United States Court of Appeals, District of Columbia Circuit
Argued, March 27, 2014
On Petitions for Review of an Agency Decision of the Transportation Security Administration.
Joan M. Canny argued the cause and filed the briefs for petitioner.
Sharon Swingle, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the briefs were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen, Jr., U.S. Attorney, and Jeffrey E. Sandberg, Attorney.
Before: BROWN and PILLARD, Circuit Judges, and EDWARDS, Senior Circuit Judge. Opinion for the Court filed by Senior Circuit Judge EDWARDS.
Edwards, Senior Circuit Judge
These consolidated petitions concern proposed alternatives to security procedures mandated by the Transportation Security Administration (" TSA" ) and call on us to consider how much TSA must explain itself when it denies an aircraft operator's
application for such alternate security procedures.
In two letters to TSA, Petitioner Amerijet International, Inc. (" Amerijet" ) requested alternative cargo screening procedures at various foreign airports it services. TSA largely denied its requests, first in a letter sent in May 2013, then in a videoconference held in November 2013, and, lastly, in a letter sent in January 2014. Amerijet filed three petitions for review in this court challenging these three denials. Amerijet argues that TSA's denials fail for want of reasoned decisionmaking because TSA offered " no explanation" and failed to identify " facts or other support" for its decisions. Br. of Pet'r at 40. Amerijet also contends that TSA's actions resulted in a violation of Amerijet's right to equal protection of the law. Id. at 47-48.
Even under a highly deferential standard of review, TSA's denials were arbitrary and capricious as to most of Amerijet's requests. The record indicates that TSA failed to adequately explain most of its denials. And by saying too little, TSA has provided " no basis upon which we [can] conclude that [its denials were] the product of reasoned decisionmaking." Tourus Records, Inc. v. DEA, 259 F.3d 731, 737, 347 U.S.App. D.C. 262 (D.C. Cir. 2001). Because we have no meaningful basis upon which to evaluate TSA's decisionmaking, the " proper course . . . is to remand to the agency for additional investigation or explanation." Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985).
Our decision to remand excludes two issues that have been raised by Amerijet on appeal. First, in one of its requests, Amerijet sought an alternative procedure that included removing a TSA requirement that the shipper not tender the cargo " at the aircraft operator's facility." TSA granted this request only for perishable products and only for those products tendered at one particular location, not at all foreign locations as Amerijet requested. TSA explained that it did not have sufficient information about the Amerijet locations at issue to make the determination required by its regulations. TSA invited Amerijet to submit additional information, which agency officials did not receive before denying Amerijet's request. In these circumstances, the agency's action survives arbitrary and capricious review.
Second, Amerijet sought to amend training protocols set forth in an alternate procedure that TSA had approved in 2011. This alternate procedure expired in October 2013 during the pendency of Amerijet's request to amend it. Nothing remains at stake in a dispute over a proposed amendment to a document that no longer has legal effect. And with nothing at stake, we have no power to resolve the dispute. " Because the exercise of judicial power under Article III depends upon the existence of a case or controversy, a federal court may not . . . decide questions that do not affect the rights of parties properly before it." Edwards, Elliott & Levy, Federal Standards of Review 134 (2d ed. 2013) (citing North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). We therefore dismiss as moot Amerijet's request to amend training protocols.
Because we are remanding this case for further consideration by TSA, Amerijet's equal protection claim is presently unripe for review. We therefore dismiss this claim without prejudice.
A. Regulatory Framework
Congress has charged TSA with safeguarding the country's civil aviation security.
See 49 U.S.C. § 114(d)(1). This responsibility includes regulating the security of all-cargo flights. By statute, TSA administers a system " to screen, inspect, or otherwise ensure the security of all cargo that is to be transported in all-cargo aircraft." Id. § 44901(f).
Two tools TSA uses to protect the airways are security programs and security directives. In its security programs, TSA requires all-cargo aircraft operators like Amerijet to develop what is called a Full All-Cargo Aircraft Operator Standard Security Program. See 49 C.F.R. § § 1544.101(h)-(i), 1544.103, 1544.105. Each aircraft operator's security program must meet certain safety standards and be approved by TSA. Id. § 1544.103(a). And TSA requires that an aircraft operator implement the procedures " described in its security program to prevent or deter the carriage of . . . any unauthorized explosives, incendiaries, and other destructive substances or items in cargo onboard an aircraft." Id. § 1544.205(a).
On top of these security programs, TSA issues security directives. Security directives set forth mandatory security measures that, in TSA's judgment, are " necessary to respond to a threat assessment or to a specific threat against civil aviation." Id. § 1544.305(a). Aircraft operators generally must implement the ...