The Transportation Security Administration (TSA) has offered a small but significant concession to address AOPA's concerns about "due process" under the "pilot insecurity rules."
In a letter to AOPA, the agency's chief counsel, Francine Kerner, wrote, "We are aware of the need for an avenue of administrative appeal outside of TSA. Accordingly, TSA is exploring the possibility of providing for a final appeal review level at the Department of Homeland Security."
"This is a good first step, but it's only a first step," said AOPA President Phil Boyer. "We still believe that a pilot whose certificate is revoked for security reasons should be able to seek an independent review by someone outside the homeland security organization."
Under the current rule, TSA can direct the FAA to revoke a pilot's certificate if the pilot is deemed a security risk. The pilot's only avenue of appeal is back to the TSA, which ordered the revocation in the first place. The allegations leading to the revocation may be based on classified information, which the TSA can withhold from the pilot, making it impossible to respond to the specific charges during the appeal.
AOPA has proposed following the same procedures used for other certificate actions: an appeal to an administrative law judge at the U.S. Department of Transportation. In formal comments regarding the direct final rule, AOPA said, "This allows for a discovery process, the presentation of witnesses and documentary evidence, and legal argument. Appeal of the judge's decision would be permitted within the agency to an agency decision maker (under secretary of Transportation for Security or the under secretary for Border and Transportation Security or the secretary of the Department of Homeland Security), and a final appellate decision could be further rendered after review of the hearing record in the U.S. Courts of Appeals."
When AOPA had earlier raised the issue of the lack of due process with TSA Administrator Adm. James M. Loy, he responded in a letter to Boyer, stating, "National security concerns warrant leaving the matter to the expertise and discretion of the agency charged with making the determination." But he also offered, "I have opened a dialogue with the Department of Homeland Security to seek a final review appeal level there. I will keep you posted as to our progress there."
"While AOPA still believes the 'pilot insecurity rules' as published violate a pilot's right to due process," said Boyer, "Chief Counsel Kerner's letter shows Admiral Loy to be an honorable man of his word, and someone who is willing to take the concerns of the general aviation community into consideration."