Jifry v. Federal Aviation Administration

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 30, 2004 Decided June 11, 2004

No. 03-1085

TAREK H. JIFRY AND MAAN H. ZARIE,
PETITIONERS

v.

FEDERAL AVIATION ADMINISTRATION, ET AL.,
RESPONDENTS

Consolidated with Nos.
03-1143, 03-1144, 03-1282

On Petitions for Review of an Order of the
Federal Aviation Administration

Thomas J. Whalen argued the cause for petitioners. With
him on the briefs was Evelyn D. Sahr.

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

Douglas N. Letter, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief
were Peter D. Keisler, Assistant Attorney General, and E.
Roy Hawkens and Catherine Y. Hancock, Attorneys.
Before: ROGERS, TATEL and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Petitions filed by two non-resident
alien pilots challenge certain aviation regulations adopted in
the wake of the September 11, 2001 terrorist attacks. From
the establishment of the Transportation Security Administra-
tion (‘‘TSA’’) in November 2001 to the promulgation of the
challenged regulations in January 2003, aviation security has
undergone a fundamental transformation. The pilots contend
that the new procedures resulting in the revocation of their
airman certificates issued by the Federal Aviation Adminis-
tration (‘‘FAA’’) violated the Administrative Procedure Act
(‘‘APA’’) and the due process clause of the Fifth Amendment
to the United States Constitution. Specifically, they contend
that the January 2003 regulations were unlawfully promulgat-
ed without notice and comment, that the revocations were not
supported by substantial evidence in the record, and that they
were denied meaningful notice of the evidence against them
and a meaningful opportunity to be heard.

I.
Congress has delegated broad discretion to the Federal
Aviation Administration (‘‘FAA’’) to prescribe regulations and
standards for safety in air commerce and national security.
See 49 U.S.C. § 44701(a)(5). The FAA may ‘‘at any time’’
reexamine the issuance of an airman certificate and issue an
order ‘‘modifying, suspending, or revoking’’ a certificate if the
Administrator determines that such action is required for
‘‘safety in air commerce’’ and ‘‘the public interest.’’ 49 U.S.C.
§§ 44709(a), (b). With regard to issuing airman certificates
to qualified individuals, Congress distinguished between citi-
zens and aliens, conferring broad discretion to the FAA
regarding alien pilots. See id. § 44703(e). After the Septem-
 3

ber 11, 2001 terrorist attacks, Congress established the
Transportation Security Administration (‘‘TSA’’) on Novem-
ber 19, 2001, and transferred much of the responsibility for
civil aviation security from the FAA to the TSA. See id.
§§ 114(d), (f).
This case concerns alien pilots only; citizens and resident
alien pilots have challenged the applicable regulations in
Coalition of Air Line Pilots Ass’ns. v. FAA, Nos. 03–1074
and 03–1076 (D.C. Cir. June 11, 2004). The two pilots, Jifry
and Zarie, are citizens of Saudi Arabia who have used their
FAA certificates to pilot flights abroad, but have not operated
Saudi Arabian Airlines flights to the United States in the past
nine and four years, respectively. On August 14, 2002, the
TSA sent letters to the FAA requesting that Captain Jifry
and Captain Zarie have their airman certificates revoked,
stating that ‘‘[b]ased upon information available to us,’’ they
presented ‘‘a security risk to civil aviation or national securi-
ty.’’ The FAA notified Jifry and Zarie by letters of August
20, 2002, that their airman certificates would be revoked
because the Acting Under Secretary of Transportation for
Security, pursuant 49 U.S.C. §§ 44709(b)(1)(A) and 46105(c),
had determined that they presented risks to aviation or
national security. The FAA revoked the pilots’ certificates,
see 49 U.S.C. § 44709(b), and the pilots appealed the revoca-
tions to the National Transportation Safety Board (‘‘NTSB’’).
Id. § 44709(d). An administrative law judge (‘‘ALJ’’) held a
telephonic pre-hearing conference on January 17, 2003, and
ordered that the FAA and the TSA provide a privilege log
and that depositions of key witnesses take place by mid-
February.
A week later, on January 24, 2003, the FAA dismissed the
revocation actions against Jifry and Zarie, and in conjunction
with the TSA, published, without notice and comment, new
regulations governing the suspension and revocation of air-
man certificates for security reasons. See 14 C.F.R. § 61.18,
49 C.F.R. § 1540.117. The new FAA regulation, 14 C.F.R.
§ 61.18, provides for automatic suspension by the FAA of
airman certificates upon written notification from the TSA
that the pilot poses a security threat and, therefore, is not
eligible to hold an airman certificate. The TSA simultaneous-
 4

