NTSB Refuses to Review FAA "Security Threat" Revocations
Recently enacted FAR Section 61.18 disqualifies a person from holding a
certificate, rating or authorization issued by the FAA when the
Transportation Security Administration ("TSA") notifies the FAA in
writing that the person poses a "security threat".
Further, the FAA must "suspend any certificate, rating or authorization"
when the TSA issues an Initial Notification of Threat Assessment to the
certificate holder. This action can be taken on an emergency basis.
However, unlike enforcement actions that are based upon other sections
of the FAR's, no real appeal or review of the FAA's action is available
to a certificate holder when the certificate action is taken under FAR
Section 61.18. Yes, the certificate holder can still technically
appeal to the NTSB board. However, the appeal is an exercise in
In the meantime, the certificate holder can file a written reply with
the TSA responding the “security threat” determination. However, no
discovery is permitted nor is any other procedure provided for
investigating the basis upon which the TSA made its determination. The
reply is considered by the TSA and ultimately a final decision is
If the “security threat” assessment is removed, the Initial Notification
is withdrawn and the FAA removes the certificate suspension. If the
assessment remains, the FAA will then immediately seek revocation of
the certificate holder’s certificate on an emergency basis.
Based upon two recent cases in which the NTSB Board twice refused to
review the underlying basis for the TSA’s finding that the pilots were
“security threats”, whether the certificate holder appeals the
suspension or appeals the revocation, in either case the certificate
holder has little or no hope of success at the NTSB Board level.
In Blakey v. Jifry and Blakey v. Zarie,
the TSA issued Initial Notifications of Threat Assessment to the
certificate holders. The FAA sought emergency suspension of both
airmen’s certificates based upon the TSA’s determination that the
airmen posed a “security threat”. At the hearing, the law judge
granted the FAA’s summary judgment motion and suspended the airman’s
certificates. The law judge ruled that the “security threat”
assessment supported the suspension and that he did not have the
jurisdiction to review the validity of the TSA’s “security threat”
In the first appeal to the NTSB the Board, the Board affirmed the law
judge holding that “where, as in this matter, the Administrator has
incorporated in a regulation a judgment about the eligibility for
airman certification of a class of persons that another federal agency
has identified as presenting a risk to aviation security, the Board has
no authority to look behind that choice”.
Subsequently, when the TSA did not remove the “security threat”
assessment, the law judge granted the FAA’s summary judgment motion and
revoked the airman’s certificates. The airman again appealed to the
NTSB Board. In Blakey v. Jifry and Zarie, the airman requested that
the Board grant the airman a hearing on the factual basis for the TSA’s
threat assessment. However, the Board felt that the airmen’s appeal
rested upon the same grounds as their initial appeal and thus refused
to review its decision that it did not have the jurisdiction to engage
in a review of the TSA’s determination.
Interestingly, in its decision on the first round of appeals, the Board
raised two issues that could present avenues for appeal to the circuit
court. The Board stated: “Whether the Administrator’s regulation
represents a sustainable exercise of her rulemaking authority and
whether the TSA’s procedure for challenging a security threat judgment
accord individuals due process are questions reserved for the courts to
Thus, currently the only apparent way to challenge a “security threat”
assessment will be appeal to the federal appeals court arguing either
that the FAA exceeded its rulemaking authority when it adopted FAR
Section 61.18 or that the procedures used by the TSA to determine
whether a person is a “security threat” are unconstitutional because
they do not provide that person with any due process rights to discover
the basis for such an assessment or otherwise appeal the determination.
However, the U.S. House of Representatives passed a bill, The Century of
Aviation Reauthorization Act, H.R. 2115, which contains provisions
expressly granting appeal and review rights to an affected certificate
holder. The U.S. Senate passed a similar bill, S. 824. Both bills
were sent to conference committee to resolve differences between them.
Fortunately, the final bill emerging from the conference committee
retained the appeal and review provisions.
At this point, the final bill is set for signature by President Bush.
If the President signs the bill into law, at least mechanisms will be
authorized for appeal and review of adverse actions by the FAA and TSA.
Whether these mechanisms will be meaningful is yet to be determined.