United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 13, 2010 Decided July 23, 2010
No. 09-1095
LEWIS L. BONIFACE,
PETITIONER
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND
TRANSPORTATION SECURITY ADMINISTRATION,
RESPONDENTS
On Petition for Review of an Order
of the Transportation Security Administration
Meghan Ferguson, Student Counsel, argued the cause as
amicus curiae in support of petitioner. With her on the briefs
were Sean E. Andrussier and James E. Coleman, Jr.,
appointed by the court, and Samuel E. Burness, Kristin
Collins Cope, and Lisa S. Hoppenjans, Student Counsel.
Lewis L. Boniface, pro se, filed briefs.
Benjamin M. Shultz, Attorney, U.S. Department of
Justice, argued the cause for respondents. With him on the
brief was Michael S. Raab, Attorney.
Before: GINSBURG, ROGERS and BROWN, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge GINSBURG.
Concurring opinion filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: Lewis Boniface petitions for
review of a 2009 order of the Transportation Security
Administration, an agency within the Department of
Homeland Security, denying his request for waiver of a rule
barring him from receiving a hazardous materials
endorsement (HME) for his commercial driver‟s license
because of his 1975 conviction for possession of an
unregistered explosive device. We grant the petition and
remand the matter to the agency to reconsider Boniface‟s
request in the light of such evidence as he may submit.
I. Background
A state may not grant a driver a “license to operate a
motor vehicle transporting in commerce a hazardous
material” unless the DHS first notifies the state “that the
individual does not pose a security risk warranting denial of
the license.” 49 U.S.C. § 5103a(a)(1). The TSA, acting on
behalf of the DHS, assesses whether an individual poses a
security risk; in practice the TSA notifies the state an
individual poses no threat by granting that individual an
HME.
If the TSA determines an applicant for an HME has been
convicted of any of several “disqualifying criminal offenses”
listed in the TSA‟s threat assessment regulation, 49 C.F.R.
§ 1572.103, then it notifies the applicant of its “Initial
Determination of Threat Assessment” he is “a security threat
warranting denial” of his application. 49 C.F.R.
3
§§ 1572.5(a)(1), 1572.15(d). The options then available to
the applicant are summarized in the flow chart that follows.
Receive IDTA
Appeal to Asst. Request waiver
Administrator, from Asst.
makes Final Det. of Administrator
Threat Assessment
Review by ALJ
Review in Review by
court of Deputy
appeals Administrator
Review in court
of appeals
An applicant disqualified because of a criminal offense
may within 60 days appeal that determination within the TSA
and, if unsuccessful, then seek review in a court of appeals.
49 C.F.R. § 1515.5. If he does not appeal within 60 days, or
if his administrative appeal is unsuccessful, then the Initial
Determination of Threat Assessment becomes a Final
Determination. See 49 C.F.R. §§ 1515.5(b)(1), (c).
Alternatively, any time after receiving an Initial
Determination of Threat Assessment and until 60 days after
receiving a Final Determination, the applicant may request a
waiver on the ground that in fact he “does not pose a security
threat.” 49 C.F.R. §§ 1515.7(b), (c)(iii). Should his waiver
4
request be denied, he may seek review of that decision as
well, first before an Administrative Law Judge, then before
the Deputy Administrator, and then by petitioning a court of
appeals for review. 49 C.F.R. § 1515.11.
In 2008 Boniface sought a renewed HME from the TSA
because his California commercial driver‟s license was set to
expire. The TSA made an Initial Determination that
Boniface‟s 1975 conviction for possession of an unregistered
explosive device was a disqualifying criminal offense and
denied his application for an HME. It sent him a letter dated
May 13 explaining its determination and informing him he
could appeal, request a waiver, or request a copy of the
materials upon which the agency had relied in making its
determination. The subsequent intercourse between Boniface
and the agency is summarized below:
On May 19, 2008 Boniface mailed a request for the
materials upon which the agency had relied. On June 10,
Boniface
April 24, 2008 Aug. 19 Nov. 4
Requests Requests ALJ Requests
Hazardous May 19 June 18 Review of Review by March 6, 2009
Materials Requests June 10 Amends Waiver Deputy Files Petition for
Endorsement Materials Appeals Appeal Denial Administrator Review
5
June 12 Aug. 6 Oct. 14 Jan 7, 2009
May 13
Assistant
Deputy Director TSA Sends ALJ Deputy
Administrator
Denies Request, in Materials Affirms Administrator
Denies “Waiver
Initial Determination Denial of Affirms Denial
Request,” No
Mention of Appeal Waiver of Waiver
TSA
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before the TSA responded to that request, he submitted an
appeal to the agency, arguing his 1975 conviction was
unlawful and invalid and therefore should not be considered a
disqualifying criminal offense. On June 12 Boniface received
the materials upon which the TSA had relied and on June 18
submitted an amended appeal in which he repeated the
arguments in his first filing but also argued the threat
assessment regulation retroactively penalized him for his
1975 conviction, in violation of the Ex Post Facto Clause of
the Constitution of the United States.