ly promulgated 49 C.F.R. § 1540.117, which establishes the
procedure by which the TSA initially and finally notifies non-
resident aliens who hold or apply for FAA certificates that
they pose a security threat, and requires the TSA to notify
the FAA once the TSA has determined that a pilot is a
security threat. Upon finding that a pilot poses a ‘‘security
threat,’’ see 49 C.F.R. § 1540.117(c), the TSA Assistant Ad-
ministrator for Intelligence issues an Initial Notification of
Threat Assessment (‘‘Initial Notice’’) to the individual and
serves that determination upon the FAA. See id.
§ 1540.117(e). The FAA then suspends the pilot’s certificate.
See 14 C.F.R. § 61.18(b)(2). No later than 15 days after
service, the pilot may make a written request for copies of
releasable materials upon which the Initial Notice was based.
See 49 C.F.R. § 1540.117(e)(1) & (2). The TSA must respond
not later than 30 days after receiving the request, and the
pilot may submit a written reply within 15 days of receiving
the TSA’s response. See id. § 1540.117(e)(3) & (4). At that
point, the TSA Deputy Administrator must review the entire
record de novo to determine if the pilot poses a security risk.
Id. § 1540.117(f)(1). If the Deputy so determines, the TSA
serves a Final Notification of Threat Assessment (‘‘Final
Notice’’), id. § 1540.117(f)(2), and the FAA revokes the certif-
icate. See 14 C.F.R. § 61.18(c)(2). The pilot may appeal the
certificate revocation to the NTSB. See 49 U.S.C.
§ 44709(d). Upon exhaustion of these administrative reme-
dies, the pilot may seek review in the court of appeals, which
may review the case on the merits. See id. §§ 44709(f),
46110.
On January 24, 2003, the TSA also served an Initial Notice
of Threat Assessment designating Jifry and Zarie as security
threats, and the FAA suspended their certificates. The pilots
appealed the Initial Notice, and requested the materials upon
which the Initial Notice had been issued. The TSA provided
the releasable materials, but did not include the factual basis
for TSA’s determination, which was based on classified infor-
mation. The pilots then appealed the suspension of their
certificates to the NTSB. The ALJ granted the TSA’s
motion for summary judgment, ruling that the only question
 5

was procedural – whether the pilots had been duly advised by
the TSA, in writing, that they posed a security threat, and
finding that they had. Upon the pilots’ appeals, the NTSB
affirmed the ALJ’s order in favor of the TSA. Jifry and
Zarie then filed replies to the TSA’s Initial Notice, stating
that the ‘‘lack of evidence and information about the basis for
the determination contained in the TSA’s response’’ made it
impossible for them to specifically rebut the TSA’s allega-
tions, and denying that they were security threats. On May
8, 2003, the TSA Deputy Administrator, upon de novo review
of the administrative record, denied the pilots’ challenge to
the Initial Notice and issued a Final Notice based on finding
that Jifry and Zarie posed security threats. See 49 C.F.R.
§ 1540.117(c). The FAA then revoked the pilots’ airman
certificates. On August 13, 2003, the NTSB denied the pilots’
appeal of the revocation of their certificates for the same
reasons it had denied their challenges to the suspensions, and
affirmed the ALJ’s grant of summary judgment to the TSA
and the emergency orders of revocation.

