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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 30, 2004 Decided June 11, 2004
No. 03-1074
COALITION OF AIRLINE PILOTS ASSOCIATIONS, ET AL.,
PETITIONERS
v.
FEDERAL AVIATION ADMINISTRATION AND
TRANSPORTATION SECURITY ADMINISTRATION,
RESPONDENTS
Consolidated with
03-1076
On Petitions for Review of Orders of the
Federal Aviation Administration and the
Transportation Security Administration
Kathy L. Krieger and John E. Wells argued the cause for
petitioners. With them on the briefs were Jonathan A.
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
Cohen, Arthur M. Luby, Roland P. Wilder Jr., and Katherine
A. McDonough. James W. Johnson entered an appearance.
E. Roy Hawkens, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief
were Peter D. Keisler, Assistant Attorney General, and Doug-
las N. Letter and Catherine Y. Hancock, Attorneys.
Before: ROGERS, TATEL, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Several unions representing aviation
workers challenge regulations promulgated by the Transpor-
tation Security Administration and the Federal Aviation Ad-
ministration to prevent individuals who pose security threats
from flying, repairing, or navigating airplanes in the United
States. After the TSA and FAA promulgated these rules,
Congress enacted a new law directing the agencies to accom-
plish this mission in a different way, prompting them to
pledge formally that they would no longer enforce the regula-
tions as written. Because these intervening events have
mooted the unions’ claims, we dismiss the petitions for re-
view.
I.
Recognizing that ‘‘the terrorist hijacking and crashes of
passenger aircraft on September 11, 2001, which converted
civil aircraft into guided bombs for strikes against the United
States, required a fundamental change in the way [the gov-
ernment] approaches the task of ensuring the safety and
security of the civil air transportation system,’’ Congress
enacted the Aviation and Transportation Security Act, Pub.
L. No. 107–71, 115 Stat. 597 (2001), to improve security in the
nation’s transportation system. H.R. CONF. REP. NO. 107–
296, at 53 (2001), reprinted in 2001 U.S.C.C.A.N. 589, 590. In
order to achieve this goal, Congress created the Transporta-
tion Security Administration within the Department of Trans-
portation and charged it with assuring ‘‘security in all modes
3
of transportation.’’ 49 U.S.C. § 114(d) (Supp. III 2003).
Under the Act, the TSA assumed responsibility not only for
day-to-day security screening at the nation’s airports, id.
§ 114(e), but also for receiving, assessing, and distributing
intelligence information concerning transportation security,
id. § 114(f)(1).
To address the possibility that pilots, aircraft mechanics, or
others working in civil aviation might engage in terrorist
activities, the Act requires the nascent agency to ‘‘establish
procedures for notifying the Administrator of the Federal
Aviation Administration TTT of the identity of individuals
known to pose, or suspected of posing, a risk of air piracy or
terrorism or a threat to airline or passenger safety.’’ Id.
§ 114(h)(2). The statute also directs the FAA to modify its
system for issuing airman certificates in order to make it
more effective at combating terrorism. Id. § 44703(g) (2000
& Supp. III 2003). Such certificates are required for individ-
uals who wish to work as pilots, flight instructors, aircraft
mechanics, or other civil aviation employees. One year after
creating the TSA, Congress transferred the agency to the
Department of Homeland Security, placing it under that
Department’s Under Secretary for Border and Transporta-
tion Security. See Homeland Security Act of 2002, Pub. L.
No. 107–296, § 424, 116 Stat. 2135, 2185 (codified at 6 U.S.C.
§ 234 (Supp. IV 2004)).
In January 2003, the TSA and FAA issued three new rules
designed to coordinate their efforts to keep dangerous indi-
viduals from infiltrating the commercial aviation system. See
Threat Assessments Regarding Citizens of the United States
Who Hold or Apply for FAA Certificates, 68 Fed. Reg. 3756
(Jan. 24, 2003) (codified at 49 C.F.R. § 1540.115); Threat
Assessments Regarding Alien Holders of, and Applicants for,
FAA Certificates, 68 Fed. Reg. 3762 (Jan. 24, 2003) (codified
at 49 C.F.R. § 1540.117); Ineligibility for an Airman Certifi-
cate Based on Security Grounds, 68 Fed. Reg. 3772 (Jan. 24,
2003) (codified at 14 C.F.R. §§ 61.18, 63.14, 65.14). Together,
these three rules—a TSA rule applicable to citizens, a TSA
rule applicable to non-citizens, and an FAA rule applicable to
both citizens and non-citizens—establish a system by which
4
the TSA determines whether any airman certificate holder (or
applicant for such certificate) poses a security threat. If the
TSA makes such a determination, it informs the FAA of the
threat, and the FAA in turn revokes or denies the certificate.
