Section 46111 of Title 49 of the U.S. Code mandates the FAA amend, modify, suspend or revoke any FAA certificates when it is notified by TSA that a certificate holder “poses, or is suspected of posing, a risk of air piracy or terrorism or a threat to airline or passenger safety.” The FAA’s implementing regulations are in subpart B of Title 14 of the Code of Federal Regulations (CFR). As a practical matter, due to the potential risk to aviation safety that follows being deemed a security threat, this virtually guarantees that the FAA will revoke all certificates held by that person.
The administrative regulations that pertain to TSA security threat assessments for airmen have a complicated history. They were adopted in 2003 without notice and the opportunity for the public to comment. Two groups challenged the regulations shortly after their enactment.
The first group was a coalition of pilot unions who took their case to the D.C. Circuit Court of Appeals, where the coalition raised several constitutional challenges as the regulations applied to U.S. citizens. But, due to a law adopted during the proceedings, the challenged regulations were rendered “legally ineffective." TSA then promised the regulations would be withdrawn and new regulations would be adopted for citizens and resident aliens. Despite this representation, the “legally ineffective” regulations are still in the books over 20 years later at 49 C.F.R. § 1540.115.
The second group, two non-resident aliens from Saudi Arabia, raised similar constitutional challenges to the sister regulation, 49 C.F.R. § 1540.117, applicable to non-citizens. This time, the D.C. Circuit Court of Appeals held the regulations were lawful, at least in part because there are no statutory protections for non-citizens.
As a result of those two cases, while the provision pertaining to U.S. citizens was rendered moot, whereas the provision pertaining to aliens is still in effect. To summarize the framework, if the pilot is a non-resident alien, he or she is generally without any meaningful right to appeal the security threat determination. But there is at least some redress available to U.S. citizens and arguably resident aliens, though it does not follow the typical appeal route through the National Transportation Safety Board (NTSB) like other FAA enforcement actions. In fact, in a recent decision, the NTSB reiterated it lacks the jurisdiction to hear such cases. Instead, the airman is entitled to a hearing through the TSA with an administrative law judge.
Because Section 1540.115 is “legally ineffective” and TSA has not adopted new regulations, the process for U.S. citizens appealing a security threat determination involves something called “Interim Redress Procedures." These procedures spell out the process TSA follows when determining a pilot a security threat, the information which is available, and the administrative review process. As these regulations are not not promulgated, they very are difficult to find and affected airmen generally only learn of them after being determined a security threat. Yet they must be carefully followed.
More concerning for affected airmen, much of the evidence relied on is classified and neither the airman nor legal counsel is entitled to review the classified information. Instead, they must rely on unclassified summaries of classified evidence to support their defense. This makes challenging the determination much more difficult.
After the administrative hearing, U.S. citizens (and possibly resident aliens) determined to be security threats are entitled to another layer of administrative review by the Transportation Security Oversight Board ("TSOB"). Here, at least, the TSOB has promulgated regulations governing the procedure for this stage of the appeal—but it took them until 2024 to do so. These regulations are found at 6 C.F.R. Part 126. Only after the TSOB appeal can a pilot appeal to the federal circuit courts.
While rare, a determination that a pilot poses a security threat carries significant consequences and, if not overturned, almost certainly means the end of their flying days. The process of challenging these decisions is murky at best, and finding experienced counsel is difficult. If you find yourself facing a security threat determination, AOPA is here to help. Members with Pilot Protection Services should contact the AOPA Legal Services Plan at 1-800-872-2672.