II.
The pilots make three challenges to the revocations of their
FAA airman certificates: first, that the January 2003 regula-
tions were unlawfully promulgated without notice and com-
ment; second, that the revocations were not supported by
substantial evidence in the record; and third, that the proce-
dures provided by the January 2003 regulations violated their
due process rights under the Fifth Amendment to the Consti-
tution. We address each in turn.
Section 553 of the Administrative Procedure Act (‘‘APA’’)
requires an agency to publish a general notice of proposed
rulemaking and to afford an opportunity for interested per-
sons to participate in the rulemaking. See 5 U.S.C. § 553(b),
(c). The ‘‘good cause’’ exception, however, provides that
‘‘when the agency for good cause finds TTT that notice and
public procedure thereon are impracticable, unnecessary, or
contrary to the public interest,’’ the agency need not engage
in notice and comment. Id. § 553(b)(3)(B). The pilots con-
 6

tend that the regulations of January 2003 are invalid because
they were unlawfully promulgated without notice and com-
ment, and there was no rational basis for eliminating the
right to a meaningful appeal before the NTSB. They main-
tain that the ‘‘good cause’’ exception does not apply because
notice and comment had not been ‘‘impracticable, unnecessary
or contrary to the public interest’’ inasmuch as the FAA
already had the authority to immediately suspend or revoke a
certificate upon finding that ‘‘safety in air commerce or air
transportation and the public interest’’ required such an
action. See 49 U.S.C. § 44709, amended by Pub. L. No. 108–
176, 117 Stat. 2490 (2003).
Contrary to the position of respondents TSA, FAA, and the
NTSB, the pilots’ APA challenges to the FAA regulation, 49
C.F.R. § 61.18, are not mooted by the enactment of the
Vision 100 – Century of Aviation Reauthorization Act (‘‘Act’’),
49 U.S.C. § 46111, on December 12, 2003. The Act provides
that the FAA Administrator ‘‘shall issue an order TTT sus-
pending, or revoking any part of a certificate TTT if the
Administrator is notified by the Under Secretary for Border
Transportation Security of the Department of Homeland
Security that the holder of the certificate poses, or is suspect-
ed of posing, a risk of air piracy or terrorism or a threat to
airline or passenger safety.’’ 49 U.S.C. § 46111(a). The
respondents maintain that through § 46111, Congress ap-
proved the certificate-revocation process embodied in the
FAA regulation by expressly commanding the FAA to sus-
pend or revoke certificates if requested by the TSA. The
respondents have not shown a lack of a live controversy,
however, because the effects of 14 C.F.R. § 61.18 remain very
real for non-resident alien pilots like Jifry and Zarie. The
FAA has applied this regulation against the two pilots, and it
remains in effect notwithstanding the Act. The pilots there-
fore retain ‘‘a legally cognizable interest in the outcome,’’
Powell v. McCormack, 395 U.S. 486, 496 (1969), of their APA
claims.
Generally, the ‘‘good cause’’ exception to notice and com-
ment rulemaking, see 5 U.S.C. § 553(b)(3)(B), is to be ‘‘nar-
rowly construed and only reluctantly countenanced.’’ Ten-
 7