Specifically, TSA’s rules, codified at 49 C.F.R. § 1540.115 for
citizens and section 1540.117 for non-citizens, provide that
when TSA’s Assistant Administrator for Intelligence finds
that any individual is ‘‘suspected of posing, or is known to
pose’’ a security threat, 49 C.F.R. §§ 1540.115(c), 1540.117(c),
the agency will serve that person, as well as the FAA, with an
Initial Notification of Threat Assessment, id.
§§ 1540.115(e)(1), 1540.117(e)(1). The individual then has
fifteen days in which to request any ‘‘releasable materials’’ on
which the Initial Notification was based, meaning information
that is not classified or otherwise sensitive for security rea-
sons. Id. §§ 1540.115(e)(2), 1540.117(e)(2). The individual
may also file a written reply responding to the notification.
Id. §§ 1540.115(e)(4), 1540.117(e)(4). For citizens and aliens
(both resident and non-resident), TSA’s Deputy Administra-
tor then reviews the Initial Notification, any information
collected by the agency, and the individual’s reply to deter-
mine whether the individual poses a security threat. Id.
§§ 1540.115(f)(1), 1540.117(f)(1). In the case of alien certifi-
cate holders, the Deputy Administrator then decides whether
to issue a Final Notification of Threat Assessment or to
withdraw the Initial Notification. Id. § 1540.117(f). In the
case of citizen certificate holders, if the Deputy Administrator
determines that the individual poses a security threat, TSA’s
Administrator will conduct a separate, independent review of
the Initial Notification before issuing a Final Notification.
Id. § 1540.115(f)(2). Under the rules, the TSA must serve on
the FAA any Final Notification issued to either a citizen or
alien certificate holder. Id.; id. § 1540.117(f)(2). Although
acknowledging that in most cases the TSA will rely on
classified or otherwise sensitive information in determining
whether an individual poses a security threat, 68 Fed. Reg. at
3758, 3765, the rules provide that the TSA need not disclose
such information to the certificate holder, 49 C.F.R.
§§ 1540.115(g), 1540.117(g).
5
Under the FAA’s rule, any person deemed a security threat
by the TSA automatically becomes ineligible to hold an
airman certificate. 14 C.F.R. §§ 61.18(a) (pilots, flight in-
structors, and ground instructors), 63.14(a) (flight crewmem-
bers other than pilots), 65.14(a) (airmen other than flight
crewmembers). Thus, under this regulatory scheme, the
FAA will suspend the airman certificate of any person to
whom the TSA issues an Initial Notification of Threat Assess-
ment and then revoke the certificate upon the TSA’s issuance
of a Final Notification. See, e.g., 14 C.F.R. §§ 61.18(b)(2)
(suspension), 61.18(c)(2) (revocation).
Declaring that prior notice and comment would delay their
ability to keep dangerous persons from holding airman certifi-
cates, the TSA and FAA both found that section 553(b) of the
Administrative Procedure Act, which permits agencies to
issue rules without notice and comment when they find ‘‘good
cause’’ that ‘‘notice and public procedure TTT are impractica-
ble, unnecessary, or contrary to the public interest,’’ 5 U.S.C.
§ 553(b) (2000), excused advance public participation here.
See 68 Fed. Reg. at 3759 (TSA rule governing citizens), 3766
(TSA rule governing aliens), 3773 (FAA rule). Accordingly,
the agencies promulgated all three rules without notice and
comment and made each immediately effective upon adoption.
In March 2003, the Coalition of Airline Pilots Associations,
along with several labor organizations (collectively, ‘‘the Co-
alition’’), filed petitions for review that asserted facial chal-
lenges to all three rules insofar as they affect citizen and
resident alien airmen. (Challenges to these regulations inso-
far as they apply to non-resident alien airmen are resolved in
Jifry v. FAA, No. 03–1085 (D.C. Cir. June 11, 2004), issued
simultaneously with this opinion.) The Coalition claims that
the regulations violate the Fifth Amendment’s Due Process
Clause by failing to give affected airmen a meaningful oppor-
tunity to be heard at a meaningful time, that the rules are
unconstitutionally vague and overbroad, that the TSA and
FAA lacked statutory authority to promulgate the rules, and
that the agencies violated the APA by promulgating the rules
without prior notice and comment.