If at that point the TSA had administratively denied
Boniface‟s appeal, then he could have either requested a
waiver or sought review in this court, making for a relatively
straightforward case presenting only the legal issues discussed
in Parts II.A and II.B below. Things did not proceed so
simply, however.
On August 6 the TSA sent a letter informing Boniface it
had received his request for a waiver — although there is no
evidence in the record he had filed such a request — and was
denying that request, in part because of “the absence of
adequate documentation demonstrating that you are
rehabilitated notwithstanding TSA‟s reasonable effort to
obtain such information from you.” The letter made no
reference to Boniface‟s appeal but did say he could challenge
“the denial of [his] waiver request by requesting review by an
[ALJ],” and that if he failed to do so within 30 days then the
TSA‟s determination would become final.
Boniface duly followed the instructions included in the
TSA‟s letter by requesting that an ALJ review the TSA‟s
refusal to grant the waiver he had not requested. In the
ensuing proceeding Boniface continued to assert his legal
challenge to the TSA‟s reliance upon his 1975 conviction and
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added a complaint about the TSA‟s purporting to have denied
the waiver he had not requested but which the agency had
imputed to him and denied: The record, he wrote, “is a
complete void of any [] request for the above-stated
„information‟ of „rehabilitation.‟ ... If Boniface had been
asked for „information‟ of his „rehabilitation,‟ he would have
provided [a variety of evidence].”
The agency, for its part, continued to make clear its
position that Boniface‟s objections were without merit.
First, the ALJ affirmed the TSA‟s denial of a waiver; then the
Deputy Administrator affirmed the decision of the ALJ. Only
in the Deputy Administrator‟s January 2009 letter of denial
did the agency shed any light upon what had become of
Boniface‟s appeal. “In June 2008,” she wrote,
you filed an appeal with TSA. In July 2008, TSA
informed you that your appeal would be processed as
a waiver, since you did not meet the eligibility
standards to hold an HME under the regulations.
There is no evidence in the record, however, that Boniface
was so informed in July or at any other time prior to hearing
from the Deputy Administrator.
Because the TSA‟s determination that his appeal was
being processed as a request for a waiver was revealed to
Boniface only in the course of denying his administrative
appeal, Boniface then sought review in this court of both the
TSA‟s underlying determination he poses a security threat and
its denial of his imputed request for a waiver.
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II. Analysis
Boniface, through a court-appointed Amicus, makes three
arguments. First, he contends the TSA‟s determination he
poses a security threat warranting denial of his application for
an HME was erroneous because he did not have a
disqualifying conviction and, second, even if he did, the
regulations disqualifying him on the basis of a 1975
conviction are impermissibly retroactive. Third, he contends
the agency‟s denial of his request for a waiver was arbitrary
and capricious.
A. Disqualifying Conviction
Boniface argues his 1975 conviction for possession of an
unregistered explosive device was invalid because it was
obtained in violation of the Interstate Agreement on
Detainers. The IAD is an interstate compact which, among
other things, requires dismissal of an indictment if a State,
having received temporary custody for trial of a prisoner from
another State, returns the prisoner without having tried him.
Art. IV § (e).
The Government argues Boniface‟s position “is
foreclosed by TSA‟s regulations.” We agree. The agency‟s
regulations define a conviction as “any plea of guilty or nolo
contendere, or any finding of guilt” unless “subsequently
overturned on appeal, pardoned, or expunged.” 49 C.F.R. §
1570.3. This definition leaves no room for an applicant
collaterally to attack his conviction in pursuit of an HME,
which is what Boniface is trying to do here. The TSA
correctly determined Boniface was convicted of a
disqualifying offense for the purposes of the threat assessment
regulation.
