Jifry v. FAA - 361 U.S. App. D.C. 450, 370 F.3d 1174 (2004)

Rule:

Section 553 of the Administrative Procedure Act requires an agency to publish a general notice of proposed rulemaking and to afford an opportunity for interested persons to participate in the rulemaking. 5 U.S.C.S. § 553(b), (c). The "good cause" exception, however, provides that when the agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, the agency need not engage in notice and comment.

Facts:

The two pilots, Jifry and Zarie, were 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. In 2002, the Transportation Security Administration ("TSA") sent letters to the respondent Federal Aviation Administration (FAA) requesting that Captain Jifry and Captain Zarie have their airman certificates revoked, for being a security risk to civil aviation or national security. The FAA notified Jifry and Zarie by letters 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. Respondent National Transportation Safety Board affirmed, and the FAA revoked the certificates. The pilots petitioned for review of the order, arguing that the regulations were unlawfully promulgated without notice and comment and were not supported by substantial evidence in the record. Moreover, the pilots asserted that the procedures provided by the regulations violated their due process rights under the Fifth Amendment to the Constitution.

Issue:

1. Was the revocation order in question promulgated without notice and comment?
2. Were the procedures provided by the regulations violative of the pilots’ due process rights under the Fifth Amendment to the Constitution?

Answer:

1) No. 2) No.

Conclusion:

The court rejected the pilots' challenges. Regarding the pilots' contention that the FAA regulations at issue were unlawfully promulgated without notice and comment, the pilots' Administrative Procedure Act challenges to 49 C.F.R. § 61.18 were not mooted by the enactment of the Vision 100 - Century of Aviation Reauthorization Act, 49 U.S.C.S. § 46111. However, under 5 U.S.C.S. § 553(b)(3)(B), the "good cause" exception to notice and comment rulemaking applied based upon the legitimate concern over the threat of future terrorist acts involving aircraft. Regarding the pilots' argument that the revocations were not supported by substantial evidence in the record, the court determined that there was substantial evidence to support respondent Transportation Security Administration's determination that the pilots were security risks. Regarding the pilots' argument that the procedures provided by the regulations violated their due process rights under the Fifth Amendment, the court determined that the pilots received all the process that they were due.