6
Nine months after the Coalition filed its petitions, Congress
enacted the Vision 100–Century of Aviation Reauthorization
Act, Pub. L. No. 108–176, 117 Stat. 2490 (2003). Significantly
changing the legal landscape for threat assessments and
certificate revocations, this new Act, in a section now codified
as 49 U.S.C. § 46111 (Supp. IV 2004), expressly requires the
FAA to amend, suspend, or revoke certificates in response to
TSA threat assessments:
The Administrator of the [FAA] shall issue an order
amending, modifying, suspending, or revoking any
part of a certificate issued under this title if the
Administrator is notified by the Under Secretary for
Border and Transportation Security of the Depart-
ment of Homeland Security that the holder of the
certificate poses, or is suspected of posing, a risk of
air piracy or terrorism or a threat to airline or
passenger safety. If requested by the Under Secre-
tary, the order shall be effective immediately.
Section 46111 also gives citizen airmen facing adverse certifi-
cate actions administrative appeal rights. Id. § 46111(b)-(g).
Specifically, affected citizen certificate holders are entitled to
a hearing on the record before an administrative law judge,
id. § 46111(b), an appeal to the Transportation Security
Oversight Board, id. § 46111(d), and the opportunity for
judicial review, id. § 46111(e). Section 46111 also ensures
that citizen airmen receive a written explanation for the
agency action and all relevant documents supporting adverse
certificate actions ‘‘to the maximum extent’’ permitted by
national security interests, id. § 46111(f), as well as an un-
classified summary of any classified information on which the
FAA Administrator’s order rests, id. § 46111(g)(3).
Days after the President signed section 46111 into law, the
government moved to dismiss as moot the Coalition’s chal-
lenge to the TSA and FAA rules. According to the govern-
ment, this newly enacted legislation, by requiring the two
agencies to provide more robust procedural protections for
citizen airmen, superseded section 1540.115 and rendered it
legally ineffective. The government also represented that
even though nothing in section 46111 requires the agencies to
7
adopt new procedures for non-citizens, the TSA and FAA
would nonetheless not only craft new regulations to provide
resident aliens with administrative and judicial review proce-
dures, but also cease applying the rules against resident
aliens in the interim. In view of these developments, the
government urged us to dismiss the Coalition’s petitions as
non-justiciable. The Coalition objected, and we deferred
consideration of the mootness issue until oral argument.
Coalition of Airline Pilots Ass’ns v. FAA, No. 03–1074 (D.C.
Cir. Jan. 15, 2004).
Two weeks before oral argument, on March 16, 2004, the
government informed us that the TSA had published its
previous representations to this court in its rulemaking dock-
ets. Its ‘‘Memorandum to the Dockets’’ provides:
Although new implementing regulations have not
been promulgated, the existing regulation governing
certificate suspension and revocation procedures for
citizens [49 C.F.R. § 1540.115] is no longer effective
as to citizens. This regulation has not been applied
by TSA, nor will it be applied by TSA, to citizens
because it does not comport with Congress’s new
statutory directive.
Although the new statute requires the FAA to take
immediate certificate action when requested to do so
by the Under Secretary [for Border and Transporta-
tion Security], it does not specify what appellate
procedures apply when TSA determines that a resi-
dent alien who holds an FAA airman certificate
poses a security threat. Nevertheless, the FAA and
TSA will develop new procedures that govern resi-
dent aliens. The new procedures will contain an
agency review process, followed by judicial review
based on the entire record. In the meantime, TSA
will not apply 49 CFR 1540.117 to resident aliens.
Memorandum to the Dockets, TSA Rulemaking Dockets Nos.
TSA–2002–13732 and TSA–2002–13733, Transportation Secu-
rity Administration, U.S. Department of Homeland Security
(Mar. 16, 2004), available at http://dmses.dot.gov/docimages/
p78/273780.pdf.
8
Then, just six days before oral argument, the government
filed a second post-briefing submission stating that the ‘‘FAA
and TSA intend to issue the permanent procedures pursuant
to notice and comment rulemaking.’’ Letter from E. Roy
Hawkens, Attorney, U.S. Department of Justice, to Mark J.
Langer, Clerk, U.S. Court of Appeals for the District of
Columbia Circuit (Mar. 24, 2004).