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B. Retroactivity
Tagged with a disqualifying criminal offense, Boniface
argues the TSA‟s threat assessment regulation has an
unauthorized retroactive effect because it presumes an
applicant with a disqualifying conviction that predates the
regulations, which were first promulgated in 2003, 68 Fed.
Reg. 23852, 23852, poses a security threat. As the
Government points out, however, the Supreme Court has held
a regulation is not retroactive in effect “merely because it
draws upon antecedent facts for its operation.” Landgraf v.
USI Film Prods., 511 U.S. 266, 270 n.24 (1994). Rather, in
evaluating whether a statute or regulation has a retroactive
effect we consider “whether it would impair rights a party
possessed when he acted, increase a party‟s liability for past
conduct, or impose new duties with respect to transactions
already completed.” Id. at 280; see also Bergerco Can. v.
U.S. Treasury Dep’t, 129 F.3d 189, 193 (D.C. Cir. 1997)
(quoting this standard). Such an effect is permissible only if
the relevant statute shows the Congress clearly so intended.
See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988) (“congressional enactments and administrative rules
will not be construed to have retroactive effect unless their
language requires this result”).
The Government argues the threat assessment regulation
does not have any of the effects deemed retroactive in
Landgraf because it does not bar an applicant with a
disqualifying conviction from obtaining an HME but rather
creates “an evidentiary presumption” that an applicant with a
disqualifying conviction in his past poses a security threat in
the present; the applicant may rebut that presumption through
the waiver process. Again, we agree. Although the
presumption does, as the Amicus notes, “put[] the burden [of
rebuttal] on an already-disqualified trucker,” the presumption
10
is nonetheless rebuttable and the disqualification hence
merely provisional. The scheme therefore does not “impair
rights [Boniface] possessed when he acted, increase [his]
liability for past conduct, or impose new duties with respect to
transactions already completed.” Landgraf, 511 U.S. at 280.
Boniface also contends the regulations violate the Ex
Post Facto Clause, which “forbids the application of any new
punitive measure to a crime already consummated.” Cal.
Dep’t of Corrections v. Morales, 514 U.S. 499, 505 (1995).
Pretermitting whether the denial of an HME is punitive —
itself a questionable proposition — as we have just seen, the
regulation simply does not have a retroactive effect. Rather,
“[t]o the extent that past behavior is taken into account, it is
used ... solely for evidentiary purposes.” Kansas v.
Hendricks, 521 U.S. 346, 371 (1997). The regulation
therefore does not violate the Ex Post Facto Clause.
C. Denial of Waiver
Boniface argues the TSA was arbitrary and capricious in
treating his appeal as a request for a waiver and
simultaneously denying that request. Indeed it was.
First, there is no evidence in the record suggesting the
agency explained, or even notified Boniface of, its decision to
treat his appeal of the Initial Determination as a request for a
waiver at the time it made that decision. Therefore, there is
no support in the record for the Deputy Administrator‟s later
explanation of the agency‟s decision, viz., her claim that the
TSA had “informed [Boniface] that [his] appeal would be
processed as a waiver, since [he] did not meet the eligibility
standards to hold an HME under the regulations.” Second,
one of the grounds given Boniface by the TSA in the letter
from the Assistant Administrator initially denying his
11
purported request for a waiver was “the absence of adequate
documentation demonstrating that you are rehabilitated
notwithstanding TSA‟s reasonable effort to obtain such
information from you,” but there is no evidence in the record
the agency made any such effort. Furthermore, the Deputy
Administrator‟s explanation makes no sense; if the agency
thought Boniface‟s appeal lacked merit, as the Deputy
Administrator‟s statement shows it did, then it should have
denied his appeal and given him an opportunity to seek a
waiver supported by such evidence as he might submit.
Instead, it denied the appeal and treated it as a waiver request
without telling him and thereby deprived him of his right to
submit evidence in support of a waiver.
The Government, significantly, does not address the
merits of Boniface‟s argument; instead, it argues thrice over
that we should not consider his argument — first because it is
made by the court-appointed Amicus, not by Boniface
himself, citing Eldred v. Reno, 239 F.3d 372 (2001); second
because Boniface failed to exhaust an available administrative
remedy; and third because the availability of an administrative
remedy made any error harmless.
