United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2011 Decided July 1, 2011
No. 10-1227
SOUTHWEST AIRLINES CO., ET AL
PETITIONERS
v.
TRANSPORTATION SECURITY ADMINISTRATION,
RESPONDENT
Consolidated with 10-1228, 10-1229, 10-1230, 10-1231,
10-1232, 10-1236, 10-1237, 10-1238, 10-1240, 10-1241,
10-1242, 10-1243, 10-1244, 10-1246, 10-1247, 10-1248,
10-1249, 10-1250
On Petitions for Review of Final Orders
of the Transportation Security Administration
M. Roy Goldberg argued the cause for petitioners. With
him on the briefs were Robert W. Kneisley, Carl B. Nelson,
Jr., Bruce H. Rabinovitz, Jonathan B. Hill, J. Parker
Erkmann, Robert E. Cohn, Patrick R. Rizzi, Lorraine B.
Halloway, Lester M. Bridgeman, Thomas Newton Bolling,
2
Richard Mathias, and David Endersbee. Christopher T.
Handman entered an appearance.
Jeffrey Clair, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Tony West, Assistant Attorney General, and Scott R.
McIntosh, Attorney.
Before: HENDERSON, BROWN, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH, with whom Circuit Judge HENDERSON joins.
Dissenting opinion filed by Circuit Judge BROWN.
KAVANAUGH, Circuit Judge: Until 2001, commercial
airlines were responsible for screening people and property at
U.S. airports. That changed after al Qaeda terrorists boarded
airplanes in Boston, Newark, and Washington, D.C., and
attacked the United States on September 11, 2001. Congress
created the Transportation Security Administration and
directed it to take responsibility for airport screening. TSA’s
screening operations are funded, in part, by fees that the
agency collects from airlines. By statute, those fees may not
exceed the amount that airlines paid for screening passengers
and property during the year 2000. 49 U.S.C.
§ 44940(a)(2)(B)(i). Because the fees airlines pay to TSA are
capped at the level of their 2000 costs, the lower the airlines’
screening costs in 2000, the better it is for the airlines now.
But determining how much the airlines spent in 2000 on
passenger and property screening at airports has proved to be
a difficult exercise. Hence, this drawn-out litigation:
Southwest and 19 other airlines allege that TSA’s
determination of their year 2000 costs was arbitrary and
3
capricious for purposes of the Administrative Procedure Act
and also unconstitutional. We disagree, and we deny the
petitions for review.
I
Shortly after the al Qaeda attacks of September 11, 2001,
Congress passed and President Bush signed the Aviation and
Transportation Security Act. Pub. L. No. 107-71, 115 Stat.
597 (2001). Under that statute, the Federal Government –
specifically, the newly created Transportation Security
Administration – assumed responsibility for airport security
functions that were previously undertaken by private airlines.
TSA took over the task of screening all passengers and
property at U.S. airports.
By statute, TSA imposes two kinds of fees to fund its
airport security services: a fee on passengers and a fee on
airlines.
The fee on airlines is at issue here. That fee may not
exceed the amount that TSA determines airlines paid for
screening passengers and property during the year 2000. 49
U.S.C. § 44940(a)(2)(B)(i). In other words, the airline fee is
designed to track the costs that airlines incurred to screen
passengers and property when airlines performed that
function.
To determine how much money airlines paid to screen
passengers and property in the year 2000, TSA initially relied
on cost data submitted by the airlines themselves. Suspicion
mounted that airlines were low-balling their 2000 costs so as
to reduce the fees they would have to pay to TSA under the
new system. In 2004, Congress directed the Government
Accountability Office to independently review airlines’ year
4
2000 screening costs. See Dep’t of Homeland Security
Appropriations Act for 2005, Pub. L. No. 108-334, Title II,
118 Stat. 1298 (2004). Upon completing that review, the
GAO concluded that total airline screening costs in the year
2000 were $448 million – $129 million more than the airlines
had claimed. Acting on that estimate, TSA assessed
additional fees on numerous airlines for 2005 and future
years.
It turned out, however, that GAO’s estimate of year 2000
screening costs included the costs of screening non-
passengers as well as passengers and property. The airline
fee imposed by TSA, by contrast, is capped at the amount that
TSA determines airlines “paid . . . for screening passengers
and property” in the year 2000. 49 U.S.C. § 44940(a)(2)(B)(i)
(emphasis added). Numerous airlines – including many of the
petitioners here – challenged TSA’s fee increases in this
Court, arguing that TSA “violated the plain language of the
[statute] by basing its calculation of the fees on a GAO
estimate which had included the costs of screening non-
passengers.” Southwest Airlines Co. v. TSA (“Southwest I”),
554 F.3d 1065, 1069 (D.C. Cir. 2009). This Court agreed,
and we remanded the matter to TSA for the agency to exclude
the costs of screening non-passengers from its calculation of
airline fees and to award refunds accordingly. See id. at 1070,
1076.