With a new statute on the books, a memorandum in the
rulemaking dockets, and new agency representations to the
court, we turn to the question of whether this case remains
justiciable.
II.
Article III, section 2 of the Constitution limits federal court
jurisdiction to cases or controversies, meaning that ‘‘a live
controversy must exist at all stages of review.’’ Nat’l Black
Police Ass’n v. District of Columbia, 108 F.3d 346, 349 (D.C.
Cir. 1997). We will thus ‘‘refrain from deciding [a case] if
events have so transpired that the decision will neither pres-
ently affect the parties’ rights nor have a more-than-
speculative chance of affecting them in the future.’’ Id.
(internal quotation marks omitted). Of significance to this
case, however, defendants cannot usually shelter their actions
from judicial scrutiny simply by claiming that they will stop
the challenged conduct. As the Supreme Court has ex-
plained, ‘‘voluntary cessation of allegedly illegal conduct does
not deprive the tribunal of power to hear and determine the
case, i.e., does not make the case moot’’ unless ‘‘(1) it can be
said with assurance that there is no reasonable expectation
TTT that the alleged violation will recur, and (2) interim relief
or events have completely and irrevocably eradicated the
effects of the alleged violation.’’ County of Los Angeles v.
Davis, 440 U.S. 625, 631 (U.S. 1979) (citations and internal
quotation marks omitted) (omission in original). Moreover,
the ‘‘burden of demonstrating mootness is a heavy one.’’ Id.
(internal quotation marks omitted).
Arguing that the two agencies’ commitment to refrain from
applying the challenged rules and 49 U.S.C. § 46111’s enact-
9
ment moot this case, the government urges us to dismiss the
Coalition’s petitions as non-justiciable. To assess this thresh-
old jurisdictional issue, we apply the mootness standard to
each of the Coalition’s claims. See Daingerfield Island Pro-
tective Soc’y v. Lujan, 920 F.2d 32, 37 (D.C. Cir. 1990)
(‘‘[C]laim specific analysis [is] required before we [can] say
that appellees have met the ‘heavy’ burden of demonstrating
mootness.’’ (citing Davis, 440 U.S. at 631)).
For its primary ground of attack, the Coalition contends
that by denying airman certificates without adequate notice
and opportunity to be heard, the rules violate the Fifth
Amendment’s procedural due process guarantee. For citizen
airmen, however, not only has the TSA formally pledged to
cease enforcing section 1540.115, but applying that regulation
would now be unlawful under 49 U.S.C. § 46111, which
requires far more robust procedural protections than are
available under the rule. See Schering Corp. v. Shalala, 995
F.2d 1103, 1105 (D.C. Cir. 1993) (finding moot a challenge to
an FDA interpretation letter giving the agency discretion to
define ‘‘bioequivalence’’ once the agency issued binding regu-
lations defining that term). With respect to resident aliens,
the agencies’ commitment to draft new regulations that will
provide additional administrative review procedures—a com-
mitment made both to this court and in the formal entry in
the TSA rulemaking dockets—provides sufficient assurance
that the agencies will never return to section 1540.117’s
allegedly unlawful procedures. See Ariz. Pub. Serv. Co. v.
EPA, 211 F.3d 1280, 1296 (D.C. Cir. 2000) (finding a chal-
lenge moot when ‘‘there is no indication that the [agency] will
revert to its past proposal’’). Given the agencies’ past prac-
tices, moreover, it seems highly unlikely that they would even
consider using the existing regulations. Indeed, the TSA has
never used section 1540.115 against a citizen. Because there
is thus no reasonable expectation that the alleged due process
violations will recur, the first element of mootness is satisfied.
We also think that interim events have completely eradicat-
ed the effects of the alleged due process violations—the
mootness test’s second element. Not only has Congress
wholly displaced section 1540.115 procedures, but TSA has
10
abandoned section 1540.117 with respect to resident aliens,
committing instead to provide them with greater procedural
rights. Given these events, ‘‘[a]ny opinion regarding [the]
rules would be merely advisory.’’ Nat’l Mining Ass’n v. U.S.
Dep’t of the Interior, 251 F.3d 1007, 1011 (D.C. Cir. 2001)
(finding moot a facial due process challenge to regulations
after the agency promulgated new ones because the old rules
‘‘cannot be evaluated as if nothing has changed’’).