In raising the forfeiture argument, counsel is simply
mistaken. Boniface, in his pro se brief, expressly adopted the
arguments of the Amicus, whom we appointed to make
arguments on his behalf. In Eldred we declined to consider
an argument pressed by an amicus but “rejected by the actual
parties to th[e] case.” Id. at 378.
The Government‟s exhaustion argument is that Boniface
should have responded to the initial letter from the Assistant
Administrator, which treated his appeal as a request for a
waiver and denied it, not by appealing within the agency as
the letter instructed him to do but by filing a true request for a
12
waiver and submitting along with that request any evidence
he had to show he qualified for a waiver.* As the
Government implicitly recognizes by pressing this same
argument in claiming the agency‟s foul-ups did not prejudice
Boniface, the recourse the Government suggests Boniface had
available to him is not the “administrative appeal”
contemplated by the exhaustion requirement, Marine
Mammal Conservancy, Inc. v. Dep’t of Agriculture, 134 F.3d
409, 414 (1998). On the contrary, for the court to proceed as
the Government now proposes — dismissing for want of
exhaustion a petition for review filed by an applicant whose
appeal was converted into a waiver request and then denied
before he was given notice and an opportunity to submit
evidence — would not serve the purposes of the exhaustion
requirement, i.e., to give the agency a chance to “correct its
own mistake[]” and to “compil[e] a record adequate for
judicial review.” Id. Before Boniface petitioned the court for
review, he had already pursued the administrative remedies
prescribed by the TSA to correct an error in the denial of a
request for a waiver — review by an ALJ and then by the
Deputy Administrator — and obtained a reviewable final
order. See 49 C.F.R. § 1515.11(h) (“A person may seek
judicial review of a final order of the [Deputy Administrator]
as provided in 49 U.S.C. 46110”).
As for prejudice, although we do not set aside an agency
action, regardless of its merit, if any error the agency may
have made is harmless, see 5 U.S.C. § 706 (“due account shall
*
This possibility depends upon the questionable interpretation of
the phrase “new evidence or information” in 49 C.F.R. §
1515.11(b)(1)(i) put forward, it seems, for the first time in the
Government‟s brief in this proceeding: “In TSA‟s view, „new‟
evidence includes evidence that was previously known to an
applicant, but which an applicant was precluded from submitting
because of TSA‟s mistakes.”
13
be taken of the rule of prejudicial error”), the TSA‟s treatment
of Boniface‟s appeal as a request for a waiver and
simultaneous denial of that request on August 6, 2008
obviously prejudiced Boniface by depriving him of the
opportunity to submit a timely request for a waiver supported
by such evidence as he might have had to show that,
notwithstanding his conviction, he “does not pose a security
threat.” 49 C.F.R. § 1515.7(c)(2). The Government argues
Boniface could have included such evidence in a new request
and thereby cured the agency‟s error, but the limitations
period for filing a new request for a waiver had run on March
8, 2009 if not earlier, while Boniface was seeking relief from
the TSA‟s decision in the manner the agency had instructed
him to do. See 49 C.F.R. §§ 1515.5(b)(1), (c) (Initial
Determination of Threat Assessment becomes final 60 days
after it is sent to applicant or when appeal of Initial
Determination is denied by TSA); §§ 1515.7(c)(iii), (e)
(applicant may not file request for waiver more than 60 days
after Final Determination of Threat Assessment except for
good cause shown). In sum, the TSA‟s multiple foul-ups
precluded Boniface from making and documenting a request
for a waiver.
III. Conclusion
This matter is remanded for the TSA to consider
Boniface‟s request for a waiver and such evidence as he may
submit in support thereof.
So ordered.
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GINSBURG, Circuit Judge, concurring: The Court cannot
say whether Boniface is entitled to a waiver of the TSA‟s
regulation deeming him a security risk; that is for the agency
to determine. I can say, however, that he was entitled to an
administrative process that was not riddled with errors. The
Keystone Kops might have done a better job than did the TSA
in this case. Instead of sending Government counsel into
battle to defend the indefensible, the agency should have long
ago confessed error, apologized to the appellant, and tried to
do right by him.