nessee Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C.
Cir. 1992) (quoting New Jersey v. EPA, 626 F.2d 1038, 1045
(D.C. Cir. 1980)). The exception excuses notice and comment
in emergency situations, Am. Fed’n of Gov’t Employees v.
Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981), or where delay
could result in serious harm. See Hawaii Helicopter Opera-
tors Ass’n v. FAA, 51 F.3d 212, 214 (9th Cir. 1995). The
latter circumstance is applicable here in examining the TSA’s
determination that ‘‘[t]he use of notice and comment prior to
issuance of th[e] [January 2003 regulations] could delay the
ability of TSA and the FAA to take effective action to keep
persons found by TSA to pose a security threat from holding
an airman certificate,’’ and was ‘‘necessary to prevent a
possible imminent hazard to aircraft, persons, and property
within the United States.’’
The pilots contend that the ‘‘good cause’’ exception does not
apply because the FAA already had unlimited power to
revoke a certificate immediately if it believed an airman to be
a security risk, see 49 U.S.C. § 44709, and the TSA was
already authorized to make security assessments under 49
U.S.C. § 114(f). While true, the pilots fail to acknowledge
that at the time the challenged regulations were adopted, the
FAA’s power to suspend or revoke certificates was permissive
only. See 49 U.S.C. § 44709. Congress had not yet enacted
49 U.S.C. § 46111, which formalized the requirement that the
FAA shall suspend, modify, or revoke a certificate if notified
by the TSA that an individual posed a security risk. As the
respondents explain, the January 2003 regulations mandated
a ‘‘streamlined process’’ by which an individual’s pilot certifi-
cate would be automatically suspended or revoked by the
FAA upon notification by the TSA that a pilot posed a
security threat. The TSA and FAA deemed such regulations
necessary ‘‘in order to minimize security threats and potential
security vulnerabilities to the fullest extent possible.’’ Given
the respondents’ legitimate concern over the threat of further
terrorist acts involving aircraft in the aftermath of September
11, 2001, see Declaration of TSA Deputy Administrator Ste-
phen McHale (hereinafter McHale Decl.) at 4, the agencies
had ‘‘good cause’’ for not offering advance public partic-
 8

ipation. See Utility Solid Waste Activities Group v. EPA,
236 F.3d 749, 754–55 (D.C. Cir. 2001).
On the merits, the pilots’ APA challenge fails. The court’s
review of agency rulemaking is highly deferential, limited to
determining ‘‘whether the agency has considered the relevant
factors and articulated a ‘rational connection between the
facts found and the choice made.’ ’’ United States Air Tour
Ass’n v. FAA, 298 F.3d 997, 1005 (D.C. Cir. 2002) (quoting
Motor Veh. Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983)). In BellSouth Corp. v. FCC, 162 F.3d
1215, 1221 (D.C. Cir. 1999), the court observed that ‘‘[w]hen
TTT an agency is obliged to make policy judgments where no
factual certainties exist or where facts alone do not provide
the answer, [the reviewing court’s] role is more limited; we
require only that the agency so state and go on to identify the
considerations it found persuasive.’’
Contrary to the pilots’ position, the regulations are not
arbitrary and capricious for bearing no rational connection to
the problem identified by the FAA. It is self-evident that the
regulations are related to the TSA’s and FAA’s goals of
improving the safety of air travel. Nor is the court in a
position to second-guess the respondents’ judgment that im-
posing stricter procedures for coordinating security risks and
restricting individuals who pose security threats from holding
airman certificates was necessary to further that goal. See
BellSouth Corp. v. FCC, 162 F.3d at 1221–22. Moreover, the
pilots’ contention that the risk posed by the certificate holders
alleged to be security threats was not remedied by providing
fewer procedural protections to the certification holders and
narrowing their right to NTSB review is to no avail because
49 U.S.C. § 46111 produces the same result. Section 46111
makes no provision for NTSB review even for citizens, and
the Conference Report states that non-resident aliens ‘‘have
the right to the appeal procedures that [TSA] has already
provided for them.’’ H.R. Conf. Rpt. 108–334 at 152 (2003).
In addition, § 46111(a) requires the FAA to respond automat-
ically to TSA threat assessments, providing that the FAA
‘‘shall issue an order amending, modifying, suspending, or
revoking any part of a certificate issued under this title if the
 9

Administrator is notified by TTT the Department of Homeland
Security that the holder of the certificate poses, or is suspect-
ed of posing, a risk of air piracy or terrorism or a threat to
airline or passenger safety.’’ 49 U.S.C. § 46111(a). Accord-
ingly, if these pilots retain any right to NTSB review at all, it
is no broader than the review for procedural regularity that
they have received, and they would therefore garner no
benefit from a remand. Indeed, an additional ground for
rejecting the pilots’ challenge to the promulgation of the FAA
regulation without notice and comment exists precisely be-
cause § 46111 now provides an express statutory authoriza-
tion for the automatic revocation that was previously predi-
cated on the regulations alone; even were the court to
invalidate the regulations for lack of notice and comment, the
statute would compel the FAA to honor the TSA’s notification
and take immediate action against the pilots’ certificates.

