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DC Circuit Sides With Gov't in TSA/Flight School Case

By Jonathan R. Tung, Esq. on April 26, 2016 | Last updated on March 21, 2019

Unless the petitioner appeals to a higher power (SCOTUS, that is), it appears that the battle is over between a Venezuelan man and the TSA concerning his denial into flight school. The reasons for the denial? Security concerns. Of course, this raises several issues of due process.

Can the TSA block access to flight school based on what the lower court called "absurd" justifications? Apparently, yes.

Background of Mr. Olivares

Mr. Alberto Ardila Olivares is a foreigner from Venezuela who, in 2014, applied to take flight certification classes at an FAA-approved school in France to fly large commercial U.S. aircraft. But after conducting a review of his background, the TSA denied his application and declared that Mr. Olivares was a potential national security danger. Mr. Olivares petitioned his denial under the Administrative Procedure Act (APA).

5 USC sec. 555 -- it's All About Timing

Olivares may have enjoyed relief from his denial by the TSA/FAA had it not been for some internal communications that appeared to have been conducted post hoc -- in other words, after his denial was issued. The internal documents were verifiable by sworn declaration by Andrea Vara, the TSA official who was instrumental in denying Olivares' application. Although Olivares might have had the case remanded back to lower court for "abuse of discretion," the production of the documents necessitated the DC Circuit to consider them in its review.

"No New Rationalizations"

Consideration revealed to the court that the agency has based its decision on a "reasoned and contemporaneous" justification, and that the documentation was not cooked up after the fact to justify Mr. Olivares' denial: they were "explanatory of the original record." The only thing that was post hoc about the documents was their delay to the court, not the content within.

The court did offer a warning to future parties, however. Future "scofflaw" behavior in which the explicit charge of 5 USC sec. 555 would not be tolerated. Courts may use their discretion in turning the screws on agencies over noncompliance with procedural rules.

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