On remand, TSA was thus required to determine how
much of the $448 million in year 2000 screening costs was
attributable to screening passengers and property. To do so,
the agency commissioned a report from Simat, Helliesen &
Eichner, Inc., a reputable airline consultant. SH&E conducted
numerous interviews with airport and government officials
and reviewed airport survey data on year 2000 screenings.
SH&E estimated that approximately 61% of individual
5
screenings in 2000 were attributable to passengers and 39% to
non-passengers. SH&E also determined that a large
proportion of the airlines’ screening costs were fixed and
therefore would not decrease if non-passengers were
excluded. SH&E concluded that the cost of screening
passengers and property in the year 2000 was approximately
$420 million.
The airlines submitted a separate report from Campbell
Aviation Consultants, known as the Campbell report. The
Campbell report concluded that the relevant year 2000 costs
were $305 million, not $420 million.
But TSA found SH&E’s report more persuasive, and the
agency recalculated each airline’s fee liability based on the
$420 million figure. TSA sent a written notice of its refund
determinations to each airline. The airlines now seek review
of TSA’s decisions.
II
The airlines raise several challenges to TSA’s remand
decisions, but only one issue requires extended discussion.
According to the airlines, TSA’s decisions were arbitrary and
capricious because TSA should not have relied on the SH&E
report commissioned by TSA, or at least should have more
fully explained why it rejected the conclusions of the
Campbell report submitted by the airlines.1
1
As a threshold matter, TSA argues that we do not have
jurisdiction over all the airlines’ claims. It is true that the Aviation
and Transportation Security Act limits judicial review of TSA’s
airline fee determinations. See Southwest Airlines Co. v. TSA
(“Southwest I”), 554 F.3d 1065, 1069 (D.C. Cir. 2009) (“Before
reaching the merits, we need to address the effect of two ATSA
provisions for jurisdiction-stripping.”). The ATSA provides that
6
On remand, the issue before TSA concerned how much
the airlines spent in 2000 to screen passengers and property,
excluding the cost of screening non-passengers. To resolve
that issue, TSA had to determine how many individual
screenings in 2000 were of passengers versus non-passengers.
In assessing how TSA performed that task, it is important to
understand that there was no contemporaneous, objectively
verified record of the number of screenings. The number of
screenings was not tracked in the way that, for example,
attendance at a baseball game is tracked through turnstiles.
To be sure, airlines had at least a rough idea of the number of
passengers. But no one apparently kept records of the
number of screenings of non-passengers. And thus there was
no good way to know what percentage of screenings were of
passengers. Given the difficult task this Court assigned it, the
TSA on remand commissioned an expert report to help the
agency make the best estimate it could about the percentage
“[d]eterminations of the Under Secretary under this subparagraph
[stating the limitations on airline fees based on year 2000 costs] are
not subject to judicial review.” Pub. L. No. 107-71, Title I, § 118,
115 Stat. 597, 626 (2001). In 2007, however, Congress created an
exception to that rule for “estimates and additional collections made
pursuant to the appropriation for Aviation Security in Public Law
108-334 [i.e., collections made pursuant to the 2005 Appropriations
Act that instructed GAO to recalculate year 2000 costs]: . . .
Provided . . . [t]hat such judicial review shall be limited only to
additional amounts collected by the Secretary before October 1,
2007.” Pub. L. No. 110-161, Title V, § 540, 121 Stat. 1844, 2079
(2007), codified at 49 U.S.C. § 44940(a)(2)(B)(iv). Because the
fees at issue here were collected pursuant to the 2005
appropriations law, this Court may review TSA’s airline fee
determinations as applied to amounts collected before October 1,
2007. See Southwest I, 554 F.3d at 1069. Each of the airlines’
claims here applies in part to amounts collected by TSA before
October 1, 2007. We therefore may review the issues raised by the
airlines. Cf. id.
7
of screenings attributable to passengers versus non-
passengers. SH&E performed a detailed analysis and
ultimately concluded that 61% of individual screenings were
of passengers and that airlines incurred $420 million in costs
from screening passengers and property in 2000.
