REMARKS / D.C. Circuit Court of Appeals upholds Transportation Security Administration’s imposition of $18,000 fine on certified air carrier for its failure to implement security measures included in its security plan earlier approved by the TSA. Comment: Note D.C. Circuit’s deference to TSA on certified air carrier’s petition for review. This is another step toward TSA as a U.S. Department of Homeland Security agency becoming more “regulatory” in character, and poses the question of whether or not TSA will be marked by “enforcement ambiguity” versus a predictable regime of sticks to supplement the carrots.

Suburban Air Freight, Inc. v. Transportation Security Administration, No. 12-1171 (U.S. Court of Appeals for the D.C. Circuit, June 14, 2013). Copy of court-issued opinion available here.

Legal Take-away:

Certified air carrier (“indirect” air carrier) conduct to which TSA objected under the carrier’s security plan:

“On October 6, 2009, a TSA inspector visited Richmond International Airport and observed the loading of a Suburban flight transporting packages for DHL International Express, an “Indirect Air Carrier” with its own TSA-approved security plan. The flight was a “single pilot” operation, meaning that the pilot was the only crew member. The cargo-loading area at the Richmond Airport is inside the airport’s secured area, which only individuals with airport-issued IDs and their guests may enter. Because the DHL employees delivering packages to Suburban had airport-issued badges but the Suburban pilot did not, DHL employees escorted the pilot into the secured area. In the pilot’s presence, the DHL employees then proceeded to load the packages onto the plane.

The TSA inspector was not satisfied. He observed that no Suburban employee or authorized representative ever checked the pilot’s identification. Instead, the pilot indicated that he had “verified his own ID.” The inspector also noted that the pilot failed to keep a constant watch on the loading process— at times even standing with his back to the aircraft—and then failed to inspect the cargo after loading was complete.4

As a result, TSA charged Suburban with violating the ID- check and custody-and-control provisions of its TFSSP. Suburban disputed both alleged violations. Alternatively, it argued that the October 6 flight did not qualify as a twelve- five operation and was therefore not subject to the TFSSP’s requirements because the flight carried no “cargo” within the meaning of the regulations. After a hearing, an administrative law judge found that the TFSSP applied and that Suburban had in fact committed both alleged violations. Accordingly, he imposed an $18,000 fine. Suburban filed an intra-agency appeal, and a TSA Administrator affirmed the ALJ’s decision in all respects.”

Court rejects all three of certified air carrier’s arguments and appears to defer to the TSA determination.

Practical Take-away:

Don’t count on a court’s hyper-technical regulatory review as a shield against negative TSA determinations about security plan implementation.