Julienne Busic v. TSA ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 20-1480 September Term, 2022
FILED ON: February 17, 2023
JULIENNE EDEN BUSIC,
PETITIONER
v.
TRANSPORTATION SECURITY ADMINISTRATION,
RESPONDENT
On Petition for Review of a Final Order
of the Transportation Security Administration
Before: KATSAS, RAO, and CHILDS, Circuit Judges.
JUDGMENT
This petition for review of an order of the Transportation Security Administration (“TSA”)
was presented to the court and briefed and argued by counsel. The court has afforded the issues
full consideration and has determined that they do not warrant a published opinion. See D.C. CIR.
R. 36(d). For the following reasons,
it is ORDERED and ADJUDGED that the petition for review be denied.
I.
In 1976, Julienne Busic and several others hijacked a plane, rerouting a Boeing 727 from
Chicago to Paris. See United States v. Busic, 592 F.2d 13, 16–18 (2d Cir. 1978). Along the way,
Busic’s gang repeatedly “threatened to kill” the passengers, all while one of the hijackers wore
what looked like a detonator and several bombs. Id. at 17–19. Those bombs were fake, but one of
the hijackers had placed real explosives in Grand Central Station. Id. at 16–17. After finding the
real bomb, police attempted to inspect it, but it exploded, killing one officer and injuring three
others. Id. at 18–19. Busic was convicted and received a life sentence for “aircraft piracy resulting
in the death of another person” and another sentence for “conspiracy to commit aircraft piracy.”
Id. at 16. Thirteen years into her sentence, Busic was released on parole.
Busic flew freely on commercial airlines for the following two decades. But that freedom
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ended in January 2009 when a gate agent refused to let Busic board a flight to the United States.
The agent claimed that U.S. authorities had flagged her passport and prohibited the airline from
seating her. Frustrated, Busic filed two “redress inquiries” with the TSA—the first in 2010 and the
second in 2015. The TSA eventually responded, telling Busic that she was on the No Fly List
because she “may be a threat to civil aviation or national security.” J.A. 264 (relying on 49 U.S.C.
§ 114(h)(3), which permits the TSA to “prevent [anyone] from boarding an aircraft” who “may be
a threat to civil aviation or national security”). After Busic unsuccessfully appealed the agency’s
decision, she petitioned for review, claiming the TSA’s actions were arbitrary and capricious and
that its redress procedures violated due process (among other things). We disagree, and thus deny
the petition for review.
II.
Although the parties agree Busic has standing, “the absence of [it] is a defect in this court’s
subject matter jurisdiction,” so we must consider it “at the outset.” Farrell v. Blinken, 4 F.4th 124,
129 (D.C. Cir. 2021). This court can review “order[s] issued” by the TSA Administrator and “set
aside any part of” them. 49 U.S.C. § 46110(a), (c). Previously, when the TSA lacked authority to
issue these types of orders, we held that petitions challenging No Fly List determinations presented
no redressable injury because we did not have the authority under 49 U.S.C. § 46110 to set those
orders aside. See Ege v. U.S. Dep’t of Homeland Sec., 784 F.3d 791, 793 (D.C. Cir. 2015). Under
the TSA’s current procedures, however, the TSA Administrator is tasked with “issu[ing] a final
order maintaining” or “removing” a traveler from the No Fly List. J.A. 300; see also Kashem v.
Barr, 941 F.3d 358, 391 (9th Cir. 2019) (observing this). Because the TSA Administrator now has
the authority to issue No Fly List determinations, we have jurisdiction to review Busic’s petition.
III.
Busic contends the TSA’s redress procedures violate due process, and she says the
agency’s No Fly List determination was arbitrary and capricious. She also maintains the TSA must
provide her with a full, unredacted copy of the administrative record. All three arguments fail.
A.
Busic first claims that her placement on the No Fly List is a violation of the Fifth
Amendment’s Due Process Clause. When determining whether administrative procedures satisfy
due process, we generally weigh three elements: (1) “the Government’s interest”; (2) “the private
interest”; and (3) “the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural safeguards.” Jifry v.
F.A.A., 370 F.3d 1174, 1183 (D.C. Cir. 2004) (quoting Mathews v. Eldridge, 424 U.S. 319, 335
(1976)). The results of this balancing cut decisively in the TSA’s favor.
To begin with, protecting national security is a government interest of the highest order.
“It is obvious and unarguable that no governmental interest is more compelling than the security
of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981) (quotation marks omitted). Specifically,
we have observed the government has an “interest[] in preventing pilots” and passengers “from
using civil aircraft as instruments of terror.” Jifry, 370 F.3d at 1183. Busic’s interest is less clear.
