United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 3, 2006 Decided July 3, 2007
No. 05-1225
TRANSPORTATION WORKERS UNION OF AMERICA, AFL-CIO,
PETITIONER
v.
TRANSPORTATION SECURITY ADMINISTRATION,
RESPONDENT
On Petition for Review of an Order of the
Department of Homeland Security
Hal K. Gillespie argued the cause for petitioner. With him
on the briefs was Richard S. Edelman.
Jeffrica Jenkins Lee, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief were
Peter D. Keisler, Assistant Attorney General, and Michael Jay
Singer, Attorney.
Before: GARLAND and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
2
BROWN, Circuit Judge: This case involves a procedural
challenge to the Transportation Security Administration’s recent
Legal Guidance on Criminal History Record Checks. The
guidance is TSA’s latest attempt to define the term “conviction,”
since both statute and regulations bar people with disqualifying
criminal convictions from working in sensitive positions at
airports, but neither statute nor regulations define the term. We
do not reach the merits. The Transportation Workers’ Union
cannot show a causal link between the action it challenges
(issuing the new guidance without notice and comment) and the
injury it suffered (a Union member losing his job). Without
causation, the Union lacks standing and we lack jurisdiction.
I
Congress answered the terrorist attacks of September 11,
2001 in part with the Aviation and Transportation Security Act,
which created a new federal agency, the Transportation Security
Administration, to oversee a toughened security regime for
airports and air traffic. Pub. L. No. 107-71, 115 Stat. 597 (2001)
(codified in part at 49 U.S.C. § 44936 et seq.). The Act requires
“an employment investigation, including a criminal history
record check” for any airport or airline employee or prospective
employee with “unescorted access . . . to (i) aircraft . . . or (ii) a
secured area of an airport . . .”; if an employee or applicant
proves to have been “convicted (or found not guilty by reason of
insanity)” of a listed crime within the preceding ten years, he
may not be hired or must be fired or transferred to a less
sensitive position. 49 U.S.C. § 44936(a)-(b). TSA was to issue
regulations accordingly, id., and did so in February 2002, 67
Fed. Reg. 8340 (Feb. 22, 2002) (codified in part at 49 C.F.R.
§§ 1542.209, 1544.229, .230). But neither statute nor regula-
tions defined the term “conviction,” and “[t]he word . . . is a
chameleon,” Harmon v. Teamsters Local Union 371, 832 F.2d
976, 978 (7th Cir. 1987), with different meanings in different
3
states, Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112
(1983) (noting “varying state laws, procedures, and definitions
of ‘conviction’”), under different federal statutes, id. at n.6 (“To
be sure, the terms ‘convicted’ or ‘conviction’ do not have the
same meaning in every federal statute.”), and even in different
contexts in the common law, Lewis v. Exxon Corp., 716 F.2d
1398, 1400 (D.C. Cir. 1983) (“Under the common law, the term
‘conviction’ has, and continues to have, one of two accepted
meanings . . . .”). As airports and airlines audited current and
prospective employees, TSA received question after question:
Does federal or state law govern the definition of “conviction”?
How should we regard a deferred adjudication? What if charges
were dropped following completion of a first offender program?
And so on.
For some months, TSA responded to these questions
individually. But in May 2003, without prior notice and
comment, TSA published on its website a document entitled
“Legal Guidance on Criminal History Records Checks” (2003
Guidance), aimed at “provid[ing] information for decision
makers involved in adjudicating background checks on individu-
als with unescorted access authority at our nation’s airports.”
Under the heading “What Is a Conviction?” the 2003 Guidance
explains that federal, not state law determines whether a
defendant was “convicted,” and notes among its examples that
deferred adjudication, with probation, after a guilty plea, counts
as a conviction for purposes of the Act and regulations. States
sometimes use this or similar plea arrangements to keep minor
or first-offender crimes off someone’s criminal record. See, e.g.,
Davis v. State, 968 S.W.2d 368, 370 (Tex. Crim. App. 1998)
(describing “the main benefit of deferred adjudication” as its
“record-cleansing effect”). Perhaps in recognition of that fact,
the 2003 Guidance’s first footnote (Footnote One) states: “In
some cases, a defendant may be advised by a court that he or she
has not entered a plea that constitutes a conviction under state
4
law. In such cases, TSA will not consider the offense to be
disqualifying if the applicant can provide sufficient proof of the
court’s advice, generally in the form of a certified copy of the
court proceeding transcript.” In May 2004, again without notice
and comment, TSA issued on its website an updated “Legal
Guidance on Criminal History Records Checks” (2004 Guid-
ance). The differences between the 2003 and 2004 Guidance
were on the whole slight, but Footnote One was gone. “[N]o
individual had produced a certified trial transcript or other
documentation” taking advantage of it, TSA’s brief explains.
Respondent’s Br. 11.