The airlines provided TSA with an alternative to the
SH&E report – a report from Campbell Aviation Consultants.
The Campbell report also calculated airport screening costs
attributable to passengers and property, excluding non-
passengers. In so doing, Campbell relied heavily on an earlier
Department of Transportation report indicating that a total of
1.812 billion individuals were screened in U.S. airports during
the year 2000. Relying on that number, and on the fact that
the total number of passengers in 2000 was estimated to be
527 million (some of whom were screened more than once),
Campbell estimated that about 36% of all individual
screenings at U.S. airports in the year 2000 were of
passengers. Based on that percentage, Campbell concluded
that airlines spent about $305 million to screen passengers
and property in the year 2000.
The Campbell report’s bottom-line number of $305
million – the cost of screening passengers and property in
2000 – was thus $115 million lower than the SH&E report’s
bottom-line number of $420 million. The fundamental
dispute in this case concerns that $115 million difference.
The airlines contend that TSA should not have relied on
the SH&E report and instead should have accepted the
Campbell report, or at least better explained why it rejected
the Campbell report. But in TSA’s letter to each airline, the
agency stated that it had “conducted a thorough review of the
Campbell report that included an examination of both the data
and methodologies utilized to construct the report findings.”
8
See, e.g., Letter from Transportation Security Administration
to Gary Kelly, Chairman of the Board, Chief Executive
Officer, and President, Southwest Airlines at 2 (June 22,
2010) (J.A. 468). In light of that “thorough review,” TSA
concluded that the Campbell report was “insufficient for
further consideration due to the report’s use of limited data
and broad, simplistic methodologies that did not consider the
full spectrum of specific cost categories.” Id. The letter also
explained SH&E’s more extensive methodology. Id.
TSA thus considered the Campbell report and its
underlying data, and TSA explained why the Campbell report
was inferior to the SH&E report on which the agency relied.
TSA adequately considered the submissions of dueling
experts before determining year 2000 screening costs for
passengers and property. When an agency “adequately
considers contradictory evidence, . . . our standard of review
does not permit a reviewing court to displace the [agency’s]
choice between conflicting views.” American Wrecking
Corp. v. Sec’y of Labor, 351 F.3d 1254, 1261 (D.C. Cir.
2003). We will not second-guess TSA’s determination of this
obscure calculation in a “data-poor environment” in which
“[a]ny decision . . . would have required considerable
guesswork.” Southwest Airlines Co. v. TSA (“Southwest I”),
554 F.3d 1065, 1073 (D.C. Cir. 2009); cf. Marsh v. Or.
Natural Res. Council, 490 U.S. 360, 376 (1989) (controversy
presents “a classic example of a factual dispute the resolution
of which implicates substantial agency expertise”). Our
deference is particularly strong here because the statute says
that the fee is based on the amount TSA “determined” the
airlines paid in 2000. See Southwest I, 554 F.3d at 1071;
AFL-CIO v. Chao, 409 F.3d 377, 393 (D.C. Cir. 2005)
(Roberts, J., concurring in part and dissenting in part) (“We
have noted in the past the distinction between the objective
existence of certain conditions and the [agency]’s
9
determination that such conditions are present, stressing that a
statute phrased in the latter terms fairly exudes deference to
the [agency].”) (internal quotation marks omitted).
The airlines also complain that TSA, in rejecting the
Campbell report, never specifically mentioned the figure
contained in the prior Department of Transportation report on
the number of individuals screened in 2000. That argument
fails for two reasons.
First, although TSA did not mention the Department of
Transportation report by name, TSA explained that it found
the data underlying the Campbell report to be limited and thus
unreliable – and the most important piece of data in the
Campbell report was the figure contained in the Department
of Transportation report.
Second, and most importantly, the airlines presented no
evidence that the figure in the Department of Transportation
report was at all reliable. The Department of Transportation
figure was based on industry-reported data, not a government
or independent audit of some kind. At the time before
September 11 that the airlines provided that information,
moreover, they had an incentive to aim high when estimating
the number and cost of screenings – so as to convince the
Government either to shoulder some of the costs or to impose
less burdensome security requirements on the airlines.2 The
airlines here suggest that the Department of Transportation
number has talismanic significance because it was published
in “official government reports.” Reply Br. at 14. But the
2
Indeed, prior to and immediately after September 11, 2001 –
before the current system was implemented – airline industry
representatives estimated that airport security cost the airlines
nearly $1 billion per year.
