[SOLVED] Olivares v. Transportation Security

Olivares v. Transportation Security Administration
United States Court of Appeals, District of Columbia Circuit, 819 F.3d 454 (2016).
I. BACKGROUND
In the aftermath of the tragic terrorist attacks on September 11, 2001, Congress created the Transportation Security Administration [TSA] to shore up our nation’s civil aviation security. [TSA is part of the U.S.] Department of Homeland Security under the direction of the Secretary of Homeland Security. No pilot may serve in any capacity as an airman with respect to a civil aircraft without an airman certificate from FAA [Federal Aviation Administration].
For large aircraft, pilots must obtain additional certification known as a Type Rating. [Under the Aviation and Transportation Security Act of 2001,] aliens [foreign pilots] who seek training and certification to operate large, U.S.- registered aircraft must first secure clearance by TSA. If TSA determines that an alien applicant presents a risk to aviation or national security, then that applicant is ineligible to receive the training necessary to secure a large aircraft Type Rating from FAA. [Alberto Olivares (Petitioner), a citizen of Venezuela,] received [an] opportunity to pilot a large, U.S.-registered aircraft. Petitioner applied to attend an FAA-certified flight school in France, and TSA conducted a background investigation. TSA concluded that Petitioner was a “Threat to Transportation/ National Security” [and] sent an email to Petitioner denying his application. Petitioner filed his petition for review with this court. Andrea Vara executed a sworn declaration explaining TSA’s grounds for denying Petitioner’s application for training. Ms. Vara is employed by [TSA] as the Alien Flight Student Program Manager. She has been responsible for managing TSA’s Alien Flight Student Program, which conducts security threat assessments on individuals who are not U.S. citizens or nationals who seek flight instruction or recurrent training from FAA-certified flight training providers.
The Vara Declaration makes it clear that Ms. Vara was the Government official who made the determination that Petitioner’s application should be denied. The Vara Declaration states: Petitioner submitted Training Request # 565192, seeking to train at Flight Safety International—Paris Learning Center. Petitioner was subject to an investigation, which revealed the following. In 2007, Petitioner pled guilty to conspiracy to possess with intent to distribute controlled substances and the U.S. District Court for the Northern District of Illinois sentenced him to eighty (80) months imprisonment. Petitioner’s conviction made him inadmissible to the United States and led to the revocation of his FAA Airman’s Certificate.
Petitioner was deported to his home country of Venezuela in March 2010. A public news article published after Petitioner was deported provided a U.S. address for Petitioner. Further, records indicated that Petitioner was a suspected international trafficker in firearms. There was evidence that Petitioner had previously been involved in the export of weapons and U.S. currency to Venezuela by private aircraft, was the second pilot of an aircraft from which several weapons and $500,000 was seized by local authorities in Aruba, and that one of his associates was arrested in Aruba for smuggling firearms.
This information, viewed as a whole, demonstrated Petitioner’s willingness to consistently disregard the law and to use an aircraft for criminal activity, in opposition to U.S. security interests. The information also raised concerns that Petitioner may use his flight training to advance the interests of a criminal enterprise, which could include an enterprise that seeks to do harm to the United States. Based on all the foregoing information, I concluded Petitioner posed a threat to aviation and national security and denied his training request.
II. ANALYSIS
A. THE COURT’S JURISDICTION
An action taken by TSA on behalf of the Secretary of Homeland Security is clearly subject to review.
B. STANDARD OF REVIEW
Pursuant to the Administrative Procedure Act, we must uphold TSA’s decisions unless they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. What is important here is that, because Congress has entrusted TSA with broad authority over civil aviation security, it is TSA’s job—not ours—to strike a balance between convenience and security. Therefore, in cases of this sort, we must defer to TSA actions that reasonably interpret and enforce the safety and security obligations of the agency.
Courts do not second-guess expert agency judgments on potential risks to national security. Rather, we defer to the informed judgment of agency officials whose obligation it is to assess risks to national security. [Emphasis added.]
D. PETITIONER’S CLAIM
Petitioner argues that TSA should not have used his suspected firearms trafficking or his Massachusetts address to support its decision. [TSA had discovered that, even though Olivares had been deported with no right to return to the United States, he maintained a local address in Massachusetts.]
Petitioner claims that the Massachusetts address actually belongs to his brother, and Petitioner insists that he has never illegally entered the United States. Petitioner also points out that the firearms incident occurred nearly two decades ago and that he was merely suspected of being involved. In light of the limited standard of review that controls the disposition of this case, these arguments are not persuasive.
It was rational for TSA to find it suspicious and thus consider information indicating that a deported individual appeared to maintain a current U.S. address and had been suspected of involvement in firearms trafficking. The agency’s weighing of this information, along with the information regarding Petitioner’s known criminal history, was not inconsistent with reasoned decision making. Given TSA’s broad authority to assess potential risks to aviation and national security, the agency’s clear and reasonable explanation offered in the Vara Declaration, and the limited standard of review [under the holding in the Chevron case], we are in no position to second-guess TSA’s judgment in denying Petitioner’s application. In assessing risks to national security, conclusions must often be based on informed judgment rather than concrete evidence, and that reality affects what we may reasonably insist on from the Government.
When it comes to collecting evidence and drawing factual inferences in this area, the lack of competence on the part of the courts is marked, and respect for the Government’s conclusions is appropriate. Where no factual certainties exist or where facts alone do not provide the answer we require only that the agency so state and go on to identify the considerations it found persuasive. It is self-evident that TSA’s action against Petitioner was related to the agency’s goals of improving the safety of air travel.
TSA was not required to show that Petitioner would engage in activities designed to compromise aviation or national security. Rather, the agency was merely required to give a reasonable explanation as to why it believed that Petitioner presented a risk to aviation or national security. The Vara Declaration satisfies this legal obligation. [Emphasis added.]
III. CONCLUSION
For the reasons set forth above, the petition for review is denied.
Legal Reasoning Questions 1. What impact did the Vara Declaration have on the court’s ruling in this case?
2. Is a court’s evaluation of an agency’s assessment of a risk to national security different from a review of other agency determinations? Explain.
3. Should the agency at the center of this case have revealed the reasons for its decision before Olivares filed a suit challenging it? Explain.

Question: Olivares v. Transportation Security