III.
The scope of the court’s review of the pilots’ challenges to
the TSA’s actions is limited to determining whether the
actions were ‘‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’’ 5 U.S.C. § 706(2)(A).
Under this standard, the court must consider whether those
actions were ‘‘based on a consideration of the relevant factors
and whether there has been a clear error of judgment.’’
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416
(1971) (overruled on other grounds). See Motor Veh. Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). The court must affirm the agency’s findings of fact if
they are supported by ‘‘substantial evidence’’ and there is a
‘‘rational connection between the facts found and the choice
made.’’ Burlington Truck Lines, Inc. v. United States, 371
U.S. 156, 168 (1962). ‘‘Substantial evidence’’ is simply such
relevant evidence as a reasonable person might accept as
proof of a conclusion. See Universal Camera Corp. v. NLRB,
340 U.S. 474, 477 (1981) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
 10

In contending that the revocations of their airman certifi-
cates are unsupported by substantial evidence in the record,
the pilots do not challenge the definition of ‘‘security threat’’
under the TSA regulations. An individual poses a ‘‘security
threat’’ if the individual ‘‘is suspected of posing, or is known
to pose (1) A threat to transportation or national security; (2)
A threat to air piracy or terrorism; (3) A threat to airline or
passenger security; or (4) A threat to civil aviation security.’’
49 C.F.R. § 1540.117(c). Consistent with Camp v. Pitts, 411
U.S. 138, 143 (1973), where the Supreme Court stated that
when an agency official fails to adequately explain its deci-
sion, the agency should submit ‘‘either through affidavits or
testimony, such additional explanation of the reasons for the
agency decision as may prove necessary,’’ the affidavit of TSA
Deputy Administrator Stephen McHale provides an adequate
basis for the TSA’s determination that Jifry and Zarie each
posed a ‘‘security threat’’ within the meaning of § 1540.117(c).
The unsealed affidavit recounts that the Deputy Administra-
tor affirmed the TSA’s determination on the basis of classified
intelligence reports, combined with reports from the intelli-
gence 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 license.’’ McHale
Decl. at 4. The Deputy Administrator attested that ‘‘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]
TTT pose a security threatTTTT’’ Id. at 4–5.
Viewing as a whole the record evidence before the TSA,
including ex parte in camera review of the classified intelli-
gence reports, we hold that there was substantial evidence to
support the TSA’s determination that the pilots were security
risks. While we reject the pilots’ contention that the court
apply a de novo standard of review, we have carefully re-
viewed the classified intelligence reports on which TSA relied.
The record is not lengthy and the basis for the TSA’s
conclusion is obvious. The court’s review is limited, more-
over, to the administrative record that was before the TSA
 11

when it determined that the pilots were security risks. See 5
U.S.C. § 706; cf. United States v. Carlo Bianchi & Co., 373
U.S. 709, 715 (1963). Hence, the pilots’ post-argument sub-
mission of May 3, 2004 is not properly before the court,
although we note that the information it contains was known
to the pilots in 2001 and could have, and still can be, submit-
ted to the TSA.
The pilots’ motion to bar the respondents’ reliance on
classified information in this court is not well-taken. Even
assuming the respondents’ failure to provide notice of its
intention to rely on classified information on appeal until one
month after the pilots filed their opening brief prevented the
pilots from timely addressing the ‘‘classified information’’
question in their opening brief, the pilots’ motion fails on its
merits for several reasons. First, because the court reviewed
the information designated by the respondents as ‘‘classified,’’
the court is in a position to determine whether it was properly
classified without the Vaughn Index, see Vaughn v. Rosen,
484 F.2d 820, 826–28 (D.C. Cir. 1973), that the pilots urge be
obtained. Reliance on Vaughn is misplaced, in any event,
because that case involved the Freedom of Information Act
and presented a very different situation than that presented
here. Second, the court has inherent authority to review
classified material ex parte, in camera as part of its judicial
review function. See Molerio v. FBI, 749 F.2d 815, 822 & n.2
(D.C. Cir. 1984). See also Holy Land Found. v. for Relief &
Dev. v. Ashcroft, 333 F.3d 156, 164 (D.C. Cir. 2003); Nat’l
Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192,
208–09 (D.C. Cir. 2001). The pilots’ focus on the TSA Deputy
Administrator’s reliance on ‘‘sensitive security information,’’
as defined by 49 U.S.C. §§ 114(s), 40119(b)(1), and 49 C.F.R.
Part 1520, and ‘‘law enforcement sensitive’’ information, see
McHale Decl. at 5, fares no better. Although 49 C.F.R.
§ 1520.5(b) provides that a person has a ‘‘need to know
sensitive security information’’ when the information is neces-
sary to represent an individual in a judicial or administrative
proceeding, § 1520.5(b)(5) applies only to individuals repre-
senting persons listed in § 1520.5(a), and the pilots are not
among the persons listed in subsection (a) who are required
 12