10
report simply regurgitated highly speculative industry-
reported numbers when the industry had an incentive to
estimate on the high end. Shaky numbers in, shaky numbers
out.
In reality, there was no authoritative source for the
number of airport screenings during the year 2000 – no
government audit of all U.S. airports, no contemporaneous
and independently verified calculation. Determining the
figure in response to this Court’s remand thus involved a good
deal of inquiry and ultimately required a dash of art as well as
science. TSA was therefore fully justified in relying on the
estimates in SH&E’s report, which mitigated the uncertainty
by conducting a thorough inquiry and deriving data from
several independent sources. TSA reasonably concluded and
reasonably explained that the SH&E report was far more
detailed and reliable than the Campbell report. Given the
choice between the SH&E report and the Campbell report,
TSA chose the SH&E report – with good reason, and
certainly sufficient reason that we cannot overturn that
decision on Administrative Procedure Act arbitrary and
capricious review.
III
The airlines raise three other arguments, which we can
dispose of in short order.
First, the airlines contend that TSA’s decisions were
arbitrary and capricious under the Administrative Procedure
Act and also violated the Due Process Clause because the
agency did not disclose the SH&E report until the day before
it released the fee letters. That argument fails. In “informal
adjudication[s]” like these, agencies must satisfy only
“minimal procedural requirements.” Butte County, Calif. v.
11
Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010). An agency
conducting an informal adjudication has no statutory
obligation to prematurely disclose the materials on which it
relies so that affected parties may pre-rebut the agency’s
ultimate decision. See Pension Benefit Guaranty Corp. v.
LTV Corp., 496 U.S. 633, 655 (1990). The Due Process
Clause likewise does not require more in this kind of case.
See Southwest Airlines Co. v. TSA (“Southwest I”), 554 F.3d
1065, 1074 (D.C. Cir. 2009).
Second, the airlines argue that TSA improperly delegated
its responsibilities to SH&E. We disagree. In U.S. Telecom
Association v. FCC, this Court identified “three specific types
of legitimate outside party input into agency decision-making
processes: (1) establishing a reasonable condition for granting
federal approval; (2) fact gathering; and (3) advice giving.”
359 F.3d 554, 566 (D.C. Cir. 2004). SH&E was involved in
the “fact gathering” stage of TSA’s decision-making process:
SH&E’s report detailed its factual findings on the screening
of non-passengers during the year 2000. TSA evaluated the
report, found it reliable, and used it to recalculate airline fees.
The agency did not improperly delegate decision-making
responsibility to SH&E.
Third, the airlines point out that the combined refunds
provided by TSA to individual airlines fall short of the total
amount due to the airlines under SH&E’s methodology. But
TSA has explained that those numbers do not match for a
number of reasons, such as that several airlines that paid fees
later went out of business. And the airlines have not pointed
to any specific problem with any individual refund decision.
12
***
We deny the airlines’ petitions for review.
So ordered.
BROWN, J., dissenting. My disagreement with the
majority is a narrow albeit decisive one. When the
Transportation Security Administration calculated passenger-
and property-screening costs for the year 2000, it failed to
consider another Government agency’s estimate of the total
number of persons screened that year. Notwithstanding the
Airlines’ protestations, neither TSA nor the consultant whose
analysis it relied on even mentioned that critical data.
Although TSA’s calculation of the security fee is entitled to
broad deference, the agency’s discretion is not unlimited. I
respectfully dissent, because I think TSA impermissibly
ignored contradictory evidence.
The Department of Transportation’s Bureau of
Transportation Statistics estimated that in the year 2000, the
Airlines screened 1.812 billion persons—more than double
TSA’s estimate of 865.5 million. After we remanded TSA’s
first decision, see Southwest Airlines Co. v. TSA (Southwest
I), 554 F.3d 1065 (D.C. Cir. 2009), the Airlines provided
DOT’s estimate to TSA in a consultant’s report (the
“Campbell Report”). Accepting DOT’s estimate would have
resulted in a substantially lower security fee for the Airlines. 1
Not surprisingly, TSA did nothing of the sort. Although TSA
had promised to consider the Campbell Report, it adopted
wholesale its own consultant’s report (the “SH&E Report”),
which arrived at its estimate of 865.5 million persons
screened without even mentioning the Campbell Report or the
DOT data it cited.
1
The security fee is capped at the year 2000 cost of screening
persons and property ($448 million) minus the cost of screening
non-passengers. See Maj. Op. at 4; Southwest I, 554 F.3d at 1069
(D.C. Cir. 2009). The parties agree there were 527 million
passengers in 2000.