For its second claim, the Coalition argues that the rules are
unconstitutionally vague and overbroad. As the Coalition
sees it, the rules fail to give fair warning of the conduct they
prohibit, delegate unfettered discretion to TSA officials, and
chill constitutionally protected expression. Insisting this
claim remains justiciable, the Coalition argues that 49 U.S.C.
§ 46111’s enactment not only fails to prevent likely recur-
rence of the asserted constitutional violations, but also, by
mandating certificate suspensions and revocations when the
government merely ‘‘suspects’’ a certificate holder of posing a
security threat, guarantees that the new rules will be uncon-
stitutionally vague and overbroad. We disagree.
To begin with, the alleged constitutional violations are
unlikely to recur. Because the agencies have promised to
issue their new rules through notice-and-comment proce-
dures, the Coalition will have every opportunity to push TSA
to clarify the kinds of conduct or risks the agency would
consider threats to air security. Indeed, Coalition counsel
acknowledged at oral argument that whether the statute
perpetuates an unconstitutionally vague regulatory regime
‘‘will depend on how the agency interprets the statute.’’ Tr.
of Oral Argument at 13. Moreover, intervening events—
section 46111’s enactment and the agencies’ representations
that they will refrain from enforcing the rules—have eliminat-
ed the effects of the allegedly vague and overbroad rules.
Emptied of legal effect, the challenged rules can neither chill
protected speech nor punish certificate holders based on
unclear standards of suspicion. Finally, to the extent the
Coalition is attacking section 46111, and not the rules them-
selves, we lack jurisdiction to consider such a claim. If the
Coalition wishes to challenge the new statute, it must do so in
11
the district court. Compare 28 U.S.C. § 1331 (2000) (district
courts’ original jurisdiction), with id. § 1291 (2000) (courts of
appeals’ appellate jurisdiction).
Next, the Coalition claims that the agencies exceeded their
statutory authority by effectively transferring FAA’s power
to suspend and revoke airman certificates to the TSA. We
are confident, however, that the agencies cannot repeat this
asserted violation, for as Coalition counsel acknowledged at
oral argument, Congress has now clearly authorized—indeed
required—the FAA to take immediate action when informed
by the TSA of a security threat. See 49 U.S.C. § 46111(a).
In other words, even if, as the Coalition alleges, the agencies
acted unlawfully in promulgating their rules, Congress has
wholly cured the problem. Combined with the agencies’
promise never to enforce the rules, Congress’s action moots
this claim as well.
We turn finally to the Coalition’s claim that issuing the
rules without advance public participation violated the APA’s
notice-and-comment requirement. See 5 U.S.C. § 553(b), (c).
Because the government has advised us that both agencies
intend to issue the permanent procedures pursuant to notice-
and-comment rulemaking, we have little trouble finding ‘‘no
reasonable expectation TTT that the alleged violation will
recur.’’ Davis, 440 U.S. at 631 (internal quotation marks
omitted) (omission in original). In addition, because the
challenged rules are now devoid of any legal effect and
because the agencies will use notice-and-comment procedures
to promulgate the revised rules, the TSA and FAA have
‘‘eradicated the effects of the alleged violation.’’ Id. Accord-
ingly, ‘‘nothing [would] turn[ ] on the outcome’’ of our review
of the Coalition’s notice-and-comment claim. Schering Corp.,
995 F.2d at 1105; cf. Natural Res. Def. Council, Inc. v. U.S.
Nuclear Regulatory Comm’n, 680 F.2d 810, 814 n.8 (D.C. Cir.
1982) (finding that an agency’s repromulgation of a chal-
lenged rule pursuant to notice-and-comment procedures
mooted a notice-and-comment challenge to that rule).
For the foregoing reasons, we conclude that the petitions
are no longer justiciable. At oral argument, Coalition coun-
12
sel, still concerned about ongoing effects of the regulations,
urged that we vacate the challenged rules with respect to
citizens and resident aliens even if we determine that a live
controversy no longer exists. Given the government’s re-
peated and unequivocal assurances that the regulations are
already effectively dead, however, we see no need to take this
additional step. Indeed, at oral argument, government coun-
sel not only reiterated that ‘‘there clearly is no operative
regulation,’’ Tr. of Oral Argument at 18, but also represented
that ‘‘the agencies have already vacated’’ the rules, Tr. of Oral
Argument at 24, Jifry v. FAA (No. 03–1085). Based on these
assurances that the agencies have effectively erased the
regulations as to both citizens and resident aliens, we dismiss
the petitions.
So ordered.