to restrict disclosure of and access to sensitive security
information to those with a ‘‘need to know.’’ See 49 C.F.R.
§ 1520.5(a).

IV.
The court reviews de novo the pilots’ challenge to the
constitutionality of the procedures under the January 2003
regulations. See Vt. Yankee Nuclear Power Corp. v. NRDC,
435 U.S. 519, 543 (1978); Ramirez-Alejandre v. Ashcroft, 319
F.3d 365, 377 (9th Cir. 2003); Grace Towers Tenants Ass’n v.
Grace Housing Dev. Fund Co., 538 F.2d 491, 496 (2d Cir.
1976). They contend that the TSA and FAA procedures
violate the Fifth Amendment of the Constitution by depriving
the pilots of their property interest in their airman certifi-
cates without due process of law.
The Supreme Court has long held that non-resident aliens
who have insufficient contacts with the United States are not
entitled to Fifth Amendment protections. See Johnson v.
Eisentrager, 339 U.S. 763, 771 (1950); Yamataya v. Fisher,
189 U.S. 86, 101 (1903); Yick Wo v. Hopkins, 118 U.S. 356,
369 (1886). See also United States v. Curtiss–Wright Export
Corp., 299 U.S. 304, 318 (1936); Pauling v. McElroy, 278
F.2d 252, 253 n.3 (D.C. Cir. 1960). Cf. United States v.
Verdugo–Urquidez, 494 U.S. 259, 261 (1990). Exceptions may
arise where aliens have come within the territory of the
United States and established ‘‘substantial connections’’ with
this country, Verdugo–Urquidez, 494 U.S. at 271, or ‘‘accepted
some societal obligations.’’ Id. at 273. In such situations, the
Court has recognized that aliens may be accorded protections
under the Constitution. See Plyler v. Doe, 457 U.S. 202, 211–
12 (1982); Kwong Hai Chew v. Colding, 344 U.S. 590, 596
(1953); Russian Volunteer Fleet v. United States, 282 U.S.
481, 489 (1931). This court has applied these principles in a
series of cases concerning the designation of certain dissident
organizations as ‘‘foreign terrorist organization[s].’’ See Peo-
ple’s Mojahedin Org. of Iran v. Dep’t of State, 327 F.3d 1238,
1241 (D.C. Cir. 2003) (‘‘People’s Mojahedin II’’); Nat’l Coun-
cil, 251 F.3d at 201; People’s Mojahedin Org. of Iran v. Dep’t
 13