2
TSA’s decision on remand gives no reason for choosing
SH&E’s estimate of the total number of passengers screened
over DOT’s estimate. The decision’s treatment of the
Campbell report is confined to a two-sentence paragraph. It is
in this cursory statement that the court purports to divine
TSA’s reasoned consideration of the DOT data:
TSA conducted a thorough review of the
Campbell report that included an examination
of both the data and methodologies utilized to
construct the report findings. TSA concluded
that the Campbell report and findings were
insufficient for further consideration due to the
report’s use of limited data and broad,
simplistic methodologies that did not consider
the full spectrum of specific cost categories.
Joint Appendix (“J.A.”) 468, quoted in Maj. Op. at 7, 8. Aside
from this vague gesture toward the Campbell Report and its
data, the remand decision does not address the discrepancy
between DOT’s estimate of 1.812 billion screened persons
and SH&E’s estimate of 865.5 million. The court interprets
TSA’s reference to “broad, simplistic methodologies” and
“limited data” as an assessment of Campbell’s uncritical
adoption of DOT’s estimate. Maj. Op. at 8. TSA’s statement,
however, cannot sustain that charitable reading.
TSA explicitly faulted the Campbell Report for its failure
to “consider the full spectrum of specific cost categories.”
J.A. 468. This has nothing to do with DOT’s estimate of the
total number of passengers screened in 2000. To be sure, the
SH&E Report attempts a more sophisticated comparative
analysis of the respective costs of screening passengers and
non-passengers than the Campbell Report. In particular,
SH&E accounted for fixed costs that would have remained in
the absence of non-passenger screenings, whereas Campbell
3
assumed non-passengers contributed an equal share to the
cost of screening persons. Compare J.A. 279–323 (SH&E
Report pt. 3), with J.A. 174–79 (Campbell Report). But this
issue is beside the point. Accepting SH&E’s estimates of the
respective costs of individual passenger- and non-passenger
screenings, a higher raw number of screenings would still
result in a lower security fee for the Airlines than the one
TSA calculated. There is no evidence TSA considered this
critical difference between the reports at all. 2 Without
considering the issue, TSA could not have reasonably decided
to credit SH&E’s estimate of total screenings over DOT’s.
Even if TSA’s denigration of the Campbell Report’s
“limited data” is interpreted as a reference to the DOT data,
such conclusory treatment of alternative evidence “provides
no basis upon which we could conclude that it was the
product of reasoned decisionmaking.” Butte County, Cal. v.
Hogen, 613 F.3d 190, 195 (D.C. Cir. 2010) (quoting Tourus
Records, Inc. v. DEA, 259 F.3d 731, 737 (D.C. Cir. 2001)).
To merit deference, TSA ought to have given some reason for
rejecting DOT’s estimate. See Int’l Union, United Mine
Workers of Am. v. Mine Safety & Health Admin., 626 F.3d 84,
2
A letter written by TSA’s Acting Assistant Chief Counsel after
the agency’s final remand decision confirms that the agency
misunderstood the fundamental difference between the Campbell
and SH&E Reports. Like the remand decision, the letter failed to
mention—much less refute—DOT’s estimate of 1.812 billion
screened persons. In response to the airlines’ “concern regarding
SH&E’s estimate of the ratio of passenger to non-passenger
screenings,” the letter points out that the Campbell report
“extrapolated the experience of just six aviation industry
representatives.” J.A. 504. But Campbell relied on those six
industry representatives to construct an estimate of the relative
average cost of individual passenger and non-passenger screenings.
Those surveys were irrelevant to the DOT data on the relative
volume of passenger and non-passenger screenings.
4
93 (D.C. Cir. 2010) (remanding a rule “because . . . it defies
the expert record evidence and is unexplained”). Labeling the
DOT data “limited”—if indeed that pejorative may be read as
a criticism of DOT’s estimate—is not a reasoned explanation.
In United Mine Workers, we concluded the challenged rule
was arbitrary and capricious because the agency’s only basis
for rejecting contrary evidence was the agency’s own
“knowledge and expertise.” 626 F.3d at 84. TSA’s rejection
of the Campbell Report, and its silent neglect of the DOT data
contained therein, is no more descriptive. Such “[c]onclusory
explanations for matters involving a central factual dispute
where there is considerable evidence in conflict do not suffice
to meet the deferential standards of our review.” Id. at 94
(quoting AT&T Wireless Servs. v. FCC, 270 F.3d 959, 968
(D.C. Cir. 2001)).