Jose Valle, an American Airlines stock clerk with
unescorted access to secure areas, pled guilty in Texas in 1998
to felony aggravated assault with a deadly weapon (arising from
a domestic dispute with his wife), and in exchange received
deferred adjudication with four years community supervision,
which he completed without incident. American Airlines
learned of the deferred adjudication in 2002, but did not
construe it at that time as a “conviction” within the meaning of
49 U.S.C. § 44936 or 49 C.F.R. §§ 1542.209, 1544.229.
American Airlines might have reconsidered in 2003—since at
first glance, at least, Valle’s deferred adjudication counts as a
conviction under the 2003 Guidance—but it did not. American
Airlines didn’t revisit the issue until 2005, when it audited some
of its employees’ criminal history records (applying, naturally,
the 2004 Guidance) and suspended Valle without pay “due to
[his] inability to hold unescorted [Secure Identification Display
Area] access, an Essential Job Function of [his] position.”
Memorandum from American Airlines to Jose Valle (Mar. 24,
2005) (Petitioner’s App. 21). The suspension memo gave no
further explanation and made no reference to any statute or
regulation.
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Valle gave the letter to his union, the Transportation
Workers Union, which wrote American Airlines asking for
documents relating to the suspension. One of the documents
American Airlines sent was the 2004 Guidance. “This was the
first time,” the Union explains, “that TWU ever saw the May
2004 Guidance Memorandum and the first time that TWU
became aware of it.” Petitioner’s Br. 4 (emphasis in original).
Sixty days later, the Union brought this challenge to TSA’s
rulemaking pursuant to the Aviation and Transportation Security
Act, 49 U.S.C. § 46110(a) (“[A] person disclosing a substantial
interest in an order issued by the [TSA] . . . may apply for
review of the order by filing a petition for review in the United
States Court of Appeals for the District of Columbia Cir-
cuit . . . .”).
II
This case turns on the causation prong of Article III
standing. The three-part test for standing described in Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992), requires (1)
injury in fact, (2) causation, and (3) redressability. The causa-
tion requirement concerns the link “between the injury and the
conduct complained of”; the second is some legal wrongdoing
(a bullet fired with ill intent, an investor tricked) and the first its
alleged result (a loss of life or property). Id.; see also Allen v.
Wright, 468 U.S. 737, 753 n.19 (1984) (defining and contrasting
causation and redressability). We must, then, be very clear
about what conduct and injury the Union puts at issue, for
although standing is an anterior question of jurisdiction, the grist
and elements of our jurisdictional analysis require a peek at the
substance of plaintiff’s arguments. See Allen, 468 U.S. at 752
(“Typically . . . the standing inquiry requires careful judicial
examination of a complaint’s allegations to ascertain whether
the particular plaintiff is entitled to an adjudication of the
particular claims asserted.”); Warth v. Seldin, 422 U.S. 490, 500
6
(1975) (“Although standing in no way depends on the merits of
the plaintiff’s contention that particular conduct is illegal, it
often turns on the nature and source of the claim asserted.”
(internal citation omitted)).
The Union challenges the issuance of the 2004 Guidance,
but not on the usual ground that the 2004 Guidance’s definition
of “conviction” is arbitrary, contrary to statute, or in excess of
TSA’s statutory authority, 5 U.S.C. § 706(2)(A), or that the
definition constitutes a “legislative rule” or “substantive rule,”
which would require notice and comment, rather than an
“interpretive rule,” which would not, compare 5 U.S.C. § 553(b)
with id. § 553(d); see also Appalachian Power Co. v. EPA, 208
F.3d 1015, 1024 (D.C. Cir. 2000) (distinguishing legislative and
interpretive rules). Indeed, the Union concedes that the 2003
and 2004 Guidances were interpretive. Petitioner’s Br. 10, 18.
The Union instead relies on a line of cases holding that an
agency cannot significantly change its position, cannot flip-flop,
even between two interpretive rules, without prior notice and
comment. See Alaska Prof’l Hunters Ass’n, Inc. v. FAA, 177
F.3d 1030, 1033-34 (D.C. Cir. 1999) (requiring notice and
comment before the FAA could reverse a decades-old interpreta-
tion of its commercial pilot regulations in Alaska); Ass’n of Am.
R.R. v. Dep’t of Transp., 198 F.3d 944, 950 (D.C. Cir. 1999)
(recognizing general requirement of notice and comment before
revising established rules, but permitting an initial period of
revision before rules become established); Paralyzed Veterans
of Am. v. D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997)
(“Once an agency gives its regulation an interpretation, it can
only change that interpretation . . . through the process of notice
and comment rulemaking.”). Thus, the “conduct complained
of” here is the procedural wrong of switching from the 2003 to
2004 Guidance without notice and comment. The injury alleged
is Valle losing his job. (The Union abandoned any claim of
injury to itself and standing in its own right when it conceded in
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oral argument that “its only claim to standing is through
[Valle].” Oral Arg. at 13:10; see also Warth, 422 U.S. at 511.
With standing only as Valle’s representative, if at all, the Union
must show injury to him. See Hunt v. Wash. Apple Adver.