of State, 182 F.3d 17, 22 (D.C. Cir. 1999) (‘‘People’s Mojahe-
din I’’). See also 32 County Sovereignty Comm. v. Dep’t of
State, 292 F.3d 797, 799 (D.C. Cir. 2002). In People’s Moja-
hedin I, 182 F.3d at 22, the court explained that ‘‘[a] foreign
entity without property or presence in this country has no
constitutional rights, under the due process clause or other-
wise.’’ We need not decide whether or not Jifry and Zarie
are entitled to constitutional protections because, even assum-
ing that they are, they have received all the process that they
are due under our precedent.
‘‘The fundamental requirement of due process is the oppor-
tunity to be heard ‘at a meaningful time and in a meaningful
manner.’ ’’ Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
Generally, in determining whether administrative procedures
are constitutionally adequate, courts weigh three factors:
First, the private interest that will be affected by the
official action; second, the risk of an erroneous depriva-
tion of such interest through the procedures used, and
the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal
and administrative burdens that the additional or substi-
tute procedural requirement would entail.
Mathews, 424 U.S. at 335. The pilots’ interests at stake
here – their interest in possessing FAA airman certificates to
fly foreign aircraft outside of the United States – pales in
significance to the government’s security interests in prevent-
ing pilots from using civil aircraft as instruments of terror.
As the Supreme Court has noted, ‘‘It is ‘obvious and unargua-
ble’ that no governmental interest is more compelling than
the security of the Nation.’’ Haig v. Agee, 453 U.S. 280, 307
(1981) (quoting Aptheker v. Secretary of State, 378 U.S. 500,
509 (1964)). Whatever the risk of erroneous deprivation, the
pilots had the opportunity to file a written reply to the TSA’s
initial determination and were afforded independent de novo
review of the entire administrative record by the Deputy
Administrator of the FAA, see 49 C.F.R. § 1540.117(e)(4), (f),
 14

and ex parte, in camera judicial review of the record. In
light of the governmental interests at stake and the sensitive
security information, substitute procedural safeguards may be
impracticable, and in any event, are unnecessary under our
precedent.
In National Council, 251 F.3d at 208, the court concluded
that in designating organizations as foreign terrorist organi-
zations under the Anti–Terrorism and Effective Death Penal-
ty Act, the Secretary of State had to ‘‘afford to the entities
under consideration notice that the designation is impending,’’
id., and ‘‘the opportunity to present, at least in written form,
such evidence as those entities may be able to produce to
rebut the administrative record or otherwise negate the prop-
osition that they are foreign terrorist organizations.’’ Id. at
209. In light of the Supreme Court’s instruction that ‘‘due
process is flexible and calls for such procedural protections as
the particular situation demands,’’ Morrissey v. Brewer, 408
U.S. 471, 481 (1972), the court held that because of the extent
to which security concerns were implicated in that case, the
Secretary could upon ‘‘adequate showing to the court,’’ pro-
vide the requisite notice after the designation of the organiza-
tion as a terrorist organization, and needed only to disclose
the unclassified portions of the record. National Council,
251 F.3d at 208. In People’s Mojahedin II, 327 F.3d at 1242–
43, another case involving the designation of terrorist organi-
zations, the court underscored that it ‘‘had established in
[National Council] the process which is due under the cir-
cumstances of this sensitive matter of classified intelligence in
the effort to combat foreign terrorism,’’ and that ‘‘nothing
further is due.’’ Id. See also Holy Land, 333 F.3d at 163–64.
The TSA Assistant Administrator’s Initial Notices informed
the pilots that ‘‘[b]ased upon materials available to the [TSA],
which I have personally reviewed, I have determined that you
pose a security threat.’’ The pilots were afforded an opportu-
nity to respond to the designation and both filed written
challenges to the TSA’s Initial Notice, along with affidavits
that they did not pose a threat to aviation or national securi-
ty. See 49 C.F.R. § 1540.117(e)(4). These materials were
considered by the TSA Deputy Administrator when he con-
 15

ducted a de novo review of the administrative record before
issuing the Final Notice. While the pilots protest that with-
out knowledge of the specific evidence on which TSA relied,
they are unable to defend against the charge that they are
security risks, the court has rejected the same argument in
the terrorism listing cases. The due process protections
afforded to them parallel those provided under similar cir-
cumstances in National Council and People’s Mojahedin II,
and are sufficient to satisfy our case law.
Accordingly, we affirm the NTSB revocation order of Au-
gust 13, 2003, and deny the petitions for review and the pilots’
motion to bar the respondents’ reliance on classified informa-
tion.