Although she enjoys “the right to travel,” see Haig, 453 U.S. at 306 (emphasis omitted), she “does
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not possess a fundamental right to travel by airplane,” Gilmore v. Gonzales, 435 F.3d 1125, 1137
(9th Cir. 2006) (emphasis added). And any interest that Busic has in air travel is invariably
“subordinate to national security and foreign policy considerations.” Haig, 453 U.S. at 306. The
TSA’s compelling interest in protecting national security outweighs Busic’s individual travel
preferences.
Turning to the third Mathews factor, Busic says the TSA’s interests in aviation security
“can be accomplished [by] using less restrictive means” or more robust procedural protections.
Pet. Br. 33–34. Given “the governmental interests at stake,” however, we think any “substitute
procedural safeguards” would be “impracticable.” Jifry, 370 F.3d at 1183. As the TSA
Administrator noted in the final order, alternatives to the No Fly List “cannot be 100 percent
effective against all potential threat[s].” J.A. 316. The TSA concluded that less restrictive means
may be insufficient to protect passengers and crews from another hijacking attempt. That is not a
threat the TSA must accept, nor is it one the Due Process Clause requires. See Olivares v. Transp.
Sec. Admin., 819 F.3d 454, 462 (D.C. Cir. 2016) (“[I]t is TSA’s job—not ours—to strike a balance
between convenience and security.”) (cleaned up). Therefore, Busic’s placement on the No Fly
List does not offend due process. See Kashem, 941 F.3d at 365.
B.
Busic next claims it was “arbitrary and capricious” for the TSA “to conclude that [she]
currently presents a threat to air transportation … simply because [she] engaged in one act nearly
50 years ago.” Pet. Br. 11–12.
Courts have limited competence in the area of national security, and therefore our role in
reviewing factual determinations in this context is “highly deferential.” Olivares, 819 F.3d at 462(quotation marks omitted). In a similar context involving the revocation of so-called “airman
certificates,” we have previously explained that “where no factual certainties exist or where facts
alone do not provide the answer,” an agency need only “so state and go on to identify the
considerations it found persuasive.” Jifry, 370 F.3d at 1180 (quotation marks omitted).
The TSA’s conclusion here was reasonable. In determining that Busic should remain on
the No Fly List, the Administrator noted Busic “[is] a convicted hijacker who participated in the
planning and hijacking of Trans World Airlines (TWA) Flight 355”—a hijacking that spanned
thirty hours, two continents, and ultimately resulted “in the death of one law enforcement official
and the injury of three others.” J.A. 304. Furthermore, Busic “openly admit[s] to [her] role in the
hijacking, including assisting with the planning of the incident” and placement of the bomb. Id.Based on these findings (and several others), the TSA reiterated its previous conclusion,
determining Busic posed “a threat of air piracy” and was therefore a risk “to civil aviation or
national security.” Id. That explanation satisfies our review with room to spare. See Jifry, 370 F.3d
at 1180; see also Olivares, 819 F.3d at 466.
C.
Finally, Busic argues the TSA must produce the full administrative record, even though
she recognizes it contains sensitive security information. Her claim is foreclosed by TSA
regulations.
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Congress vests the TSA Administrator with the authority to “prescribe regulations
prohibiting the disclosure” of certain sensitive information whenever the Administrator decides
that “disclosing [it] would … be detrimental to the security of transportation.” 49 U.S.C.
§ 114(r)(1). Pursuant to this authority, TSA promulgated a rule that generally prohibits the
disclosure of “information used by a passenger … screening program.” 49 C.F.R.
§ 1520.5(b)(9)(ii). The No Fly List is such a passenger screening program. Furthermore, only
“covered persons” may “access” the type of information used in such a program, unless the TSA,
Coast Guard, or Secretary of Transportation grants an exemption. See id. § 1520.9(a)(2). Taken
together, this regulatory framework compels a straightforward conclusion: because the
information Busic requests is part of a screening program, and because Busic is not a covered
person, she “has no statutory or regulatory right to access” the information she now seeks. Corbett
v. Transp. Sec. Admin., 767 F.3d 1171, 1183 (11th Cir. 2014) (rejecting a petitioner’s request for
sensitive security information because the TSA “determined” disclosure would be “detrimental to
the security of transportation”) (quotation marks omitted).
* * *
For the foregoing reasons, we deny the petition for review. The Clerk is directed to
withhold issuance of the mandate until seven days after resolution of any timely petition for
rehearing or petition for rehearing en banc. See FED. R. APP. P. 41(b); D.C. CIR. R. 41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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