Comm’n, 432 U.S. 333, 343 (1977).) We come, then, to a single
question: Did the change from the 2003 to 2004 Guidance
without notice and comment cause Valle to be fired?
The fundamental problem with the Union’s standing claim
is that, absent the 2004 Guidance, Valle’s deferred adjudication
would have constituted a conviction and cost him his job
anyway. The 2003 Guidance and 2004 Guidance are alike in
almost every relevant respect. In particular, both make deferred
adjudication and community supervision following a plea of
guilty or no contest a “conviction” within the meaning of 49
U.S.C. § 44936 and 49 C.F.R. §§ 1542.209, 1544.229, and
1544.230. The only arguably relevant difference between the
pair is the 2003 Guidance’s revoked Footnote One, promising
that “TSA will not consider the offense to be disqualifying” if a
court advised the defendant “that he or she has not entered a plea
that constitutes a conviction under state law,” provided the
defendant “can provide sufficient proof of the court’s advice,
generally in the form of a certified copy of the court processing
transcript.” As both parties agreed at oral argument, Valle has
standing if he can claim this footnote’s shelter, and lacks it if he
cannot. Oral Arg. at 2:37, 13:01, 30:23.
This petition comes to us directly under 49 U.S.C.
§ 46110(a) without any prior evidentiary hearing before TSA or
American Airlines—in part because Footnote One had been
dead for a year by the time Valle was fired, and neither he nor
the Union had any reason to invoke its protection had they
known of it. So we must ourselves apply Footnote One to
Valle’s claim, with no factual findings (or opportunity to get
them on remand) concerning the advice Valle did or didn’t get
8
from a Texas court. This happens from time to time in agency
cases, and we have established that the petitioner bears the
“burden of production in the court of appeals” and “must
support each element of its claim to standing ‘by affidavit or
other evidence.’” Sierra Club v. EPA, 292 F.3d 895, 899 (D.C.
Cir. 2002) (quoting Defenders of Wildlife, 504 U.S. at 561). The
two highly problematic snippets of evidence the Union presents
plainly fall short of the standard of proof Footnote One requires.
Footnote One is conditional: An offense is not disqual-
ifying if the employee or job applicant can provide “sufficient
proof”—on the order of a certified court transcript—that a court
said the plea did not count as a conviction under state law. The
Union has not submitted a certified court transcript. We have
instead Valle’s own sworn affidavit from 2006, stating:
Prior to agreeing to accept the state’s plea bargain, my
attorney advised me that if I entered into the agreement and
successfully completed a period of community supervision,
my plea would not be considered a conviction under Texas
state law. Though I did not hear that information directly
from the court, I understood that my attorney was relaying
information to me that the court had specifically provided
to him to give to me. If I had not been advised by the court,
through my attorney, that my plea would not constitute a
conviction under Texas state law, I would not have entered
into the plea bargain agreement.
TSA argues Valle fails Footnote One because he was, by his
own admission, advised of his conviction status by his lawyer
rather than the court. At the very least, we agree that a party’s
self-interested claims about what a judge told him (or rather, a
party’s self-interested claims about what a lawyer told him about
what a judge told the lawyer) are far less reliable than a certified
transcript where we can read what the judge actually said.
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Footnote One requires the latter or its evidentiary equivalent.
At oral argument, the Union’s counsel offered—for the first
time—a second piece of evidence. Oral Arg. at 2:58. Referring
the court to the Texas Code of Criminal Procedure’s provision
governing deferred adjudication (never cited in the briefs),
counsel pointed out language requiring that “[a]fter placing the
defendant on community supervision under this section, the
judge shall inform the defendant orally or in writing of the
possible consequences . . . of a violation of community super-
vision.” TEXAS CODE CRIM. PROC. ANN. art. 42.12. § 5. We are
asked to infer, on this slim basis, that the judge in Texas
informed Valle of the fact that his plea would not constitute a
conviction under state law. Even were we willing to do so, the
argument comes too late. See Sierra Club v. EPA, 292 F.3d 895,
900 (D.C. Cir. 2002) (“[A] petitioner whose standing is not self-
evident should establish its standing by the submission of its
arguments and any affidavits or other evidence appurtenant
thereto at the first appropriate point in the review proceed-
ing. . . . [A]n argument first made in the reply comes too late.”
(internal quotation marks and citation omitted)).
One could object, although counsel assumes the point rather
than arguing it, that the causation question is answered simply
by noting that Valle had a job and lost it when the 2004 Guid-
ance was applied to him. He was fired, one could say, because
of the 2004 Guidance, and therefore the 2004 Guidance was the
cause of his injury—QED. But this argument makes too little of
the particular claim the Union advances. The question is not
whether the 2004 Guidance caused Valle to be fired but whether
the change from the 2003 to 2004 Guidance caused Valle to be
fired. The change caused nothing, for, were every word
distinguishing the 2003 and 2004 Guidances to be erased, Valle
would be fired just the same and for just the same reason.
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***
The petition is therefore
Denied.