain date. The FAA and TSA were not going to let that happen.

Within a week, the FAA dismissed the revocation actions against the pilots and adopted the new rules we reviewed above. On that same day the TSA served the pilots with a notice (the "initial notice") under the new rules designating them as security threats. In accordance with the new rules, the FAA suspended the pilots' certificates. The pilots appealed the notice to the TSA under the internal procedures described above. The pilots requested the materials upon which the initial notice had been issued. The TSA provided some materials, but did not include the factual basis for its determination, which the TSA claimed was based on classified information. The pilots then appealed the FAA certificate suspensions to the NTSB, an appeal process that was technically still available. But the NTSB sustained the suspensions, holding that the only question before the NTSB was procedural — whether the pilots had been duly advised by the TSA — and they had. The pilots then filed replies to the TSA's initial notice, stating that a lack of evidence and information about the basis for the TSA's determination made it impossible for them to specifically rebut the TSA's allegations that they were security threats. The TSA denied the pilots' challenge and issued a final notice. The FAA then revoked, following the new rules. The appeal to the NTSB failed for the same reasons that the earlier appeal to the NTSB failed — the only issue was a procedural one. The pilots petitioned a federal appellate court to review these administrative proceedings.

One of the arguments that the pilots made to the court was that without knowledge of the specific evidence on which the TSA relied, they are unable to defend against the charges that they are security risks. The court rejected the argument. The court, however, in a private session did review the classified intelligence reports denied to the pilots. It also considered the unsealed affidavit of a TSA official who said that on the basis of classified intelligence reports, combined with 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's license," he made his decision. The TSA official attested, "Because it would be very difficult to avert harm once a terrorist had control of an aircraft, I concluded that it was important to err on the side of caution in determining whether [the two pilots]...pose a security threat." The court denied the pilots' petitions. Hard cases make bad law.

So where are we now? For the time being the rules are not being enforced against citizen and resident alien pilots. They could, and probably will, be enforced against nonresident alien pilots. We are looking forward to a notice of proposed rulemaking that should implement more fair procedures in accordance with the congressional mandate. We will have an opportunity to comment on the proposals, hopefully influencing them for the better, before they become law. The signs seem to be that most affected pilots will probably still not get the information that was used to declare them security threats, because the TSA will determine that the information is classified or considered sensitive by the TSA. More to come.

John S. Yodice