TSA does not even argue its decision on remand meets
the standard we applied in United Mine Workers. Instead,
TSA asks us to limit the holding of that case to situations
where the neglected “contrary evidence” is “set forth in a
congressionally-ordered study conducted by an independent
federal agency with expertise in the subject matter.”
Respondent’s Br. at 43. TSA does not explain why it is
essential that the study be “congressionally-ordered” or why
DOT’s Bureau of Transportation Statistics lacks “expertise in
the subject matter” of air transportation security statistics.
Regardless of the specific character of the contrary evidence,
an agency is required by “[b]asic principles of administrative
law” to “examine the relevant data and articulate a
satisfactory explanation for its action including a rational
connection between the facts found and the choice made.”
AT&T Wireless, 270 F.3d at 968 (quoting Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)).
5
Our deference to the substance of an agency’s decision
does not permit us to ignore the process by which the agency
makes it. The court rightly observes that an agency is entitled
to especially strong deference where the relevant statute turns
on “the [agency’s] determination that certain conditions are
present”—here the cost of screening passengers and property
in 2000, as determined by the TSA—rather than “the
objective existence of [those] conditions.” Maj. Op. at 8
(quoting Southwest I, 554 F.3d at 1071). But even when our
review is at its most deferential, we may not allow an agency
to shirk its duty to provide a reason for choosing one body of
evidence over another. In AEP Texas North Co. v. STB, 609
F.3d 432 (D.C. Cir. 2010), the court noted that the Surface
Transportation Board was “entitled to particular deference”
because the rate-setting decision at issue was one in which the
Board acts “at the zenith of its powers.” Id. at 438.
Nevertheless, the court held that the Board acted arbitrarily
and capriciously when it “entirely failed to consider an
important aspect of the problem.” Id. at 441. For the same
reason, TSA should not be able to hide its neglect of DOT’s
estimate behind our standard of review.
The court’s “most important[]” response to the Airlines’
argument that TSA failed to consider the DOT data is that
“the airlines presented no evidence that the figure in the
[DOT] report was at all reliable.” Maj. Op. at 9. The court
conducts its own analysis of the DOT estimate, finds it to be
based on self-serving, industry-reported data, and then
concludes the SH&E Report’s estimate of total screenings
was more reliable. Id. at 9–10. This is exactly the sort of
analysis TSA should have undertaken, and it is exactly the
sort of reasoning to which a court may defer. 3 But TSA’s
3
This is not to say the court’s reasoning is self-evidently correct.
The SH&E Report’s estimate of the ratio of passenger to non-
passenger screenings was based on “passenger surveys” conducted
6
remand decision makes none of these findings, which appear
for the first time as arguments in the agency’s appellate brief.
See Respondent’s Br. at 38–42. Such post hoc justifications
cannot satisfy the agency’s obligation to give reasons for
rejecting alternative evidence. See SEC v. Chenery Corp., 332
U.S. 194, 196–97 (1947); United Mine Workers, 626 F.3d at
94.
Especially where an agency adopts the reasoning of an
outside consultant in toto, as TSA did here, the agency must
articulate its reasons for rejecting evidence the consultant
ignored. TSA’s failure to do so leaves me with the sneaking
suspicion that neither the agency nor its consultant ever
seriously considered DOT’s estimate. I would remand once
again for further consideration and an explanation. See United
Mine Workers, 626 F.3d at 94; AT&T Wireless, 270 F.3d at
968.
at two airports and on interviews with airport personnel. It is not
obvious that the resulting estimate is more reliable than DOT’s.
The Campbell Report gives an intuitive explanation for DOT’s
large estimate of the number of non-passengers screened in 2000,
relative to the present. Before 9/11, it was common for non-
passengers to drop off and pick up passengers; screenings were less
onerous; and airline, airport, vendor, and contractor employees
passed easily and often through screenings. Most persuasively, the
Campbell Report shows that the large reduction in screened persons
between 2000 and 2006 (a drop from 1.812 billion to 708 million)
corresponds to the increased transaction costs associated with
TSA’s management of the screening process and new rules
restricting non-passengers from the “sterile” area of the airport. It is
impossible to perform a similar comparison with the SH&E data
TSA relied on, because SH&E did not estimate screening volume
for any year besides 2000. Of course, TSA may have had a
reasonable basis for favoring SH&E’s much smaller estimate of
year 2000 screenings, but the agency was obliged to explain its
reasons.